USCA-DC to Gen. Flynn: No Writ for You!

In May, the government moved to dismiss the cases against Gen. Michael Flynn. Normally, the judge would routinely grant such a motion. If the parties are agreed, there is generally nothing for a court to decide. In this case, though, the judge did not grant the motion right away but appointed an amicus curiae to argue against it. Gen. Flynn asked the court of appeals for an “extraordinary writ,” ordering the district court immediately grant the motion to dismiss. See this post by Bill Otis. Yesterday, the court of appeals said no.

Is this a vindication for the judge’s unusual maneuver and a repudiation of both the government and Gen. Flynn? No.

Extraordinary writs are, as the name implies, extraordinary. One of the requirements to get one is that other avenues of relief do not exist or are inadequate. The court of appeals said, in essence, that Gen. Flynn can wait for the district court to decide the motion and then take appropriate action, either an appeal “via the collateral order doctrine or a fresh petition for mandamus challenging the denial.”

Can the district judge drag this out indefinitely? The court of appeals’ opinion ends with the admonition “we trust and expect the District Court to proceed with appropriate dispatch.” Remember “all deliberate speed” in Brown v. Board of Education?

I suspect that delay is the whole point. If Mr. Biden is elected in November we could expect the dismissal motion to be withdrawn. We could, that is, unless Mr. Trump moots the case with a midnight pardon, which would also be quite likely if it comes to that.

But it may not. I expect that a petition to the Supreme Court will be filed very soon.