A Loss for Flynn and a (Temporary?) Win for McGahn
The U.S. Court of Appeals for the D.C. Circuit usually releases opinions on Tuesday and Fridays. Today, however, was Judge Thomas Griffith’s last day on the court before his retirement, so the court made an exception, releasing an en banc decision in which he participated, a divided panel opinion (in which he wrote the majority), and a revised panel opinion in which he participated.
The headline decision from the D.C. Circuit was the court’s en banc opinion in In re: Michael Flynn, overturning the panel opinion granting Flynn’s Emergency Petition for a Writ of Mandamus ordering dismissal of the criminal charges against him. With ten judges participating, the court issued a per curiam opinion denying the petition and rejecting Flynn’s attempt to have the case assigned to a different district court judge.
The two judges in the majority for the panel decision—Judges Rao and Henderson—each wrote dissents (and joined each others dissents). Judge Rao, who wrote the initial panel decision, focused on the merits. Judge Henderson focused on the question of whether Judge Sullivan had disqualified himself and the case should be reassigned on remand.
Judge Griffith wrote a concurring opinion that is worth quoting.
In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the Presi
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