Do you get the impression that Barr, et al is not really used to people pushing back on his abuses of power? I was reminded of Trump’s practice of refusing to pay contractors, knowing that he could bankrupt them in court. It seems to me that Barr was hoping that this would all go away, and it isn’t quite working out that way.
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If this gets kicked up, predictably, to the full Appeals Court, then Garland, who was the Chief Judge there till February, will sit in judgment (forgive pun).
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The Appeals Court could make that decision.
What other GOP machinations of evil await our attention?
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My guess is that Beth is doing this pro bono. I can’t imagine she’s billing Judge Sullivan anything when it is quite likely that she will be appearing before him in another case someday.
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Thanks
Could such constitute a conflict of interest in any such future proceedings?
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This panel is not making the final decision on the procedures Judge Sullivan has adopted. This will go to an en banc rehearing and then to the Supreme Court. Unfortunately.
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Somebody could move for recusal in the future on appearance of impropriety grounds, but it’s not likely to work. She’s basically stepping up to defend the bar itself, and that’s not really evidence of impropriety. Of course, if she is representing Judge Sullivan concurrently with any other matter she may have in his courtroom, that would definitely be grounds for recusal.
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Perhaps a modest fee from the District Court would be appropriate? That would support your argument that she is defending the bar.
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Hmm. Does Kavanaugh owe Wilkinson a favor? Would Trump appointees need to recuse themselves if Flynn’s testimony somehow includes Trump?
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It might be, but (i) Beth’s fee is not modest, and (ii) federal court budgets are extremely constrained.
If you’re interested, the engagement letter might be available via FOIA, as it would be an administrative matter rather than a deliberative one. (At least, that would be the distinction drawn for Texas’ state FOIA equivalent. I’ve never had to go after federal court documents via FOIA.) And I imagine Judge Sullivan would want to be pretty open about the terms of the engagement.
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Not unless the judge at issue had somehow been involved in the prosecution or the underlying facts, which seems not to be be the case here. Judges and justices routinely preside over cases involving the presidents who appointed them. See Neomi Rao.
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The District Court, because the order to respond is to Sullivan acting in his official capacity.
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if I were sullivan, I’d request an immediate en banc review of the panel’s order – stating that there are no grounds for a mandamus order at all at this point, and that the panel had issued its order in error. In other words, ask the appeals court en banc to issue a mandamus order restraining the panel from interfering at this point in Sullivan’s proceedings.
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IANAL either and probably couldn’t follow the subtitles of the beltway game even if someone explained them to me but have read a bit about Sullivan and it wouldn’t surprise me if sending an attorney rather than responding himself was a dig at the DOJ’s dodge and a comment on the flavor of the demand from the appeals court too. JMO
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You can’t do that. Federal Rule of Appellate Procedure 35(b) allows you to petition for en banc consideration of an entire case, not an interim procedural order by a panel. And while it allows you to request en banc consideration even before the panel has issued its final decision, I cannot think of even a single example of an en banc federal circuit appeals court granting such a request in advance. It’s just not done.
If you really wanted to challenge the panel’s order requiring Judge Sullivan to respond to the mandamus petition, the only available remedy I can think of would be to challenge it via mandamus at the Supreme Court. Which is kind of laughable to even think about. It’s a brief, not a death sentence.
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I think not “having a fool for a client” is reason enough for the judge not to represent himself. But bmaz over at emptywheel says this particular attorney selection works on many levels: Judge Emmet Sullivan Makes A Serious Holiday Move on DOJ and Flynn - emptywheel
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I’m not an attorney, but I love how the judge appears to be directing this up to the USSC when both parties before him are moving to dismiss the case. Brilliant! Let the games begin or continue, as it were.
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That’s a great example of guilt by association building on itself.
And really, it’s disgraceful.
“No shade to Bernie…” and then slams the guy. Might as well be honest. There is nothing wrong with either Briahna Gray or Shaun King, except they dislike the Dem establishment, which means they are a threat to it, which means they will be ceaselessly attacked.
And “pal around with Joe Rogan” is ridiculous. Every candidate wanted to get on Rogan’s show…because it has an audience. Bernie didn’t change his platform in the slightest to get on Rogan’s show.
Centrists have this bizarre conceit that some people aren’t good enough to be supporters. It’s like they don’t want to win elections. A political movement that defines itself to be exclusive is not going to do well in the long run.
And centrists have, in fact, lost more than 1/3 of the party membership since 2008. Down from nearly 50% during Obama’s “Change” campaign to less than 30% now.
As has been pointed out several times on these boards there is a single issue in this dispute:
did Flynn commit a crime by lying to the FBI about his being a foreign agent working for foreign governments and further lying about his meetings and representations with those foreign governments OR, as Trump supported by the Republican Party and Trump’s DOJ, did the FBI commit a crime by catching Flynn lying.
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