THREAD #2: This thread highlights likely questions/focus tomorrow. So w/ @SidneyPowell1 up first, panel will likely be more restrained w/ questions b/c much of the fight is b/w DOJ & Sullivan. But I anticipate court pushing on why mandamus is appropriate since Sullivan 1/
2/ hasn't ruled yet, i.e. "Counsel, mandamus is an extraordinary remedy. And since court has not yet ruled on motion to dismiss, why is mandamus appropriate?" Also look for panel to push Powell on outside limits: "What if there were evidence of bribery, court court deny?"
3/ Court likes to ensure principle can be applied in all circumstances & push parties to clarify: "Counsel are you saying court MUST always grant an agreed upon motion to dismiss?" For her part, what for Powell to stress that dismissal came AFTER DOJ uncovered
4/ material evidence withheld by prior counsel. That was weakest part of Sullivan's briefing--utter failure to confront the new evidence. Powell will also likely hit Fokker hard along w/ similar case law from other circuits--what for her to say "Judge Posner in the 7th Cir."
5/ and quote him b/c Posner is a well-known jurist & when at top of game one of most well-respected judges. Key here is that appellate courts are loathed to contradict prior precedent AND don't like district courts ignoring precedent either. They also don't like to conflict
6/ w/ decisions from other circuit. Oh, I also expect Powell to stress pending motions to w/d guilty plea to make point focus on guilty plea is misplaced b/c plea is invalid.
7/ Next up is DOJ. DOJ will get hit w/ harder questions b/c it is one who changed positions. Some questions I expect (or would love to see): "Did the DOJ improperly w/h exculpatory evidence? Judges might not ask this, but frankly they should b/c that justifies position.
8/ Watch again for judges to push limits: Is it the DOJ's position that court can never denied a motion to dismiss if defendant agrees? The panel will also likely push DOJ to distinguish b/w court's right to reject a plea bargain and DOJ's position court can't reject dismissal.
9/ It wouldn't surprise me if the Obama appointee uses the opportunity to hit Trump, asking DOJ attorney: "Doesn't the President's 100-plus tweets about Flynn's case suggest political favoritism? Doesn't that justify the court looking into the question further?
10/ The panel may also probe the DOJ's rationale but that would be problematic b/c the first issue is can the court ever do that. BUT I expect some questioning on materiality.
11/ Judge Sullivan is last, but it will be his attorney arguing. His attorney will also face some hard questions. Two areas of inquiry I see are one concerning the posture of the case: "Counsel, Judge Sullivan did not enter an order of conviction yet, did he?"
12/ And the panel should also quiz Sullivan's attorney on the newly disclosed evidence Sullivan ignored. Then, a practical point will help clarify the case: "Counsel, if you deny the motion to dismiss, could the DOJ agree that Flynn should be allowed to w/d his guilty plea?
13/ "And at that point, the DOJ could dismiss the case, correct?" Or, "if you deny the DOJ's motion to dismiss, how will you obtain a new sentencing memorandum? Will you order DOJ to file? That's it for now, but I'll add if I remember the other points.
