Thread by @hsu_spencer

NOW D.C. Circuit appears reluctant to order Judge Sullivan to immediately dismiss DOJ's criminal case against President Trump's former national security adviser Michael Flynn
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@amarimow washingtonpost.com/local/legal-is…

Judge Karen Henderson, likely swing vote, gently steers the lower court, saying, Sullivan “may have chosen an intemperate amicus, but that doesn’t mean he is going to deny this motion."

More Henderson: “Judge Sullivan ...is an old hand. He’s an excellent trial judge. He may say to himself at least, you know, I asked for advice. I’m ignoring it, and I’m granting a motion to dismiss. Shouldn’t he be allowed to do that?”

“There’s nothing wrong with him holding a hearing — there’s no authority I know of that says he can’t hold a hearing,” on July 16.

Judge Robert Wilkins raised a hypothetical from the news. Would a judge have no choice but to dismiss a police brutality case even if the prosecution argued a white police officer should not “have to answer for using excessive force on a black defendant?”

Principal Deputy Solicitor General Jeffrey B. Wall argued that in that case, there would be a civil rights remedy. Other defendants could also mount challenges for similar treatment that would force accountability from the government, he said.

But in Flynn’s case, Wall urged the court to cut off Sullivan’s review, saying a July hearing would create a “spectacle,” pull the judiciary into a fight over “almost polemic” claims Trump and Attorney General Barr "have engaged in grave misconduct,” and subject the ....

DOJ to intrusive questions about internal deliberations.
“It’s not up to courts to probe whether the government has pure or impure motives. That’s up to the political and public arena,” he said.

“It’s hard to imagine a case … that would be more harmful” to executive branch interests, Wall said, especially since even if Sullivan denies the motion a court cannot force the government to prosecute a defendant.