Monday, July 20, 2020
Michael T. Flynn's Opposition to Rehearing En Banc has been filed today in the United States Court of Appeals for the D.C. Circuit. This is in opposition to Judge Emmet G. Sullivan's Petition for Rehearing En Banc, filed on July 9. The Department of Justice was invited by the Court to respond and did so today in the United States' Response to the Petition for Rehearing En Banc.
Both Flynn and DOJ argue that Sullivan lacked standing to file the Petition for Rehearing, as he is not a party and there is no longer a case or controversy. Apparently only one federal judge in history has filed such a petition and it was denied. DOJ's brief also argues in detail, quite effectively I think, that the panel's decision granting mandamus does not conflict with: D.C. Circuit precedent; precedent in other circuits; or Supreme Court precedent.
DOJ also responds directly and succinctly to Judge Sullivan's argument that mandamus was premature, because he had not yet held a hearing or made a ruling on DOJ's Motion to Dismiss. Flynn therefore had an effective remedy on appeal from any adverse ruling. This argument ignores the continuing harm to the Executive Branch's interests occasioned by the judge's dilatory behavior:
"That objection misses the point: at stake is not mere consideration of a pending motion, but a full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position raising factual questions, relying on extra-record materials, probing the government’s internal deliberations, and second-guessing core prosecutorial judgments.... Accordingly, while the panel specifically recognized that '[a] hearing may sometimes be appropriate before granting leave of court under Rule 48,' it determined that the hearing contemplated by the district court here would 'be used as an occasion to superintend the prosecution’s charging decisions' and would cause 'specific harms.' "
My prediction is that Judge Sullivan's Petition for Rehearing En Banc will be denied.