Thread by @McAdooGordon

Flynn Oral Argument: Live Tweet Thread.

Okay I’m going to try to live tweet the argument. I have never live tweeted anything, so this should be interesting.

Some definitions so I can cut down on typing strokes:

F = Flynn
S = Sullivan
D = DOJ
R = Judge Rao
W = Judge Wilkins /1

H = Judge Henderson
P = Sidney Powell (Flynn lawyer)
B = Beth Wilkinson (Sullivan lawyer)
J = Jeff Wall (DOJ lawyer)
CA = Court of Appeals
tc = trial court
R48 = Rule 48
sop = separation of powers
cfp = contempt for perjury
FK = Fokker
AM = Ammidown
RD = Rinaldi /2

loc = leave of court
SC = Supreme Court
DJT = President Trump
pi = public interest
G = Judge Gleeson
FP = Federal Practitioners amici (my group!)
WG = Watergate Prosecutors amici
ac = amici curiae
ab = amicus briefs
WY = Wayte
pd = prosecutorial discretion
oj = obstruction
/3

fs = false statement(s)
LA = Logan Act
caa = court appointed amicus
m = mandamus
plc = plea colloquy
plb = plea bargain
plg = plea agreement
soo = statement of offense
st = sentence/ing
h = hearing
SCO = Special Counsel’s Office
mtw = motion to w/draw
mtd = motion to dismiss
/4

Okay, so here we go. P comes out swinging. "impermissible intrusion" into Exec power. She's talking about Jensen's independence. /5

P calling it "judicial usurpation." Ha!

W now asking about review in RD case, saying SC said there was a role of evaluation. P says no role in the circumstances in this case. Says presumption of regularity of govt's determination controls.

W seems to think some role of review may be approved in RD. P talking about extraordinary steps here - appointed amicus. W pressing her. P saying court can't make govt prosecute a case.

W bringing up another SC case - Thompson, which said it reviewed the record. P agrees, but says that means the record as it exists, not further developing record.

W now switches to whether m is appropriate. He's really challenging her on FK now "not even a R48 case." P switches to talking about Brady, prosecutorial misconduct, citing new SC case on amicus. She agrees S can review the record as it, but not bring in new stuff.

W says so why can't this wait for the appeal. P says it's just delaying the inevitable and takes an enormous toll on an individual defendant. Says it's the most extensive mtd she's seen in decades of practice. Citing Posner's case now.

H now chimes in. Says S may rule on it next month. P says the problem is S is going beyond his authority to appoint G, etc. talking about 2nd Circuit overruling G in a case he handled in NY.

P saying it's clear the goal is to push thru to sentencing as soon as possible and give F the maximum sentence. H pushing on why this is a m NOW.

W saying doesn't understand how tr doesn't have authority to hold hearings/etc. Fencing with P about trial judge. P properly focusing it on the judge can't be the prosecutor or appoint someone to be the prosecutor. H skeptical that merely appointing G to present arguments . .

. . is outside trial court power. R now asking about appointing amicus to prosecute contempt. P points out that contempt isn't available here for withdrawing his plea. Cites to our amicus as support!

R following up asking but can S appoint an amicus for it? P saying S doesn't have the power to be the prosecutor, says there's also no case or controversy left.

W comes in again on SC case about power to dismiss. P now talking about the facts, calling it an "appalling" case, and a "travesty." W queries why S can't review that. P says he can review the record as is, but can't launch into other inquiries.

W now hammering again on whether m is appropriate, which order P is technically claiming needs to be mandamused.

H asking whether P would object to CA appointing amici like she objects to G. P says no the appellate process allows it, but it involves issues in the case, not issues that the CA itself is bringing up. Says S is ginning up his own issues, which is the problem.

P finally hits the point: S appointed G to be a "special prosecutor" in the case.

Now up - J on behalf of D. Talking first about m. Addressing H directly, saying the process playing out is harmful. Talking about RD, pointing out the facts & saying it leaves the standard open, but that is resolved in FK.

J telling H that FK that R48 analysis "central" to FK ruling. "No" oversight power. What is the point of further proceedings if FK requires the dismissal.

Glitch, so J got lost there for a second.

J says the point of S/G is to "investigate" the prosecutor's decisions. W focusing on the literal words in S's order. J says "we're not here on appeal from an order." BOOOM.

J pointing to G's pleading and B's pleading explaining what he says S is obviously going to do, which is not just what W wants to focus on. He says this particular appointed amicus. "We know the harms are going to play out." He is slamming G's pleading.

R asking J to be more specific on the concrete sop issues. Says the R48 does say "leave of court." J concedes sop can be abstract, but here is "stark." Here the district court is contemplating intensive "intrusion." Says D is apparently going to have to put on evidence.

