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The D.C. Circuit Will Rehear the Flynn Case En Banc

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This morning the D.C. Circuit, acting en banc, vacated the earlier panel decision in the Michael Flynn case. The full Circuit will rehear the case en banc on August 11. Here is the Court’s order:

Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is

ORDERED that this case be reheard by the court sitting en banc. It is

FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is

FURTHER ORDERED that oral argument before the en banc court be heard at 9:30
a.m. on Tuesday, August 11, 2020.

The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).

VC readers will recall that a Government motion to dismiss is pending before Judge Sullivan in the District Court—and Judge Sullivan has asked for amicus briefing before making a ruling on the motion. Flynn’s attorneys sought a writ of mandamus from the D.C. Circuit, which would have compelled to Judge Sullivan to enter an immediate dismissal. In my previous posts about the case, I argued that close scrutiny of the Government’s motion to dismiss was unwarranted but that, nonetheless, the issue of considering the motion was one for the District Court–not the Court of Appeals. I thought that the 2-1 panel decision ordering Judge Sullivan to promptly dismiss the case was “dubious” and that it wouldn’t be surprising to see rehearing en banc.

Now that the D.C. Circuit en banc has ordered rehearing, it is quite likely that the full court will deny Flynn’s petition and simply send that case back to the District Court. The Circuit has asked the parties to address whether, under its earlier ruling in Cheney, there are “no other adequate means to attain the relief” desired. Put simply, Flynn’s desired relief is dismissal of case against him—something that the District Court is obviously empowered to do. The District Court may well dismiss the case if given the opportunity to rule. Thus, there are other means to attain the relief Flynn desires. This is not a case that warrants appellate court intervention to provide “extraordinary” mandamus relief.

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Remembering Judge Stephen F. Williams

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On Saturday, I noted with sadness the passing of the Honorable Stephen F. Williams, a senior judge on the U.S. Court of Appeals for the D.C. Circuit. Given Judge Williams’ importance for administrative law and the academy, I thought it was worth noting some of the additional remembrances and celebrations of his life that have been posted since.

Several of Judge Williams’ former clerks memorialize him at Notice & Comment, where Aaron Nielson also celebrates Williams’ intellectual legacy and notes the large number of legal academics who clerked in his chambers. TheWashington Post obituary is here.

Judge Williams was a regular panelist and participant in programs at the American Enterprise Institute. In 2002 he lectured on legal reform in early 20th-century Russia (broadcast on C-Span), a subject that he also addressed in two books. AEI remembers Judge Williams here.

In 2006, a portrait of Judge Williams was hung at the D.C. Circuit. A transcript of that ceremony, including remarks from his colleagues and several former clerks, can be found here.

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Jeffrey Epstein hanged himself one year ago, setting off wave of conspiracy theories and celebrity denials

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Jeffrey Epstein hanged himself one year ago, setting off wave of conspiracy theories and celebrity denials


Jeffrey Epsteins death, regardless of circumstances, robbed his victims of the chance to confront him in court. What we need to remember about Epstein is not how he died, but the terrible damage he and his cohorts did to countless young girls when he was alive and, by remembering, commit ourselves to bringing to justice his cohorts and enablers, and to never again tolerating such abuse, said attorney David Boies, who represents some Epstein accusers.

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Cognitive Dissonance

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Cognitive Dissonance



Right-wing conspiracy theorists get (even more) unhinged as Trump’s chances fade

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