1/ Flynn's case is being argued in the court of appeals this morning. Flynn's lawyer is arguing the appellate court should take the decision as to whether the gov't's motion to dismiss the prosecution should be granted away from the district court.
2/ Flynn's argument is that court can't interfere with the govt's decisions about who to prosecute & the district court has no ability to refuse the motion to dismiss. The argument is that the court of appeals should take the case away before the district court gets it wrong.
3/ As Judge Wilkins & subsequently Judge Henderson point out (& as courts normally work, the process in our system of trial courts whose decisions are reviewed by appellate courts, "wrong" decisions are reversed all the time) Flynn can have the district court's decision reviewed.
4/ The rationale for mandamus, the extraordinary writ Flynn is asking the court of appeals to issue to foreclose a decision by the district court, is that the defendant has no other route to relief. Here, Flynn can have the district judge's decision reviewed on appeal for error.
5/ Flynn's lawyer argues that having to respond to briefing — essentially representing her client in court — is unduly burdensome. Many defendants would probably like to get out from under the burden of litigating their cases, but it's not a compelling argument.
6/ Here it's a springboard for Flynn to argue that because he's not guilty he shouldn't have to litigate, which begs the question the court is looking at here — whether this is a legitimate motion to dismiss or whether the gov't has an impermissible motive for dismissing.
7/ There is also significant back & forth over whether the district court has the ability to appoint an amicus to step into the shoes of the gov't, since it won't defend its prosecution.
SG argues, what's the point of more litigation if the judge must grant the motion to dismiss? Cutting thru the caselaw, one wonders why the rule requires the court's permission if the court has no discretion here. Why not just let the gov't dismiss cases w/out leave of court?
9/ Prosecutive decisions belong to the executive branch, but Rule 48 contemplates some oversight. Here, Flynn & DOJ wanted to avoid any & keep issues raised by former Judge Gleason, appointed by the dis. ct. as amicus, from seeing daylight & now want to limit their spread.
10/ The Amicus argued the ct. shouldn't dismiss & should sentence Flynn, questioning why DOJ is suddenly reversing itself & saying there's no evidence to support conviction when that evidence is in the record & that there's improper presidential influence over DOJ's decision.
The SG's argument is more nuanced than Flynn's. He says the courts can't interfere with exec branch decisions & says there is nothing close to evidence of an impermissible motive that would permit the court to step in & force the exec to continue a case.
Judge Sullivan's lawyer argues he should be permitted to conduct an inquiry & rule without the court of appeals stepping in. Setting aside the context for a moment, it's hard to argue against this, we don't want courts flooded with requests from defendants seeking mandamus.
