By Robert Willmann
When filing his request for a rehearing in the Michael Flynn mandamus action in the court of appeals, Judge Emmet Sullivan fully exposed his personal obsession against Gen. Flynn, which may have been encouraged and helped along by others. But this act might come back to bite him and his enablers, because it keeps the whole case active and has allowed the Department of Justice (DOJ) to give more exculpatory material to Flynn, and his lawyers have promptly filed it with the clerk of the trial court.
After Sullivan's filing on 9 July, the Court of Appeals for the District of Columbia Circuit issued an order directing Flynn to file a response within 10 days, and the DOJ may in its discretion do so also. The court helpfully said that "the effectiveness of this court’s order issued June 24, 2020, will be stayed pending disposition of the petition for rehearing en banc"–
Flynn then filed a Second Supplement in Support of Agreed Dismissal, and described the material from the DOJ that was disclosed to him on 7 July–
When the DOJ gives discovery material to Flynn, it files a notice that it has done so with the trial court clerk, and includes the cover letter to Flynn that accompanied the material. The letter for this disclosure says, in part –
"The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney General Dana Boente, dated March 30, 2017 (23498-500)".
The material is in an exhibit to Flynn's second supplement supporting dismissal, with some large areas blacked out and redacted–
Judge Sullivan's motion in the court of appeals asks for a rehearing "en banc", which would be a reconsideration of the mandamus by all of the judges on the court who are in "regular active service" and not disqualified to hear the case.
There are 17 judges on the D.C. Circuit, but 6 of them have "senior status" . Those six still have their office but to receive a regular salary they have to meet certain requirements, usually including that they have to do at least one-fourth of the work that an active judge does . However, only active judges who are not disqualified by recusal or otherwise may vote on whether to have a rehearing en banc . Thus, 11 judges may vote, or the number left after any who are disqualified. If none are disqualified, then six votes will be required to have a rehearing en banc.
The Handbook of Practice and Internal Procedures for the court says that if one judge asks for a response to the petition for rehearing, an order for a response will be issued, which was done in this instance. The internal procedures further state –
"If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted".
Judge Sullivan's request for a rehearing en banc included a copy of the court's opinion of 24 June in Flynn's favor, and a certificate of parties, rulings, and related cases. Those items in the 69-page document are excluded from the main paper here, which is 26 pages–
Counting noses on how a vote might go regarding whether to have a rehearing en banc is anyone's guess. Two judges of the three judge panel in Flynn's case would vote against a rehearing. The panel in the U.S. v. Fokker Services opinion and decision from 2016 that supported Flynn's position consisted of Judges Srinivasan, Silverman, and Sentelle. But unfortunately, Silverman and Sentelle have senior status and cannot participate because they are not regular active judges. This means that Flynn should have three votes against a rehearing going in, when otherwise he would probably have five. Judge Wilkins, who dissented in Flynn's case, would vote for a rehearing. If all 11 active judges are eligible to vote, Flynn would need three more votes to block a rehearing, while Sullivan would need five more votes to have a rehearing.
Judge Merrick Garland, who is on the D.C. Circuit, will have a psychological tendency to vote for a rehearing. He and Beth Wilkerson, the lawyer representing Sullivan in the mandamus action, were government prosecutors involved in the 1997 trial of Timothy McVeigh in the Oklahoma City bombing case. Garland was nominated by president Barack Obama in 2016 to be on the U.S. Supreme Court and take the place of Judge Antonin Scalia, who passed away in 2016. Fortunately, the Senate Judiciary Committee did not give Garland a hearing, and so the nomination never came to a confirmation vote. Neil Gorsuch was appointed by president Trump to that vacancy.
My guess is that Flynn has three votes against a rehearing right now and Sullivan has two votes for one. Based on a profile of the judges, I think that the vote might be close, but Flynn has a pretty good chance of blocking a rehearing. But if one or more of the 11 judges is recused, the arithmetic changes.
The judges of the court of appeals, the president who nominated them, the day they got their commission to officially start, and their race and sex are as follows .
Srikanth Srinivasan: Obama, 24 May 2013, India Male
Karen LeCraft Henderson: Bush Sr., 5 July 1990, White Female
Judith W. Rogers: Clinton, 11 March 1994, Black Female
David S. Tatel: Clinton, 7 October 1994, White Male
Merrick B. Garland: Clinton, 20 March 1997, White Male
Thomas B. Griffith: Bush Jr., 29 June 2005, White Male
Patricia A. Millett: Obama, 10 December 2013, White Female
Cornelia T. L. Pillard: Obama, 17 December 2013, White Female
Robert L. Wilkins: Obama, 15 January 2014, Black Male
Gregory G. Katsas: Trump, 8 December 2017, White Male
Neomi Rao: Trump, 18 March 2019, Asian Female
After responses by Gen. Flynn and the Department of Justice on behalf of the government are filed on or before 20 July, a decision on whether a rehearing will take place will likely be made quickly.
 The "USAO EDMO" in the cover letter refers to the United States Attorney's Office for the Eastern District of Missouri. The U.S. Attorney there, Jeffrey Jensen, was directed by Attorney General William Barr to review what happened in the Flynn case from the beginning. This resulted in the required disclosure of exculpatory and mitigating information to Flynn which had not been turned over by the Robert Mueller group. The review then led to the filing of the motion to dismiss the case.
 Judges on the U.S. Court of Appeals for the District of Columbia Circuit.
 Title 28, U.S. Code, section 371. Retirement on salary; retirement in senior status.
 Federal Rule of Appellate Procedure 35. En Banc Determination.
 Pages 58-60, pdf pages 66-68. Handbook of Practice and Internal Procedures, U.S. Court of Appeals for the D.C. Circuit.