Day After Thoughts On Flynn Oral Arguments -- Flynn Still Wins

AP Photo/Manuel Balce Ceneta

Having had 24 hours to digest the contents of yesterday’s hearing in the Flynn case before the Circuit Court of Appeals, and having read several stories on the argument from various political points of view, I have a few thoughts and clarifications bouncing around in my head.

First, and this will probably come as a surprise if you’ve read my previous stories on the outlet, I found Benjamin Wittes’ recap of the hearing over at Lawfareblog to be a particular thorough and straight-forward piece of writing.  When I first saw he had written an article on the hearing, my first thought was “I know what I’m writing about next!!”.  But based on my recollection of what I heard, his recounting of the arguments covered all the most significant exchanges in a straight-forward manner.  My only disagreement would be that from my perspective I thought Judge Wilkins’ questions were sort of “one-note” throughout, and Wittes wasn’t in any way critical of his “race-baiting” in tossing in a hypothetical about a white police officer beating a black suspect, and DOJ moving to dismiss the case after the officer had pled guilty and admitted his crime.

He also described Judge Henderson’s final question to Dep. Solicitor General Jeffrey Wall about DOJ being allowed to “self-correct” as a “grapefruit-sized softball,” and I can’t really take issue with his characterization.  I thought she intentionally left it for the very end of the hearing knowing Wall would go last, and knowing that she would have the last word on questions.  But that is nothing unusual in oral arguments before appeal courts.

I think my story yesterday doing a “deep dive” on all the “players” involved in the hearing likely left readers with a question in their head about what I meant in my headline “Flynn Wins”.    I didn’t take the time necessary to explain the exact “posture” of the case before the Appeals Court, what relief has been asked for by Gen. Flynn from the Appeals Court, and what outcome I think there will be with regard to that request for relief in terms of my “Flynn Wins” headline.

“Flynn Wins” was meant to signal my belief based on the argument — plus my reading of the breifs — that the Court of Appeals is going to bring this matter to a close that results in the Rule 48(a) motion to dismiss being granted — but it will be granted by Judge Sullivan.

The Petition filed by Gen. Flynn asked for 3 things:  1) that Judge Sullivan be ordered to grant the motion to dismiss; 2) that Judge Sullivan’s order appointing Ret. Judge Gleeson as amicus counsel be vacated; and 3) that the case be reassigned to a different district court judge.

No one seriously briefed the third request, and it was not mentioned during the argument.  So only the first two issues are “in play” in terms of what the Circuit Court has been asked to do.  It is note worthy that Judge Wilkins pointed out to Dep. SG Wall that the government had not filed its own Petition for Mandamus, so no one has actually asked the Circuit Court to order Judge Sullivan to not hold the hearing on July 16 that he has scheduled.  Wall responded in a couple ways – he said that DOJ had to choose between filing its own Petition, or simply filing in support of the Flynn Petition, and Courts across the country have traditionally considered both approaches to have the same effect. But he then pointedly said “I could still file one” – which I saw as a slight dig at Judge Wilkins for making what was really a pointless observation in what seemed to be a manner of a criticism.

It was an example of something I noted yesterday — that Wall was by far the best oral advocate in the hearing, and Wall knew the subject matter better than anyone involved, including the Judges.

Dep. SGs do not make appearances in the Circuit Courts of Appeal very often.  Arguments on behalf of the United States at the Circuit Court level are almost always handled by Assistant United States Attorneys or Trial Attorneys from DOJ’s Appellate Division.  The SG’s office works before the Supreme Court — almost exclusively.  In a more typical circumstance yesterday’s argument would have been handled by Jocyelynn Ballentine, the AUSA whose name appears on the brief.  I’m sure she would have done fine — but there’s a reason Wall works in the SG’s office.  This kind of stuff is all they do — every day — and at the absolute highest level.

When Robert Mueller was putting together his SCO team, and recognizing in many ways they were heading off into uncharted waters by investigating a sitting President and that President’s former campaign, one person he asked to be able to add to the team — and Rosenstein said okay – was Michael Dreeban from the Solicitor General’s Office. Dreeben for a decade or more was the top Dep. SG on matters involving federal criminal law.  Nearly every case before the Supreme Court that involved a criminal prosecution by the federal government was argued by Dreeban.  The knowledge of the Dep. SG’s on the subjects they cover is encyclopedic.  They then combine that depth of knowledge with first rate oral advocacy skills.  Of all the positions in DOJ that provide a pathway to a lucrative private practice career, none are better than being a member of the Solicitor General’s Office.

