The U.S. Court of Appeals for the D.C. Circuit has ordered Judge Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. I discussed and quoted from the petition here.
The court also “invites” the government “to respond in its discretion within the same ten-day period.”
Flynn was fortunate to draw the panel he did. It consists of Karen LeCraft Henderson, a Bush 41 appointee, Naomi Rao, a Trump appointee, and Robert Wilkins, who was appointed by Obama.
That panel’s order is “per curiam.” There is no indication that Judge Wilkins disagreed with it.
It’s clear to me that Sullivan should have granted the government’s motion to dismiss the case against Flynn straightaway. He should not have invited amicus briefing or involved a former judge in the proceedings.
I thought, however, that the court of appeals would wait for Sullivan to rule on the government’s motion to dismiss before becoming involved. That might still be the outcome, but the odds now seem to be in Flynn’s favor.
In this regard, it’s probably significant that the court cited Rule 48(a) of the Federal Rules of Criminal Procedure and the D.C. Circuit’s decision in United States v. Fokker Services B.V.. As Andy McCarthy says, the rule and the case call Sullivan’s action into serious question.