https://www.nationalreview.com/corner/with-election-looming-judge-sullivan-will-
There are many words one might use to describe Judge Emmett Sullivan. Chastened is not one of them.
Yesterday, in an en banc (full court) ruling that went 8–2 in Judge Sullivan’s favor, the D.C. Circuit Court of Appeals declined to order him to grant the Justice Department’s motion to dismiss the prosecution of Michael Flynn. (I have a column on the homepage about the Circuit’s decision.) Today, Sullivan has reacted by issuing an order that contemplates several more weeks of litigation before he resolves the motion — a very simple motion, on which he was previously prepared to hold a hearing in mid-July (which itself was a dawdling pace).
The judge is clearly taking the Circuit’s decision as vindication, particularly after the two judges in the minority (Republican appointees on a heavily Democratic court) initially ruled that a writ of mandamus should issue. That prior ruling was wiped out, at Sullivan’s urging, by the en banc decision.
It was probably too much to hope that Judge Sullivan would take solace in yesterday’s victory, get back to work, and make his ruling on the dismissal motion. Moving quickly would have been consistent with the Circuit’s stated expectation, in the last line of its majority opinion, that the district judge “proceed with appropriate dispatch.”
Instead, Sullivan is dragging the case out. His directive today (known as a “minute order”), anticipates that in three weeks (by September 21) Flynn and the Justice Department will submit a joint status report. The judge intimates that this three-week delay is required due to a Circuit rule that orders denying mandamus do not become effective for 21 days unless some accelerating action is taken. But this is sheer gamesmanship. Nothing prevents the judge from acting on the case now. (In fact, he took action while the mandamus litigation was ongoing.) Judge Sullivan knows the parties would not object; they want a quick resolution. And the court doesn’t need a status report. Sullivan knows the status of the Flynn case like the back of his hand. The Justice Department has moved to dismiss, Flynn concurs in that motion; and even though Sullivan should not have permitted and appointed third parties (the amici) to intervene in the case, he did so, and they filed submissions. Sullivan just needs to hold a hearing (if he really thinks he needs one) and rule on the motion.