District Court Judge Emmet Sullivan has issued an ordering directing the “Parties” to take certain steps in the aftermath of yesterday’s decision by the Circuit Court of Appeal to deny the Petition for Mandamus.
Here is the order:
As I noted in my story yesterday on the decision, at the very end of the opinion the Appeals Court “directed” Judge Sullivan to resolve the matter “with dispatch” — which is a backhanded way of saying he had not acted in such fashion up to this point in time.
Judge Sullivan has entered an Order today which essentially ignores all the briefing that took place before the Appeals Court, and directs the “parties” to do more briefing and then get together and agree on three proposed hearing dates. They are directed to file a “joint status report” recommending “further proceedings.”
The Order says the “joint status report” should be filed by “the parties” “no later than Sept. 21.”
My view is that Gen. Flynn’s counsel and DOJ should take the position that they are the only two parties, and file a Joint Status Conference for just the two of them — not including amicus counsel.
Amicus counsel was named by the Court to assist the Court. Amicus counsel is not a “shadow” party. Gen. Flynn and DOJ should force the Court to enter Orders directed to amicus counsel in a way that isolates Judge Gleeson as a non-party, or force Judge Sullivan to treat him as a de facto party rather than simply an advisor to the Court.
Further, they should file the Joint Status Report tomorrow, not 3 weeks from now. The Joint Status Report should take the position that briefing is complete, no sur-replies are needed and incorporate all the briefs filed in the Circuit Court. Judge Sullivan can’t claim he needs additional time to review them — he responded to them in the Circuit Court. The briefing in the Circuit Court should also be deemed the Partys’ response to non-Court appointed amicus counsel who have filed briefs.
With regard to the hearing, the Joint Status Report should explicitly state that neither PARTY intends to present evidence outside the written record already made — hell the Joint Status Report could take the position that no hearing is needed and the motion should be resolved on the written submissions.
The Report should force Judge Sullivan to himself state that he intends to conduct an evidentiary hearing – or to concede that he does not intend to do so. Yesterday’s opinion called attention to the fact that Judge Sullivan’s counsel during oral argument stated that no evidentiary hearing was planned, and that weighed against the Government’s argument of irreparable harm based on the potential that Judge Sullivan would invade the province of DOJ’s decision-making process by seeking to examine government witnesses under oath. The Parties should force Judge Sullivan to commit that to the record, or advise them of his intentions to the contrary now.
As for the hearing date, the Parties should offer September 22, 23, and 24.
This would FORCE Judge Sullivan to slow-walk this case, if that is his intention, for the sole benefit of himself and amicus counsel, which would seem to go against the admonishment by the Circuit Court that he act “with dispatch.”
Gen. Flynn’s counsel should also take a hard look at trying to force Judge Sullivan to move on the pending motion to withdraw his guilty plea. That matter has now sat dormant while the case has proceeded along on the DOJ motion to dismiss. Both should be pushed simultaneously.
If DOJ seeks to have this matter terminated, it needs to be prepared with its own Mandamus Petition ready to be filed on 24 hours notice. But it needs to be responsive to something Judge Sullivan does that is not in conformance with the directions given by the Circuit Court.