Thread by @jentaub

Judge Rao jumped in. Isn't it your argument that the rules of the court do not permit amicus briefs in criminal matters?

Powell said she's seen it done

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Now Jeff Wall for the U.S. is arguing. He is the Principal Deputy Solicitor General.

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Wall says, "here there are problems with this particular appointment of the amicus."

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Walls says this is becoming a "public spectacle." Says it threatens the executive and judiciary.

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Judge Rao says that this court denies mandamus requests for abstract arguments.

"What precisely is the infringement on the Article II power?"

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Wall is complaining about the "intrusive process" of having to brief the whole dropping the Turkey-related charges.

Also doesn't like the 70 plus page "polemic" about the executive engaging in "gross misconduct."

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Wall said to Wilkins that for unopposed motions to dismiss, where parties agree, the court shouldn't do this.

Wall disagrees that Fokker is just for a pre-plea situation.

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"There's no magical plea line," Wall said.

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Wilkins said, "Fokker made clear that there are different considerations" at different stages of case. (But has not conceded that Fokker is binding on a 48(a) case).

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Wilkins says the case is not in the same posture as in a pre-plea case.

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Judge Wilkins asked even if the prosecutor was dismissing a case because a white police officer should not have to answer for using excessive force against a black person, does the judge have to grant 48(a) motion?

Wall: Said no, because that would be unconstitutional.

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Wilkins said then what purpose (work) does the language "leave of court" have in 48(a)?

law.cornell.edu/rules/frcrmp/r…

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Wilkins keeps pushing on Wall on the racist motivation for prosecutor to drop case against white police officer.

Wall said "there's no power to make the executive move forward to trial."

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Wilkins disagrees, while case is in limbo, pressure could be exerted on the government to move forward.

Because Wall is saying even if the case cannot get dropped because Judge refuses to drop, gov't won't prosecute Flynn. . .

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I would be shocked (and disappointed) if the DC Circuit grants the government's writ of mandamus

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Judge Henderson suggests court should follow regular order and let Judge Sullivan rule in mid-July.

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Wow. Now Wall is backing down, asking for a more narrow mandamus. Bargaining to have discovery and contempt off the table.

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Lot's of annoying beeping. People need to turn off their phone notices when they are calling in oral argument.

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Ooooh. Judge Wilkins said, "The government didn't file for writ of mandamus, Mr. Flynn did."

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Judge Henderson makes a good point. In Fokker "we knew what the district court did," and "we don't here."

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Judge Rao is questioning Wall's "partial mandamus" as being not as clean as a regular writ.

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💯Excellent. Judge Henderson is saying why is no one talking about the standard for granting mandamus. To Wall she says, you still have to say why there is no "adequate remedy at law" if on July 16th Sullivan grants your 48(a) motion to dismiss.

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He says its a real harm to the executive branch to accuse Attorney General Barr of misconduct etc.

(Ummmm, if the shoe fits).

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Next up is Beth Wilkinson. She's the attorney who Judge Sullivan hired to represent him.

The court should deny mandamus for three reasons.

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1. Relief is available below

2. (Missed this. She's speaking quickly).

3. Inappropriate where there are open questions, novel const'l arguments being raised now that were not raised below

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Uh-oh. Rao has a question.

"Isn't the appointment of the amicus creating an Art. III case or controversy where there is none?"

No, says Wilkinson.

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Wilkinson said if there court doesn't have a case or controversy, then the court could not dismiss the case with prejudice.

Rao said, what if district court denies motion to dismiss?

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Rao, then do we go onto sentencing even though prosecution does not not want to pursue.

Wilkinson said there's no reason to fear that. But if so, the gov't could file a writ of mandamus. We are not there now.

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Wilkinson said, there's just Judge Sullivan asking for advice.

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Rao says what is the standard the district court must apply for "leave of court" to dismiss under Rule 48(a).

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Rao asked about the public interest and that public interest is to executive branch?

Wilkinsin said in footnote 15 of Rinaldi . . .in the weeds for the lawyers. But here there's no clear standard to issue writ

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Cases from DC Circuit allow for a review, including asking questions of the parties in open court.

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Wilkins is now questioning Wilkinson. They are talking about how to interpret the holding in Fokker.

"Fokker does not deal with Rule 48" and does not preclude scrutiny. While circumscribed, no bar on asking questions.

Here, judge is receiving briefings and having a hearing

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Rao asks Wilkinson, now does the "presumption of regularity" apply (meaning that judge should just grant motion, unless this is overcome). Doesn't district court have to determine presumption has been overcome.

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Wilkinson says you actually need fact-finding, cannot go by pleadings alone. Need inquiry to decide whether it's overcome.

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Rao is questioning appointing of amicus by Judge Sullivan.

Wilkinson notes that the amicus (Gleeson) already filed brief. If court doesn't step in, it may well be that the court reads briefs, hears arguments, and grants government's motion to dismiss.

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Rao asks, who is the amicus arguing on behalf of?

Wilkinson references the Dickerson v. U.S. (SCOTUS 2000).

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I have to say I am embarrassed that Rao attended my high school. She was well-trained and bright. What happened to her?

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Beth Wilkinson is doing well.

Now thinking it could be 2-1 rejecting mandamus (with Rao voting to grant mandamus).

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Wilkinson says "leave of court" should not preclude asking questions. District court should be able to ask the prosecutors questions. Prosecutors historically have answered questions.

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Wilkins is not asking questions of Wilkinson. He's reprising his hypothetical about the white police officer using excessive force against a black person. In this fact pattern the government wishes to dismiss case b/c does not want to hold white person accountable.

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Wilkinson said judge should refuse to dismiss. Says judge does not even need constitutional basis. Bribery counts. So does government acting in a racist way (and court was able to uncover through questioning). Obviously prosecution is not going to admit bribery in filings.

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Wilkinson is continuing. She says after hearing arguments, Judge Sullivan will decide the motion.

This court should not "enter the fray now."

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Now, Powell has opportunity to speak. She's questioning the plea colloquies. She says there's "extraordinary exculpatory evidence" she claims was hidden from Flynn for three years.

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Sounds like a landline phone ringing in the background. Or more likely someone's ring tone.

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Wall now has his two-minutes. Doesn't want to disclose DOJ's deliberative processes to Judge Sullivan.

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Judge Henderson has a new question for Wall. What is the harm to Article II, or the "benefit of self-correction."

If there was bad faith, it occurred in the original prosecution, and shouldn't we allow self-correction.

Ugh.

Of course Wall said yes.

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None of the judges have further questions

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Court adjourned. Gavel. And, "I'm sorry, your conference is ending now. Please hangup."

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