In an 8-to-2 ruling, the court denied Flynn’s request, backed by the Justice Department, to shut down Sullivan’s planned review and his appointment of a retired federal judge to argue against the government’s position.
The decision by the full court reverses a ruling by a three-judge panel of the same court that ordered Sullivan to immediately close the case.
The three judge panel ruled against Sullivan 2-1, so when the entire court rules 8-2 against, it means only Trump appointee Judge Rao and Bush appointee Henderson were persuaded that seeking the presiding judge’s permission to terminate a case in which a conviction has been obtained is mere formality.
As I noted earlier, it’s a gob-smacking opinion to hold, at least to this non-lawyer who is merely reading the clear meaning of the text, and I’m mightily relieved that the entire Court felt those two members were mistaken.
So – does the government now apply to SCOTUS for a reversal? Or does Sullivan get to put the prosecutors – who are not the original prosecutors – on the stand and ask them, if they don’t mind, to tell him just what the hell they think they’re doing?
Interestingly, either route is a win for the forces of democracy. If SCOTUS has to decide, in all likelihood they’ll vote 7-2 against Barr and Trump, again exposing them for their inability to understand the law or their unprincipled use of delaying tactics. If SCOTUS votes for Barr and Trump, the conservative wing will have a lot of explaining to do to both sides of the political spectrum. But the vote won’t go that way.
And if they don’t appeal, the replacement prosecutors, faced with Barr’s wrath on one side and perjury sanctions on the other, will be sweating that much sooner. I hope Judge Sullivan signals that the trial will resume this extraordinary phase later this week.
Of course, the prosecutors, with or without Barr’s direction, could reverse themselves yet again. That self-preservation move would conceal from public view the corrupt directives of Barr & Trump, which would make me sad. But they may go that way. But I doubt it. It’s more likely they’ll resign, buying more time for Barr & Trump.
Although I have heard of resignations not being accepted by a Court.
