Sullivan Asks For En Banc Review Of The Mandamus

You can read Sullivan's petition for an en banc rehearing of the mandamus to dismiss the Flynn case here. You can also listen to Will Chamberlain analyze the petition here. Chamberlain was in a hurry, but in a bit of a rush he does touch on all the major points. He's skeptical of Sullivan's chances, but toward the end notes that the one point that may give Sullivan some traction is his contention that the parties to the case--the government and Flynn--should have asked for Sullivan to reconsider his decision to hold a hearing, appoint an amicus, etc., before petitioning for the writ of mandamus. Chamberlain, however, argues that any traction will be limited because of Judge Rao's very thorough opinion in support of the mandamus, in which she cites law directly on point with that issue.

Jonathan Turley also seems to think that the issue of a motion to reconsider is Sullivan's strongest argument--or, at least, the argument most likely to get a sympathetic hearing from other judges. However, Turley, too, thinks Rao covered that angle:

Judge Sullivan just asked for an appeal to the full DC Circuit court.  I was surprised by the [mandamus] order, but the request for en banc review still only delay[s] the inevitable for the court.  The law is clear on the eventual dismissal of the charges. 

Many judges would likely agree that the case should have been left to Sullivan to dismiss after a hearing.  However, Sullivan undermined his case with his deeply disturbing orders to bring in a third party to argue issues that neither actual party supports and ... 

...then suggesting that he might actually substitute his own criminal charge. There is a point when the improvisational becomes virtually recreational for a court. The panel was correct that the charges must clearly be dismissed in the case despite the court's obvious displeasure.

All of those facts were covered by Rao in her original opinion.

Shipwreckedcrew has an article on this development, but his Twitter feed probably provides more actual analysis. I hesitate to disagree, however, I'm not persuaded that granting the writ of mandamus without a prior motion to reconsider will lead to chaos in the courts, as shipwreckedcrew argues. It seems to me that he's not giving full weight to what Turley terms Sullivan's

"deeply disturbing orders to bring in a third party to argue issues that neither actual party supports and then suggesting that he might actually substitute his own criminal charge." 

What Sullivan did really was quite extraordinary and is unlikely to be replicated in other cases. I simply doubt there will be many other litigants "sprinting to the Appeals court" to get the Flynn Treatment.

Here are shipwreckedcrew's comments--the questions that he's responding to are in italics:

There's likely a deadline on how long the judges have to decide to grant or deny the petition for an en banc hearing. I trust @shipwreckedcrew would know that. 

Correct -- if they vote to rehear the case, then the 21 day issue is moot.  The panel decision is vacated, and has no force. 

how long do the judges have to consider Sullivan's petition to have a hearing? 

I’m not sure there is a timeframe but there is no purpose in delaying on their part.  They all know what their vote is going to be.  There isn’t any mystery here for them. 

Wonder if Sullivan doing this because he already knows the judges will support him or he simply wants to run the clock until after election. Either way, he is very effective. 

I think the fact that Sullivan was forced to ask [for the rehearing] himself -- any judge of the court could have called for a vote without Sullivan's petition -- is an indication that there are not 6 votes to rehear the case. 

I HONESTLY don't think that's it.  There are real and legitimate issues here from the perspective of a district court judge -- take away the fact that it is the Flynn case. 

It is an extraordinarily rare instance where the Appeals Ct reaches down into the trial court and says "You must rule XYZ" before the trial court has ruled. It just doesn't happen.  Using a "blunt" tool like Mandamus to do it, when the traditional use of mandamus is very narrow. 

Creates some implications for both courts.  By granting the petition like happened here, it only encourages other litigants to sprint to the appeals court asking for the same kind of thing Flynn asked for BEFORE the trial court has ruled. 

Flynn's case is "extreme" simply because of all the context and subtext that attaches to it.  But the implications for both courts are very real with regard to hundreds of other cases where defendants will now say "What about me?"  in seeking the same relief the Court gave Flynn. 

I’d be very interested to hear some discussion from @Techno_Fog @TheLastRefuge2 @ProfMJCleveland on the prematurity of @SidneyPowell1’s mandamus motion here. 

I thought [Powell] should have filed motions to reconsider the appointment of the amicus counsel, and the briefing schedule.  That would have forced Sullivan into issuing an order, and that Order would have been a better basis  to seek Mandamus relief. 

If the 21 day time arrive before they vote, then what happens? 

I invite an[y] appellate specialist to correct me if I'm wrong, but if the Appeals Court fails to act by the end of the 21 day period then the panel decision is effective.  The decision is not stayed only by the filing of a petition.  Only the Appeals Ct can stay the mandate. 

In other words, if the Court of Appeals doesn't act within the week, the mandamus goes into effect.

In a way, Sullivan taking this step when no judge of the Circuit has called for a vote in over two weeks is a bit of a "stick in the eye" to the Appeals Court.  Their silence was letting him know they weren't bothered by Rao's outcome.  So he tries to force their hand.