Thread by @McAdooGordon

Flynn case: So the oral argument for the rehearing by the full DC Circuit is Tuesday as I'm sure you all know. 10 judges will rehear the case. Judge Katsus has recused himself. To prepare I thought walk through the pleadings the various parties filed & then add some commentary./1

Tonight I'm going to go through the Petition for Rehearing filed on Judge Sullivan's behalf by his counsel, Beth Wilkenson. Tomorrow, I'll do the DOJ pleading & Flynn's on this same thread & talk about the Court's orders & what to expect on Tuesday at the hearing. /2

I'm going to try to live-tweet the hearing as I did with the first hearing. I'll repost the abbreviations that I may use for that tomorrow also & there may be a few new ones as some of the key terms will have changed & there will be new judges to take into account also. /3

Okay, so here we go on the Petition for Rehearing. Unsurprisingly to lawyers & perhaps to some other folks, the case has basically now turned into an argument about the courts & how they interact with one another rather than about Flynn's actual case. Sigh. /4

That is unfortunately all too common & is one of my biggest criticisms of the courts: they care more about themselves and the legal class than they do about the people who are subject to their rulings or even about the law. One day I'll write a book about that. /5

You only have 21 days to draft a Petition for Rehearing, which is a relatively short amount of time to put together a high quality pleading even though the word limitation is 3900 words. This pleading makes the right arguments, but in terms of structure, it's a bit of a mess. /6

I'm not trying to be overly critical; I've been there myself trying to put together the best work product you can for a client on a tight schedule. A lot of lawyers wouldn't have done as well as this pleading so don't get me wrong. It's a good effort. It's just not a great one./7

The Petition says it is raising 3 arguments. A proper Petition has to raise arguments that the panel opinion (the decision by the 3 judges) basically creates problems with the law or its development. You can't just say the 3 judges got it wrong or you want further review. /8

Instead you have to show that the panel's decision conflicts w/other decisions by the Circuit, w/decisions of the Supreme Court that create problems, w/decisions of the other Circuits, or that the cases raises an issue of exceptional importance. Petitions are rarely granted. /9

Wilkenson identifies 3 issues with the panel opinion: 1. it undermines the law of mandamus in various ways, 2. it undercuts the S.Ct. & Circuit cases about Rule 48, & 3. it contradicts precedent from the S.Ct & the Circuit about appointing amicus & scheduling hearings. /10

Although the brief sets forth these three issues in the order I listed them, it then proceeds not to discuss them in that order! That's not usually something you want to do as an advocate. /11

The brief says the overarching problem w/the panel's opinion is it interferes with the District Court's role to decide things first before the appellate court weighs in. Here we see the shift in focus away from the substance of Flynn's case to the relationships of the courts./12

Despite being listed as the second argument in the summary, the brief starts by saying the panel opinion conflicts w/the SCt. case about Rule 48, Rinaldi, pointing out that the trial court in that case had conducted a hearing & questioned prosecutors about the dismissal. /13

The brief says the Rinaldi Court didn't question the appropriateness of the trial court's holding a hearing & questioning prosecutors in that case & basically claims that means the same process is fine in Flynn's case, so the panel's opinion "conflicts" with Rinaldi. /14

That "analysis" illustrates a central problematic premise of the brief -it ignores the very real Separation of Powers problem at the heart of the argument about dismissing Flynn's case.Rinaldi was decided in 1977-before the development of the SoP law that changes the equation./15

Because Rinaldi does not grapple at all with the SoP issue, it doesn't tell you anything about whether holding the hearing was a Separation of Powers problem & of course, it didn't recognize the issue before the development of that law. That's how developments in the law work./16

To say that the panel opinion "conflicts" with Rinaldi is a vast overstatement & to make that assertion, you have to ignore that there has been a significant development in the Separation of Powers law by the Supreme Court since 1977. It borders on being a dishonest argument./17

The second argument the brief makes is that the panel opinion abuses the law of mandamus in various ways. The fact that this is a mandamus case has always, in truth, made it a difficult case in the Court of Appeals. Mandamus is rarely granted; it is "an extraordinary" writ. /18

The brief points out mandamus should be reserved for "really extraordinary causes," citing to the Cheney case that the Court has asked the parties to discuss at the oral argument on Tuesday. For mandamus, the petitioner must have "no other adequate remedy" available. /19

