Legal Strategery

BREAKING: FLYNN lawyers are asking the U.S. Appeals Court in D.C. to force Judge Sullivan to grant DOJ's motion to dismiss the case: https://t.co/yOoxNNccJT

— Kyle Cheney (@kyledcheney) May 19, 2020

They want to get to the Supremes.  That's the only logical outcome of this.  Of course, the Supremes only have arguments set through May 13, and aren't likely to add anything before the new October term, and further aren't likely to resolve this issue (if they took it up) until next year, and further aren't likely to freeze it at this stage.  Even if they did, it would leave Flynn stuck without a determination until probably next summer.  So it's just barely possible Flynn's lawyers want to pressure Trump into pardoning Flynn if this matter is stuck in legal limbo in January, 2021.  But I really don't see how that works to the benefit of their client.

I don't honestly know what other outcome they think they're going to win.  Sullivant is considering a criminal contempt charge against Flynn.  I can't see an appellate court brushing that aside before it's even been heard, and I equally can't see an appellate court ruling on the motion to dismiss before the trial court has even had a chance to rule.  Appealling a court's decision to hold a hearing on a motion is not exactly solid grounds for an interlocutory appeal.  (Normally an appeal is to seek correction of an error of law in the lower court.  A decision to hold a hearing is rarely, if ever, such an error.  The outcome of the hearing might be, but we aren't there yet. If Sullivan holds a hearing and then dismisses the charges, where's the error Flynn complains might occur?)

I don't know, hard to make sense of this, except that the lawyers want to prove to the client they are determined to spend all his money...er, zealously represent him to the last degree.  I had something similar happen to me in my family law days.  Our client, the husband, lived in New England, and had given up paying us to represent him in a divorce from a marriage he no longer wanted any part of (Texas is a community property state, wife was fighting viciously to keep her family money in her family.  Probably Daddy was telling her to do that, actually.  She was rich, ex-husband was not.)  He dropped us (quit paying, returning our calls, etc.), so I called the other lawyer and asked for an agreed order to let us out of the case, which I would take to a judge for signature and entry in the case.

Instead, we had a hearing.  And here's how it went:  I spoke for less than five minutes, and the judge turned to the wife's lawyer and said the words every lawyer wants to hear:  "Why shouldn't I grant this motion?"  She (the other lawyer was a woman) ranted for 15 minutes or more, and then the judge granted our motion to withdraw.  And she got her fees for a court appearance.  The client was rich, the client didn't care; but that lawyer played her like a fiddle to squeeze a little more money out of what was obviously, for her, a cash cow.

I think that's what Flynn's lawyers are doing now; because there's no legitimate legal reason to do it, and I don't even see how it pressures Trump to pardon Flynn.

The pardon, of course, depends on Trump's mercurial nature, so dismissal is the sure course.  But the Appellate Court is unlikely to go along with this, just on the grounds it's premature; and the Supremes will be gone for the summer by the time that ruling comes down.  And Judge Sullivan will just have more time to collect amicus briefs and let his amicus curiae prepare for the hearing waiting for the Appellate Court to rule.  If the Appellate Court doesn't issue some kind of stay, Flynn's lawyers won't even get that delay.  Again, I don't see the Appellate Court going even that far, because a stay would mean they had some reasonable expectation of prevailing on appeal, or that Flynn would suffer irreparable harm if the charges aren't dismissed.

But Flynn has already pled guilty, and he can't appeal a non-dismissal of his case, until there is one.  And waiting for that to happen won't harm him at all, because...did I mention he's already pled guilty?  Twice?

Third time is the charm, they tell me.