70 page "almost polemic" he calls G's brief.

W pointing out all the cases says the tr has "some" role to look at the public interest. "As unfortunate as the sop clash might be" in a R48 case.

J saying for UNOPPOSED R48 motions, there is nothing for the court to resolve. "Key to the merits" is FK only applies to pre-plea situation. "Wrong for at least 4 reasons." Ha!

"No magical plea line." He's hammering the sop argument now. "Their case on the merits collapses." Only leaves whether the m is appropriate.

W now talking about how two judges accepted plea. J saying he disagrees that crossing the plea line suddenly invokes only the court not the executive powers. He's giving the 7th Circuit (Posner) case as an example. Says the Rule 11 and R48 are not formal judicial actions.

J saying S dismissing is just recognizing the co-equal branch's power, not putting any imprimatur of the court on it.

W asking if D had to provide an explanation for dismissal. J says no, but they have the option to do so. He agrees with P that this mtd is very robust and is far more than most ever filed.

W now is giving a police brutality hypothetical where the dismissal is based on a racist view by the prosecutor. J says making racially based decisions would result in other fallout separate from the decision on the mtd. R48 is not the mechanism for addressing this.

J says FK is a dead letter if the court is going to go behind the govt to look at it's motive.

R asking now about presumption of regularity. J explains this is a reason for reading R48 the way it does, not setting a standard. Citing Armstrong, "clear evidence" of unconsitutional motive would be needed. Favoritism would be bad conduct, but that's political, not judicial.

W again asking about a white police officer not having to answer for abuse. J saying this is a constitutional question - the racial discrimination hypothetical - which isn't the situation in this case.

W asking what loc means then. J pointing out that the issue really is the court has no power to make the case go forward. W's questions basically indicating that the court should be able to strong arm the govt into doing it anyway. J pushes back on this.

H now jumps in - what would be the harm in mandating the mtd. She proposes "regular order" - the disruption she means. No one can find a case requiring it. Says S has set a hearing & appointing amicus. "He may have chose an intemperate amicus." Ha!

H searching for a precedent. S may say: "This amicus is over the top." and dismiss the case. (Yeah, OK.)

J says if she wants "regular order" then the CA should issue a mandamus telling S that an evidentiary hearing and the contempt are off the table, and he should just rule on the R48.

J says harm to F obvious - continuous case, prospect of contempt. Harm to Gov is inquiry.

H proposes that S will say "I've asked for advice. I"m going to ignore this advice." (She's hoping that's what S is going to say!) J says it's clear from B's pleading that it is going to play out as the public spectacle that FK says should be avoided.

W says D didn't file a m. J basically says: You want me to file a m, I'll be happy to do that. W is pushing back on that, saying that's not regular order. J says very little about the case is regular order. Doesn't think the D not filing m is "legally relevant." Ha!

J asking them again to at least issue a m that limits what S can do - taking contempt off the table and no evidence hearing. Says FK gives authority for m.

R concerned about this partial relief option. Asks if that doesn't require them to say what is and isn't on the table. (That's exactly what he proposed; were you asleep for that?)
J says the m should absolutely issue because "nothing about these proceedings is regular order."

"The cleaner way" is to issue the m. "This is a separation of powers case." "Actual conflict between the branches." "I really don't think it's hard to see what the harms are going to be to the Govt and the defendant."

H agrees there is an indisputable right, but asks about how Gov doesn't have a remedy. Again says S may grant. J points to B's brief and G's brief impugning Barr and create a political fight. Even if at the end, S grants, it's still a real harm to Govt & a violation of FK.

Basically he's saying if FK means what it says, then the Gov and F should not have to go through all of whatever S is going to do.

B up now. Says S can't second guess D, but can set a schedule to consider a mtd.

R asks if appointing G isn't creating a "case & controversy" when the parties agree to the dismissal. B says no because that would deprive even a dismissal of force because of the lack of jurisdiction. (I agree with this position actually.)

R turns to what standard is loc in the Rule. B rambles a bit, not actually answering, saying the judge can make inquiry. R takes a different tack - what does the "public interest" factor mean? It's not in the rule. B points out that RD raises this issue.

She's explaining Rehnquist's dissent on it.

She pivots to FK, saying it mentions the scrutiny. Here, the judge is just going to hold a hearing; he just asked for advice. She denies S will be doing affidavits.

R asks now about the "presumption of regularity." B says all that's happening is the judge asking questions of the govt, which happens all the time.

R says well, but here an amicus was appointed, which doesn't happen all the time. B concedes (this is how good appellate advocates work - concede everything that doesn't hurt you.) But says it's fine here because the parties are on the same side, not opposed.

B saying it's important here because there is no adversarial posture. R asking, but in a criminal case the adversary relationship is govt v. defendant, is the "adversary" the court in some way in the amicus situation.