The brief says granting the mandamus distorted the law of mandamus 3 ways: issuing mandamus (1) before the trial court acts, (2) using DOJ's harm to justify the mandamus tho DOJ didn't file for mandamus, (3) even tho no-one asked the district court to fix the problems first. /20

Taking them in turn: the brief cites Circuit cases saying mandamus wasn't appropriate before the trial judge ruled & says for example that Flynn could prevail in the hearing before Sullivan. This argument ignores what Flynn said his harm was -having to go through the process. /21

It also ignores Flynn's complaint that the nature of the hearing & actions of the judge that he was facing, including a contempt proceeding, that they were outside the norm and therefore were harms he should not have to suffer. /22

The argument does point up a weakness with having filed for a writ of mandamus rather than a writ of prohibition however. Both require a petitioner to show he has no other adequate remedy but a writ of prohibition is specifically intended to prevent a lower court from acting. /23

If this case was a writ of prohibition case, in stead of a writ of mandamus case, the fact that the district court has not ruled yet would not be an impediment to obtaining the writ. Indeed, it would be a requirement to obtaining the writ of prohibition. /24

It will be interesting to see if the Court elevates form over function & thinks it's a problem that the district court hasn't ruled yet. It could easily instead say it will treat the petition as a writ of prohibition as that is what is really being asked for despite the name. /25

But, you can see from this argument how this case has turned into "an inside baseball" case about the courts and the requirements of technical & arcane legal process instead of the rights&wrongs of Flynn's case. Sadly, this is extremely common in federal criminal cases. /26

Next, the brief argues, as Judge Wilkens did at the first oral argument, that because DOJ didn't file for mandamus, that DOJ's harm should not be the harm used to determine the mandamus. It says the panel opinion identified no harm to Flynn. /27

But the panel opinion clearly says hiring a private citizen to step in to prosecute a criminal case against Flynn even tho the U.S. no longer wishes to do so is highly problematic. That's plainly a harm to Flynn. Whether it's enough for mandamus is a separate question. /28

Again we will find out whether the Court will elevate form over function. The US has articulated that it supports the granting of mandamus due to harm to both itself & Flynn (it argued both in its 1st brief) so does it really need to file a separate "me too" to warrant relief?/29

This is something that is inconsistent in the way courts decide cases. Sometimes they insist on the formalities & sometimes they look past any technical defects to the substance of what was asked instead. It creates an uneven application of justice, however. /30

Third, the brief cites to a recent Circuit case (Stone) rejecting a mandamus petition because the party had not asked the trial judge to reconsider the decision being complained of. This is another device the courts use to avoid deciding things they don't want to decide. /31

The brief cites only the one case for this proposition, so it doesn't seem to be a customary rule, but rather simply the circumstances of that case. The brief argues, of course, that the same, ad hoc rule should be applied to Flynn's case. /32

This argument again misses the point of Flynn's mandamus pleading, which basically was: "Any idiot can see the handwriting on the wall that says Judge Sullivan is not going to dismiss the case & is instead going to sentence Flynn to serve time despite the holding of Fokker." /33

There's a legal doctrine on this called the doctrine of futility, meaning: "Yeah I could've asked the judge to reconsider but we all know that would have been a huge waste of time & money." Sometimes the court will acknowledge the real world issue of futility; sometimes not. /34

Whether the Circuit will say Flynn and/or DOJ should have done more to get Judge Sullivan to unappoint Gleeson nad back off the potential contempt proceedings is anybody's guess. It could go either way & will likely fall whichever way the majority wants to go on other issues. /35

It does illustrate how a mandamus case is sort of the legal equivalent of a child asking a parent to settle a dispute with his/her sibling & being told to "work it out yourselves" or worse yet the parent sending everyone to their rooms. The Courts of Appeals don't like them. /36

Finally the brief has a section complaining that the panel opinion "dilutes" the mandamus requirement that the petitioner have a clear right to the relief requested. This section looks suspiciously like an "appeal" of the decision rather than a petition for rehearing argument./37

