What’s amazing is that he overturned a jury’s conviction of Senator Stevens when some serious prosecutorial misconduct came to light. In my view the misconduct is far worse here than it was in Stevens’ case.
As to the language, it’s a judgment call. I’d tone it down a bit because it’s my experience that appellate judges do not respond well to gorilla language.
Flynn has a tremendous case. There’s no reason to use language that might alienate an appellate judge, especially since the case is nuanced enough to potentially have many different results, some of which Powell might not like, such as allowing Sullivan to have his hearing on Flynn’s alleged perjury.
It’s going to be luck of the draw, a lot depending on the panel that assigned the case. But in my estimation, even the most liberal panel will feel compelled to reverse Sullivan.
The real question regarding the mandamus proceeding in my estimation is one that highlights the absurdity of it all. That question is this one: who will defend Sullivan’s actions in the Court of Appeals? The DOJ won’t, the judge is not a party, and both parties agree that a dismissal is in order. I expect some amicus briefing, perhaps, because amicus briefs are permissible in criminal cases in the Court of Appeals. So, only amici at the Court of Appeals defending Sullivan? That’s very unusual, but it’s discretionary. This twist IMO highlights how ludicrous this case has become.
A wise appellate panel will reverse, order Sullivan to sign off on the dismissal after having a hearing where no amici are present, and order him to not consider whether the DOJ is acting properly in dismissing the case. It will tie his hands, but it won’t recuse him because the Court of Appeals’ order would for all practical purposes end the case. It will order him not to inquire into Flynn’s alleged perjury in entering a coerced guilty plea. It shouldn’t even mention Sullivan’s bias but use stern language that will broadly hint at Sullivan’s failure to follow established precedent. It should state that even though the panel has serious reservations about Sullivan’s conduct, no purpose would be served by recusing him because of the order on mandamus essentially compelling him to dismiss the prosecution. It might even suggest that it would entertain recusal should Sullivan fail to follow the order on mandamus. Such a statement will hurt Sullivan professionally as his reputation will go down the drain. This is what I’m hoping for. |
