Flynn Walks.. DOJ drops case

[Hookah Horns 3,082]

5 minutes ago, jimmyjazz said:

Is Gleeson expected to consider all conflicting precedent, etc. when writing such a brief?  Is it OK for him to cite rulings that only support his opinion as to the legality of the DOJ's actions?

He was tasked with making the best argument possible against dismissing. That means he is expected to lean heavily on the law that supports his position. But good lawyering requires dealing with the law unfavorable to your position, as well. 

The gov't is currently preparing its response brief. Gleeson would want to take the piss out of what they're going to say. 

[jimmyjazz 45,560]

2 minutes ago, Hookah Horns said:

He was tasked with making the best argument possible against dismissing. That means he is expected to lean heavily on the law that supports his position. But good lawyering requires dealing with the law unfavorable to your position, as well. 

The gov't is currently preparing its response brief. Gleeson would want to take the piss out of what they're going to say. 

I'm learnin' here . . . does the court ever go to multiple judges, etc. with specific intent to get best arguments on both sides of the case?

[Hookah Horns 3,082]

3 minutes ago, jimmyjazz said:

I'm learnin' here . . . does the court ever go to multiple judges, etc. with specific intent to get best arguments on both sides of the case?

This is extremely rare but from what I've read it does happen when the defense and prosecution are on the same side of an issue and the court is skeptical hippo. 

 

Edit: I'm not sure if I answered your actual question. I've never heard of a court asking for outside briefing for both sides of an issue. That would basically be saying the lawyers on one side are incompetent. 

Edited June 13, 2020 by Hookah Horns

[jimmyjazz 45,560]

11 minutes ago, Hookah Horns said:

Edit: I'm not sure if I answered your actual question. I've never heard of a court asking for outside briefing for both sides of an issue. That would basically be saying the lawyers on one side are incompetent. 

If you don't mind indulging my ignorance . . . why would that be the implication?

[TwiceHorn 31,283]

31 minutes ago, jimmyjazz said:

Is Gleeson expected to consider all conflicting precedent, etc. when writing such a brief?  Is it OK for him to cite rulings that only support his opinion as to the legality of the DOJ's actions?

Any lawyer is expected to consider and present conflicting precedent in every brief.  Maybe not all of it, because you may miss something, but you can't willfully ignore things that don't support your position.

There's not much precedent on point.  US v. Ammidown seems to be the main case, certainly in the DC Circuit, and it's not directly on point and came down in favor of the defendant.

[TwiceHorn 31,283]

4 hours ago, jimmyjazz said:

I'm learnin' here . . . does the court ever go to multiple judges, etc. with specific intent to get best arguments on both sides of the case?

Multiple judges at the trial court level, no.

Appeal panels are three judges or more.

Appeals courts, and sometimes trial courts, routinely invite briefs on an issue from amicus curiae on issues of importance when the interests of all stakeholders may not be adequately represented by the parties to the case, who may want to win more than achieve the right legal policy.  The amicii are voluntary, and may take either side, some combination, or neither side.  They are anxious to comment because the case has attracted attention as presenting new or unique or important issues and interested parties and organizations are following it.

It's very unusual for a criminal trial court to do it.  It is made more unusual by the fact that the trial judge appointed a specific person to file an amicus brief, as opposed to "opening the floor" to interested parties.  Although Gleeson is a judge, amicii tend to be lawyers representing some entity or group with an interest.  There's no particular significance attached to his being a former judge, other than general respect for the office.

Finally, it's mentioned upthread, but courts are constrained to some degree by the "party presentation" principle.  That is, they largely have to decide a case based on the presentation of it made by the parties.  This was reiterated in a recent SCOTUS decision authored by Ginsburg in which the 9th Circuit had invited amicus briefs that raised a ton of issues not raised by the parties.  The 9th Circuit then reversed the conviction on grounds not raised by the prosecution or defense  And SCOTUS whacked the 9th and convicted the defendant (well, affirmed the conviction).

To me, this really is in almost no way analogous to the amicus curiae situation, for the reasons mentioned above.