This section argues that Fokker also -like Rinaldi- didn't say the lower court in the case shouldn't have held the hearings it had. Except it did exactly that! The holding of Fokker is that there's no role for the district court to examine the prosecutor's decision to dismiss!/38

Further, the real point is that AFTER Fokker gets decided, it is crystal clear that holding such hearings are not appropriate because they trench on the executive branch's sole power to determine whether to dismiss a case, or not. /39

This section then argues that Fokker doesn't create a clear & indisputable right to the dismissal. But, basically yes it does, actually. It also argues that SoP is inherently factual, so it can't create a clear & indisputable right. I guess "no role" isn't clear enough. 🙄/40

This section demonstrates another fundamental flaw with the arguments in the brief: it wants to pretend that Fokker doesn't say what it says & that the Separation of Powers is not the force that it is. Wishing doesn't make is so, however. /41

That isn't to say that the brief does not have some good arguments & might not even win the day procedurally on some of them. That could easily happen. But substantively, the arguments in the brief (& on the left elsewhere) about Fokker & the Separation of Powers are wrong. /42

Next, this section argues that Fokker dealt with a case of a Non-Prosecution Agreement (NPA), which involves a decision not to charge, while Flynn's case involves two "convictions" (wrong), which create a greater interest for the judiciary in the Separation of Powers analysis./43

The section argues that Fokker didn't deal w/the difference between an NPA case & a plea case like Flynn's. No kidding since that wasn't the situation in Fokker. Court's don't analyze cases that aren't before them.That doesn't weaken Fokker as a precedent as the brief implies./44

There's an interesting footnote in this section about whether there's any debate that a district court has at least SOME right of review of an unopposed Rule 48 case. The footnote points out that cases involving bribery have been cited as an example where the court could act./45

This is an issue I've commented on before. The only principled position is that the district court has NO role of review because ANY such review violates the Separation of Powers. That is what I believe is the correct statement of the constitutional principle & the law. /46

However, even conservative judges - because they are judges - have a hard time taking such an absolute position, even tho constitutionally that has to be correct. They don't want to issue that opinion & then think of an "exception" later. /47

Or, as in the bribery situation, they don't want to stick to the principle for principle's sake & admit that doing so sometimes creates a result that you - or more likely others - don't find palatable. (I find abandoning my principles the less palatable outcome, personally.) /48

Instead, the courts issue weakly worded rules that say there are some "exceptions," & that opens the door to arguments like the one in this footnote (#2), which seizes on the logical point that since not every review is prohibited, review must be permitted & is in this case. /49

The better articulation is that NO review is permitted because it violates the Separation of Powers & in cases where we don't like that outcome, the solution lies elsewhere or is a consequence of the fact that we like the liberty that the Separation of Powers gives more. /50

Next, the brief argues the panel opinion conflicts w/Ammidown because these folks can't pass up an opportunity to pretend Fokker hasn't overruled Ammidown & even if Ammidown is no longer good, an mandamus case isn't the place to "make new law" altho they don't say why not.🙄/51

They cite in another footnote some cases saying other Circuits agree that review is permitted, but 2 of the 3 cases are from before the SCt. development of the Separation of Powers law & the 3rd doesn't analysis that issue at all even tho it was decided after the development. /52

Finally, the brief turns to the issue of the appointment of Gleeson as amicus. It points out that the SCt. & Courts of Appeals often appoint amicus when both sides of a case agree & so the contrary arguments aren't being presented to the court. /53

This is correct & I've said many times that I also think it is appropriate for a trial court, even in criminal cases, to sometimes appoint an amicus to assist it with an issue of law. In theory, that isn't a problem. But it misses the problem w/the amicus in Flynn's case. /54

The Gleeson appointment is problematic in multiple ways. First, his "intemperate" position on Flynn, which was publicly stated, calls his impartiality into question, which is inappropriate for a court-appointed amicus. /55

2nd, Gleeson made it clear he wanted to - & did - add facts to the record. In a criminal case, for anyone other than the US to be doing that, particularly on behalf of the court, is constitutionally extremely problematic. /56

3rd, coupling the question in the order appointing Gleeson of how the court should rule on the dismissal motion w/a question of whether the court should hold a contempt proceeding has the problematic appearance at least of an intent to punish Flynn "no matter what." /57

