The DC Circuit has decided to rehear General Michael Flynn’s request for a mandamus ruling ordering the DC District Court to accept Flynn’s motion—agreed and proffered by DoJ—to drop entirely the case against Flynn. The Circuit plainly does not trust the original Circuit ruling to issue the mandamus and so to order the lower court.
The Wall Street Journal has opined on the matter. While I disagree with the DC Circuit’s decision to retry the Flynn mandamus appeal en banc, I more strongly disagree with the WSJ‘s rationale for not rehearing it.
It will stoke more public cynicism about the politicization of the judiciary. This alone ought to have persuaded the DC Circuit not to rehear its panel’s decision.
No court should hear or not hear a case, or rule in a particular direction, based on public perception of the court. Every court—if it’s to preserve the legitimacy of the court and of the judiciary as a whole—must make those hear/rule decisions based only on the merits of the case at hand.
That is the subject and purpose of the judges’ oaths of office and the subject and purpose of the Judicial Branch.