What it does resemble is the "guardian ad litem" procedure.  When an incompetent person (either "mental" or a child) is a party to a case, that case cannot be brought directly by that person, but rather by a parent or guardian in their name and for their benefit.  It is routine and mandatory for the judge to appoint an attorney called a "guardian ad litem" to represent the interests of the incompetent person.  The job of the ad litem is to make sure that the guardians or parents aren't placing their interests above those of the incompetent and that any settlement is fair to the incompetent without considering the interests of the parents or guardian.

Edited June 14, 2020 by TwiceHorn

[Hookah Horns 3,082]

6 hours ago, jimmyjazz said:

If you don't mind indulging my ignorance . . . why would that be the implication?

Because it would only be done under an assumption that the lawyers on that side can't provide the best argument for their position. 

And if your question is really about the judge's desire to simply be educated on the applicable law, you should know that he has a staff of elite recent law school grads briefing him on the law. In this situation, however, he has to give the gov't something to argue against (Gleeson's brief). 

[jimmyjazz 45,560]

8 hours ago, Hookah Horns said:

Because it would only be done under an assumption that the lawyers on that side can't provide the best argument for their position. 

I'm not getting it.  Which side?  He's (hypothetically) asking for arguments on both sides.

Quote

And if your question is really about the judge's desire to simply be educated on the applicable law, you should know that he has a staff of elite recent law school grads briefing him on the law. In this situation, however, he has to give the gov't something to argue against (Gleeson's brief). 

OK, I get that.  Thanks.

[Hookah Horns 3,082]

3 hours ago, jimmyjazz said:

I'm not getting it.  Which side?  He's (hypothetically) asking for arguments on both sides.

OK, I get that.  Thanks.

The only reason for asking for outside briefing is when both parties align on an issue. Like this one. If the judge here asked for an amicus brief supporting the DOJ position, he'd be saying that he didn't believe the DOJ's lawyers could competently make the arguments themselves. 

[jimmyjazz 45,560]

Oh, OK.  Thanks, I wasn't picking up on that.

[TwiceHorn 31,283]

This little colloquy illustrates what may be wrong with Sullivan's appointment of an amicus.  Besides the fact that amicii are rarely appointed.

Amicii are not usually invited or appointed because counsel is incompetent or sandbagging, it's to represent an interest not represented by the normal parties.  This is kind of the essence of the party presentation rule.

As Hookah points out, the judge is ably assisted in research by clerks and is an attorney himself, presumably (and in Sullivan's case undoubtedly) experienced in litigation.  If one or both parties are peeing on his leg and telling him it's raining, he doesn't really need to appoint a third party to assist him in discovering and remedying that.

The argument would be that the prosecution is abdicating or sandbagging its role as representing the public interest. So the amicus does that.  But that's kind of a slippery slope because the prosecution does a bad job representing the public interest in a great number of prosecutions.  It's delegated to them exclusively, though.

It's almost as though Sullivan is unwilling to bear the burden or take the heat for telling the government that it's full of shit.  He wants to deflect some of that onto Gleeson.

Edited June 14, 2020 by TwiceHorn

[Francisco 2.0 32,342]

https://www.politico.com/news/2020/06/17/michael-flynn-prosecutors-justice-department-326240

 

Quote

Former national security adviser Michael Flynn’s claims of prosecutorial misconduct are “unfounded,” the Justice Department argued Wednesday in a court filing that nevertheless persists in the government’s unusual attempt to abandon the criminal case he pleaded guilty to two-and-a-half years ago.

“Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office,” Justice Department attorneys said in the filing, suggesting that the government has other reasons for seeking to back away from its case against Flynn.

 

Quote

The denial of wrongdoing by DOJ prosecutors, contained in a lengthy footnote buried in the 49-page filing, came despite Flynn’s lawyers’ repeated attacks on prosecutor Brandon Van Grack, some of which they reiterated Wednesday in their own submission to the U.S. District Court in Washington. Flynn is fighting efforts by the judge in his case, Emmet Sullivan, to probe Attorney General William Barr’s abrupt decision to drop the case.

Van Grack, who served on special counsel Robert Mueller’s staff and acted as lead prosecutor on Flynn’s case, later assumed a senior position at Justice Department headquarters and continued heading up the prosecution of Flynn in the year since Mueller’s operation shut down. 