These facts & the context undermine the brief's argument that appointing a private citizen in a criminal case is not a problem (yes it is) & setting him in opposition to the defendant is not a problem (yes it is.) The combination of facts & context is very problematic. /58

The brief pretends that instead the issue is simply whether a district court can in the abstract appoint an amicus and schedule a hearing on a motion, but that is the most superficial description that can be had of what the case is actually about. /59

Finally, the brief concludes that judicial decisions should be based on the record, "not speculation about what the future may hold." It claims: "All the district court has done is ensure adversarial briefing & an opportunity to ask questions about a pending motion." /60

That is certainly one - anodyne - way to describe what the case is about. But leaching all the flavor out of a food doesn't make it any less what it is. The reality is, as the DOJ argued, the case bore hallmarks of going in a constitutionally problematic direction. /61

Whether the portents & signs were enough to justify the issuance of a writ of mandamus is still up for grabs at this point. Tomorrow we'll look at what DOJ and Flynn's briefs have to say about it. /62

So overall impressions of the brief: I find it intellectually dishonest in places. It's organization is disjointed & repetitive. Some of its arguments are overly technical, some simply wrong. The specific argument that mandamus shouldn't have been granted isn't strongly made. /63

Which isn't to say the Court won't reverse course on the panel opinion. The best argument is - & always has been - that this isn't a proper case for mandamus. That is why the Court asked the parties to focus for the argument on whether Flynn/DOJ have alternate remedies. /64

This brief discusses too many issues. It would've been stronger if it had focused more on why the elements of mandamus weren't met, rather than rehashing Fokker, Rinaldi & Ammidown. The strongest parts focus on the mandamus, which is what the court said it wants to hear about./65

There's a nice bit in the middle talking about the Circuit's mandamus cases but not enough focus on its elements. There's a nice line about the case threatening to expand mandamus. That's something the Court of Appeals will worry about. That idea should have been the core. /66

Alright friends & frenemies, here we go - on to DOJ's response pleading to Wilkinson's Petition for Rehearing on behalf of Judge Sullivan. As usual, the general quality of this brief is very high. Regardless of administration, the SG's office always produces a quality product./67

The brief is not without it's issues, however, as we shall see. As a side note, it's interesting that Jeff Wall is again arguing the case tomorrow. He is now the Acting Solicitor General of the United States. /68

The brief starts by saying the panel opinion gets the substantive law right, so there's no need for further review. "Nothing to see here, folks." /69

The SG says the panel opinion properly applied Fokker - notice they lead with Fokker because that is the correct leading case, not Rinaldi and not Ammidown - to say that under the Separation of Powers, the Executive Branch is the sole author of decisions whether to end a case./70

The SG says that the federal courts are only supposed to decide "live" controversies & there isn't one because DOJ & Flynn agree the case is over. This ignores the reality that the courts, including the SCt, often appoint amicus in exactly that situation to help decide a case./71

This was an argument that some of the members of Congress made in their amicus & I think Sidney makes it as well, but I've never personally been persuaded by this argument. The case is still "live" because it hasn't been dismissed yet - it's on the docket. /72

This "case or controversy" argument comes from language in the Constitution about the jurisdiction of the federal courts and in my view, it is misplaced in this situation. No one denies the district court has jurisdiction. I doubt the CofA will base it's decision on this idea./73

The SG doesn't seem to think so either. They mention it, but it's a few lines only and not in a part of the brief with a separate heading. It's there. Meh. /74

The brief then says that Rule 48 must be read against the background constitutional law, just like any statute or rule. This is foundational conlaw, entirely correct & the forceful argument that the other side wants to ignore. SG says the Separation of Powers rules the case. /75

It then switches to why Wilkenson's arguments are wrong. It says the "arguments lack merit."The tone of the brief is confident & a tad dismissive, like: "we know the law better." To be honest, the SG's briefs usually read that way which is sometimes good & sometimes a mistake./76

1st the SG says the panel opinion definitely doesn't conflict w/Rinaldi, saying Rinaldi didn't endorse the hearings the trial court held in that case; it was just saying what'd in fact happened. It says reading it the way Wilkenson does contradicts the SCt. Sep of Powers law./77

