The Last Refuge by
The transcript of the oral arguments from the August 11th DC Circuit Appeals court has been released. [pdf available here]. The DC Circuit held a full panel hearing to decide the outcome of the unopposed DOJ & defense motion to drop the case against Michael Flynn.
You will remember Judge Sullivan injected himself into the case by approving an amicus to argue against dismissal; this led to a request by the Flynn defense for a writ of mandamus overriding Judge Sullivan. Initially a three judge panel agreed with the writ giving Sullivan 30 days to dispose of the case; however, Sullivan appealed to the full panel (en banc). The first appellate court ruling was stayed, and the full panel heard oral arguments earlier this month. That transcript is below.
The panel of appellate judges included Judge Srinivasan, Judge Henderson, Judge Rogers, Judge Tatel, Judge Garland, Judge Griffith, Judge Millett, Judge Pillard, Judge Wilkins and Judge Rao. However, with Judge Griffith retiring at the end of this month, it is likely the ruling will be announced very soon; could be this week.
Regardless of what decision is reached, the announcement should be anticipated prior to Judge Griffith being replaced by recently confirmed Trump nominee Judge Justin Walker. That means we could see a decision announced this Friday, or by next Friday at the latest.
The judges could remove Judge Sullivan and reassign the case. In that event it’s likely the next judge would simply accept the motion to dismiss. However, the DC circuit could also deliver a ruling that allows Sullivan to retain the final disposition with strong guidance on any subsequent activity.
Given the extra-judicial path of this case essentially anything is possible. That said, the DC appeals court likely doesn’t want this decision being reviewed any further (SCOTUS). It would make sense for the DC panel to seek a face-saving exit for Sullivan that doesn’t put Flynn’s defense in a position to appeal to Supreme Court Justice Roberts for intervention.
Here is the transcript (released 8/24/20):
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Here is the audio of the four hour arguments (8/11/20):