Major legal issues breaking over the next couple of weeks

Started by taxed, July 08, 2020, 01:33:34 AM

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taxed

Shipwreckedcrew lays out a few items everyone should have on their radar...

https://www.redstate.com/shipwreckedcrew/2020/07/07/some-significant-legal-issues-for-trump-administration-will-break-in-the-next-couple-weeks/

The Flynn case being one of them:

QuoteFirst, based on the decision of the DC Court of Appeals, and the 21 day period under the Rules of Appellate Procedure before a "Mandate" issues from the Appeals Court to the District Court, Judge Sullivan has until July 14, 2020 to dismiss the case against Gen. Flynn himself.  If Judge Sullivan does not act on or before July 14, then the case will be automatically dismissed by the District Court upon the Order of the Appeals Court.  At any time during that 21 day period it could be announced that there has been a vote taken on a request for the case to be reheard en banc — which means by the whole court.  As I understand the process, a request for such a vote to be taken, and the outcome of such a vote, would be announced at the same time.  In other words, we won't even know that such a vote was called for until we are told what the outcome of the vote might be.  So the fact that we haven't not heard about such a vote being called does not mean that no such request has been made.  We have another seven days to wait.

The Appellate Rules require that a majority of the full time members of the Court — not Senior Status judges — must vote in favor of rehearing a case en banc for such a hearing to take place.  There are currently seven judges on the Court appointed by Democrat Presidents, and four appointed by GOP Presidents.  With 11 judges, it would take a vote from six of them to rehear the matter.  But one of the Democrat appointed Judges is Chief Judge Sri Srinivasan, who wrote the opinion in the Fokker Services case that was relied upon by Judge Rao in ruling that the DOJ motion to dismiss Gen. Flynn's case must be granted.  In what was likely a tactical error, Judge Wilkins who dissented in the decision on Gen. Flynn's case called the Fokker Services case "dicta" with regard to the key passages that Judge Rao relied upon.  It must have stung Judge Srinivasan for another member of the Circuit to make such a belittling comment about Judge Srinivasan's legal analysis as set forth Fokker Services.  Since it would be Judge Srinivasan's decision in Fokker Services that would be undermined by a decision reversing the panel, its quite likely that Judge Srinivasan is a vote against en banc review.   In addition, the internal dynamics of a relatively small appeals court are such that other Democrat appointed judges might not want to put themselves in the position of potentially having to side against Judge Srinivasan by rehearing the Gen. Flynn case, when the ultimate outcome of the case is simply not that important "in the grand scheme of things."  If just one Democrat appointed judge feels that way, then there are not 6 votes to rehear the case en banc.
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