If you thought Judge Emmet Sullivan was out of moves on the Michael Flynn case, think again. A couple of hours ago, the news broke that Sullivan has petitioned the D.C. Circuit Court of Appeals to review its ruling in favor of Flynn, which granted the writ of mandamus sought by Flynn’s attorney, Sidney Powell.
The writ, issued 24 June, ordered Sullivan to dismiss the case. Readers will no doubt remember a round of interviews with Flynn and Powell in the days immediately following the ruling. It seemed as if the long nightmare was over for the Flynn family.
And perhaps it is; but now there will have to be yet another procedural wicket to wait on. What Sullivan has requested is an en banc review of the 24 June ruling (which was issued by a three-judge panel). The en banc review involves all the judges assigned to the D.C. Circuit Court of Appeals.
Without getting too deep in the weeds, Sullivan’s petition seems to turn on the following points:
1. The 24 June decision seemed to turn mandamus into “an ordinary litigation tool” (as opposed to the extraordinary resort it’s supposed to be). Sullivan argues that all his court has done “is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the [Circuit Court’s] panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus.”
2. Sullivan’s move to appoint an amicus (to argue against the Justice Department’s motion to dismiss the Flynn case) was — by the implication of Sullivan’s language in this appeal — an informal (or “less formal”) method of asking questions about a pending motion, and therefore the pivotal Fokker precedent, cited throughout the appeals process, doesn’t apply. As the Fox News report abstracts it from Sullivan’s petition:
… “[the] Fokker [case] did not question the process the district court employed in reaching [its] erroneous decision.” Specifically, Sullivan’s filing asserted that the Fokker court expressly declined to apply its reasoning to less “formal judicial action,” and that Sullivan was merely considering his options as to how to proceed with the Flynn case — which, Sullivan said, was allowed under current precedent.
3. Sullivan’s implied premise, given points 1 and 2, is that the 24 June ruling would (or at least could) be held to apply to “more formal” elements of process, although Fokker wasn’t intended to. In that way, the grant of mandamus would improperly regularize mandamus as “an ordinary litigation tool.”
This sounds a bit specious. But that’s for the appeals court to decide. The kicker is the likely timeline in either case, whether an en banc review is granted, or not. Says Fox News: “If en banc review is granted, an oral argument date would then be set, likely in the fall. If en banc review is denied, Sullivan could appeal to the Supreme Court — a process that could take months to resolve, past Election Day.”
It remains blatantly obvious that Emmet Sullivan is simply trying to keep this thing going. It’s not clear what personal investment he would have, if any, in persisting with a case that will only keep giving the Bill Barr Justice Department a reason to find and disclose more damning information about the anti-Trump campaign to Sidney Powell.
But back in May, I basically “told you so“; i.e., previewed exactly this attempted prolongation of the Flynn case. Undeterred by the 24 June mandamus decision, Sullivan has now done exactly what I predicted he would. His litigation-defined attorney, Beth Wilkinson, filed to keep this thing in litigation.
This is what I wrote in May:
[Y]ou don’t hire Beth Wilkinson to write briefs. You hire her to argue your interests – before judges, juries, arbiters, senators, FBI agents – with a 155mm howitzer, if necessary. She’s made a name from it, ramrodding high-profile civil suits that go to trial with lots of dollar-sign-zeroes riding on them. She almost always wins.
This suggests some important things. One is that Sullivan expects to need representation for his interests in the appeals court. Two, he expects this to actually be fought out – meaning it will take a while. No shortcuts.
As Fox says, even if the appeals court denies an en banc review, Sullivan can appeal that to the Supreme Court, and keep it going into the next Supreme Court year that way.
Has Obama had another Web conference we haven’t heard about? (See the 12 May article on the amicus issue.) Regardless, it’s clear this is about someone’s interest in the Flynn case: an interest that’s causing Emmet Sullivan’s courtroom to spin mindlessly — but tirelessly — at one speed, emitting weird but persistent shrieks in response to every stimulus. It could be the Iran JCPOA, as discussed in the 25 May article. There’s certainly something going on in Iran with all the explosions and fires in the last few days.
If it’s the JCPOA, and the concern is to keep Michael Flynn in legal jeopardy, consider the possibility that perpetuating the effect of the JCPOA is not about arming Iran. As I argued on 25 May, it’s about the actual effect of the JCPOA, which is to keep the Iranian nuclear weapons program going. That makes it about the nukes – not necessarily about Iran having the nukes. Clear your mind, recognize that Iran may not be the only beneficiary of that ongoing nuclear weapons program, and ponder the problem afresh.
Even if something else is the primary concern, the set of possibilities is limited, because the central requirement is muzzling Flynn. Beyond the sausage-making and the real purpose of the JCPOA, my bet is on it being about activities made possible by intelligence programs that never see daylight — and years of “funny money” being cycled through the U.S. federal government. The interest in that is almost certainly the same interest as keeping the JCPOA and the Iranian nuclear weapons program going.