A VERY significant development has just happened today with regard to the upcoming oral argument in the en banc hearing on the Petition for Writ of Mandamus, set to take place next Tuesday, August 11, 2020.

When the Circuit Court issued the Order last week that the Court would rehear the matter en banc, the Order referenced only one issue that was to be addressed, whether “mandamus” relief was the only remedy available to Gen. Flynn and that there was no other remedy available by which he could obtain the relief he sought.  That reference addressed the one significant weakness in the Flynn Petition for Mandamus, and the decision of the three-judge panel granting the petition and “mandating” to Judge Sullivan that he grant the D.O.J. motion to dismiss the case.

In the original petition filed by Gen. Flynn, his counsel had sought as one ground of relief if the case were sent back to the District Court for further proceedings, that the case be reassigned to another district court judge due to Judge Sullivan’s conduct, arguing that his conduct was such that his “impartiality might reasonably be questioned,” pursuant to 28 U.S.C. Sec. 455.

In supporting Gen. Flynn’s petition, D.O.J. did not join in the request to have the case reassigned to another district court judge.  At the oral argument before the three-judge panel, none of the attorneys who argued the case raised the issue, and the Panel decision did not address the question in a meaningful fashion other than to deny that relief — it was not necessary since the Panel decision ordered Judge Sullivan to grant the pending motion.

I had previously started to write a story about the standards for the disqualification of a federal judge, as there is a specific statute that covers the issue, Sec. 455 mentioned above.  But when the parties seemed to drop the issue, I stopped working on the piece.  I’ll go back to that now as a preview of what the legal arguments and standards are ahead of next week’s hearing.

But for today’s purposes, I think the significance of the Court’s new order is that it suggests the D.C. Circuit is looking for an avenue that sends the case back to the district court for further proceedings on the pending motion to dismiss under Rule 48(a), while at the same time not continuing or encouraging the “circus” process that Judge Sullivan has set in place and repeatedly expressed a desire to engage in.

As  I have suggested on Twitter and here, in my view, two crucial “institutional” considerations are of concern to the Circuit Court.  By that, I mean, there are two issues of significance which have nothing to do with whether the motion to dismiss should be granted or denied on its merits.

First, the granting of mandamus relief by the panel here under very unique circumstances — by which I mean the notoriety and profile of the case — creates a precedent for resorting to “mandamus” as an ordinary avenue of relief by criminal defendants unhappy with a district court judge’s decision.  An old adage at the appellate level is the saying “bad facts make bad law.”  In this instance it means that the unique circumstances of this case are driving a decision-making process on Rule 48(a) motions — and other motions as well — which the Court may very well come to regret in the future because it is likely to generate innumerable more such petitions in much more ordinary circumstances.  Those future petitions might not have otherwise been filed without this precedent to rely upon.  Responding to such petitions takes time and court resources.  So there will undoubtedly be an “institutional” cost in the future due to a decision by the Court which tells defendants in criminal cases “If you don’t like a Judge’s ruling on a motion — for failure to rule on a motion — file for mandamus relief.”

The second institutional consideration, which I believe is of concern to the Circuit Court, is that the Panel decision can be interpreted as undermining the “fact-finding” process of district court judges, which is typically accomplished in hearings on motions.  Judge Sullivan has corrupted that “regular order” process with his appointment of an amicus counsel to argue against an unopposed motion, and the suggestion that a far-reaching inquiry into the deliberative processes of the Executive Branch — may be including affidavits or testimony under oath by government officials — is warranted by the motion.

This would be another instance of “bad facts making bad law” if the Appeals Court were to overrule Judge Sullivan by mandamus because Judge Sullivan has turned the case into a circus.  It would undermine the “regular order” fact-finding process that the Circuit Court is dependent on in 99.999% of all the cases that come before it.  Appeals Courts do not, as a general matter, add to the evidence of the case that is generated in the trial court below.  They review the proceedings in the trial court and make determinations on whether errors were made, and what remedies are necessary to correct those errors.  That requires that the proceedings in the trial court be as clear and complete as possible.  That means encouraging trial courts to develop clear and complete records before the case is sent up on appeal.

But Judge Sullivan has turned that “regular order” process into his own Captain Ahab-esque quest to find the “White Whale.”  The Circuit Court needs to preserve the “regular order” process while at the same time disapproving of how Judge Sullivan has conducted himself in the case.

The Order today suggests that two possible paths to this outcome are under consideration.  One would be to simply find that Judge Sullivan’s conduct has created a circumstance where his partiality can reasonably be called into question.  That is a basis for mandatory reassignment under Sec. 455 that I referenced above.

The second option would be the more benign approach of finding that in pursuing the Petition for Rehearing En Banc, Judge Sullivan has now made himself a nominal “party.” As such, he can no longer preside over the case.

I’ll have more later on the legal standards that related to both these questions.