Returning to my “Flynn Wins” view, I think it would be instructive for me to say what I don’t think the Court of Appeals is going to do.  I think there is almost no chance the Court will issue an outright straight writ of mandamus directing Judge Sullivan to grant the motion forthwith with no further proceedings.  That outcome is within the Court of Appeals’ authority, and at the most basic level that is what Gen. Flynn’s petition is asking for.  Both Sidney Powell and Dep. SG Wall asked for that as the remedy they would prefer, but issuing that kind of stark relief in the face of what Judge Sullivan has already said and done would be a personal humiliation handed to Judge Sullivan by his colleagues.  Setting aside for a moment the idea that federal judges in the same circuit — at both the trial court and appeals court levels — all know each other very well, I think there would be real sentiment among all three Judges that the legal standard for what Judge Sullivan can and cannot do with regard to a Rule 48(a) motion is unsettled.  There are no “clear” directives from prior opinions specifically on Rule 48(a).   Various cases say various things, and most point in the same direction in terms of what the ultimate outcome should be, but none provide a very clear road map to a district judge about how he needs to get there.

So rather than tell Judge Sullivan what the outcome must be by instructing him to dismiss the case without further proceedings immediately, I think the more likely outcome will be that Judge Henderson will give Judge Sullivan that “road map” with a big “X” at the end labeled “Grant the Motion.”  The map will be narrow and straight-forward, and not give him any exits to take detours or scenic trips on his way to his destination.  Most of the commentary I read yesterday — even those confident that the Circuit Court will not grant the mandamus relief sought — all acknowledged that Judge Henderson and Judge Rao expressed pretty clear views that the motion should be granted on the merits.

So I expect the actual decision will deny the Writ as requested because it is not giving Gen. Flynn what he has asked for in the Petition.  On that basis, I think the decision will be 3-0, as Judge Wilkins clearly is a vote to deny the relief requested.  Judge Wilkins will likely write a concurrence making it clear he agrees with the outcome, but he disagrees with the map laid out by the majority, and he would leave it to Judge Sullivan’s discretion with regard to what route he would take to reach his decision on the motion to dismiss.  So long as Judge Henderson’s decision remains in line with the Court’s decision four years ago in Fokker Services — written by the Chief Judge of the Circuit, Judge Sri Srinavasan, I don’t think the rest of the judges will have any heartburn.  Judge Srinavasan is another Obama appointee.  But the two other Circuit judges on that case were Judges Lawrence Silberman and David Sentelle — both are conservatives appointed by President Reagan.  That would mean that the legal standard being laid down here in the two cases will have been established by four GOP appointed Judges out of the six on the two cases — even though Judge Srinavasan wrote one of the two opinions.  It will be interesting to see if the remaining Circuit Court Judges — who are overwhelmingly Obama and Clinton appointees — allow this to happen given that the two rulings combine to dramatically narrow the scope of judicial discretion while acceding to an expansive view of Executive authority in the handling of criminal cases.

There is an interesting question about the internal operations of the DC Circuit Court that I’ve been trying to find an answer to — so far without luck.  There are various kinds of “panels” that are put together in the appeals courts for various kinds of proceedings.  The most well known — the panels that render final decisions on appeals — are called “merits panels” since their decisions are on the merits of a case.  A second kind of panel is called a “motions panel”.  These panels have changing memberships on a weekly basis (my understanding).  A group of 3 judges are tasked with reviewing and deciding various kinds of “motions” that are filed in connection with appellate matters before the court.  They might deal with dozens of motions each week depending on the size of the court, and once their week is over those 3 judges are off the “motions panel” and three new judges take their place.  They might have no further contact with any of the cases they decided motions on.

I haven’t yet found out whether a “mandamus panel” is like a “motions panel” or a “merits panel.”  It seems to be an open question — maybe a reader can answer it — whether this same group of three judges would hear any later appeal in this case if there is cause for an appeal to be taken at some point in the future.

Or rather, like an motions panel, once this mandamus petition is resolved, there isn’t any assurance that the same three judges would hear further matters on the Flynn case in the future.

I don’t know the answer to that question in the DC Circuit.

So a more accurate headline would probably have been “Flynn Likely Loses For Now But Will Win in the End.”