D.C. Circuit will rehear the Flynn-Sullivan case en banc

After a panel of the U.S. Court of Appeals ordered Judge Emmet Sullivan to grant the Department of Justice’s motion to dismiss the prosecution of Gen. Michael Flynn before Judge Sullivan had ruled on the motion, Sullivan petitioned for review by the full D.C. Circuit. Two of the three judges on the panel were appointed by Republicans. By contrast, most of the judges on the full court were appointed by Democrats.

Therefore, it’s not surprising that the full court has decided to review the panel’s order. To be fair, the panel’s order is arguably erroneous. Granting a writ of mandamus, as the panel did, is an extraordinary measure. It would be one thing if Sullivan had denied the government’s motion to dismiss the Flynn prosecution. But he didn’t. The appeals court didn’t wait for Sullivan’s ruling before finding error and telling the judge what to do. Ordering a court to grant a motion it hasn’t yet ruled on is truly extraordinary.

To be sure, just because the D.C. Circuit agreed to rehear the case doesn’t mean it will overturn the panel’s ruling. However, if I were a betting man, that’s the outcome on which I would place my money.

It would be an unfortunate outcome. Judge Sullivan should have granted the motion to dismiss the Flynn prosecution straight away. And, as a matter of equity and decency, Flynn shouldn’t have to go through a show trial, in effect, by the out-of-control Sullivan and then, presumably, make another trip to the D.C. Circuit to get that result. But there’s a good chance he will have to endure all of this, and no assurance he will get a favorable result in the end, given the over-the-top hostility of Sullivan and the composition of the D.C. Circuit.

If there’s good news for Gen. Flynn, it’s that he probably won’t spend a minute in jail. By the time the court hears the case en banc and issues a ruling, and by the time Judge Sullivan takes testimony in connection with the government’s motion and decides on a sentence for Flynn, and by the time all further appeals are exhausted, we very likely will be past the election. At that point, I’m pretty sure President Trump will pardon Flynn, if necessary.

Moreover, even if the election hasn’t taken place in time, Trump very well might still pardon Flynn rather than see him go to prison. Trump didn’t wait until after the election to commute Roger Stone’s sentence, and the case for pardoning Flynn is stronger in my view than the case for commuting Stone’s sentence.

In the meantime, though, Judge Sullivan gets to continue his lawless harassment of Gen. Flynn, and Flynn’s legal fees continue to mount.

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