In an 8–2 decision, the D.C. Circuit yesterday denied Michael Flynn’s petition for a writ of mandamus that would have ordered district court Judge Emmett Sullivan to dismiss the criminal charge against Flynn. While the majority’s opinion presented a methodical analysis, devoid of the partisanship Sullivan displayed in handling the case against Trump’s former national security advisor, only politics can explain the D.C. Circuit’s decision. Here’s why.
Flynn’s attorney, Sidney Powell, first sought a writ of mandamus from the D.C. Circuit after Judge Sullivan refused to dismiss the criminal charge against Flynn. The Department of Justice had filed a motion to dismiss the charge that Flynn had lied to FBI agents about his conversations with the Russian ambassador, Sergey Kislyak, after U.S. Attorney Jeff Jensen conducted an independent review of the Flynn prosecution.
Jensen’s investigation uncovered substantial exculpatory evidence that had never been provided to Flynn — evidence indicating Flynn had not lied to the federal agents and that, in any event, any false statement would have been immaterial.
In the mandamus petition, Powell argued that the constitutional principle of separation of powers, and under controlling circuit precedent, Judge Sullivan was required to grant the government’s motion to dismiss. A three-judge panel consisting of Judge Neomi Rao (a Trump appointee), Karen Henderson (a George W. Bush appointee), and Robert Wilkins (an Obama appointee), heard the petition. In a 2-1 decision authored by Judge Rao, the D.C. Circuit granted mandamus and ordered Judge Sullivan to dismiss the criminal complaint. Judge Wilkins filed a dissenting opinion.
However, rather than dismiss the case, Judge Sullivan filed a petition for rehearing en banc, asking the full D.C. Circuit to rule on the propriety of mandamus. A majority of the active judges voted to rehear the case en banc. That a majority of the active judges on the D.C. Circuit voted to grant rehearing en banc is startling—and inexplicable, absent politics being in play.
D.C. Circuit Rules specify that “an en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”
Rather than address “a question of exceptional importance,” the en banc court in the Flynn case addressed a mundane procedural issue concerning the propriety of mandamus. Moreover, consideration by the full court was not necessary to “secure or maintain uniformity of the court’s decisions,” because the Flynn case is truly sui generis — one of a kind. Further, the panel’s analysis was fact-intensive, making the decision to grant mandamus fact-bound. Thus, even if the D.C. Circuit believed the panel had wrongly granted mandamus, en banc review was inappropriate.
Under normal circumstances, appellate courts would never take a fact-intensive case, with little precedential impact, en banc. To be sure, this case has little precedential impact.
The main question considered on appeal concerned the propriety of mandamus, but petitions for mandamus are rarely sought and even more rarely granted. And since circuit rules provide for the perfunctory denial of petitions for mandamus, with the court denying such petitions “without an answer,” there was no cause for the full court to weigh in on the Flynn case — other than politics.
Reading the en banc court’s decision, which Powell told The Federalist was “completely political and result-driven,” really brings this point home. The majority opinion laid out the general principles governing mandamus, stressing it is extraordinary relief and should only issue if the party seeking relief has “no other adequate means to attain the relief”; has a clear and indisputable right to the relief, and the court believes in its discretion relief is merited.
Then, after detailing the lengthy procedural background of the Flynn case, the court held that mandamus was unavailable because an “adequate alternative remedy existed,” namely Flynn could seek mandamus again if the district court denies the government’s motion to dismiss.
Judges Henderson and Rao dissented, both disagreeing with this analysis and finding that under the circumstances of this case, Flynn (and the government) lacked an adequate alternative remedy. This disagreement — whether an adequate remedy existed for purposes of mandamus — is just not the stuff of en bancs.
But there is an even more glaring giveaway to the politicization of the D.C. Circuit’s decision: The refusal of the majority to conclude that Judge Sullivan must now recuse from the case.
As Judge Henderson details in her dissent, 28 U.S.C. § 455, requires a judge to recuse when his impartiality might reasonably be questioned. While the panel concluded Sullivan had not yet crossed that line, once Sullivan filed a petition for rehearing en banc—something only a party has the right to do—he clearly had crossed that line. Yet the majority found no problem with Sullivan continuing to preside over the case.
Here, Judge Henderson’s dissent eviscerates the majority for its “nonchalant” shrugging at Judge Sullivan’s clear partiality. That the majority of the D.C. Circuit cannot see what is clear to half of America, that Judge Sullivan has a vendetta against General Flynn, makes one wonder if they are blinded to their own bias as well?
As if on cue, Judge Thomas Griffith, in his last written words as a federal appellate judge, assures the country in a concurrence that no, this isn’t a political decision. This isn’t about Flynn. This isn’t about U.S. Attorney General William Barr’s decision to dismiss the charges.
This storyline won’t sell anymore. We know what the Obama administration did to Flynn. We know what the FBI and CIA did to Flynn. And we know that there was no real reason to go en banc, other than politics and a desire to delay this case until after the November 2020 election.
Where things go from here, however, is unclear, and Flynn’s legal team has not yet decided on its course of action. Flynn could seek review by the Supreme Court, but strategically he is likely better off waiting for Sullivan to rule on the motion to dismiss — something the D.C. Circuit said they “trust and expect” will happen with “appropriate dispatch.”
Flynn, though, has already waited long enough for justice. And justice delayed is justice denied.