And the SG says that Sep. of Powers law is "entirely clear" that a refusal to prosecute "cannot be the subject of judicial review," citing the ICC case from the SCt. that the SG (and my amici group's briefs) both cited previously. (That case is also called "BLE.") /78

The SG points out that Fokker also says Rule 48 confers "no new power in the courts" to review prosecutorial decisions to dismiss criminal charges. By "new" it means beyond the common law. (Fokker is a 3 judge panel decision, so the full court could overrule it if they want.) /79

(Overruling Fokker would be very unusual, tho not impossible. Unlikely tho as it's a solid opinion written by the judge who is now the chief of the Court.) So, back to the brief, the SG isn't quite as disdainful of the "it conflicts w/Rinaldi" argument as I was, but almost. /80

Next, the SG says it's error to say the panel opinion conflicts w/Ammidown. Here the tone is more dismissive. It says Ammidown dealt w/accepting a plea which IS a judicial function, not w/a dismissal which is executive function, & thus it looked to Rule 48 only for comparison./81

The SG quotes language from Ammidown saying that for its analysis, Rule 48 "does not apply as such" & then says that a conflict -with dicta- certainly doesn't support a rehearing petition, esp. since Ammidown was decided in 1973 before the Sep of Powers law developed. (Ouch!) /82

The SG in support cites three Supreme Court cases on the Separation of Powers law that post-date Ammidown, driving home the point - ICC (BLE), Heckler v. Cheney, and Nixon. These are all cases we cited in our amicus brief - because this is clearly what the law is now. /83

Thirdly, the SG says the cases cited by Wilkenson for her argument that other circuits agree with her actually don't support her position, making the arguments I outlined about them yesterday and others. Back of the hand to that. /84

The SG points out Wilkenson challenges the panel's decision on the grounds that Flynn's case is a "conviction" & thus different but says just disagreeing w/the panel's interpretation is not a basis for seeking rehearing en banc. This is a semi-slam in appellate-nerd world. /85

In any event, the SG says that even in Rinaldi the SCt agreed to a Rule 48 dismissal after entry of judgment, which it points out HASN'T happened yet in this case because there has been no sentencing. So, "nice try, but not even close" is the subtext here. /86

The SG's brief reads like they think the Petition for Rehearing was a weak effort, which is what I thought too when I read it. But, I wonder if the tone of this brief is maybe a shade too harsh, which can come across entitled, which is usually a mistake with a court. /87

The SG brief then switches to arguing that the panel opinion did not undermine the standards for mandamus. It blithely says the panel made a solid showing that the standards were met. This is a display of confidence, I gather, as it overstates the situation. /88

The brief does start strong with a quote from the Cheney case, which is the one the Court said it wants to focus on. Unfortunately, the quote is on a different issue than what the Court identified, but it's still good the SG solidly relied on Cheney. /89

The Cheney quote says the SCt has said that mandamus is broad enough to allow courts of appeals to prevent a lower court "from interfering with a coequal branch's ability to discharge its constitutional responsibilities." /90

The SG says that Wilkenson is wrong that it's a problem that the district court hasn't ruled yet & Flynn could petition for mandamus later if it denies the motion to dismiss as an adequate remedy. The SG says: "That objection misses the point."/91

It explains that it's not just any old motion that is at issue, that what's "at stake" is a "full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government's position" and who is engaging in four problematic behaviors . . . /92

. . . 1. himself raising fact questions, 2. rely on facts outside the record, 3. probing the Gov't's deliberations, and 4. second guessing core Executive Branch decision-making. The SG says the panel opinion is correct to say this creates "specific harms." /93

To back this up the SG points to specific things Wilkenson said in her original pleading about all the stuff the district court would be entitled to inquire into (before she changed her strategy in the middle of the last oral argument to "we're just asking a few questions."🤷‍♀️ /94

The SG says "allowing the process to play out" is what would cause the "irreparable injury" & Wilkenson is ignoring the serious Sep of Powers issue which -oh by the way- protects Flynn so he can raise that even if DOJ didn't file for mandamus, thank you very much. Harumph. /95

The SG is right that Wilkenson's pleading all over the place misstates the importance or even existence of issues or law and mischaracterizes what the facts are or Flynn's arguments. But here the SG is sort of doing that also. /96

