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You have an odd situation here because if the circuit court rules in favor of Flynn, who can appeal that decision en banc or to the Supreme Court? The judge?

The circuit court judges must be troubled by his behavior. He had the option of simply denying the government request, sentencing Flynn, and allowing Flynn or the Justice department to appeal. Setting up this weird process with another judge coming into court to argue against the Department of Justice was really outrageous.

Now the weird thing is that judge Sullivan has to write a brief in support of his own actions. I have no experience with mandamus to a circuit court. Is that normal?

Also, I was wondering, could they have cited the Fokker case for the premise that the district court judge gets an opportunity to respond? Otherwise, the circuit court is sending him a clear message.

I can’t imagine that judge Sullivan really wants to produce a brief which supports the orders he issued in this case. What’s he going to say? I don’t like what the government did?

There is some support for the idea that a defendant withdrawing his guilty plea may have committed perjury, although it’s usually acknowledged that pursuing perjury in that case would be a miscarriage of Justice.

Also, unless I’m mistaken the matter before judge Sullivan is not Flynn’s previously denied effort to withdraw his guilty play. The matter before the judge was the government motion to dismiss charges. Therefore, asking someone to come in and argue that Flynn committed perjury seems like persecution of the defendant.