Circuit’s Order raises intriguing questions about appellate courts’ authority over trial courts, and the prospect of a trial judge defending his own order on appeal implicates important principles of judicial independence.Ĭan an Appellate Court Order a Trial Judge to Respond to a Petition? Circuit has sua sponte ordered Judge Sullivan to respond to Flynn’s petition. Now, in the latest surprising turn of events in a case that has already had many, the D.C. Circuit, arguing that Judge Sullivan had exceeded his authority by appointing an amicus to oppose the Government’s motion, and in not dismissing the charges. Nevertheless, Flynn responded by filing a petition for writ of mandamus in the D.C.
Judge Sullivan has not ruled on the Government’s motion, much less denied it. But, while prosecutors’ motions to dismiss charges are generally granted without much fanfare, the Federal Rules of Criminal Procedure do require leave of court, so Judge Sullivan must approve the withdrawal. The move was universally regarded as highly unusual. District Judge Emmet Sullivan made headlines when he appointed a retired federal judge to oppose the Government’s motion to dismiss its criminal case against former National Security Advisor Michael Flynn, and to make a recommendation as to whether to hold Flynn in criminal contempt for perjury.
