Earlier today the DC Circuit Court of Appeals granted the Petition for Writ of Mandamus filed by Gen. Michael Flynn, and ordered Judge Emmet Sullivan to grant the motion to dismiss the criminal case against him filed by the the Department of Justice.
Just a short time ago, Retired Judge John Gleeson, who had been appointed by Judge Sullivan as “amicus” counsel for the specific purpose of opposing the motion filed by DOJ, filed with Judge Sullivan a request for “clarification.”
The Circuit Court opinion specifically vacates Judge Sullivan’s order appointing Judge Gleeson as amicus. But in his motion for clarification, Judge Gleeson states the following:
- His Reply Memorandum to the filings by DOJ and Gen. Flynn to his Opposition to DOJ’s motion to dismiss is due today, and it is prepared and ready to be filed.
- Decisions from a federal appeals court become effective 21 days after they are issued, unless the appeals court takes explicit steps to indicate otherwise, such as stating “This Order shall be effective immediately”.
- The Decision from the Circuit Court granting the Petition of Judge Flynn does not state that it is effective immediately.
- The Order appointing Judge Gleeson as amicus and setting the briefing schedule for filing of papers remains in force as a result.
- It is possible that further proceedings by the Circuit Court might prevent the panel decision from taking effect.
Judge Gleeson then couches his request in terms of not wanting to show disrespect for the appellate court’s ruling, but at the same time wanting guidance from the district court on whether he should comply with the orders which remain in place with regard to the timing of the filing of his Reply to the briefing filed by the parties.
As a technical matter, Judge Gleeson is correct that the Appeals Court decision is not yet final. As I noted in my article earlier today it is possible that another judge on the Circuit Court could call for a vote on whether to take the matter for “en banc” review. I’m not exactly sure 0f the rule is for the timing of a “sua sponte” call for such review — meaning initiated by a judge on his own without a request from any party — or whether there even is such a rule for timing. It’s likely that such a call for a vote can be made at any time prior to the panel decision becoming final.
As a general matter, based on what I’ve been told in the past, a “call” for a vote on en banc review by another judge won’t happen until the judges have had a chance to discuss the issue informally and there is some indication that a majority of the full-time active judges might vote to take the matter up. So it might be a few days before we know whether such a call for vote on en banc review will be made.
I suspect that today’s decision will not sit well with Judge Sullivan, and he might very well say “It’s not over till it’s over” and order Judge Gleeson to file his Reply. They are both in this for the theater and the public spectacle, not for the merits. I think it’s possible that Judge Sullivan might extend Judge Gleeson’s time to file his Reply — but with directions that he still file it — which would give Judge Gleeson some time to “tweek” his Reply in ways that respond to the Circuit Court’s decision today.
Such an Order by Judge Sullivan could prompt the Circuit Court panel to do what Judge Gleeson points out they could have done but did not do — issue an Order that their decision is effective immediately, and thereby cutoff Judge Sullivan from authorizing Judge Gleeson to file his Reply.
But Judge Sullivan might see this as another action by the panel which could convince the full court to call for a vote on en banc review if there is already some sentiment in that regard. In other words, he would be daring Judges Rao and Henderson to go even further than they did in their opinion today, with the idea that he might tempt other Circuit Court judges to step in and vacate their decision.
But I also think it is pretty safe to assume that Judge Sullivan is able to get a “reading on the temperature” of the other Circuit Court judges’ views on this whole imbroglio from Judge Wilkins and other judges on the Circuit Court, and he’ll probably won’t take any steps in the case that antagonize them unnecessarily at this point. He might be counseled to “do nothing for now” while the matter is being debated inside the chambers of Circuit Court judges.
Either way, I don’t think we’ll know the answers anytime soon.