https://www.redstate.com/shipwreckedcrew/2020/08/05/dc-circuit-directs-gen-flynn-doj-and-judge-sullivan-to-be-prepared-to-answer-questions-regarding-judge-sullivans-bias-and-lack-of-impartiality/ DC Circuit Directs Gen. Flynn, DOJ, and Judge Sullivan to Be Prepared to Answer Questions Regarding Judge Sullivan’s Bias and Lack of Impartiality

Posted at 1:30 pm on August 5, 2020 by Shipwreckedcrew

AP featured image

Former Trump national security adviser Michael Flynn leaves federal courthouse in Washington, Tuesday, July 10, 2018, following a status hearing. (A.P. Photo/Manuel Balce Ceneta)

A VERY significant development has just happened today with regard to the upcoming oral argument in the en banc hearing on the Petition for Writ of Mandamus, set to take place next Tuesday, August 11, 2020.

When the Circuit Court issued the Order last week that the Court would rehear the matter en banc, the Order referenced only one issue that was to be addressed, whether “mandamus” relief was the only remedy available to Gen. Flynn and that there was no other remedy available by which he could obtain the relief he sought. That reference addressed the one significant weakness in the Flynn Petition for Mandamus, and the decision of the three-judge panel granting the petition and “mandating” to Judge Sullivan that he grant the D.O.J. motion to dismiss the case.

In the original petition filed by Gen. Flynn, his counsel had sought as one ground of relief if the case were sent back to the District Court for further proceedings, that the case be reassigned to another district court judge due to Judge Sullivan’s conduct, arguing that his conduct was such that his “impartiality might reasonably be questioned,” pursuant to 28 U.S.C. Sec. 455.

In supporting Gen. Flynn’s petition, D.O.J. did not join in the request to have the case reassigned to another district court judge. At the oral argument before the three-judge panel, none of the attorneys who argued the case raised the issue, and the Panel decision did not address the question in a meaningful fashion other than to deny that relief — it was not necessary since the Panel decision ordered Judge Sullivan to grant the pending motion.

I had previously started to write a story about the standards for the disqualification of a federal judge, as there is a specific statute that covers the issue, Sec. 455 mentioned above. But when the parties seemed to drop the issue, I stopped working on the piece. I’ll go back to that now as a preview of what the legal arguments and standards are ahead of next week’s hearing.

But for today’s purposes, I think the significance of the Court’s new order is that it suggests the D.C. Circuit is looking for an avenue that sends the case back to the district court for further proceedings on the pending motion to dismiss under Rule 48(a), while at the same time not continuing or encouraging the “circus” process that Judge Sullivan has set in place and repeatedly expressed a desire to engage in.

As I have suggested on Twitter and here, in my view, two crucial “institutional” considerations are of concern to the Circuit Court. By that, I mean, there are two issues of significance which have nothing to do with whether the motion to dismiss should be granted or denied on its merits.

The Order today suggests that two possible paths to this outcome are under consideration. One would be to simply find that Judge Sullivan’s conduct has created a circumstance where his partiality can reasonably be called into question. That is a basis for mandatory reassignment under Sec. 455 that I referenced above.

I’ll have more later on the legal standards that related to both these questions.