Judge Emmet Sullivan is refusing to accept the three-judge appeals court ruling – which granted a writ of mandamus and instructed Sullivan to dismiss the Flynn case per the DOJ and Flynn defense unopposed motion. Today Judge Sullivan is asking the Full DC Circuit Court panel to conduct an en banc rehearing of the issues. [pdf here]
There is no guarantee the full DC Circuit will agree to the en banc request. However, given the nature of the court, it should be anticipated. What really appears to be the undiscussed background is an effort to keep dragging this issue out as long as possible. This is beyond judicial activism running amok, we have now entered the realm of judicial weaponization.
The Lawfare resistance was strongly advocating for this judicial approach. However, what we can infer from the need for Sullivan to trigger the en banc request is that no individual circuit court judge was going to do it independently (sua sponte) which was an option.
It appears Sullivan waited to see if one of them would; then, after a period of time where he identified no circuit judge would independently put himself/herself into the spotlight, Sullivan makes the en banc request himself. The panel will likely accept the request.
Sullivan’s en banc petition essentially says his requests to have an outside amicus brief the court -on all the reasons not to accept the unopposed motion to dismiss- as commonplace; and he decries the DC appeals court mandamus decision as “a dramatic break from precedent that threatens the orderly administration of justice.” [I think he’s stalling.]
Here’s the full filing outlining the position of Judge Sullivan: