THREAD: W/ lots of folks tuning in tomorrow to listen to the oral argument in the Flynn case, I thought I'd give a primer for what to expect. (Turning off comments until the end to keep the thread uninterrupted.) So, remember this is not an appeal.
2/ Rather, @SidneyPowell1 filed a petition for writ of mandamus on behalf of her client @GenFlynn. Mandamus simply said is an order by the higher court to the lower court to act w/in his jurisdiction. The petition is heard b/f a "panel" of the D.C. Circuit Court of Appeals.
3/ Federal panels typically consist of 3 federal appellate judges, and there will be 3 judges hearing tomorrow's case. At this level, there are no witnesses--it is merely attorney's presenting an argument to the court. Think Law & Order and difference between McCoy arguing
4/ one judge and with 5 judges. (That was NY State court so the appellate court had more judges on the panel). Because Powell is the "petitioner" she will go first and has 15 minutes to make her argument. Typically, arguments start w/ quick background, issues, etc. BUT
5/ Judges could immediately just start peppering her w/ questions. They & their law clerks (lawyers working for the judge), having already read all the briefs, including Powell's, DOJ's, Sullivans, & amici, so they'll know details & have questions prepped. (More on that shortly)
6/ Powell reserved some time for rebuttal so she will likely argue 10 minutes and save 5 to come back to make counterpoints, although judges sometimes run attorneys into their rebuttal time--usually they are nice about it and let them have more time.
7/ DOJ will argue next and then Sullivan (through his attorney). Sullivan shouldn't get rebuttal time because he is basically the respondent. Not sure re DOJ. BUT after DOJ & Sullivan argument, Powell will get the last word. Typically court then takes case under advisement
8/ and adjourns. they could rule from bench but in 25 years i saw that only once and doubt that will happen. instead judges will retire and conference privately to decide case. most senior full time judge will assign case to one of the judge's to write the opinion.
9/ The judges COULD do a quick turn around and rule as early as Monday, or, given the need for a quick resolution, they could issue a "per curiam" meaning by the court, and have a short decision saying an opinion would follow. I'm inclined to think that is what they will do.
10/ The judges could all agree or one might concur or dissent & it wouldn't surprise me if you get a political hit on Trump in a concurrence "yeah, Sullivan shouldn't do what he did, but Orange Man Bad," I mean "Trump's tweets make him concerned...blah blah blah,
11/ At that point, assuming court orders Sullivan to dismiss, he could ask full D.C. Circuit (all active judges on court-11 judges) to rehear the case. To have the case reheard "en banc" i.e. w/ full court majority of active judges w/o conflicts must vote to rehear.
12/ I don't see that happening. And doubt Sullivan will try...Instead I see him filing a petition for cert. before S.Ct. Depending on basis of decision S.Ct. may have some interest in the constitutional question, but need 4 justices to want to take case.
13/ So now, returning to the oral argument. The panel is: Rao (Trump appointee); Henderson (H.W. Bush appointee) and Wilkins (Obama appointee). And, John Roberts, there are unfortunately Republican & Democrat judges.
14/ But, and of course, predicting judges' decisions are always just that--predictions, in this case the main issue concerns applying D.C. precedent (i.e., following what appellate court laid down law), so even Obama judge can take refuge in "it's the law of the circuit.)
15/ Also, some interesting background I discovered re the Fokker case.
16/ And here's a discussion of Fokker which I believe is controlling & why judges can keep it simple. Now, oral argument may or may not give an idea of judges' position. Some judges are obvious. Some are reserved. Some play devil's advocate w/ both side. thefederalist.com/2020/05/14/the…
17/17 I'll do another thread later tonight on the questions and points you should watch for and expect the court and attorneys' to make. But the above are the basics for hearings before appellate courts. END
