Earlier today Judge Emmet Sullivan’s attorney, Beth Wilkinson, filed with the Court of Appeals for the DC Circuit a Petition for Rehearing En Banc of the matter involving the Petition for Writ of Mandamus filed by Gen. Michael Flynn.

What this means is that Judge Sullivan is asking the entire appeals court — 11 judges — to rehear and decide anew the Petition filed by Gen. Flynn seeking a “writ of mandamus” to be issued to Judge Sullivan directing him to grant the Government’s motion to dismiss the case against Gen. Flynn without further proceedings.

The Government has moved to dismiss the case under Federal Rule of Criminal Procedure 48(a), which states that any such dismissal by the Government can only be done with “leave of court.”  The dispute involves what authority the “leave of court” provision gives a district court to 1) review the reasons offered by the government, and 2) deny the motion if the Court is not persuaded by or in agreement with those reasons.

For the Petition by Judge Sullivan to be granted, and/or the matter to be reheard by the full court, six of the eleven judges must vote in favor or the Petition to Rehear the case.  There are currently seven judges on the Court who were appointed by Democrat presidents, and four judges who were appointed by Republican presidents.  The earlier decision by a three-judge panel had two Republican-appointed judges on it, both of whom voted to order Judge Sullivan to dismiss the case.  A judge appointed by President Obama dissented from the majority’s decision.

The Petition filed today by Judge Sullivan makes three primary claims.

First, Judge Sullivan argues that the panel’s decision ordering him to dismiss the case is in conflict with the Supreme Court’s decision in United States v. Rinaldi.  Judge Sullivan argues that in Rinaldi the Supreme Court conducted an independent evaluation of the record made by the district court when it held a hearing and examined the government prosecutor about earlier conduct in the case and the motives for moving to dismiss the case. Judge Sullivan claims that nothing in Rinaldi suggests that any of the Justices thought such a hearing was improper or violated the constitution.  He claims that the panel decision here that would prevent him from conducting a similar hearing is therefore in conflict with what Rinaldi allows, so the case should be reheard to consider that question.

Second, Judge Sullivan argues that the issuance of “mandamus” relief here breaks with prior DC Appeals Court cases because only Gen. Flynn sought relief, not the Government, yet the panel decision relies on harm that will be done to the government if Judge Sullivan conducts his hearing as planned. Judge Sullivan argues that the person seeking relief by way of mandamus must be the person who suffers the harm, and since the government has not sought relief, any harm to the Government is not a basis upon which mandamus should be granted.

Third, Judge Sullivan argues that mandamus is not appropriate here because he has not even ruled on the motion, and given that he might ultimately rule in favor of the Government and dismiss the case, there is not “indisputable” right to relief by way of mandamus as both General Flynn and the government might get what they seek from the District Court in the first instance after a hearing.

I’ll try to return to the filing later with a more comprehensive analysis of the arguments made by Judge Sullivan