The Court of Appeals for the District of Columbia has just issued an Order and opinion denying the Petition for Writ of Mandamus sought by General Michael Flynn that would have ordered District Court Judge Emmet Sullivan to grant the motion of the government to dismiss the case against him.

A panel of the same Court had previously granted the motion in a 2-1 decision, but a member of the court suggested that the case be reheard by the full Court, and the Court voted to rehear the case.

The Court voted 8-2 to deny the Petition, the opposite outcome as was the result in the case before the three-judge panel.  Judges Rao and Henderson dissented from the decision — they were the two members of the panel who voted initially to grant the Petition.

I’ll do a more in-depth analysis of the opinion later today.  But there are a few things I noted about the decision in looking through it.

First, the majority opinion is “Per Curiam”.  That means no single judge drafted the opinion.  My experience in such circumstances is that the Chief Judge will task law clerks from more than one Judge to assemble different parts of the draft opinion, and then all judges in the Majority will have input on the final draft if they chose.  Given the speed with which this was done, I suspect that was the process, and that is why no single judge is listed as the author.

The basis for the holding is the one point that always was the weakness in the Flynn Petition — that Judge Sullivan has not yet entered an Order denying the motion by the government.  The Opinion begins with an observation that was not heeded by General Flynn’s counsel — ” A petition for a writ of mandamus “may never be employed as a substitute for appeal.”   The Court finds that an alternative adequate remedy exists, and because of that issuance of the Writ is inappropriate.

The Court held that being “stuck” in the litigation is not the kind of “irreparable” harm a defendant in a criminal case can rely upon to seek mandamus relief.  As for the harm to the Government and Separation of Powers issues, the Court held that those claims are speculative at this point because the District Court has not yet done anything that would harm the government or violate the Separation of Powers doctrine.  If the District Court were to take such action, the Government could return to the Appeals Court with its own mandamus petition.

The Court also declined to assign the case to a different judge.  But this Court “will reassign a case only in the exceedingly rare circumstance that a district judge’s conduct is ‘so extreme as to display clear inability to render fair judgment.’”  The Court stated that judicial rulings by a district judge will almost never meet the very high standard.  The Court stated that the decisions by Judge Sullivan to this point, setting aside the subjective insinuations about his motives, are not close to meeting the standard.

The majority opinion is only 18 pages long.

Judge Griffith wrote a short concurring opinion. This is noteworthy because Judge Griffith is leaving the Court today — this may be his final action.  He noted that the decision of the Court has nothing to do with the merits of the prosecution of General Flynn, or the merits of the Government’s motion to dismiss the case.  The decision turns solely on whether mandamus was a remedy available to General Flynn and the Government at this stage and under the circumstances.

Judge Henderson wrote a 10-page dissenting opinion, in which Judge Rao joined.

Judge Rao wrote a 31-page dissenting opinion, which was joined by Judge Henderson.

I’ll take an in-depth look at both dissents in a later article.

The case will go back to Judge Sullivan now, and he will once again set it for hearing on the motion to dismiss.  Whether he feels emboldened or not remains to be seen.

While General Flynn could seek review from the Supreme Court, it is unlikely at this point that the Court would step in, especially given the limited nature of the ruling from the Appeals Court.