The best argument in this case for Judge Sullivan/the district court/Wilkenson has always been - why is mandamus necessary, and necessary at this point. This is not a make-weight argument. An element of mandamus is that the person has no other adequate remedy under law. /97

For Flynn, the argument is that even if Sullivan denies the motion to dismiss, all that will happen is he will be sentenced & then he'll appeal & it's very likely, if not almost guaranteed, that his sentence will be stayed (since it will be short) & he'll get a ruling then. /98

For the Govt, the argument is that even if Sullivan is inquiring into topics that trench on executive power that doesn't mean the U.S. Attorney's office has to answer. It could stiff-arm the judge & refuse to answer & even tell him he's out of line. DOJ isn't powerless. /99

It will be interesting to see exactly how the full court resolves these competing visions of what can/should happen in the district court when the court gets close to or arguably goes over the Sep of Powers line. /100

In this regard, I note that my amicus group didn't take a position on whether mandamus should issue or not. We provided the court w/analysis on the Sep of Powers law & that SCt caselaw precluded a contempt case for perjury against Flynn, to assist the court in its decision. /101

The SG dumped into a footnote the argument that Flynn or DOJ should have gone back to the district court to seek reconsideration before filing for mandamus. Like me, the SG was unimpressed w/that argument, saying "that has never been a prerequisite to mandamus relief." /102

It's at this point, that - in my opinion - the SG's brief goes off the rails. The final section raises arguments that Judge Sullivan can not procedurally even file a petition for rehearing with the Court of Appeals. I think this section was a big tactical mistake. /103

The brief outlines 4 reasons for this "lack of standing" argument: 1. no "personal stake," 2. Sullivan isn't a "party," 3. Sullivan wasn't invited to file a petition & 4. Sullivan needed the Solicitor General's permission to file a petition for rehearing.I'll do them in turn./104

First, the SG says under Article III of the constitution only someone with a "personal stake" in a case can file in a court & Sullivan can't have a personal stake in the case because he's supposed to be being an impartial judge. /105

This argument misses the point that Judge Sullivan is not acting in his personal capacity; he is raising the interests of the district court, which certainly does have a stake in the mandamus as it concerns what power the district court has to act on a Rule 48 motion./106

This is not a normal case about whether a judge is getting rulings right -it is about the power of the district court to act (or not) & now also it's relationship with the Court of Appeals thru the mandamus since there are questions about whether there must be a ruling first./107

Second, the SG says the district court is not a "party" to the case under the Rules & the rule governing Petitions for Rehearing, Rule 35, says that only a "party" can file a petition for rehearing. /108

There are 2 flaws w/this argument. The 1st is that the Court of Appeals itself ordered Sullivan to respond to the petition so it effectively made him a respondent. The 2nd is that Rule 2 says the Court can waive any requirement under the rules for good cause. /109

So the Court can do whatever it wants about the "party" issue. Further, Courts say they construe their rules to promote fairness. I think there is zero chance they will say Sullivan can't file a petition because he's not a party. /110

Third, the SG says that the Rules say a judge can only address a mandamus petition if asked or ordered to do so by the Court under Rule 21 & although it ordered Sullivan to respond to the mandamus, it didn't ask or order him to file a petition for rehearing. /111

The problem w/this argument is it's all well&good to say Rule 21 limits a judge's rights to respond to a petition for mandamus, but Rule 35- which governs petitions for rehearing- DOESN'T & it's directed at responding to the panel opinion, not the mandamus petition. /112

Finally, the SG makes the argument that Judge Sullivan had to ask the SG for permission to file the petition for rehearing because the SG is the lawyer for the federal government & even the judiciary must follow that rule based on a SCt case called Providence. /113

This argument is likely wrong. And, if it is, it undermines -a little bit- everything else in the SG's pleading. The SG is the lawyer for the US Govt & it's officers which by statute includes judges but again here Judge Sullivan is really a placeholder for the district court./114

The case the SG relies on for this argument, Providence, said a court appointed Special Prosecutor for a contempt case had to seek permission of the SG to file in the appellate courts - but is said that was because he was exercising EXECUTIVE Branch power. /115

In this case, Judge Sullivan is acting as a proxy for the district court itself in a judicial procedural battle about the power of the district court. These are all Article III - judicial - functions & powers & procedures & issues. /116

