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A friendly reminder that any active judge on the D.C. Circuit can ask the full Court of Appeals to vote whether to rehear a panel decision “sua sponte”—that is, even without any party formally petitioning for such an “en banc” rehearing.
The D.C. Circuit currently has 11 active judges, any of whom (including a member of the original panel) is eligible to request a vote to have the full court rehear a panel decision.

It takes a majority—so 6 votes to take a case “en banc.”
And here's a case all the way back from ... September ... in which the two judges in the majority in today's Flynn ruling dissented from the D.C. Circuit's refusal to rehear a different panel decision even though no party had asked it to:

cadc.uscourts.gov/internet/opini…
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Steve Vladeck
@steve_vladeck
1. The new defense of Barr's conduct over the weekend is that he was just trying "to find a job for [Jay] Clayton."

There are at least three problems with this effort to whitewash what Barr did and said—all of which suggest that he was, indeed, acting in bad faith.

A #thread:
2. First, the Clayton story makes no sense because the Senate still uses blue slips for U.S. Attorneys.

There is a 0.0% chance that both Sen. Schumer and Sen. Gillibrand would've signed off on confirming someone to that job with zero prosecutorial experience—and Barr knows that.
3. Second, Barr's Friday night statement—in his own words—is affirmatively misleading. Leaving aside Carpenito (more on him in a moment), the statement claimed that Berman was "stepping down," even though Barr (1) knew he wasn't; and (2) lacked the power to fire him directly.
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Steve Vladeck
@steve_vladeck
The First Circuit has noted that the *President* can remove a U.S. Attorney appointed under 546(d)—although the issue was not squarely presented there:

casetext.com/case/us-v-hila…

So there’s a debate over whether the President can fire Berman, but seeming consensus that Barr can’t.
Finally, I take the point that Berman technically isn't an *acting* U.S. Attorney, and is instead *the* U.S. Attorney under 546. That doesn't change the constitutional analysis (he's still an inferior officer). The statutory question reduces to whether 546(d) overrides 541(c).
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Steve Vladeck
@steve_vladeck
Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.

There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor). Image
Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.
As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):

justice.gov/sites/default/…

OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.
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