Thursday, June 25, 2020

In re Michael Flynn as Bush v. Gore

By Orin S. Kerr - June 25, 2020 at 12:47AM

Today a divided panel of the D.C. Circuit's handed down its decision in In re Michael Flynn. The appellate court ordered the district court to grant the government's motion to dismiss the charges against Flynn.  Reading the decision, it reminds me a lot of another decision from another field in another time by another court.  That other decision is Bush v. Gore.  I wanted to say a bit about why I see them as similar.

First, the context.  Both Bush v. Gore and In re Flynn occurred in hyper-partisan political environments.  In Bush v. Gore, the outcome of the 2000 Presidential election hinged on the result in Florida.  The vote counting was being overseen by the Florida Supreme Court, which was a liberal court that many conservatives believed was trying to stack the deck on the recount to help the 2000 Democratic candidate.

In Flynn, the defendant is a close supporter of the President.  The President strongly wants the charges dismissed in Flynn's case so he can use the resulting narrative of that case as part of his campaign in the upcoming election. The district court proceeding is being overseen by Judge Sullivan, a liberal judge who conservatives think is trying to interfere with the dismissal of Flynn's case to help the 2020 Democratic candidate.

Next, the timing.  Both Bush v. Gore and In re Flynn involve extreme time pressures. In Bush v. Gore, we needed to know who won the election.  The Court had heard an earlier case from the Florida Supreme Court earlier, but the Bush v. Gore round was lightning fast: The Florida Supreme Court ruled on December 8th, the U.S. Supreme Court took the case and had argument on December 11th, and the opinion came down the next day, December 12th.

In Flynn, there is less of a timing pressure—the election is coming up in a few months, not behind us.  But still, the proceedings happened very quickly. The emergency mandamus petition was filed May 19th, oral argument was June 12th, and the opinions were handed down twelve days later on June 24th.

Next, both cases pair a novel merits question and a remedies question. As to the merits, in both cases the question of was how the lower court was supposed to apply a general principle to a new context.  And in both cases, the remedies question was whether to let the lower court then apply the law on remand.   In a normal case, the higher court would say what the law is and remand to the lower court.

But here's the most interesting part, I think.  In both cases, the court told the lower court to just flat out stop what it was doing.  And in both cases, that remedy was pretty astonishing.

In the 2000 election case, Bush v. Gore, you would have expected the state court to decide what kind of election recount state law permitted.  Instead, the Supreme Court ordered the Florida Supreme Court to halt the recount. "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed," the majority held, "we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."   Remarkably, Supreme Court just took control and told the lower court to stop it.

Similarly, in Flynn, you would have expected the lower court to be able to rule on the motion. A motion to dismiss was filed, and the district court was considering it and wanted to hear different perspectives before ruling.  Judges get motions, consider them, have hearings, and rule on them all the time.  That's the way it normally works.  Instead, the D.C. Circuit concluded that the district judge couldn't even consider the question.  Merely having a hearing on how to decide the motion is a harm, the court concluded.  And the court didn't trust the district court to approach the law the right way if they let him proceed in the normal way.  So remarkably, the D.C. Circuit just took control and told the lower court to stop it.

Finally, there's another obvious and perhaps inevitable (although sad) similarity. In both cases, the opinions were divided along party lines, with the majority judges on the side that helped the President of the party that nominated them.

 


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