General Michael Flynn is going to lose the battle. That was the takeaway from Tuesday’s hearing before the D.C. Circuit U.S. Court of Appeals. Flynn will eventually win the war, but President Trump’s first national security adviser is still in a slog, and there are more scraps ahead.
The battle in question is Flynn’s petitioning of the D.C. Circuit to issue a writ of mandamus against federal district judge Emmet Sullivan. Mandamus is an extraordinary remedy. It is something of a last resort, when a judge is acting so lawlessly that the damage could be incurable if a higher court fails to intervene.
Here, the writ would direct Judge Sullivan to end his highly irregular inquiry into the Justice Department’s motion to dismiss the case against Flynn and just grant that motion, as the law requires.
DC CIRCUIT COURT GRILLS LAWYERS IN FLYNN CASE OVER WHETHER CASE SHOULD BE DROPPED
Flynn will eventually prevail in having the case dismissed, because he has an ace in the hole: If all else fails, the president will pardon him.
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Meanwhile, maybe Sullivan will grant the dismissal motion, as the judge’s lawyer hinted at the hearing. If he does not, maybe there will still be time for Flynn to win a reversal on appeal — an eventuality that some circuit judges suggested but that, practically speaking, may hinge on whether President Trump is reelected (if Trump loses, he’d have to pardon by January 20).
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Naturally, Flynn would rather not go the pardon route; there is more vindication if the case is formally dismissed on the motion of the prosecuting authority that brought it.
The specter of a pardon has a distorting effect on the proceedings. It has emboldened Sullivan — an erratic, irascible man who has been a judge for 36 years — to unleash his inner crazy, knowing it won’t make a difference in the end. The circuit judges are more tentative than they might otherwise be in reining him in.
That is this analyst’s conclusion after listening to Tuesday’s oral arguments, a nearly four-hour affair. Counsel for Flynn, the Justice Department, and Sullivan presented arguments to, and were exactingly questioned by, ten appellate judges.
Though designed to be a face-to-face court proceeding, the en banc (or full court) hearing was conducted by audio teleconference. Things went fairly smoothly, though there were the occasional technical glitches and cacophony of competing voice-overs to which the COVID-19 era has inured us.
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