Judge Emmet Sullivan filed an appeal Thursday of the 2-1 writ of mandamus ruling last month by the U.S. Court of Appeals for the District of Columbia to dismiss the Justice Department criminal case against former Trump National Security Advisor Lt. Gen. Michael Flynn (US Army Ret.) Sullivan is asking for an en banc hearing by the entire eleven judges on the appeals court.
It is the district court’s job to consider + rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them. This case satisfies requirements of Rule 35 + en banc review should be granted.” @RobLegare pic.twitter.com/zrOltA87yZ
— Catherine Herridge (@CBS_Herridge) July 9, 2020
The main argument by Sullivan and Wilkinson seems to be, “Get off my lawn!”:
“The panel’s decision threatens to turn ordinary judicial process upside down. It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them.”
The appeal concludes with more swipes at the appeals court ruling and an ‘I was just doing my job’ justification.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus.
“Considering both sides of an issue before ruling is not ultra vires—it is sound judicial practice. The petition for rehearing en banc should be granted.”
Fox News reporter Kevin Corke notes that if the appeal is accepted the case could drag on through the fall or if rejected Judge Sullivan could appeal to the Supreme Court.
Trump attorney and campaign legal advisor Jenna Ellis says Sullivan has no standing to appeal, “Not surprising but totally ridiculous. Sullivan is NOT a party. He actually has no standing to petition for en banc. He should be removed from the bench entirely after his egregious conduct.”