U.S. v. Flynn - Potential Timeline Emerging

[pablow]

@JohnBasedow @St. Louis Hawk @pablow @dgordo

Clerk Order in Ct. of Appeals today. Flynn's counsel given until July 20th to file a Response in Opposition to the request for en banc rehearing. Government is not required to file a response but is granted leave to do so by July 20th as well. Unless otherwise ordered by the Court, no reply brief shall be allowed.

Reading some materials last night suggesting that, under FRAP 21 and FRAP 35, Judge Sullivan should not be considered a "party" and, because he is not a "party," he should not be permitted to seek an en banc rehearing. Interesting argument from a statutory construction perspective - particularly if you look at FRAP 21's Advisory Notes. I'll be curious to read if Flynn and/or the Government raise that argument in their response briefs and, if so, whether the Court would allow Judge Sullivan to reply to that argument only.

Law professors who teach civil/appellate procedure across the country are taking copious notes to figure out how to incorporate this procedural "knot" into a final examination question.

From the panel decision -

Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.​

The court has treated Sullivan as a party. Might be a nice academic point, but ain't going to fly anywhere. I hope Flynn's lawyer don't waste time on it.

 

[St. Louis Hawk]

From the panel decision -

Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.​

The court has treated Sullivan as a party. Might be a nice academic point, but ain't going to fly anywhere. I hope Flynn's lawyer don't waste time on it.

He is the party IIRC. The show cause order(?) was directed to Sullivan. I don’t think it makes any difference though.

 

[AuroraHawk]

From the panel decision -

Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.​

The court has treated Sullivan as a party. Might be a nice academic point, but ain't going to fly anywhere. I hope Flynn's lawyer don't waste time on it.

Sidney Powell's Petition for Writ of Mandamus identifies Judge Sullivan as a Respondent under a section titled: "Parties and Amicus." In a typical situation, the trial judge would not be listed as a Respondent; it would be the adverse party listed as a Respondent.

I agree that it it is an interesting "academic" point which would make for interesting socratic debate in a classroom but - given the unusual nature of these proceedings - any argument that Judge Sullivan should not be considered a "party" based upon statutory language would be the ultimate elevation of form over substance.

I wouldn't be surprised to see either the government or Flynn's counsel take a page and one-half or two pages to run the argument up the flag pole. Since they are essentially working hand-in-hand, they could divvy up their arguments.

 

[Joes Place]

@JohnBasedow @St. Louis Hawk @pablow @dgordo

Clerk Order in Ct. of Appeals today. Flynn's counsel given until July 20th to file a Response in Opposition to the request for en banc rehearing. Government is not required to file a response but is granted leave to do so by July 20th as well. Unless otherwise ordered by the Court, no reply brief shall be allowed.

Reading some materials last night suggesting that, under FRAP 21 and FRAP 35, Judge Sullivan should not be considered a "party" and, because he is not a "party," he should not be permitted to seek an en banc rehearing. Interesting argument from a statutory construction perspective - particularly if you look at FRAP 21's Advisory Notes. I'll be curious to read if Flynn and/or the Government raise that argument in their response briefs and, if so, whether the Court would allow Judge Sullivan to reply to that argument only.

Law professors who teach civil/appellate procedure across the country are taking copious notes to figure out how to incorporate this procedural "knot" into a final examination question.

Where does Gleeson fit into that.

 

[AuroraHawk]

From the panel decision -

Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.​

The court has treated Sullivan as a party. Might be a nice academic point, but ain't going to fly anywhere. I hope Flynn's lawyer don't waste time on it.

Briefs filed yesterday by both Flynn's counsel and USA's counsel resisting the request for en banc consideration.

Flynn's attorneys devoted a tad more than 3 pages of their 19 pages of argument to the notion that Judge Sullivan does not have standing to seek en banc reconsideration (pages 8-12). USA's counsel devoted a tad more than 2 pages of its 17 page argument to claim that Judge Sullivan did not have standing to seek en banc reconsideration (pages 15-17).

If the court has concerns regarding standing, it would not be unprecendented for the appellate court to ask Judge Sullivan's counsel to file a reply on that issue alone. They wouldn't be required to allow add'l briefing but it is certainly possible.

 

[coloradonoles]

Full en banc hearing granted.

 

[AuroraHawk]

Full en banc hearing granted.

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I've been checking the docket daily every afternoon and hadn't checked it yet.

Saw a couple of weird motions to file amicus briefs that I anticipate were denied.

IMO, the notation of "no other adequate means to obtain the requested relief language" is telling. Suggests that a number of the judges are concerned about the precedential impact of granting mandamus when adequate relief remains available in the lower court. That shouldn't make Sydney Powell feel particularly confident.

Also . . I noted it either earlier in this thread or in a different thread that I felt like Judge Sullivan would have ultimately granted the government's motion. Will Powell's "gamble" to seek a mandamus order end up delaying the case to the point where a decision has to be made on a pardon?