The SG's argument that a judicial officer must obtain permission of an executive branch official to assert it's powers in these circumstances arguable raises a far more difficult separation of powers problem than does Flynn's case itself. /117

The Courts believe they have inherent authority to manage their own affairs flowing directly from the Constitution. I don't think they will be quick to accept this argument from the SG at all. /118

Stepping back, these 4 standing arguments seem too cute by half & challenge the courts' authorities to govern itself. And it seems churlish of the SG to raise them. Like, "And on top of it all, you have to ask 'Mother may I' nicely. So there!" It's not a good look for the SG./119

It wasn't necessary to raise any standing arguments at all. It was a clear tactical choice to do so. When I saw them, I thought: "You decided to poke the sleeping bear by arguing the courts are actually subject to the executive branch IN THIS CASE? OK." /120

It seems of a piece with the tone issues of the earlier part of the brief. Reading between the lines, one might conclude that the SG's office is a little pissed that Sullivan filed for rehearing. Even if that is true, it shouldn't be coming across in their pleading. /121

Somewhat hilariously, the SG's brief, after making these four points, says: "At a minimum, the en banc court would have to resolve these thorny procedural questions before proceeding to the merits on this petition." It argues that's a reason for not granting the petition! /122

Well . . . they granted it, so now you're going to get yourself some rulings on all those standing issues! Pretty sure that is exactly the opposite of what they wanted. 🙄/123

And the court set only 20 minutes of argument per party for all the issues, so I guess that tells us what they think about these standing arguments already. The argument will probably go longer, but no one could think they did that while taking these arguments seriously. /124

I seriously wonder if those arguments might not have goaded some of the judges into voting to take the petition just to tell the SG what they think of them! I guess we'll find out when we see the final opinion. /125

Standing is a technical area of law & if you don't have standing, you don't & then it doesn't matter what your arguments are- you lose. So, I could be wrong about these arguments, but my guess is the Court will say Sullivan has standing - so they can rule on the mandamus. /126

That's DOJ's pleading. It focuses more on what the Court says it wants to hear about- is mandamus proper at this point in the case? It says nothing about Judge Sullivan being removed from the case, just as Wilkenson's didn't. Sidney asked for that so it needs to be addressed./127

Taking a break to grab a glass of water and look over Sidney's pleading before I start again. Be back in a few minutes. /128

Sidney's (and team's) pleading on behalf of General Flynn is scorching! She is not playing and she is OVER it! Sometimes her pleadings are a bit meandery and stream-of-consciousness. Not this one! It's one of her best briefs in this case, imo. /129

Of course, she's playing against the backdrop of a winning hand in the panel opinion in this brief. It's nice to be able to say: "Look how right these judges - your colleagues - got it." /130

I'm not going to go over all the technical arguments again since we've hit them all in Wilkenson's and DOJ's brief & needless to say she agrees with DOJ and disagrees with Wilkenson. Instead, I'm going to hit the important highlights. /131

Sometimes Sidney's pleadings focus too much on facts & she does that once or twice in this brief, but basically it lays out why what is happening is wrong. In that way, it compliments the DOJ brief, which is more clinical. You do have to be compelling to win also. /132

She comes out swinging: no Circuit has let a district court seek rehearing, Sullivan has no standing & mandamus is proper to "confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.”/133

She says not only does the panel opinion NOT conflict with Rinaldi & Ammidown & other circuits, but Wilkenson's arguments turn those cases on their heads & the panel's decision is instead compelled by Fokker. She emphasizes that no court had affirmed a denial of a dismissal./134

One of the Sidney's strengths is focusing the reader on the real world consequences of the case. She writes compellingly about how the mere continuation of the case harms Flynn - impeding his liberty, preventing him from obtaining employment, etc. /135

These are real world harms & Sidney presents them skillfully. My experience, unfortunately, is that the Courts of Appeals could not really care less about the actual human toll inherent in being the subject of a criminal prosecution. They are too inured by their positions. /136

She then draws attention to problems with Wilkenson's pleading, for example 1. it ignores the DOJ 20 page motion to dismiss with detailed factual explanations for the decision, 2. it mistates the dates of key events in a way that minimizes the district court's actions. /137

