While there is no set time limit for a vote, we should know the answer within about 10 days. And if we haven’t heard by then, here's what it most likely means.
Judge Emmett Sullivan has no business seeking a rehearing by the full D.C. Circuit Court of Appeals of the panel decision granting Michael Flynn’s petition for mandamus. Both Flynn’s attorney, Sidney Powell, and the U.S. government hammered that point yesterday in their answers to Sullivan’s petition for rehearing en banc.
Powell had sought mandamus from the D.C. Circuit after Sullivan refused to dismiss the criminal charge against her client. After uncovering exculpatory evidence Special Counsel Robert Mueller’s team had withheld from Flynn’s defense attorneys, federal prosecutors moved to dismiss the single charge of lying to the FBI that the special counsel’s office had levied against Flynn in late 2017.
That evidence included notes establishing the FBI had no legitimate investigative purpose to question Flynn about his telephone conversations with the Russian ambassador and suggested instead that the ambush interview provide a perjury trap to out Flynn from the Trump administration. Even then, as revealed by additional notes disclosed last week, the agents who questioned Flynn did not believe he had lied during the interview.
Nonetheless, after lawyers wordsmithed the 302 interview summaries, the special counsel team concocted a federal charge to squeeze Flynn’s cooperation in the Russia investigation. Flynn pled guilty to the charge following threats by prosecutors to target his son.
Flynn later attempted to withdraw the plea after firing his original attorneys and replacing them with Powell. That motion was still pending when the Department of Justice filed a motion to dismiss the criminal charge based on its conclusion, following an independent review of the case by an outside U.S. attorney, that no crime had been committed.
Rather than dismiss the charge, presiding judge Sullivan appointed John Gleeson, a retired judge who had just penned an anti-Flynn op-ed for the Washington Post, as amicus curiae. Gleeson proceeded to pen a political hit piece under the guise of a legal brief, filing his amicus brief with the trial court as Flynn’s attorney headed to the D.C. Circuit to challenge Sullivan’s refusal to dismiss the criminal charge.
Powell had filed a petition for a writ of mandamus with the appellate court, seeking an order directing Sullivan to grant the government’s motion. Questioning by the three-judge panel during the mid-June oral argument left many expecting a defeat for Flynn. Obama-appointee Robert Wilkins seemed certain to deny the requested relief, while Karen Henderson (whom George H.W. Bush elevated to the D.C. Circuit) expressed grave concern about the propriety of ordering Sullivan to dismiss the case. As the long-time federal judge queried, Why not let judge rule first?
Twelve days later, in a 2–1 decision authored by Trump appointee Neomi Rao, the court ordered Judge Sullivan to grant the government’s motion to dismiss. Judge Wilkins filed a dissent. Rather than dismiss the charge, though, Sullivan filed a petition for rehearing en banc, asking the entire D.C. Circuit to reconsider the case. The appellate court then directed Powell to answer the petition for rehearing and invited the federal government to do so, if it wished. Yesterday, both briefs were filed.
The briefs hit three main points. First, the answers focused on the propriety of en banc review, stressing that the full court should only reconsider cases under very narrow circumstances. Federal Rules of Appellate Procedure provide that an en banc “rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”
In arguing against rehearing en banc, the government and Flynn’s legal team stressed that the panel decision applied controlling circuit and Supreme Court precedent and did not present a “question of exceptional importance.”
Next, the briefs analyzed the merits of the various arguments presented by both Judge Sullivan and dissenting Judge Wilkins. This discussion rehashed many of the points previously made concerning mandamus, Rule 48, which governs dismissal of charges, and separation of powers principles.
Finally, and the most interesting point raised, was the general impropriety of Sullivan’s attempt to seek a rehearing. The government devoted an entirely separate section of its argument to stress this point, writing: “The parties, and now a panel of this Court, agree that this case should come to an end. Yet the district judge, first through his contemplation of extended and intrusive proceedings on the government’s motion to dismiss and now through his petition for rehearing en banc, insists on keeping the litigation going.”
The government then highlighted the many problems presented by a federal judge attempting to “keeping the litigation going.” For one, the government noted, Judge Sullivan doesn’t have legal standing to seek rehearing because standing requires a “personal stake” in the case. “But a judge does not have — and under the Due Process Clause — cannot have — such a stake,” the government’s answer stressed.
Next, the government stressed that under Federal Rules of Appellate Procedure “only a ‘party’ may petition for rehearing en banc,” and Sullivan is not a party — not even a nominal one. And then there was a lack of court authorization: Since a district court can only address the petition for mandamus if invited or ordered by the court, how then could Judge Sullivan seek a petition for rehearing without an invitation or order by the court?
Sullivan also did not have permission from the solicitor general to file a petition for rehearing. Such permission is required, according to the government, by federal statute and Supreme Court precedent. On behalf of Flynn, Powell hit these same points: Sullivan does not have standing because he has not been injured! The judge is supposed to be the umpire, Powell wrote; he has no place at the plate. With the government and Flynn in agreement, it’s time to finally turn the lights out. But will the D.C. Circuit agree?
Here’s your “inside baseball” primer on the next steps, to stick with Powell’s metaphor. With the answers in, all of the active judges — this excludes the “senior judges” who are semi-retired — on the D.C. Circuit will review the arguments and begin the internal debate. Any of those judges can call for a vote, just as any of the judges could call for an answer.
Most likely, the judges will let the panel members share their thoughts first. For the most part, these exchanges will take place electronically through emailed vote sheets, with comments attached, although a few judges may chat privately with each other on their thoughts.
Given that Wilkins dissented from the panel decision, it seems likely he requested an answer from Powell and the government on Judge Sullivan’s petition. Given his strident questioning and dissent, it also seems likely he will call for a vote. For the case to be heard en banc, though, a majority of the 11 active judges must vote to rehear the case before the full court.
Whether Wilkins can collect five other votes is unclear, but if this were a normal case, it would be unlikely that a majority of the judges would want to expend the time to resolve an issue unlikely to occur ever again. But this isn’t a normal case, and when politics are in play — and Sullivan has demonstrated they are — propriety goes out the window. Sullivan has proven the latter point in spades as well. The question remains, though, whether the appellate court will join suit.
While there is no set time limit for a vote, we should know the answer within about 10 days. And if we haven’t heard by then, it most likely means the votes are not there to go en banc, but one or more judges intend to file a dissent to the denial of the petition for rehearing en banc to pontificate about Flynn, or U.S. Attorney General William Barr, or Trump.
Or, who knows, maybe someone might instead use the opportunity to condemn Flynn’s crucifixion — both by Mueller’s team and by Judge Sullivan.
