In his own Brief, represented by attorney Beth Wilkinson, Judge Sullivan focused heavily on the timing. Here are excerpts from the Brief for Sullivan:
The unique facts of this case warrant evaluation by the trial judge before any review by this Court.
It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he commit-ted the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.
These reversals presented Judge Sullivan with several substantial questions….
There is no basis for “directing the district court to grant” the government’s motion to dismiss before the district court has considered and decided it. Mandamus is an inappropriate vehicle for resolving a pending motion….
These settled principles resolve Mr. Flynn’s petition. Judge Sullivan has not ruled on the government’s motion to dismiss or any issues regarding contempt. If either issue is resolved unfavorably for Mr. Flynn, he can pursue review in this Court. And if such circumstances arise, this Court will be better equipped to evaluate the issues with the benefit of any determinations Judge Sullivan may make.
The fact that Judge Sullivan has decided nothing yet distinguishes this Court’s decision to grant mandamus in Fokker…. Because no decision has been made here, Mr. Flynn does not face any comparable harm. Indeed, his petition largely elides the “no other adequate means” criterion. To the extent Mr. Flynn claims harm from the pendency of his criminal case, that does not suffice….
Mr. Flynn likewise errs in seeking mandamus on the basis that further proceedings in the district court “will subject [DOJ] to sustained assaults on its integrity.” Judge Sullivan has not disparaged DOJ’s integrity in any way. And although the government has attacked the investigation of Mr. Flynn, it has not asserted any misconduct by the career prosecutors who pre-viously oversaw the case. In any event, given the serious allegations in Mr. Flynn’s most recent sworn statement, further proceedings in the district court will ensure the integrity of the judicial process and serve the public interest.
Judge Emmet Sullivan to Appeals Ct in Flynn Case: It's Premature To Order Me To Dismiss The Case