USDC Judge Emmet Sullivan Seeks En Banc Rehearing In DC Circuit — Re Flynn…

The able USDC Judge is right on the law, here.

Without a doubt he is. Let the rehearing get underway, promptly, says Condor. Here’s the petition for a rehearing, and a bit:

. . . .Mr. Flynn sought mandamus and the government chose not to. The panel identified no irremediable harm to Mr. Flynn and cited no precedent supporting its consideration only of harm to the government. See Op. 17. This Court’s opinion in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003), is inapposite because it merely observed that the government need not file a “separate petition for mandamus” on top of its interlocutory appeal. Id. at 1140 n.*. This case is fundamentally different because the only party that sought immediate review was Mr. Flynn. Likewise, Ex parte Peru, 318 U.S. 578 (1943), does not support the panel’s exclusive focus on the government because the Supreme Court expressly considered harms to Peru, the party that actually sought mandamus. . . .

Each of these departures from precedent threatens to expand mandamus beyond its properly circumscribed role, and to invite the use of mandamus as forum shopping, where parties ask this Court to decide issues in the first instance. The full Court’s review is necessary. . . .

This will get sorted out. And with Michael Cohen back in jail tonight, and Roger Stone set to surrender to prison on Monday — I will focus on the justice being meted out, bit by bit here. And. . . I will smile, tonight.

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