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May 22, 2020

Appellate Court Lawyer: Of All The Options the DC Court of Appeals Could Have Chosen in the Emmet Sullivan Matter, It Chose "The Most Extreme, Rare, and Drastic" of Them

Yesterday I wondered if it was a big deal that the DC Court of Appeals -- Emmet Sullivan's overseeing judges -- had issued the order to Sullivan to personally explain himself to them.

As a Twitter thread from an appellate court laywer found by John Sexton explains: Yes, it's a huge deal.

Most of the thread is below, but here are the main points:

1. The appellate court could have just dismissed this motion out of hand, which they do most of the time. (As I noted, when you're dealing with a jailhouse lawyer's frivolous filings, it's only a matter of time before he cries prejudice and demands a new judge.)

They did not do this, obviously. They're taking this seriously. That fact means that this motion has already cleared a "huge hurdle" -- the appellate court accepts that this is serious matter requring their attention and not just a desperate last-chance gamble.

2. They could have politely "invited" Sullivan to file a reply with the court. Which is friendly and collegial.

They did not. They "ordered" him to. Which is unfreindly and reminds Sullivan who the ranking officers are here.

3. They could have asked an amicus -- a friend of the court; a respected lawyer or judge or legal commentator -- to file a reply on Sullivan's behalf and thereby spare him the indignity of having to, effectively, defend himself and act as his own lawyer.

They did not do that. They insisted that Sullivan himself reply.

This all seems like good news.

The three judges on this panel were appointed by Reagan, Obama, and Trump.

I assume the Obama appointee is a loss -- this case, after all, is about the misbehavior of Obama's ministers and minions.

The Reagan appointee, I don't know. People always think that Reagan appointees must be conservative, but that's not true at all. Emmet Sullivan was a Reagan appointee, originally. This was back when there was no Federalist Society, and when, frankly, liberal Bushites were running most of the government anyway. So this one could go either way.

The Trump appointee, Rao, I assume is good draw for us.

2) The Federal Rules of Appellate Procedure govern the filing and disposition of writs in the federal appellate courts. #appellatetwitter pic.twitter.com/Yw2ShBlE78
— John M. Reeves (@reeveslawstl) May 21, 2020

4) Rule 21(b)(1) allows the DC Circuit to deny the writ petition outright, without asking for a response. This is what happens with the vast majority of writ petitions. #appellatetwitter pic.twitter.com/R9gJjnhQmk
— John M. Reeves (@reeveslawstl) May 21, 2020

6) By obtaining an order for a response, @SidneyPowell1 has already cleared a huge hurdle. #appellatetwitter
— John M. Reeves (@reeveslawstl) May 21, 2020

8) Rule 21(b)(4) states that the appellate court "may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so." #appellatetwitter pic.twitter.com/E9zQK1IsoR
— John M. Reeves (@reeveslawstl) May 21, 2020

10) Even if it wants to hear from the trial judge, the appellate court can simply "invite"--that is, request, or ask--the trial judge to respond. It does not have to ORDER the judge to respond. #appellatetwitter pic.twitter.com/ZNLFavvlXT
— John M. Reeves (@reeveslawstl) May 21, 2020

14) The DC Circuit, in ordering Judge Sullivan to respond to @SidneyPowell1 's writ petition, could have easily appointed a lawyer as amicus to do so. #appellatetwitter pic.twitter.com/QKWiYj6VHs
— John M. Reeves (@reeveslawstl) May 21, 2020

16) Had the DC Circuit appointed amicus, that lawyer's job would have been to present legal arguments defending Judge Sullivan's refusal to grant the DOJ's dismissal motion, NOT legal arguments purporting to show why the DOJ's motion should not be granted. #appelatetwitter
— John M. Reeves (@reeveslawstl) May 21, 2020

18) Instead, the DC Circuit ordered Judge Sullivan to PERSONALLY respond and defend his actions, without an amicus attorney to do it for him. #appellatetwitter pic.twitter.com/ess2zmL1JN
— John M. Reeves (@reeveslawstl) May 21, 2020

20) The DC Circuit is thus making Judge Sullivan--a lifetime federal judge--publicly and directly explain to them his actions. #appellatetwitter pic.twitter.com/2soNvhbZ8D
— John M. Reeves (@reeveslawstl) May 21, 2020

