Thread by @BBuchman_CNS

Live-tweet starts at 9:30AM ET.
#Flynn

https://twitter.com/BBuchman_CNS/status/1292895706882203649

We will be underway shortly.

Sidney Powell begins: Judge Sullivan petition for rehearing must be flatly denied. The judge has no injury or standing to seek release of this court's ruling on Flynn.
Judge Sullivan has "so invested himself in his own prosecution," he should be removed from ruling here.

Sullivan's tapping of former judge Gleeson to argue for hearing improper.
Dismissal as a matter of law, is something only the DOJ can pursue and determine whether justice is done here, Powell argues.
It has a determinative authority. The gov't has dropped the case.

Judge Srinivasan asked Powell if she knows of any case where a district court has been asked by an appellate court, under mandamus, to decide a case before the district judge has even made up its mind on the case.

Sidney Powell says she does not.
Judge Sri: If the district court grants the motion, that would be adequate alternate means?
Powell: No sir, because the process is the problem. The process violates Article III and Article II; Sullivan could have granted or not months ago.

Flynn atty Powell continues: But instead, the process created by Sullivan has become an unconstitutional burden.
In effect she argues: all he is entitled to do is to review the motion on its face and grant it. "There's no precedent for denying it."

Mandamus must be issued to vacate Gleeson's appointment and there are no circumstances that Sullivan can remain on the case. "His bias demands his disqualification," Powell says.
His own petition for rehearing was groundless and he took on the mantle of an "active litigant"

Judge Judith Rogers asked why it is appropriate to use mandamus to review the procedural courts the district court took in connection to gov't motion?
Powell: The usurpation of power does apply here, that's what Sullivan did when he appointed Gleeson and...

Powell: "took over the gov'ts move to dismiss the prosecution. [Sullivan] cannot add on his own prosecutor to try a defendant.
Only the gov't can decide when to stop a prosecution. That's the authority he's intruding on.

Flynn atty Powell: [Judge Sullivan] is not entitled to ask any questions about that whatsoever when more than a conclusory statement has been made.
We had a 100-page motion to dismiss, she notes.
This is an extraordinary case. "The process he has created is beyond the pale."

Judge Merrick Garland now asking Flynn's attorney Sidney Powell why courts shouldn't just wait for a trial judge to rule on the mandamus from appeals court.

Powell argues again this is about a violation of executive powers by Sullivan. Garland asks whether or not she agrees with Judge Neomi Rao's position. She does.
But Garland says ...

There are plenty of cases where a decision was reversed because of plain error and there was nothing left as an option but to appeal.
Garland: Imagine if SCOTUS decided a 4A case and clearly applicable to that defendant's favor and the district court ruled the other way.

Garland: The defendant would still have to appeal even though the defendant's liberty was restricted and the conviction stood. Isn't that the normal way crim cases go?
Powell says: Yes, that's how ti goes when the government hasn't walked in and said 'I quit'

Garland: So it's not just a question of the clarity of the law at the time?
Powell says No, it's about the sole authority left to the executive branch to enforce prosecution.

If all the district had done was to ask Flynn to brief the argument on the separation of power arguments, permitted amicus but did not appoint amicus, she would not argued against it?
Powell: No I think I still would. I

Regret errant I above.
She said "I think that's far more procedure and process on any other 48A motion in the country."

Powell is now facing rigorous questioning from Judge Thomas Griffith

Griffith says the q. now whether the district ct should grant 48A, or whether OK to appoint amicus.
What is it in the rule itself that prevents a simple hearing as Sullivan asked?
Powell asserts role of judge is ministerial.
Griffith bristled, "It's not, you know it's not."

Griffith notes to Powell that a judge is "not simply a rubber stamp" and has to actually think about the factors at play.

Powell moments later leans on argument against Sullivan's appointing of ex Judge Gleeson as amicus under rigorous questioning from Judge Millett

Millet asks where Powell raised the sep of powers issue and Powell points to her citation of prosecutors in Watergate in fiiling.
Powell then argues the petition for mandamus was filed before the reconsideration issue came up w/Sullivan and there was an error on docket's timeline

Judge Pillard to Powell then brings up just one case that she was able to find where mandamus was found as valid to use before the court rules. (Richards)
Pillard notes Gleeson was tapped as an amicus, he was not tapped as a judge.

