Thread by @reeveslawstl

THREAD re: Flynn oral argument (take with a grain of salt)

1) I do NOT believe the Flynn oral argument went as well for Judge Sullivan as some commentators believe it did.

2) I predict the DC Circuit will either (1) grant Flynn mandamus; or (2) issue an opinion that, while not granting mandamus, "reminds" Judge Sullivan of his duty to abide by Fokker, and strongly hints that if he keeps going off the deep end, it will not end well.

3) I think the odds are slightly in favor of mandamus being granted, as opposed to the DC Circuit merely issuing an opinion "reminding" Judge Sullivan of what he needs to do in order to save face. I realize this is a more optimistic view than most people have taken.

4) Judge Henderson is the key "swing vote" here. Her questions clearly indicate she agrees Judge Sullivan is acting wrongly. She is 90% with Flynn.

5) The issue for Judge Henderson is not whether mandamus is appropriate to correct Judge Sullivan. The issue for Judge Henderson is whether mandamus is appropriate AT THIS POINT, when Judge Sullivan has yet to rule one way or the other on the DOJ's motion to dismiss.

6) Had Judge Sullivan already denied the Flynn mtd, there would be no question that Judge Henderson would agree that mandamus should issue directing Flynn to dismiss the case.

7) But because Judge Sullivan has not yet ruled on the DOJ mtd, this is giving Judge Henderson pause in granting the mandamus.

8) But based on her final question to the DOJ yesterday about it being allowed to "self-correct" was, to me at least, her showing her hand that she believes Judge Sullivan has to be reigned in now.

9) Even if Judge Henderson personally thinks that Judge Sullivan should be allowed to do it himself, I think Judge Henderson realizes she could not write an opinion stating that which would at the same time adhere to Fokker.

10) If Judge Henderson wrote an opinion that deviated from Fokker, this would increase the chance of en banc review by the DC Circuit, something she does NOT want to happen.

11) For those who do not know "en banc" review is when the ENTIRE appellate court agrees to hear and rule on the case, and not just a panel of three judges.

12) En banc review is typically limited to where a majority of the judges on the court think that the 3-judge opinion contradicts an earlier opinion of the court.

13) Keep in mind, as well, that Fokker was written by an OBAMA-appointed Judge, Chief Judge Sri Srinivasan. He will NOT want Fokker to be weakened.

14) I also believe that Jeff Wall (the DOJ lawyer who argued) convinced Judge Henderson of the harm the Government has already suffered, and will continue to suffer, if Judge Sullivan is not reigned in now.

15) As I point out in my amicus brief that I filed in the Flynn case, ample DC Circuit precedent exists for granting mandamus not only where a district court has ruled, but where it has also REFUSED TO RULE through an UNREASONABLE DELAY.
drive.google.com/file/d/1qT87gJ…

16) I was very surprised the DOJ did not bring this up during oral argument. Judge Sullivan's appointing of amicus and setting a briefing schedule and oral argument is ITSELF a REFUSAL TO RULE through an UNREASONABLE delay.
drive.google.com/file/d/1qT87gJ…

17) In any event, I think that Jeff Wall's closing remarks (as the attorney for the DOJ) convinced Judge Henderson that mandamus needs to be issued. Hence her asking Wall, "shouldn't we allow [the prosecution] to self-correct?"

18) By asking, "shouldn't we allow [the prosecution] to self-correct," Judge Henderson seems to be indicating mandamus needs to issue in order to enable the Government to self-correct. Judge Sullivan appointing amicus prevents that self-correction from happening.

19) Of course, that's just my opinion, I could be wrong. (To borrow from Dennis Miller). 🤷‍♂️

20) It is always difficult to tell how a court is going to rule from oral argument alone. The first time I argued in the Eighth Circuit here in St. Louis, the panel showed me no mercy--throwing every difficult question possible at me. Yet I still won 3-0.

21) The same thing happened when I argued in the Missouri Supreme Court--the judges bombarded me left-and-right with skeptical questions, yet I won 7-0.

22) My point is that at the end of the day one never knows how a court will rule until the decision comes out.

23) I am an optimist by nature, so I do not want to unreasonably get anyone's hopes up in the event the DC Circuit denies mandamus. This is just what I personally think will happen. I could be wrong.

24) If mandamus is granted, it will be an occasion of much rejoicing.

But if mandamus is denied, do not lose heart. Certainly General Flynn would not want us to lose heart. @SidneyPowell1 and the DOJ will carry on the good fight, just as we all must.

*reined in, not "reigned in."😳