Last month, Van Grack signaled his disagreement with Barr’s decision to drop the Flynn case by declining to sign the government’s motion and formally withdrawing from the case.

 

 

[Foosters 17,734]

 

[BehoId, The Underminer! 11,668]

25 minutes ago, Foosters said:

 

that's some pretty awesome testimony.  i wish he'd name names more though.  too many "pressure from a senior attorney" sort of anonymity.

[washparkhorn 9,935]

 

 

[Captainant 27,467]

9 minutes ago, washparkhorn said:

 

 

The HJC hearing is gonna be LIT today

[Hugo Stiglitz 23,356]

 

[washparkhorn 9,935]

The opinion: https://pacer-documents.s3.amazonaws.com/207/20-05143/01208238928.pdf

 

[HenryJames 65,890]

 

[HenryJames 65,890]

This is what packing the courts does.

[Biff Tannen 45,499]

wtf

[TwiceHorn 31,283]

37 minutes ago, washparkhorn said:

 

 

That surprises me a bit.  I think that was the almost inevitable conclusion, but surprised the court did it via mandamus.  Which seems to be the gist of the dissent.

It is not terribly surprising that Rao authored the opinion,  Not only is she a Trump appointee, but she has zero real world litigation experience.  I'm kind of surprised she could get anyone to go along with her.

Edited June 24, 2020 by TwiceHorn

[CowboyFred 1,151]

 

8 minutes ago, TwiceHorn said:

That surprises me a bit.  I think that was the almost inevitable conclusion, but surprised the court did it via mandamus.

I don't even know what to think anymore.  I understand that as a matter of law this is the correct decision but this case doesn't really pass the smell test (especially with the way things are in this country).  Question on the mandamus: Is via mandamus not the correct avenue for dismissing the case because the higher court is kicking it back down to the lower court to enforce/order the dismissal?  I didn't read the order before the appeal or look too much into it to see what exactly was ordered to take place in this appeal.  I picked a hell of a time to jump into a legal career.

[DDD Dad 14,252]

 
I don't even know what to think anymore.  I understand that as a matter of law this is the correct decision but this case doesn't really pass the smell test (especially with the way things are in this country).  Question on the mandamus: Is via mandamus not the correct avenue for dismissing the case because the higher court is kicking it back down to the lower court to enforce/order the dismissal?  I didn't read the order before the appeal or look too much into it to see what exactly was ordered to take place in this appeal.  I picked a hell of a time to jump into a legal career.

Not having read any of this stuff, if the ordering of dismissal was ministerial (I.e., judge had no authority or discretion to refuse) then I would think mandamus would be the proper means to force the judge to do so at this stage (no conviction to appeal).

[TwiceHorn 31,283]

7 minutes ago, CowboyFred said:

 

I don't even know what to think anymore.  I understand that as a matter of law this is the correct decision but this case doesn't really pass the smell test (especially with the way things are in this country).  Question on the mandamus: Is via mandamus not the correct avenue for dismissing the case because the higher court is kicking it back down to the lower court to enforce/order the dismissal?  I didn't read the order before the appeal or look too much into it to see what exactly was ordered to take place in this appeal.  I picked a hell of a time to jump into a legal career.

Well, it's kind of formalistic, but mandamus is an "extraordinary remedy" that is invoked only to fix what would otherwise be incurable on appeal.  A great example is when a district judge finds waiver of attorney-client privilege and orders disclosure.  You can't wait until entry of final judgment in the case to obtain meaningful relief from that order.  If the judge was wrong, mandamus is the way to fix it because it's unfixable otherwise as the attorney-client privilege would be destroyed and the genie can't be stuffed back in the bottle.

Here, the mandamus decision is that Sullivan must dismiss, when he hadn't even had the opportunity to rule on the motion to dismiss.  If the mandamus ruling were confined to his amicus and related orders, that would be more rationally within the scope of mandamus.

Here, I think dismissal was probably inevitable, whether via mandamus or appeal-after-final-judgment.  But I think mandamus wasn't warranted here, in this form.

