Here’s what may be the money quote from the en banc rehearing of the In Re Michael Flynn mandamus petition at the Court of Appeals for the DC Circuit today. In explaining why the list of reasons for dismissal given to the trial court were sufficient but not necessarily exhaustive, Acting Solicitor General Jeff Wall said—
The AG sees this in context of non-public information. It may be possible that the AG had before him information that he was not able to share with the Court.
Here’s an order from the Court of Appeals for the DC Circuit in the Flynn case—(H/T, @AaronWorthing, @Techno_Fog)
28 USC § 455 deals with the disqualification of judges, and § 455(b)(5)(i) requires a judge to be disqualified when he “[i]s a party to the proceeding[.]”
Is the appeals court considering removing Judge Sullivan from the case because he took the unusual step of hiring counsel and filing a brief opposing Michael Flynn’s petition for a writ of mandamus? In doing so, did he make himself a party in the case?