1) Whether Judge Sullivan should disqualify himself for perceived impartiality; and
2) If Sullivan should disqualify himself as a party to the proceeding.
Commenter EZ suggested in a comment that this could be the Court looking for a way out of the mess Sullivan has created. The fact is that, no matter what the Dem judges may think of Trump or of Flynn, they know that to come down in favor of Sullivan's unhinged approach will 1) ultimately be shot down by the SCOTUS, and 2) expose them as lacking impartial judicial temperament and proceeding without regard to core constitutional issues. One way of getting out of this mess might be to squash Sullivan's circus-style appointment of an "amicus" but allowing Sullivan to finish considering the original motion to dismiss. Recall that the Petition for Mandamus was filed before a ruling on the motion to dismiss, the reason being that the appointment of a wildly biased "amicus"--or, in point of fact, any amicus--was clearly unprecedented and called into question the very nature of separation of powers under our constitution.
Shipwreckedcrew has a new article up in which he pretty much comes down on the side of the Court looking for a way out of a mess that Sullivan created:
I think the significance of the Court’s new order is that it suggests the DC Circuit is looking for an avenue that sends the case back to the district court for further proceedings on the pending motion to dismiss under Rule 48(a), while at the same time not continuing or encouraging the “circus” process that Judge Sullivan had set in place and repeatedly expressed a desire to engage in.
Under this reasoning, it appears that the DC Circuit recognizes that the Mandamus imbroglio was caused by Sullivan's vendetta against Flynn, as seen in his appointment of a clearly biased "amicus" and an expressed intention to consider further perjury charges against Flynn regardless of any decision on the part of the Executive branch. Both of these decisions flew in the face of precedent and rules of procedure. As Shipwreckedcrew expresses it:
Sullivan has corrupted that “regular order” process with his appointment of an amicus counsel to argue against an unopposed motion, and the suggestion that a far-reaching inquiry into the deliberative processes of the Executive Branch — maybe including affidavits or testimony under oath by government officials — is warranted by the motion.
Sullivan has turned that “regular order” process into his own Captain Ahab-esque quest to find the “White Whale.” The Circuit Court needs to preserve the “regular order” process while at the same time disapproving the manner in which Judge Sullivan has conducted himself in the case.
In Shipwreckedcrew's view, the scenario raised by the Court's request for consideration of Sullivan's role suggests they could be looking at two possibilities for restoring "regular order" to the DC Circuit:
One would be to simply find that Judge Sullivan’s conduct has created a circumstance where his partiality can reasonably be called into question. That is a basis for mandatory reassignment under Sec. 455 that I referenced above.
The second option would be the more benign approach of finding that in pursuing the Petition for Rehearing En Banc, Judge Sullivan has now made himself a nominal “party” and as such he can no longer preside over the case.
A third possibility might be to deny the Petition for Mandamus but to direct Sullivan to rule on the Motion to Dismiss without use of an amicus and relying on the facts as stated in the motions. That could be accompanied by statements regarding the proper role of judges in handling such motions. That would also presume that the Court is serious about putting an end to the circus, but wants to avoid disqualifying Sullivan.
UPDATE: Highly experienced attorney and law professor Jonathan Turley appears to agree with commenter Tom Bop--the best way to understand the DC Circuit's order is that they have set themselves on a path to remove Sullivan from the Flynn case. Turley says he can see an order similar to the one I sketched out--but still believes it would include removal of Sullivan. I have to wonder whether the Chief Judge got some sort of message from ... someone. I know for a fact that such things happen:
The DC Circuit just issued an order for the counsel in Flynn to be prepared to answer questions about mandatory recusal or removal conditions for judges.
The only potentially applicable part of 28 U.S.C. 455 includes mandatory recusal "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge https://www.law.cornell.edu/uscode/text/28/455
The order is interesting because the briefing already raises bias, but the order is preparing for argument on whether this was not just a case of judicial error but a matter for mandatory disqualification. It is the difference between judging wrong and the wrong judge in a case.
The en banc could ask why it should not send the case back for a hearing (reversing the dismissal order of the panel) but remove Sullivan as the judge. It then reaffirms the power of the trial court while reinforcing the need for judicial impartiality.
Such an order could also include instruction to bar Sullivan's highly irregular use of a third party to argument and note the clarity of the legal standard strongly favoring dismissal in such circumstances.