WASHINGTON - June 12, 2020 - In arguments before the D.C. Circuit Court of Appeals this morning, the judges indicated that the court would probably not issue the extraordinary writ of mandamus to prohibit federal judge Emmet G. Sullivan from holding a hearing to inquire into matters related to former national security adviser Michael T. Flynn, predicts public interest law professor John Banzhaf, whose earlier analysis suggested that the order was correct, both legally and logically.

But Banzhaf suggests that the primary reason why the panel is likely to deny a motion to stop the scheduled hearing has more to do with the timing of the request than with legal questions as to the standard the judge should use, or the procedures he is going to use to inform himself regarding his legal authority, says Banzhaf.

The bottom line is that, since Judge Sullivan hasn't yet decided anything or issued any orders, and might well agree with Flynn and the government's positions as a result of the hearing, it would be both premature and unnecessary for the appellate court to take the unusual if not unprecedented step of stopping him from asking questions and getting advice before he acts, says Banzhaf.

Otherwise, contrary to the Federal Rules of Criminal Procedure and several court decisions, he would be nothing more than a "rubber stamp" in this proceeding, and simply trying to more fully explore his role, and the applicable legal standards he should apply, is hardly illegal - and certainly does not justify the extraordinary step of shutting him down, suggests Banzhaf.

Although Sullivan's decision to permit outsiders to comment on and possibly influence his ruling regarding Flynn might be unusual, it is certainly not unprecedented, nor is is it illegal or even illogical, says Banzhaf, who has been involved in several similar situations himself.

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf

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