22) It has ordered (not requested) Judge Sullivan to personally (and not through appointed amicus) respond and defend his actions to them. #appellatetwitter pic.twitter.com/mb9MQPIvej
— John M. Reeves (@reeveslawstl) May 21, 2020

posted by Ace at 05:52 PM

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As a Twitter thread from an appellate court laywer found by John Sexton explains: Yes, it's a huge deal. Most of the thread is below, but here are the main points: 1. The appellate court could have just dismissed this motion out of hand, which they do most of the time. (As I noted, when you're dealing with a jailhouse lawyer's frivolous filings, it's only a matter of time before he cries prejudice and demands a new judge.) They did not do this, obviously. They're taking this seriously. That fact means that this motion has already cleared a "huge hurdle" -- the appellate court accepts that this is serious matter requring their attention and not just a desperate last-chance gamble. 2. They could have politely "invited" Sullivan to file a reply with the court. Which is friendly and collegial. They did not. They "ordered" him to. Which is unfreindly and reminds Sullivan who the ranking officers are here. 3. They could have asked an amicus -- a friend of the court; a respected lawyer or judge or legal commentator -- to file a reply on Sullivan's behalf and thereby spare him the indignity of having to, effectively, defend himself and act as his own lawyer. They did not do that. They insisted that Sullivan himself reply. This all seems like good news. The three judges on this panel were appointed by Reagan, Obama, and Trump. I assume the Obama appointee is a loss -- this case, after all, is about the misbehavior of Obama's ministers and minions. The Reagan appointee, I don't know. People always think that Reagan appointees must be conservative, but that's not true at all. Emmet Sullivan was a Reagan appointee, originally. This was back when there was no Federalist Society, and when, frankly, liberal Bushites were running most of the government anyway. So this one could go either way. The Trump appointee, Rao, I assume is good draw for us. 2) The Federal Rules of Appellate Procedure govern the filing and disposition of writs in the federal appellate courts. #appellatetwitter pic.twitter.com/Yw2ShBlE78 — John M. Reeves (@reeveslawstl) May 21, 2020 4) Rule 21(b)(1) allows the DC Circuit to deny the writ petition outright, without asking for a response. This is what happens with the vast majority of writ petitions. #appellatetwitter pic.twitter.com/R9gJjnhQmk — John M. Reeves (@reeveslawstl) May 21, 2020 6) By obtaining an order for a response, @SidneyPowell1 has already cleared a huge hurdle. #appellatetwitter — John M. Reeves (@reeveslawstl) May 21, 2020 8) Rule 21(b)(4) states that the appellate court "may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so." #appellatetwitter pic.twitter.com/E9zQK1IsoR — John M. Reeves (@reeveslawstl) May 21, 2020 10) Even if it wants to hear from the trial judge, the appellate court can simply "invite"--that is, request, or ask--the trial judge to respond. It does not have to ORDER the judge to respond. #appellatetwitter pic.twitter.com/ZNLFavvlXT — John M. Reeves (@reeveslawstl) May 21, 2020 14) The DC Circuit, in ordering Judge Sullivan to respond to @SidneyPowell1 's writ petition, could have easily appointed a lawyer as amicus to do so. #appellatetwitter pic.twitter.com/QKWiYj6VHs — John M. Reeves (@reeveslawstl) May 21, 2020 16) Had the DC Circuit appointed amicus, that lawyer's job would have been to present legal arguments defending Judge Sullivan's refusal to grant the DOJ's dismissal motion, NOT legal arguments purporting to show why the DOJ's motion should not be granted. #appelatetwitter — John M. Reeves (@reeveslawstl) May 21, 2020 18) Instead, the DC Circuit ordered Judge Sullivan to PERSONALLY respond and defend his actions, without an amicus attorney to do it for him. #appellatetwitter pic.twitter.com/ess2zmL1JN — John M. Reeves (@reeveslawstl) May 21, 2020 20) The DC Circuit is thus making Judge Sullivan--a lifetime federal judge--publicly and directly explain to them his actions. #appellatetwitter pic.twitter.com/2soNvhbZ8D — John M. Reeves (@reeveslawstl) May 21, 2020 22) It has ordered (not requested) Judge Sullivan to personally (and not through appointed amicus) respond and defend his actions to them. #appellatetwitter pic.twitter.com/mb9MQPIvej — John M. Reeves (@reeveslawstl) May 21, 2020 posted by Ace at 05:52 PM \| Access Comments <script language="javascript" src="http://adserver.adtechus.com/addyn/3.0/5235/1131537/0/170/ADTECH;loc=700;cookie=info;target=_blank;key=key1+key2+key3+key4;grp=[group]"></script><noscript><a href="http://adserver.adtechus.com/adlink/3.0/5235/1131537/0/170/ADTECH;loc=300;key=key1+key2+key3+key4;grp=[group]" target="_blank"><img src="http://adserver.adtechus.com/adserv/3.0/5235/1131537/0/170/ADTECH;loc=300;key=key1+key2+key3+key4;grp=[group]" border="0" width="300" height="250"></a></noscript>	Recent Comments Jukin the Deplorable a Clear and Present Danger: "All of these leading articles from the fedora repu ..." Deplorable Jay Guevara[/i][/s][/b] : "It was American migrants that screwed CA, and it w ..." rd: "That's it. I'm reordering the bumper sticker I use ..." AZ deplorable moron: "Shoplifting isn't usually 'strip it clean'. ..." 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