Yesterday the Circuit Court of Appeals for the District of Columbia issued an Order setting oral argument on the Petition for Mandamus filed by Gen. Michael Flynn, seeking to have the Circuit Court “mandate” to Judge Emmet Sullivan that he grant the Justice Department motion to dismiss the case. Noteworthy in the Order is that they have allotted a combined 30 minutes to Gen. Flynn’s counsel and the United States, while giving Judge Sullivan’s counsel only 15 minutes. Given that the two sides are nominally “opposed”, the Court has put its thumb on the scale by giving one side twice as much time to argue as the other. Part of this reflects that DOJ has a stated some reasons for wanting to dismiss the case that are unique to the Department, and do not depend on the reasons advanced by Gen. Flynn for the same. But not “evening up” the two sides of the argument is noteworthy. In my experience having argued more than 20 cases in Circuit Courts of Appeal — and watching dozens of others be argued waiting for my cases to be called — the time is normally evenly divided on both sides of the question, and then divided up again by counsel on each side when there are multiple parties. I found the decision by the Circuit Court here to not follow that pattern interesting.
I was surprised that the Appeals Court would even set the case for oral argument, and I think it suggests one of two things is likely true with regard to the panel.
First, they are simply trying to be “over-the-top” fair and transparent about allowing all the arguments on both sides to come before the Court on the issue, and they recognize the posture of this particular case — combined with its extraordinarily high profile — warrant giving all the “stake-holders” in the outcome a chance to fully voice their positions on the question before the Court. It’s unusual for a case such as this to arrive at the Circuit Court in this posture — with no final order from the lower court being subject to review, but rather a “refusal” by the lower court to act expeditiously. It would be difficult to justify reaching an answer on the question they have taken up without giving Judge Sullivan a chance to offer an explanation.
Read the rest at: Judge Sullivan slap down