You know that something is wrong when you have to watch the appellate courts to know what is happening in the White House.  And this week has already seen several interesting rulings.

The biggest — because it is from the full U.S. Circuit Court for the D.C. Circuit — concerns the Michael Flynn case.  As you may recall, Michael Flynn (National Security Advisor for a day) pleaded guilty to charges of lying to federal agents as part of the Mueller investigation.  After Mueller wrapped things up and turned things over to the career prosecutors, William Barr became Attorney General of Trump and decided to start undoing what he could of the Mueller investigation and prosecutions.  Rather than proceeding with sentencing of the admitted criminal, A.G. Barr is willing to allow Flynn to withdraw his plea on a flimsy theory and then dismiss the charges.  Because this seems fishy and motivated by something other than normal prosecution operations, the judge who took Flynn’s plea decided to appoint an attorney as amicus curiae (literally friend of the court) to brief why the plea should stand and the request to dismiss the case should be denied.  (This procedure is not unusual at tbe appellate level.  Typically, once or twice a year, the Supreme Court will appoint an attorney to defend a lower court decision when both sides contend that the decision below was erroneous.  Rarely does the appellate court side with the amicus, but it does make sure that the best arguments in favor of the lower courts decision are heard.)

Mr. Flynn and his friends in the administration did not like this road bump in their attempt to wipe away any incentive for Mr. Flynn to decide to start telling the truth about his ties to Russia; so Mr. Flynn filed what is called a petition for writ of mandamus (essentially an order directing a lower court or government agency to do a specific act which contrasts with an injunction which orders a party not to do something).  Mr. Flynn got very lucky with the initial panel assignment somehow ending up with the two Trump appointees to the D.C. Circuit on his three-judge panel.  And the initial panel voted 2-1 to grant the petition and order the trial judge to grant the motion to dismiss.  The rest of the judges on the D.C. Circuit on their own motion decided to take the case from the panel and conduct a rehearing “en banc” (that is in front of all of the regular judges of the court).  On Monday, the full D.C. Circuit issued its ruling — an 8-2 decision denying the petition. Continue Reading...