Pillard sounds fairly incredulous at the suggestion that Judge Sullivan must just "drop the case like a hot potato" because he's asked to review the factors at play

Judge Neomi Rao, Trump appointee, is up. She says what her colleagues are focusing on is: what is the most that a district court judge can do when considering leave of court under rule 48?
Is there anything else he can do?

Powell: All the existing authority describes his role as extremely limited. Virtually no role. There's just not much in a govt decision not to prosecute a case."

This was said with a light laugh.

Rao: If the court were not to grant writ of mandamus, would what extent reassignment to a different job cure the problems she's identified?
Powell: It would solve disqualification problem, it would vacate appointment of amicus

A follow up from Srinivasan: Suppose in end we're only dealing w/whether mandamus should be required to DJ to grant 48A motion & suppose, he agrees w/everything she's said...

Sri: "If the district judge rec's the 48a motion requesting dismissal and DJ says I want to schedule a hearing for 2 weeks so I make sure I understand reasons for govt's call to dismiss - would you be entitled to mandamus release because judge has req'd a hearing?
Powell: No sir.

In a one-off comment from Judge Karen Henderson, she says, "I think it was Ezra Pound who said, 'Some circumstantial evidence is so strong as when you find a fish in the milk.' Does that apply to this case?
Powell: I think it might your honor.

(It was Thoreau and trout)

Judge Griffith says throughout Powell's argument she's emphasized 48A as protection from prosecution. But he says, that's not the full view. The history of 48A was also created to examine cases of favoritism for politically powerful defendants...

Griffith: "...and that seems to be right in the wheelhouse of what's going on here. Is that not one of the purposes?
Powell: Not according to SCOTUS.
In Rinaldi, 48A is to protect the defendant from harassment.
Griffith: No Q that's one of the purposes. But that's not the sole

Powell: Best I can tell that's the sole purpose of it.
Griffith: We have a record of the history and creation fo 48A and I thought one of the purposes was to allow a district court judge to examine politically powerful defendants. You just disagree with that history?

Powell: "I mean, the history is whatever the history is. But the courts have not interpreted it that way."
Griffith: So to make clear: have courts rejected reasoning or just haven't addressed it?
P: To my knowledge, it hasn't been.
G: That's different than rejecting it right?

Millett, sharply to Flynn atty: "Can the district court ask the govt, referencing info that has come to its attention, whether the court was lied to in a filing made with the district court?
She asks for a yes or no answer after crosstalk.
Powell, finally: "Yes."

I'm not an attorney but by the sounds of this so far: the foundation of Powell's case for Flynn is being hammered today.
She's effectively conceded that a district judge *can ask* questions/ask for review on whether or not they have been lied to by a defendant - that's the core.

I will have a full story for @CourthouseNews breaking down what we are hearing today.
Thanks for sticking along for the live-tweet in the meantime.

Right now, acting solicitor general Jeffrey Wall is up.

Judge Judith Rogers to Wall: is your position that the filing by the district court in urging that mandamus was in effect impermissible at this stage, that is the bias that would require reassignment?

Wall: No, it does not actually suggest the district court is bias. We don't think there's an actual partiality problem.

Rogers: But you think there is an appearance?

Wall: Yes, by the filing of the petition and the substance of the petition

To back up just a sec, before questioning from Rogers, Judge Srinivasan asked if the trial judge in Fokker case had "telegraphed" what it was going to do, would mandamus have been right in that case before he ruled?
Wall concedes, yes but it would be more difficult.

Sri asked if a district court merely scheduled a hearing to understand the function of the motion, would that be OK? Wall concedes there is but that wasn't what happened here - there was an attempt to challenge gov't position/decision

Wall: "There's a difference in trying to understand the motion and the kind of questions the district court raised in its panel briefs.... That's a probing behind the motion, not an attempt to understand the motion.

"There's noting speculative to the injury of powers in that that," Wall says.
"Probing the executive branch is constitutionally impermissible" here.

Judge Merrick Garland back up. He says he wants to follow up on a Q from Judge Tatel to Flynn's atty.
In his brief, Wall says there's an article III standing problem, party standing, lack of SG author for this en banc.

Garland: If it were true that the court granted sua sponte (on your own), does the court not have the authority to rehear a panel's decision?
Wall: no those problems wouldn't be posed. the q. would only be then whether it was the approp. response of the court to use sua sponte

Garland: You've already given reasons to dismiss this case. The gov't explains that prosecution can no longer prove beyond reasonable doubt that the false statements aren't material.

Wall: That's one of 3.