She lays out for the Court how she DID file motions objecting to Gleeson's appointment - two of them & both were ruled "moot" by Judge Sullivan. This is probably the 1st the Court of Appeals is hearing of that point. /138

I noticed this in the first oral argument that Wilkenson did not seem to know that had happened. That's the difference between having lived with the case yourself & coming in to it at a later point. Tip for young lawers: read the entire case docket word for word. /139

These facts undercut Wilkenson's argument that Flynn should have fought more before Judge Sullivan before seeking mandamus, in addition to DOJ's argument that the case law doesn't require it anyway. There you can see how the briefs work well together. /140

I am pleased & proud to say that Sidney's brief cites to the several page argument in my amicus brief that there is no conviction in Flynn's case because there has been no judgment entered yet because that doesn't happen in criminal case until the sentencing takes place. /141

The fact that there is no conviction yet means that the Executive branch still has the power to dismiss. Claiming there is a conviction in Flynn's case at this stage (& therefore that the judiciary has more of an interest) is simply legally wrong. /142

Sidney makes that ultimate point well & points out that Rinaldi and other cases approved a Rule 48 based dismissal even after an appeal had been taken. /143

There's a half page of discussion about how the pleas proceedings before the two district court judges are not valid, but I don't think this argument advances the ball in any way at this stage. They could have done w/out those specific arguments and not lost anything overall./144

Sidney argues the lack of standing argument & gets in a nice long quote in which the 2nd Circuit is slamming a NY judge for trying to seek review of the reassignment of a case away from her. (Probably not coincidentally, that judge is on an amicus brief against Flynn.) /145

Unlike the other two briefs, Sidney does touch on the issue that Judge Sullivan would have to be dismissed from the case if he did have a personal stake in the case = for lack of impartiality. The Court has asked to parties to be prepared to address that issue at the hearing./147

Sidney takes some hard shots at Judge Sullivan (in a way that the SG's office cannot - or won't). She accuses him of disrupting the orderly administration of justice by refusing to dismiss the case & keeping the litigation going by petitioning for rehearing. /148

She argues that doing so violates the Constitution & diminishes the prestige of the judiciary. She doesn't cite any specific cases for the first point, but I would be shocked if any court had ever said exactly that. She may/may not be right but baldly stating it doesn't work./149

She does a better job of using Fokker to beat back Wilkenson's argument that mandamus is inappropriate because the issues here are novel. Fokker had rejected that as an absolute requirement. /150

She agrees with me that Wilkenson's argument that the panel opinion "conflicts" with Rinaldi is basically dishonest. She calls it a "misrepresentation" & correctly points out that Rinaldi could not "by its silence" approve of having a hearing on a Rule 48 dismissal. /151

Turning to the harm element, she has a nice line: "The government does not have a monopoly on irreparable harm
from a district court’s infringement of Executive authority." It's a nice companion to the SG's argument that Flynn can assert a violation of Sep of Powers himself. /152

And this additional line a bit later on is fantastic: "General Flynn has a constitutional right to be prosecuted by the Executive Branch—if at all—and certainly not by the
Judicial one." This is a sweet articulation of the problem in the case. /153

She also reminds the Court that Judge Sullivan called Flynn a traitor & had posited the potential for perjury (contempt) charges. She is giving them a full barrel of reasons why this is not just a simple hearing where a few questions are going to get asked, a la Wilkenson. /154

In sum, it's a hard-hitting, no nonsense brief saying six ways for Sunday: "the law is clear here & the judge is out of bounds in ways that are unduly harming my client, so please put a stop to this." Whether the full court will do that is hard to say, however. /155

As is typical, Sidney's brief is light on strictly legal arguments and the niceties of rarefied appellate nerdiness. She does not logically tick off the reasons mandamus properly lies. On the other hand, she forcefully presents moral arguments that are often necessary also. /156

The DC Circuit tends to prefer the nerdy approach, I will say. This pleading by Sidney comes the closest to anything she's filed in this case to what the courts here will see as polished, detached analysis, without compromising her zeal. /157

So, what will happen? We'll see how the argument goes tomorrow. Mandamus is hard to get, but also unpredictable. There is a line of case that aren't strictly logical but where mandamus issues anyway because the Court of Appeals just doesn't like what it sees. /158