 

[Joes Place]

 

[Joes Place]

....that ALMOST sounds like "obstruction", don't it?

 

[B1GDeal]

....that ALMOST sounds like "obstruction", don't it?

Hmmmm.... protect him from what???

 

[coloradonoles]

Hmmmm.... protect him from what???

Its a fake tweet photoshop (and a bad one at that)... don't feed the troll.

 

[lucas80]

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So, what are the odds that Barr has to explain why he tried to dump the case? What are the odds that Trump intervenes first?

 

[lucas80]

Everything with Trump leads back to Russia. I have always felt that it isn't just Flynn that made derailing this case important to Trump. Jared was knee deep in talking to the Russians, as were several others.
If Trump can keep Flynn quiet, like he kept Stone and Manafort quiet, he will keep doing everything he can to muck this up.

 

[AuroraHawk]

So, what are the odds that Barr has to explain why he tried to dump the case? What are the odds that Trump intervenes first?

As in Barr testifying personally? Don’t hold your breath. The chances are slim to none. I could fashion a wild scenario in which he might be asked to do so ... but - for all practical and realistic purposes - it ain’t happening.

 

[AuroraHawk]

PSA - en banc hearing on Flynn's request for mandamus scheduled for 8:30 a.m. CDT tomorrow (Tuesday, August 11th). Flynn's counsel (Powell) gets 20 minutes; Government's counsel (Wall) gets 20 minutes and Sullivan's counsel gets 20 minutes. I will be on a Zoom deposition and will not be able to listen to the arguments live. Will have to listen to "replay" after work hours.

Minute Orders of interest:
1. Counsel should be prepared to discuss whether there are "no adequate means [for Flynn] to obtain relief" desired at district court level (suggesting that at least some judges are concerned about whether the matter should have played out in district court before the request for mandamus was made).
2. Counsel should be prepared to discuss whether Judge Sullivan should recuse himself because his impartiality may reasonably be questioned and/or whether he has effectively become a party to the proceeding (suggesting that at least some judges feel as though, by seeking an en banc ruling, Judge Sullivan falls under 28 USC 455(b)(5)(i) which would require recusal).

 

[Joes Place]

Doesn't sound like this went too well for Flynn and DOJ....

 

[LuteHawk]

Slim died last month & None moved to Norway

 

[coloradonoles]

A possible ruling coming Monday.

From our infamous St Louis lawyer everyone around here enjoys dumping on.

 

[St. Louis Hawk]

A possible ruling coming Monday.

From our infamous St Louis lawyer everyone around here enjoys dumping on.

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8-2 in favor of the District Court Judge.

READ: Appeals court ruling in Michael Flynn case | CNN Politics

The US Court of Appeals for the District of Columbia Circuit has decided to keep former national security adviser Michael Flynn's criminal case alive.

www.cnn.com

 

[coloradonoles]

 

[AuroraHawk]

Well .... I seem to recall reading some posts here about Judge Sullivan getting a “beat down” after the initial briefing schedule and the initial ruling.

I wonder where all of these legal beagles are in this thread today.

I stand by my original prediction ... Judge Sullivan will grant the motion and the requested mandamus merely delayed the ultimate outcome.

 

[AuroraHawk]

This aged poorly.

Golly Aurora you couldn't have been more wrong. Gleeson got absolutely slapped around for his role in this as did the actual judge on the case.

All of the bullshit you and St Louis were slinging around and it turns out you were both 100p100 wrong.

Turns out pretty much everything I said was correct as was Flynn's attorney.

 

[St. Louis Hawk]

This aged poorly.

Hate to see it.

 

[St. Louis Hawk]

Hearing date set

 

[St. Louis Hawk]

I've been checking the docket daily every afternoon and hadn't checked it yet.

Saw a couple of weird motions to file amicus briefs that I anticipate were denied.

IMO, the notation of "no other adequate means to obtain the requested relief language" is telling. Suggests that a number of the judges are concerned about the precedential impact of granting mandamus when adequate relief remains available in the lower court. That shouldn't make Sydney Powell feel particularly confident.

Also . . I noted it either earlier in this thread or in a different thread that I felt like Judge Sullivan would have ultimately granted the government's motion. Will Powell's "gamble" to seek a mandamus order end up delaying the case to the point where a decision has to be made on a pardon?

Sydney Powell appears to be doing well.

 

[lucas80]

Is there a fundraising link on that crazy tweet I won't open?

 

[lucas80]

Flynn must be resting well at night knowing that Trump has protected half the people who lied, or covered up stuff for him.

 

[Joes Place]

Flynn must be resting well at night knowing that Trump has protected half the people who lied, or covered up stuff for him.

Paul Manafort is runnin' out of Pardon Time....