Tuesday of this week Michael Flynn’s attorney Sidney Powell filed a writ of mandamus with the DC Circuit Court of Appeals seeking to have his case dismissed by Judge Emmet Sullivan. Today the DC Circuit responded by demanding that Judge Sullivan respond to Flynn’s request for a dismissal within 10 days:

A federal appeals court on Thursday directed the judge hearing the case against former national security adviser Michael Flynn to respond to a petition by Flynn for the charges against him to be thrown out.

Flynn’s attorney earlier this week had filed an emergency writ of mandamus to the D.C. Circuit Court of Appeals seeking that the prosecution against Flynn be dismissed as the Justice Department has requested, and for Judge Emmet Sullivan to be taken off the case.

The order issued Thursday directs Sullivan to file a response by June 1, and invited the government to respond “in its discretion within the same 10-day period.”

Writs of mandamus are extraordinary remedies, which are appropriate when there has been a “usurpation of judicial power” that is “clear and indisputable.”

Judge Sullivan’s response will be heard by three judges from the DC Circuit Court. So what does all of this mean? Well, Undercover Huber suggests the court of appeals is forcing Judge Sullivan to show his hand rather than wait for his hand-picked retired judge (who has already offered an opinion on the merits) to make arguments on his behalf.

That is going to force Judge Sullivan to put his cards on the table. Because he hasn’t actually denied the DOJ’s motion to dismiss. He’s just left it sitting there & invited “amici” to argue against it. That suggests he doesn’t agree, but doesn’t *say* it. Now he’ll have to say

— Undercover Huber (@JohnWHuber) May 21, 2020

The Court specifically invited the DOJ to respond to the Writ as well. Barr joining Powell’s side in arguing to dismiss the case will make it much more powerful than on its own, if he takes that opportunity (which I suspect he will) pic.twitter.com/RExQzYzZkg

— Undercover Huber (@JohnWHuber) May 21, 2020

So it looks like Judge Sullivan is going to have to make his own case for refusing to dismiss the case against Flynn at which point the Court will then decide if they are going to allow him to continue or order him to dismiss the case. Jonathan Turley notes out that the order requires that Judge Sullivan respond, it’s not inviting him or suggesting he could ask for outside help.

Note the interesting language: "it is ORDERED…that within ten days … the district judge file a response addressing petitioner’s request…" This is not discretionary language. Compare: “The government is invited to respond in its discretion within the same ten-day period.”

— Jonathan Turley (@JonathanTurley) May 21, 2020

The Washington Post reports that Judge Sullivan reacted to the order saying, “Obviously the court is taking the issue very seriously, as it should.” I guess we’ll have an idea in 10 days what Sullivan has to say in defense of his own refusal to dismiss the case.

Update: Appellate lawyer John Reeves has offered a long thread on this development. He argues that the DC Circuit had a lot of options in this case and wound up taking the most drastic one available by ordering Judge Sullivan to personally explain his refusal to dismiss the case.

2) The Federal Rules of Appellate Procedure govern the filing and disposition of writs in the federal appellate courts. #appellatetwitter pic.twitter.com/Yw2ShBlE78

— John M. Reeves (@reeveslawstl) May 21, 2020

4) Rule 21(b)(1) allows the DC Circuit to deny the writ petition outright, without asking for a response. This is what happens with the vast majority of writ petitions. #appellatetwitter pic.twitter.com/R9gJjnhQmk

— John M. Reeves (@reeveslawstl) May 21, 2020

6) By obtaining an order for a response, @SidneyPowell1 has already cleared a huge hurdle. #appellatetwitter

— John M. Reeves (@reeveslawstl) May 21, 2020

8) Rule 21(b)(4) states that the appellate court "may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so." #appellatetwitter pic.twitter.com/E9zQK1IsoR

— John M. Reeves (@reeveslawstl) May 21, 2020

10) Even if it wants to hear from the trial judge, the appellate court can simply "invite"–that is, request, or ask–the trial judge to respond. It does not have to ORDER the judge to respond. #appellatetwitter pic.twitter.com/ZNLFavvlXT

— John M. Reeves (@reeveslawstl) May 21, 2020

12) This is what the DC Circuit did in the Fokker case–the main case @SidneyPowell1 relies upon in her writ. See the highlighted portion of the fourth image below. #appellatetwitter pic.twitter.com/qpNILgkP7B

— John M. Reeves (@reeveslawstl) May 21, 2020

14) The DC Circuit, in ordering Judge Sullivan to respond to @SidneyPowell1 's writ petition, could have easily appointed a lawyer as amicus to do so. #appellatetwitter pic.twitter.com/QKWiYj6VHs

— John M. Reeves (@reeveslawstl) May 21, 2020

16) Had the DC Circuit appointed amicus, that lawyer's job would have been to present legal arguments defending Judge Sullivan's refusal to grant the DOJ's dismissal motion, NOT legal arguments purporting to show why the DOJ's motion should not be granted. #appelatetwitter

— John M. Reeves (@reeveslawstl) May 21, 2020

18) Instead, the DC Circuit ordered Judge Sullivan to PERSONALLY respond and defend his actions, without an amicus attorney to do it for him. #appellatetwitter pic.twitter.com/ess2zmL1JN

— John M. Reeves (@reeveslawstl) May 21, 2020

20) The DC Circuit is thus making Judge Sullivan–a lifetime federal judge–publicly and directly explain to them his actions. #appellatetwitter pic.twitter.com/2soNvhbZ8D

— John M. Reeves (@reeveslawstl) May 21, 2020

22) It has ordered (not requested) Judge Sullivan to personally (and not through appointed amicus) respond and defend his actions to them. #appellatetwitter pic.twitter.com/mb9MQPIvej

— John M. Reeves (@reeveslawstl) May 21, 2020