Edited June 24, 2020 by TwiceHorn

[CowboyFred 1,151]

1 minute ago, DDD Dad said:

Not having read any of this stuff, if the ordering of dismissal was ministerial (I.e., judge had no authority or discretion to refuse) then I would think mandamus would be the proper means to force the judge to do so at this stage (no conviction to appeal).

ok that is what I kind of thought as well but thanks for the explanation.

Fuck Michael Flynn tho...

[Chuckie Finster 22,600]

Edited because I have no legal background, but this all just seems so dirty.

Edited June 24, 2020 by Chuckie Finster

[CowboyFred 1,151]

Just now, TwiceHorn said:

Well, it's kind of formalistic, but mandamus is an "extraordinary remedy" that is invoked only to fix what would otherwise be incurable on appeal.  A great example is when a district judge finds waiver of attorney-client privilege and orders disclosure.  You can't wait until entry of final judgment in the case to obtain meaningful relief from that order.  If the judge was wrong, mandamus is the way to fix it because it's unfixable otherwise as the attorney-client privilege would be destroyed and the genie can't be stuffed back in the bottle.

Here, the mandamus decision is that Sullivan must dismiss, when he hadn't even had the opportunity to rule on the motion to dismiss.  If the mandamus ruling were confined to his amicus and related orders, that would be more rationally within the scope of mandamus.

ahhh this is the important information I was missing as to your surprise.  I appreciate all the legal minds that drop in and give their legal perspective.  As someone new in this field, some of the information reassures what I believed while others, at times, make me think I don't know what I'm doing.  Its great!!

[TwiceHorn 31,283]

5 minutes ago, DDD Dad said:

Not having read any of this stuff, if the ordering of dismissal was ministerial (I.e., judge had no authority or discretion to refuse) then I would think mandamus would be the proper means to force the judge to do so at this stage (no conviction to appeal).

They didn't quite hold that, but close.  The district court has minimal leeway in granting leave to dismiss, but there's some.  It's more than a ministerial act even under the majority opinion.

Not only is Rao pretty much a Trump lackey, but she is really devoid of litigation and judicial experience and it shows.  I think most judges would have declined mandamus, given Sullivan the opportunity to rule and, if other than dismissal, would have resulted in a more meaningful appellate opinion.

[Lagunamadre 1,975]

So, does this mean it's over? If not, what are the next steps? 

[TwiceHorn 31,283]

6 minutes ago, Chuckie Finster said:

Edited because I have no legal background, but this all just seems so dirty.

In this application, yes it's dirty.

In the big picture though, if the government wants to exercise its discretion to let a defendant off, our system virtually demands that it happen.  No matter the reasons for the exercise of discretion.  Neither the public interest nor the judicial branch can compel a conviction, when the executive/prosecutorial branch chooses not to pursue it.

[TwiceHorn 31,283]

1 minute ago, Lagunamadre said:

So, does this mean it's over? If not, what are the next steps? 

Donezo.

[Captainant 27,467]

2 minutes ago, Lagunamadre said:

So, does this mean it's over? If not, what are the next steps? 

 

Just now, TwiceHorn said:

Donezo.

On the other hand

 

And the dissenting opinion from Judge Wilkins was "It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own."

So I wouldn't be surprised to see it immediately be challenged. At least I fucking hope it is.

[TwiceHorn 31,283]

1 minute ago, Captainant said:

 

On the other hand

 

And the dissenting opinion from Judge Wilkins was "It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own."

So I wouldn't be surprised to see it immediately be challenged. At least I fucking hope it is.

Well, "challenged" is different from reheard. 

Sua sponte en banc is vanishingly rare.  We shall see.

[Captainant 27,467]

1 minute ago, TwiceHorn said:

Well, "challenged" is different from reheard. 

Sua sponte en banc is vanishingly rare.  We shall see.

As vanishingly rare as a circuit court ordering a lower court before it's even had a chance to rule? 

[TwiceHorn 31,283]

11 minutes ago, Captainant said:

As vanishingly rare as a circuit court ordering a lower court before it's even had a chance to rule? 

