DC Appeals Court orders Judge Sullivan to respond to Flynn's request for a dismissal (Update)

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.

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.

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.