Thread by @MMineiro_CNS

D.C. Circuit set to hear arguments here in a few minutes on #MichaelFlynn's petition to force the district judge on his case to grant DOJ's motion to dismiss the prosecution. I'll have live updates. @CourthouseNews

U.S. Circuit Judges Neomi Rao (Trump), Robert Wilkins (Obama) and Karen Henderson (George H. W. Bush) will hear the case this morning. Listen in with me:

Sidney Powell up first for Flynn urging the D.C. Circuit to stop further “immersible intrusion” in executive branch power by Judge Sullivan. "There is nothing further for the court to do."

“The judge has no authority to do anything further in the case...the parties have decided, the government has quit," Powell argues.

U.S. Circuit Judge Robert Wilkins (Obama) cuts Powell off to question her take on the authority of the district court.

“The court can’t make the government prosecute this case," Flynn's attorney argues back, says w/out case & controversy there's nothing further Sullivan can do.

“Not a single case in the country has ever affirmed the denial of the motion to dismiss,” Powell argues.

Wilkins responds that if Sullivan denies Flynn can appeal to the circuit then.

But Flynn's attorney hits back says that would "simply be delaying the inevitable."

Judge Karen Henderson (George H. W. Bush) cuts in over Judge Neomi Rao (Trump) to ask her first question, says Sullivan has set a hearing for next month.

“For all we know by the end of July he will have granted the motion,” Henderson adds.

Powell responds: “But he doesn’t have the authority to hold that hearing your honor."

Judge Henderson says Judge Sullivan is "not a rubber stamp," and there’s nothing wrong with him holding a hearing in Flynn's case.

Wilkins and Powell back and forth on Judge Sullivan appointing a retired judge as amicus curiae to argue against DOJ's motion.

Wilkins asks how that violates Article II.

Powell says only DOJ can decide to prosecute. “The government has quit and it’s time to leave the field."

Flynn's attorney arguing there is no rule providing for a court-appointed expert (amicus curiae) in the district court in a criminal case.

Admits she has seen it done, but not on behalf of a judge as an "independent prosecutor" himself.

Principal deputy solicitor general Jeffrey B. Wall up now for the government.

Wall says the harm is not just about briefs and Sullivan's July hearing but about the investigation into DOJ's prosecutorial motives.

Wall says John Gleeson, the court-appointed expert/retired EDNY judge, flat out alleged misconduct by AG Barr.

Wall differs from Flynn's attorney on the amicus argument saying district courts can appoint an amicus but that there are problems with this particular appointment.

Rao asks what exactly the Art II problem is here. Wall says it's as “stark and as concrete as they come," with Judge Sullivan out on a fact finding inquiry and amicus Gleeson alleging that Trump and Barr engaged in “grave misconduct."

“It is an intrusive process," Walls says arguing that Sullivan's actions are going to harm the executive and that it can't be ignored that the case is playing out in a political environment.

Wall says DOJ has provided robust evidence of why to dismiss Flynn's case.

“We went beyond what we felt we were obligated to do under the circumstances,” the govt attorney adds.

Right now there's 27,226 people tuning into these D.C. Circuit arguments on Flynn's case.

Wall argues the courts can't step in without clear evidence of unconstitutional motives for dismissing a case, gives example of racially based prosecution.

Judge Wilkins with a hypothetical question on the government not wanting to have a white officer stand trial for excessive force against a black victim, asks DOJ attorney what pressure can be applied from court, legislature, or public/media.

Judge Henderson says all Sullivan has done is appoint an amicus to argue against DOJ's motion and set a hearing.

“Granted he may have chosen an intemperate amicus but that doesn’t mean that he is going to deny this motion."

Henderson says she doesn't see why the D.C. Circuit shouldn't observe regular order and allow Sullivan to rule, says the judge is "an old hand" and "an excellent trial judge."

Wilkins questioning why DOJ didn't file their own mandamus petition, Wall says if that's a concern the circuit can grant leave to file.

Judge says not filing and then asking for leave to file “that’s far from regular order here."

Oh so true...

Wall tells Judge Wilkins that he admits very little about this case is regular order at this point.

Wall closing out warns that denying Flynn's petition will pull the judiciary into a political fight that should play out in the public arena, and create "a spectacle in the district court."

High-profile trial attorney Beth Wilkinson up now for Judge Sullivan.

Trump appointee Rao cuts off Wilkinson with the first round of questioning.

Wilkinson says there is no suggestion that Sullivan is going to call witnesses or that any of the other “parade of horribles" raised by DOJ will play out.

DOJ leaning on the D.C. Circuit decision in U.S. v. Fokker Services but Wilkinson argues that ruling doesn't say a judge cannot question the government.

Wilkinson says Judge Sullivan may grant the motion to dismiss Flynn's case, right now is just receiving briefs and has set a hearing.

Rao asks “Who is the amicus representing here?”

Wilkinson says the authority of the court/appointed to argue against govt's motion.

Wilkinson says DOJ has come in and reversed its findings on Flynn and Judge Sullivan can look at the facts.

Wilkinson closes with "after hearing the arguments Judge Sullivan will do what he is called on to do on a daily basis," decide on the motion.

Powell back now with her closing argues every court in the country has affirmed a grant of a motion to dismiss.

Powell urges the appeals court to grant Flynn's petition to protect the defendant from prosecutorial harassment.

The government will not continue with the prosecution, she says.

DOJ attorney closing out warns there are real harms to the government if it has to answer questions on AG Barr's policy judgement and why career prosecutors didn’t sign off on the motion to dismiss. “Courts were not supposed to go down this road,” Wall says.

Case submitted. Doesn't look good for DOJ/Flynn.

With Henderson's comment that Sullivan is an "excellent trial judge” and Wilkins drilling DOJ on the role of the district court, expect a 2-1 ruling denying Flynn's petition to force the judge to grant DOJ's motion to dismiss.