In a surprising development, General Michael Flynn has (for now) won his bid to have an appeals court order Judge Emmet Sullivan to dismiss his case without any further hearing. As predicted, Judge Rao was on Flynn’s side and Judge Wilkins was prepared to deny the petition. What was not predicted was that Judge Henderon signed onto Judge Rao’s opinion.
When the panel was first assigned I thought it would be a 2-1 decision for Flynn. Then I heard the oral argument and was convinced that it would be 2-1 against Flynn.
So far this is looking like 2-1 but not the way I thought. I didn't give Judge Henderson enough credit. Whereas it appears I gave Judge Rao precisely the credit she is due.
— Patterico (@Patterico) June 12, 2020
Well, as it turns out, my initial gloomier prediction indeed gave Judge Henderson precisely the credit she was actually due. We knew she and Rao were both hacks from the Trump tax cases, but listening to that oral argument, although I knew Judge Henderson was strangely swayed by Flynn’s view of the merits, I truly never thought her hackishness would go this far. She seemed very clear that she was against granting the writ. Very clear. As I said in a post predicting the opposite of what happened today:
A prediction is a prediction. People get predictions wrong, and I suppose Judges Henderson and Wilkins could have spent the argument sounding like firm votes against Flynn, and then could turn around and write an opinion vindicating everything he said and granting the petition. I sincerely doubt that will happen, but it could.
As to Judge Henderson, it did. Although she didn’t write the opinion. she signed onto it. She spent virtually the entire argument making the case for how crazy it would be to deny Judge Sullivan the chance to at least hold the hearing, and then signed on to an opinion ordering him … not to hold the hearing.
So now what? Well …
A friendly reminder that any active judge on the D.C. Circuit can ask the full Court of Appeals to vote whether to rehear a panel decision “sua sponte”—that is, even without any party formally petitioning for such an “en banc” rehearing.
— Steve Vladeck (@steve_vladeck) June 24, 2020
I should have stayed out of the prediction business with this panel decision, and I should not be making further predictions on the case, but here is my prediction on the case. The full court will stay this order, rehear the case en banc, and reverse the decision.
As before, I could be wrong. I was this time.
But wasn’t Judge Rao correct? It’s a pointless exercise to hold a hearing. After all, it’s not like the Trump administration puts its thumb on the scale to benefit the President’s cronies, right?
Which brings us to our second story of the day. Aaron Zelinsky, one of the Roger Stone prosecutors, will be testifying today before Congress, and yesterday released his opening statement. For those few left who care about the rule of law, it’s an eye-opener. You should read it all, but these passages caught my eye:
We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.
However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone –that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range.
. . . .
In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.
We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice and that we felt that was an important principle to defend.
. . . .
Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”
In my judgment, similar considerations played a role in the highly unusual reversal in Flynn’s case as well. Such rank corruption could well justify a district judge’s decision to refuse to dismiss a case where the guilty plea had already been accepted.
But Judge Sullivan will not be allowed to have that hearing.
And he may never get a chance to have that hearing. The Court of Appeals might deny en banc review. And the Department of Justice may be allowed to continue to stomp on the rule of law.