the rest:
The panel ruling raised the question of whether Judge Sullivan, who has a lawyer representing him in the appeals court, will ask the full appeals court to reverse the order — or whether the full court might use a rarely invoked rule that permits it to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”
Judge Rao’s decision was joined by Judge Karen L. Henderson, a 1990 appointee of President George Bush. A third judge on the panel, Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, dissented, saying Judge Sullivan should be permitted to complete his review before deciding whether to grant the government’s motion to dismiss.
The ruling was a surprise because Judge Henderson had asked questions during oral arguments this month that seemed to signal skepticism about short-circuiting Judge Sullivan’s review.
Judge Sullivan had appointed an outsider to critique the motion — John Gleeson, a former federal judge — who argued that the Justice Department’s arguments for dropping the case were baseless and a “pretext” for an illegitimate political intervention on behalf of a presidential favorite, and urged Judge Sullivan to instead sentence Mr. Flynn.
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