Weird shit happens on mandamus with some regularity, in my observation.  I'd say its intended limited scope is exceeded as often as it is not.  Partly I think it's a symptom of appellate overreach.  A fair number of appeals judges/courts seem to see themselves as super-trial-courts and get into shit they really ought not to if properly observing their role. 

The active judges of the DC Circuit are still a majority Clinton/Obama appointees, so if you buy into the partisan deal, maybe it will happen. 

Ooorrrr maybe not.  https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-en-banc-review/

The DC Circuit has granted en banc review a whopping eight times in the last 10 years.  And that on petition.

Edited June 24, 2020 by TwiceHorn

[Pig Bellmont 8,692]

Rao is a fraud and political hack. The court will almost certainly have a rehearing en banc. I don’t think Trump has 6 votes to force dismissal before Sullivan even ruled

[Captainant 27,467]

10 minutes ago, TwiceHorn said:

Weird shit happens on mandamus with some regularity, in my observation.  I'd say its intended limited scope is exceeded as often as it is not.  Partly I think it's a symptom of appellate overreach.  A fair number of appeals judges/courts seem to see themselves as super-trial-courts and get into shit they really ought not to if properly observing their role. 

The active judges of the DC Circuit are still a majority Clinton/Obama appointees, so if you buy into the partisan deal, maybe it will happen. 

Ooorrrr maybe not.  https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-en-banc-review/

The DC Circuit has granted en banc review a whopping eight times in the last 10 years.  And that on petition.

Good datapoints, but also consider the backdrop on which this ruling came out: on the same day as judiciary committee hearings for preferential treatment towards political allies of the president, a trump-appointed judge is compelling a lower court ruling before that court has even had a chance to rule - ON A CASE FOR A POLITICAL ALLY OF THE PRESIDENT!

Judges aren't stupid. I'd be more disappointed than usual if they didn't review this ruling.

[TwiceHorn 31,283]

2 minutes ago, Captainant said:

Good datapoints, but also consider the backdrop on which this ruling came out: on the same day as judiciary committee hearings for preferential treatment towards political allies of the president, a trump-appointed judge is compelling a lower court ruling before that court has even had a chance to rule - ON A CASE FOR A POLITICAL ALLY OF THE PRESIDENT!

Judges aren't stupid. I'd be more disappointed than usual if they didn't review this ruling.

As a lawdog, you might appreciate that Yale article.  It's short.

It seems that one reason they don't rehear with regularity is to preserve collegiality.  Given that it's the most "political" court of appeals, they may want to keep their partisanship to a dull roar.

Quote

In 2004, Judge Edwards shared some interesting thoughts on the subject:

Collegiality cannot exist if every dissenting judge feels obliged to lobby his or her colleagues to rehear the case en banc in order to vindicate that judge’s position. Politicking will replace the thoughtful dialogue that characterizes a court where every judge respects the integrity of his or her colleagues. Furthermore, such politicking would impugn the integrity of panel judges, who are both intelligent enough to know the law and conscientious enough to abide by their oath to uphold it. …. In an uncollegial environment at its worst, decisions to rehear cases en banc can result in disastrous, ideologically driven, and result-oriented judicial decision making. A high rate of en banc rehearings can be a symptom of an absence of collegiality. … However, the complete absence of en banc review may also be detrimental to collegiality, because panels may become too independent of the rest of the court. On a collegial court, the court trusts panels to do their work, and the possibility of en banc rehearings constrains panels to be responsible to the full court.

 

[Captainant 27,467]

14 minutes ago, TwiceHorn said:

As a lawdog, you might appreciate that Yale article.  It's short.

It seems that one reason they don't rehear with regularity is to preserve collegiality.  Given that it's the most "political" court of appeals, they may want to keep their partisanship to a dull roar.

Thanks for that background article, it is informative. What jumps out to me though is that their chief reason to avoid en-banc review is that it can "result in disastrous, ideologically driven, and result-oriented judicial decision making"

...

Which is exactly what has happened here. And is in the dissenting opinion on the decision. It's not just that it's a disagreeable judgement - norms and judicial proceedings are being overruled and are being taken out of order. Based on your article, it seems that the entire circuit is unlikely to pursue en banc, but in this case it can be driven by the dissenting judge and I don't think there's a mechanism for the DC Circuit court to ignore it

Edited June 24, 2020 by Captainant
derp: wrong judge

[TwiceHorn 31,283]

7 minutes ago, Captainant said:

it can be driven by Sullivan and I don't think there's a mechanism for the DC Circuit court to ignore it

Elaborate?

