After the DC Circuit Court of Appeals issued its writ of mandamus ordering Emmet Sullivan to dismiss the case against Michael Flynn, the judge had two clear choices. Sullivan could have accepted the Department of Justice’s motion to dismiss on the basis of admitted misconduct. Or, Sullivan could act as an injured party in a case he’s supposed to be trying and appeal the ruling to either the Supreme Court or demand an en banc hearing.

A jurist interested in maintaining an emotional distance from the case might have chosen Door Number One. Instead, Michael Flynn and his attorney Sidney Powell might have several months more of watching this drag out:

A federal court judge is putting up a highly unusual fight against an appeals court ruling seeking to immediately shut down the prosecution of former national security adviser Michael Flynn for making false statements in the FBI’s investigation into ties between the Trump campaign and Russia.

Lawyers for U.S. District Court Judge Emmet Sullivan filed a petition Thursday asking the full bench of the D.C. Circuit Court of Appeals to review a 2-1 decision a panel of that court issued last month, directing Sullivan to cancel his plans for a hearing and instead grant the government’s request to drop the case.

Sullivan’s petition says the steps he was taking, like setting a schedule for legal briefs, inviting friend-of-the-court submissions and scheduling a hearing, are commonplace. The appeals court panel’s earlier decision to shut down that process represents “a dramatic break from precedent that threatens the orderly administration of justice,” the judge’s submission argues.

Ironically, that’s pretty much what the appellate decision authored by Neomi Rao said about Sullivan’s insistence on extending the case against Flynn. Rao ruled that it was Sullivan who broke dramatically with the rules and precedent already established in the circuit and under the Supreme Court in dealing with the executive branch’s prerogatives on prosecutorial discretion. Sullivan’s appointment of a publicly pronounced partisan as a special master in the case made the situation even worse, and John Gleeson’s initial demands in that role made it clear that the court intended to do more damage to the executive branch:

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal. See Cobell, 334 F.3d at 1140 (“[I]nterference with the internal deliberations of a Department of the Government of the United States … cannot be remedied by an appeal from the final judgment.”); see also Cheney, 542 U.S. at 382. …

And we need not guess if this irregular and searching scrutiny will continue; it already has. On May 15, Gleeson moved for permission to file a brief addressing, among other things, “any additional factual development [he] may need before finalizing [his] argument” and suggesting a briefing and argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232, ECF No. 209, at 1–2 (May 15, 2020). The district court granted the motion and then set a lengthy briefing schedule and a July 16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17- cr-232. In his brief opposing the government’s motion, Gleeson
asserted the government’s reasons for dismissal were “pretext” and accused the government of “gross prosecutorial abuse.” Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10, 2020). He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases. See id. at 43, 46–47, 57–59.

These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions, not only in this case, but also in the past or pending cases cited in Gleeson’s brief. Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003)
(condemning district court’s failure to dismiss criminal charges based on its view that “the government has exaggerated the risk of losing at trial”). As explained above, our cases are crystal clear that the district court is without authority to do so. See Fokker Servs., 818 F.3d at 742; Ammidown, 497 F.2d at 623.

The 2-1 opinion didn’t spare Sullivan or leave him much of a fig leaf. Even the dissent by Robert Wilkins didn’t amount to a stirring defense of Sullivan; he argued that the time wasn’t yet ripe for an intervention. Wilkins would have waited for the end of the circus and Sullivan’s ruling before acting, which prompted Rao to write a biting seven-point rebuttal to the “let’s wait” position in the decision.

Did that slapdown push Sullivan into extending this circus? Paul Mirengoff thinks it did, and Paul believes he knows why Sullivan chose the en banc review rather than an appeal to the Supreme Court. The writ of mandamus at this stage is extraordinary anyway, he writes, almost begging for review, but there’s more to it as well:

Second, the court of appeals in question — the D.C. Circuit — is majority left-liberal (not counting senior judges). Harry Reid saw to that when he changed the Senate rules to eliminate the filibustering of judges at this level. He did so to pave for the way for three leftist Obama nominees — Patty Millet, Cornelia Pillard, and Robert Wilkins — to be confirmed.

Third, the panel’s grant of mandamus represents so stinging a rebuke to Sullivan that he would likely have been tempted to seek en banc review even if the decision had a stronger basis in the law and even from a less liberal court of appeals. And even if he didn’t have it in so strongly for Michael Flynn.

In other words, Sullivan likely felt the need to fight back on a personal level. That would synch up very well with Sullivan’s conduct through most of the Flynn proceedings, which is why Powell wanted him removed from the case in her appeal. Rao wrote for the court that they trusted Sullivan’s reputation as a jurist to comply with the ruling; perhaps they chose poorly, although it seems just as likely now that Sullivan would have appealed had he been removed from the case, too.

Paul believes that Sullivan’s en banc request not only has a good chance of succeeding, but that the liberal-tilting full panel might reverse Rao. Maybe, but Rao’s reasoning is pretty solid, plus this new 69-page brief might tend to paint Sullivan as far too personally invested in a particular outcome to trust with this case any longer. The DC Circuit might be looking over its shoulder with the ruling in Trump v Mazars too, in which the Supreme Court just scolded lower courts for not paying proper attention to separation-of-powers issues. This falls squarely in that realm, and it might be that the judges who will decide this might think Sullivan’s way too far out over his skis now to be pulled back safely.

It might take a few weeks before we know the answer to the en banc request. If they grant that review, it might take a few months more to process it. In the meantime, the DoJ will be stuck with a case it doesn’t want, and Flynn will be stuck with a prosecution without prosecutors. It’s getting Kafkaesque in DC.