B saying the amicus is adversarial in the sense that opposing arguments are needed by the court. Indicating to H, she again says S might grant it, asking for opposing views only.

R turns to the sop issue. Wants to know what Article III power (judicial) is at issue. B saying the court has the power to ask questions to evaluate the motion. She says the govt argument amounts to ignoring the loc language altogether.

R pointing out that if loc gives power to the court to deny the motion, it would mean going to sentencing in a situation where the govt doesn't want to proceed. B avoids this and focuses instead on her argument that loc can't mean nothing -that that's not what the other cases do.

W now bringing up the police brutality/racist rationale hypo again for B to address. She thinks the court could refuse to grant a mtd in that kind of case. But then says she doesn't know if the judge could go on to sentence the defendant in that case.

No pending question. B says S has not prejudged the mtd and he will carry out his responsibilities to consider the motion appropriately.

Court now giving P a few minutes of rebuttal. She launches into how there was no proper Rule 11 finding here. This is not a strong way to go, but she finally gets to the Stevens case and says S didn't look behind the 2 page motion in that case.

She can't understand how all the cases in the country can say the court's can't deny these kinds of motions, but Flynn's case is somehow different.

H now giving time to DOJ again.

J now giving the court the list of horribles of the things that B put in her brief that S wants to know to illustrate how "the train should not leave the station." He basically says, it has to be a dismissal in the end, so why are we going to go through all that.

H now giving J some help. She brings up that the CA should let the Executive correct itself. J runs with this. Saying the AG dismissing a case to correct earlier misconduct is at the core of executive function.

It was a strong ending for J.

Case is submitted. The Court gives no indication of when it will rule.

Interesting argument. Very different styles by the advocates. Each showed strengths and weaknesses as advocates. Each of the judges also has a distinct style. I've recently appeared before Judges Henderson and Wilkins. I've not been before Rao yet.

Taking a minute to refresh my tea & get a bite to eat and then I'll come back with thoughts and predictions!

Okay, back to business here. Thoughts & observations first, in no particular order, and then I'll make my prediction.

So, the Court of Appeals, as it often does, focused more on procedure than substance. That's a frustrating reality of appellate case. It frequently acts as a dodge for difficult issues the court doesn't want to address. It can also be an effective tool. Here, I think it's both.

As I've said before, the mandamus here is not strongly footed procedurally and the judges did focus on that. Judge Sullivan hasn't ruled yet & altho the law would still allow them to issue the mandamus, that fact is clearly making them less willing.

At the same time, the fact that he hasn't ruled yet let's them do things like Judge Henderson did, where she's sort of "wondering out loud" if Judge Sullivan isn't planning all along to grant the motion and so do they really need to tell him to now? Hint, hint.

The case boils down to how do you see what Sullivan is doing. Is he about to engage in a frolic&detour into asking the DOJ to explain itself in violation of separation of powers (bad), or is he just asking questions/holding a hearing, which courts do all the time (good.)

Theory is supposed to meet facts in a legal case, however. While appellate courts will always be reluctant to assume a trial judge will act outside of his authority, if the facts reasonably show that is what is happening, the court of appeals should act on that.

The facts here are pretty obvious. The appointed amici- Gleeson -is acting "intemperately" as Judge Henderson commented & the brief filed by Wilkinson on Sullivan's behalf clearly laid out the inquiry Sullivan thinks he wants to do, which DOJ correctly views as infringing on it.

The Court seems ready to blink that reality, (as appellate courts are also often good at), to do what it wants, which I think is allow Judge Sullivan the dignity of not being directed to grant the motion & to hold a hearing, but also expecting him to grant the motion the dismiss.

The Court is obviously reluctant at this juncture to officially pre-judge what Sullivan will do & will let him hold a hearing, regardless of the fact that it's own precedent in Fokker basically says there's no real review for the court to conduct.

This is less an application of the law than a real world illustration of the principle that judges hate to criticize other judges and will go to great lengths to avoid doing so, almost regardless of how necessary it actually might be. It's an institutional limitation.

And it's one I particularly dislike, as it cuts against the rule of law that everyone should be able to rely upon. That being said, I don't think at the same time that there is any doubt that on the substance all 3 of the judges think the motion to dismiss should be granted.

They just aren't prepared to say that a judge can't ask questions & hold a hearing. Which in the abstract is right, but when the judge at issue is planning to ask questions & hold a hearing on a topic that a judge shouldn't be inquiring into, that answer should change.

That was DOJ's argument & it is the right argument. But, that is probably not what the court will do because it's more interested in the niceties of the judicial role than in the interests of the govt or Flynn. This gets cloaked in the argument that mandamus is "extraordinary."

