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.