On the one hand, it's a "politically" important decision.  Judicially, I think it's probably not.  The scope of discretion in dismissal under Rule 48 is a novel and interesting question, but it also seems exceedingly rare, as only a small handful of cases have had to consider it since 1944.  And rare probably ultimately equals unimportant. 

I'm not sure they're going to get terribly upset about exceeding mandamus jurisdiction, particularly when I think the net result -- dismissal of the case -- is probably inevitable.  Even the dissent doesn't argue much past the imprudence of granting mandamus.

The one thing that takes it out of the ordinary is that no party has the right/ability to petition for certiorari here, I don't believe.  I suspect that one reason the DC Circuit doesn't go en banc often is that it would be fruitless to get too wrapped around the axle on some of their decisions because they are often Supreme Court fodder.

Edited June 24, 2020 by TwiceHorn

[Captainant 27,467]

1 minute ago, TwiceHorn said:

Elaborate?

On the one hand, it's a "politically" important decision.  Judicially, I think it's probably not.  The scope of discretion in dismissal under Rule 48 is a novel and interesting question, but it also seems exceedingly rare, as only a small handful of cases have had to consider it since 1944.  And rare probably ultimately equals unimportant. 

I'm not sure they're going to get terribly upset about exceeding mandamus jurisdiction, particularly when I think the net result -- dismissal of the case -- is probably inevitable.  Even the dissent doesn't argue much past the imprudence of granting mandamus.

I derp'd on Sullivan - I meant the dissenting judge. On reading further I think you're right since it still takes 6 out of 11 judges to vote to rehear. I was misconstruing the ability to compel a vote to rehear for rehearing the case

[TwiceHorn 31,283]

2 minutes ago, Captainant said:

I derp'd on Sullivan - I meant the dissenting judge. On reading further I think you're right since it still takes 6 out of 11 judges to vote to rehear. I was misconstruing the ability to compel a vote to rehear for rehearing the case

I thought maybe you meant Sullivan had the right/ability to petition for rehearing or cert.  Which he may?  Whether a judge is formally a party to a mandamus and has rights of that nature is something I don't know.  I think I might have at one time, but I don't recall.

[JBJ 3,649]

38 minutes ago, TwiceHorn said:

I thought maybe you meant Sullivan had the right/ability to petition for rehearing or cert.  Which he may?  Whether a judge is formally a party to a mandamus and has rights of that nature is something I don't know.  I think I might have at one time, but I don't recall.

Like you I didn't think this Mandamus would be issued.  I think Sullivan's terrible response to the writ is a good portion of why it was.

Edited June 24, 2020 by JBJ

[TwiceHorn 31,283]

4 minutes ago, JBJ said:

Like you I didn't think this Mandamus would be issued.  I think Sullivan's terrible response to the writ is a good portion of why it was.

I didn't think Sullivan's response was terrible.  I thought it was quite good, actually.

I did think Gleeson's deal was a bit heavy-handed though.

[TwiceHorn 31,283]

While we're scattershooting about judges and panels, any of you other lawdogs have a feeling that the government gets uncannily good judicial assignments for whatever their position is?

This is one of several Trump-interested decisions that Rao has made, for example.  But it's not just a Trump thing.

I know assignments are (supposed to be) random, but I can't help but think the government games them somehow.

[JBJ 3,649]

He should have simply argued that he is entitled to a briefing and review of new evidence presented.  Bring up a myriad of legal questions that have already been decided and trying to present them as new or unique was a mistake.

[4th&Five 41,461]

 

[CowboyFred 1,151]

Lol Michael Flynn can get fucked as well as his family and the president

[TwiceHorn 31,283]

46 minutes ago, 4th&Five said:

 

VINDICATION!

At Asculum.  Brought to you by Pyrrhus.

To that end, I think Sullivan did about as much as he could to air the dirty laundry.  Mission accomplished there.