TODAY'S NIFTY IDEA

 

Let's back up a bit. Remember Lt. Gen. Michael Flynn?

 

The guy who led "Lock her up" cheers at Trump rallies during the 2016 campaign? 

 

And then, during the transition, spoke with Russian Ambassador Kislyak several times and told him not to worry about the sanctions that Obama had imposed on the Russians for interfering with the 2016 election?

 

And then was appointed by Trump as his National Security Advisor?

 

And then was questioned by the FBI and denied that he had ever spoken to the Russian ambassador about sanctions?

 

And then lied to Vice President Pence and other members of the administration about his communications with Kislyak?

 

And then Trump fired Flynn, making the latter's tenure of 24 days in office the shortest in history?

 

And then Trump asked FBI head Comey "to go easy on Flynn -- he's a nice guy.,"

 

And then Flynn was indicted by a Mueller grand jury for making false statements to the FBI?

 

 And then Flynn pled guilty and admitted in open court that he "willfully and knowingly made false, fictitious, and fraudulent" statements to the FBI?

 

And then repeated those admissions to Judge Sullivan in a hearing several months later?

 

And then, just before sentencing, got a new lawyer, withdrew his plea of guilty, and insisted that he was "not guilty." He told the court his earlier admissions of guilt were the result of inadequate lawyering by his counsel at the D.C. firm of Covington and Burling,

 

And then William Barr's Department of Justice announced it was dropping the case against Flynn on the ground that Flynn's lies were neither "relevant" nor "material," even though all DOJ lawyers who had worked on the case refused to sign on to Barr's request?

 

And then, in his effort to pervert justice, Barr ran into an obstacle: The Law. Barr's right to dismiss the Flynn indictment was not absolute. The Federal Criminal Rules require the government to obtain "leave of court," to dismiss an indictment," and so Barr had to make a motion in the District Court for an order dismissing the case.

 

And then Judge Emmett Sullivan, said "Huh, whyzat? You want my leave to dismiss the prosecution, then you gotta tell me more about why you want to drop this prosecution. I need to inquire, I need to learn. Is this is in the best interest of justice?" Sullivan wanted to listen to both sides of the question, and certainly could not expect to get Barr to present arguments in opposition to his own motion for dismissal. So Sullivan asked retired federal judge John Gleason (EDNY) to write a "friend of the court" brief and make arguments in opposition to the DOJ application, and also consider whether he should hold Flynn in criminal contempt. Sullivan set a hearing date for July 16, 2020,

And then Flynn's lawyer's said Sullivan was biased and should be replaced, and made an application to the DC Court of Appeals for a "special writ" to reverse Sullivan's order, and to dismiss the case against Flynn,

 

And then in June, the appellate court, by a vote of 2 to 1, did just that. The court found that District Judge Sullivan lacked the power to question the prosecutor's decision. In this case, the appeals court held, "leave of court" did not really mean "leave of court," and Judge Sullivan was required to grant Barr's motion to dismiss,

 

And there's lots of interesting things about this Circuit Court decision. First, it was written by Judge Naomi Rao, one of three Trump appointees among the twelve active judges on the court. Judge Rao was critical of  District Judge Sullivan for seeking  "amicus briefs", i.e.,  legal briefs from non-party participants. Yet Flynn's application before the Court of Appeals was supported by an extraordinary list of amicus briefs in support of Flynn. The list included the DOJ, Attorneys General of fifteen "red" states, eleven House members, Mitch McConnell and six other Senators, and others. Given that the issue involved here has NOTHING to do with state or congressional issues, this is simply astonishing. There is nothing subtle about the Trump political push in favor of Flynn,

 

And then the D.C. Circuit Court of appeals, sitting en banc,  (all 12 active judges participate) vacated the 2-1 Rao panel decision, and on August 10 heard argument on whether to permit District Judge Sullivan go forward with his planned hearing on Barr's motion to dismiss the indictment.

 

All of which makes me wonder about the possibilities in this bizarre scenario:

 

One of the arguments made by Gleason, and the dissenting panel judge, was that Flynn's application for a writ was premature. The law disfavors making decisions based upon speculation, especially in cases such as this one. Flynn had asked the Circuit Court panel to reverse a decision that Judge Sullivan had not yet made. If Sullivan had not been interrupted by this premature appellate wrangling, he might have granted the DOJ's motion to drop the indictment, and that would have been the end the matter. We can avoid this "prematurity" issue by letting Sullivan hold his "hearing," as suggested by Gleason and by the dissent in the Circuit Court panel decision.

Media observers to the en banc court argument expect Gleason to prevail, and the court to deny Flynn's application, and send the matter back to Sullivan to hold his hearing.

 

Now matters become overtly political.

 

If Sullivan were permitted to hold his hearing, his opinion might be explosive. Whether he ultimately dismissed the Flynn indictment or not, Sullivan might openly castigate Barr's decision to remake the DOJ into an unabashed servant to the wishes of Master Trump. I can see the media lede: "Sullivan finds Barr guilty of re-engineering a dramatic redefinition of the word 'Justice' following the words 'Department of.' "

 

In the heat of a bitter presidential electoral campaign, even  Fox News would have to report that judicial decision, though it might consign the news bulletin to a 3 a.m. slot.

 

Now, if, as expected, the en banc court permits Sullivan to hold his hearing, we might expect Flynn, (and Barr!), to seek an immediate stay from the Supremes, accompanied by a petition for the Court to take the case. It takes four votes to grant a cert petition, five to grant a stay. 

 

So once again, we revisit the importance of McConnell's manipulation of the Senate to steal the Garland seat, and once again we hold our breath in the hopes that the indomitable RBG  remains indomitable. And once again we test out the "balls and strikes" claim of political impartiality of the Chief Justice, who would likely cast the deciding vote on the stay application.

 

The timing of this process is fascinating. Barring a pardon, either way, Flynn loses. If the Supreme Court denies the stay, Sullivan has his hearing, and both Flynn and Barr end up in the stewpot.

 

If the Court grants the stay, and agrees to hear the case on the merits, it would likely not be able to calendar argument until a date subsequent to January 21. Unless Flynn is pardoned by Trump, Biden's new Attorney General might well withdraw the dismissal motion. That, of course, would moot the Supreme Court appeal, and send the case back to District Judge Sullivan to set a date for Flynn's sentencing!

 

Howszat?

 

A bientot.

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