Thread by @ZoeTillman

Good morning from my dining table, where I'll be listening to DC Circuit arguments this morning in Michael Flynn's case — he's asking the court to cut off Judge Emmet Sullivan's inquiry into DOJ's decision to drop the criminal case against Flynn.

Prev: buzzfeednews.com/article/zoetil…

Flynn's lawyer Sidney Powell is up first. She begins by arguing that the DC Circuit must stop Judge Sullivan's "intrusion" into the exec branch's sole power to decide whether to dismiss a case and that the district judge has "has no authority to do anything further in the case."

The first Qs come from Judge Robert Wilkins, who brings experience with all of this - he was a district judge before he was confirmed to the DC Circuit. He asks how Powell can argue Sullivan has no role when SCOTUS said courts can review of these types of dismissal motions by DOJ

Judge Henderson joins Wilkins in questioning Powell's stance that Sullivan has no authority to do anything. Henderson says it's not like Sullivan left this languishing, he set a fast schedule. Henderson says she's not aware of anything saying a judge can't hold a hearing first.

Powell replies that Sullivan just can't look beyond the record that's already before him. She argues the damage is happening every day this goes on, noting that they still have to respond to the court-ordered amicus brief filed this week and Flynn has to pay for his defense team

Judge Rao asks how Powell's stance squares with SCOTUS precedent that allows judges to appoint a lawyer to prosecute contempt. Powell responds that Flynn moving to withdraw his guilty plea under the circumstances can't be contempt. But Rao says that's about merits, not process

Henderson notes that in an earlier case involving district court judge review of DOJ's handling of a criminal case, Fokker Services, the DC Circuit itself appointed an amicus to argue a certain position. She asked: Was Powell saying the DC Circuit couldn't do that?

Powell responds that the DC Circuit could appoint an amicus as long as it was about issues in the case and had authority to do so, but Sullivan couldn't do that in Flynn's case under the circumstances (Sullivan appointed former federal judge John Gleeson to serve as amicus)

Powell is done. All three judges asked Qs that were skeptical of Flynn's position that Sullivan has no authority to do this inquiry into DOJ's motion to dismiss Flynn's case — the judges brought up cases where district courts have done this *and* where the circuit has done it

Principal Deputy SG Jeffrey Wall is arguing for DOJ now. Wall points to the briefs that Sullivan filed in the circuit defending the inquiry, saying they show that the judge wants to explore prosecutorial decisions and motives, which Sullivan doesn't have authority to do

One distinction between Flynn's position and DOJ's - Wall notes they aren't arguing the district court has *no* authority to ever appoint amici, but that in this case it wasn't proper (Powell argued that the rules don't allow for any amicus appointment in this kind of case)

Rao notes that the circuit has denied mandamus based on general arguments about a separation of powers violation, and the rules contemplate "leave of court" when the govt asks to dismiss a case. She asks: What's the precise violation here?

Wall says the separation of powers violation in Flynn's case is "stark" and "concrete" — Sullivan made clear in his briefs that he wants to ask about things like why certain prosecutors didn't sign the dismissal motion, why the AG made this decision, what about uncharged conduct

Wilkins notes DOJ's decision doesn't just implicate DOJ — two judges made factual findings in accepting Flynn's guilty plea, so the decision to drop the case now affects those findings. What about that? Wall replies there's case law saying the govt is the master of its cases

Wilkins asks if it's the govt's position that it does not have to state all of the reasons it has for dismissing a particular case. Wall says yes, but that's not a problem here either way because the govt filed a fulsome explanation for its decision to dismiss Flynn's case

Wilkins expands: He says his concern is a case where law enforcement is accused of excessive force, the victim is black and the officer is white, and the govt worries a jury won't believe a black victim w/out more evidence. Would the govt have to explain that in dropping a case?

Wall says as long as the decision is constitutional (and a prosecutorial decision based on race wouldn't be, he says), the court would have to grant such a motion. He also argues that such a move by the govt would create problems for the govt in other cases, which is a deterrent

Henderson again makes clear she is not a fan of the DC Circuit getting involved at this stage. "The harm to me is regular order," she says, noting that there isn't any ruling from the judge for the court to review. For all they know, Henderson says, Sullivan will grant dismissal

Wall says the kind of evidentiary/discovery process that Sullivan seems to be encouraging shouldn't be allowed. Henderson says Sullivan is an "old hand," an "excellent" trial judge, and he may look at the amicus brief, ignore it, and dismiss. "Shouldn't he be allowed to do that?"

Wall is done — at the end, Henderson again pressed him about why the circuit shouldn't wait for Sullivan to actually rule. Wall said Sullivan was trying to intrude on deliberative process at DOJ and impugning motives of the AG, and that this process "threatens to be a spectacle"

Sullivan's lawyer Beth Wilkinson is up. She argues all that's happened re: the appointment of an amicus is the judge has asked for advice - she says there isn't proof that the judge is going to do some kind of evidentiary investigation, referring to Wall's "parade of horribles"

Rao asks how the presumption of regularity re: the govt's decisions applies here - doesn't the court have to find it's been overcome before doing this kind of inquiry? Wilkinson says no, the judge can ask Qs before making that determination, judges do it all the time with motions

Rao asks who exactly Gleeson is representing, she expresses some concern about that. Wilkinson says courts ask for advice, and here the judge wants to hear the adversarial position.

Wilkinson argues that if DOJ had a problem with the process Sullivan set out to consider the dismissal motion, they should have raised it with Sullivan and not gone to the circuit. She concludes by saying Sullivan should be allowed to do what he does every day, decide a motion

Wilkinson faced far less pushback from the panel than Powell and Wall did. Rao asked Qs that indicated some concern about the appointment of Gleeson as an amicus to brief the adversarial position, but not really about the judge's general authority to do some kind of inquiry

That's a wrap on arguments. Powell argued in her rebuttal that the earlier plea hearings where two judges made findings to accept Flynn's guilty pleas weren't legitimate to begin with, and she reiterates their broader arg that Flynn was a victim of prosecutorial misconduct

Wall argues in his rebuttal that DOJ wasn't required to give reasons for dismissing the case, but they did, and the AG's determination that it wasn't in the interest of justice to continue given the circumstances was at the core of Article II power that the court should defer to

Now we wait for a decision. Since Sullivan has a hearing set for July 16, we can expect the DC Circuit to rule pretty quickly to decide this before that hearing date.

Diving in: Lawyers for Michael Flynn and the Justice Dept. argued today that the DC Circuit should force the judge in Flynn's case to halt his inquiry into DOJ's decision to drop the prosecution and dismiss the case. The DC Circuit panel was not impressed.
buzzfeednews.com/article/zoetil…

This whole situation is extremely unusual — not only is it rare for DOJ to seek to drop a case on the eve of sentencing after a defendant pleaded guilty, but we have a sitting judge pitted against senior DOJ leadership over how exactly that should play out buzzfeednews.com/article/zoetil…