The backdrop to this issue & the reason the appeals courts think it is fine to do business this way is that they still fully expect Sullivan to make the "right" decision in the end, which in this case is that he will ultimately grant the motion to dismiss.

That is clear from numerous things that Judges Henderson & Rao said, & I think even Wilkins, who was the most antagonistic to the DOJ/Flynn position generally. Debating the scope of Sullivan's right to review isn't going to change the ultimate answer for any of them.

The other thing that made this clear is how Sullivan's counsel, Beth Wilkinson, backpedalled vigorously in the argument from what's in her brief. To hear her at the argument, you would think Sullivan just has a couple of questions. 🙄 That is not what her brief says!

The DOJ lawyer hammered that at the end, giving the judges the specific pages in Wilkinson's brief where she laid out a broad scope of inquiry. Wilkinson all but disavowed that in her argument because the judges all generally agreed Sullivan can't "2nd guess" DOJ.

So, the question for the court is: if the court isn't a "rubber stamp" to DOJ in this situation, but also "can't 2nd guess" DOJ either, then what in the world is the standard? Shockingly, I predict they won't answer that question! 🙃

What they should do is grant the mandamus & tell Judge Sullivan to grant leave to dismiss. DOJ is right that any inquiry by Sullivan into DOJ's decision making violates the separation of powers. Based on today's argument, I think the chances of that are close to zero, however.

What I think they will probably do is deny the mandamus, but write an opinion that says they of course expect Sullivan to follow Fokker, which they will save gives him a right to review the DOJ's motion, but they won't say how or to what extent his inquiry can go.

That decision lets Sullivan hold the hearing on July 16th & make a ruling on the motion. If he grants the motion for leave to dismiss, that's the end of the case. If he denies it, Flynn will file another mandamus petition & the chances that one gets granted are close to 100% imo.

The upshot is that what the Court of Appeals has done by requiring Sullivan to respond to the mandamus petition & holding this argument today is to *informally*, rather than formally as DOJ requested, lay down some ground rules.

These informal rules are: 1. DOJ can (and probably will now) refuse to accede to any request or demand from Judge Sullivan that it thinks violates the separation of powers. This is stunning because in general, the Gov doesn't want to directly flout a judge. It won't be shy now.

2. Sullivan should ignore the craziness that Gleeson gave him as "advice" in his amicus brief. He also should limit his review of DOJ's motion to avoid invoking a separation of powers problem. (Since they aren't saying where that line is, good luck everyone figuring that out.)

3. Flynn has to suffer the expense/stress of the case continuing because that's just how the cookie crumbles. (The Courts of Appeals really do not care about this issue. Ever.) But, if Sullivan doesn't do right & give leave to dismiss, he can file for mandamus again & succeed.

From the Court of Appeals point of view: problem solved. Flynn will get his dismissal; DOJ can stiff-arm the judge; Sullivan saves face if he takes the hint & conducts a sober hearing & doesn't rule the "wrong" way ultimately; the Court doesn't have to rule now, but can later.

The "only" problem with this outcome is that: (1) it undermines their precedent in Fokker, (2) it's unfair to the defendant & DOJ, & (3) it leaves open the possibility that Sullivan doesn't take the hint & they have to fix a bigger mess later than the one they have now.

Some other thoughts: contempt is hopefully dead. No one, including Gleeson, seems to think it's a good idea. But Wilkinson's brief on the issue was pretty extreme. If Sullivan gets the message from today's argument that he really must dismiss the case, it might revive. We'll see.

I don't think anyone mentioned Ammidown. All the amicus briefs against Flynn & Wilkinson's relied heavily on Ammidown and there was little to no discussion of it today at all. It was all about Fokker, because that is the relevant precedent & has been all along.

The separation of powers argument did get play. I'd say that all the judges see it as a critical component of the case, but they are funneling it into the question of the scope of review. DOJ is correctly arguing that Fokker already decided this question - there isn't any.

Lastly, what happens now? If the Court grants the mandamus, Sullivan can seek review from the whole court. If the Court denies it, Flynn can do the same. That would be a tough decision. The case before Sullivan continues unless a stay is imposed but no one has requested it.

The "losing" side can also seek review in the Supreme Court by filing a petition for writ of certiorari (a request to be heard). Interestingly, it would probably most likely be DOJ that would want to do that, but they did not file for mandamus. It's another procedural issue.

If DOJ gets really exercised they could work with Flynn to file in the SCt. The SCt will certainly permit DOJ to participate in the case. DOJ's other option would be to file it's own mandamus, perhaps if Sullivan tries to require them to do something they don't want to do.

My overall take: If the Court doesn't issue the mandamus (& I think it won't), it's because they don't want to uphold Fokker now since they'd have to tell a judicial colleague that he's too far afield, but they are prepared to use Fokker later to reverse him. That is wrong.