Garland: You've said all 3. What more is there to say? Was it optional to not even say that much?
Wall: I dont think we did and we often don't but we went further here than we thought we needed to.

Garland: If you go by this reasoning coupled with Sullivan's hearing, there'd be no problem there? There's no sep of powers problem at this point given what you've already stated?
Wall: If all we had to do is stand up on our motion, no, we've said that to the district court.

Garland says the district court hasn't done anything other than ask for gov't to show up and defend the order

Wall insists Gleeson's immediate appointment as amicus was not anodyne.

Garland: But there's possibility after all briefings, the dis. judge could see this in your view? and that would be the end of it?
Wall: With all respect I just think that undervalues the harm to a coequal branch from compelling us to respond to accusations & improper questions.

Judge Griffith: what would be an appropriate hearing for Judge Sullivan to call on these facts on this case - what are the outer limits of what he could do that the gov't would think its appropriate?
Wall: I don't think there is one in this case.

Judge Griffith: So, no hearing at all would be appropriate?
Wall: If he needs to understand the motion but as a substantive matter to get behind the motion or understand it, no.
G: But what does that mean, what do you think an appropriate hearing would look like?

SG Wall: On these facts, I don't think there's an appropriate hearing to be had. Here, Judge Sullivan's briefs make clear he understands the law... but he wants a hearing to probe our motives. No sort of hearing like that will be permissible.

Judge Millett: So the district court cannot be asked if it was lied to?
Wall: Not under 48A.
Millett: Can it do that after it is has dismissed the case or while still pending?
Wall says you can do it before or after.

Millett: Can you issue sanctions or hold a gov't atty in contempt after the case is dismissed or would you do it before?
Wall: I don't know the answer
Millett doesn't know either.

But the question is, Millet says: you have a motion to dismiss, Sidney Powell's argument was "grant it and go home."
The district court can look at the motion and say, I' fear I was lied to. To Wall, so, your position is the district court must grant that motion even...

Millet cont.:.. if it feels it was lied to & cannot inquire about whether it was lied to. That is gov't position?
Wall: Yes, prosecutorial discretion is not left up to the government.
M: So protecting the court's integrity from the very process in front of it that's not allowed?

Wall: That]s the domain of sanctions and contempt.

So there's no such inquiry on 48A? Millet says.

Wall, in a nutshell: when both parties decide not to keep proceeding with charges, the court cannot go beyond the parties.

Judge Pillard notes how there was q. over the integrity of Flynn's guilty plea to begin with. But the gov't demonstrably said, we can meet our burden of proof. Yet now, Wall is insisting the district court reject an order previously granted "You're saying actually nevermind!"

J. Pillard: What self-respecting judge would simply jump and dismiss an order without understanding what he could do to understand both sides?
Sullivan wasn't appointing Gleeson to be the judge but to make the strongest arguments so the judge could have the best understanding

Wall says if the hearing is not meant to probe behind what was said - it is hard to see what the proceedings at this point are about at all.
Pillard: Doesn't this cut the other way? The district court hasn't ruled yet.

Pillard: You said you are not asking district court judge to contradict himself but you are - if you weren't asking him to do anything, you wouldn't be here to mandamus him. You need the judge to sign off on rule 48A.

Pillard says right now there's a plea in place and for a sentencing hearing, presumably tomorrow.
Wall: In motion dismissed, we laid out that we thought we were entitled to have motion to dismiss granted.
But the d.c has convened this hearing...

Wall continued:" invited public to participate &.raised the specter of contempt. We're only asking the district court to say, the AG has made a policy judgment that it is no longer in the interest of the US to prosecute.

J. Wilkins presents a hypothetical (AG takes a bribe) on development of facts and how that is governed over time.
Wall argues beyond determining whether hypo. bribe occurred - not up to the court on whether to dismiss.
Gov't cannot be forced to prosecute.

Judge Karen Henderson: When trial judge appointed Gleeson as amicus, he asked Gleeson to opine on perjury or contempt. You referred to it as the specter of contempt. But there are two ways to look at it.

Henderson: If a trial judge thinks he's been hoodwinked or dealt w/dishonestly, he can hold whoever is responsible in contempt. On the other than, it could also indicate that Judge Sullivan is thinking, well, I may have to dismiss the charges, but I'm not through with him yet.

Henderson: Whats your position?
Wall: It's not our goose being cooked on contempt piece of it, I do find it the most troubling part of the case,
It is not an uncommon occurrence for a defendant to plead guilty because he thinks that is the best deal he can get.

Wall: And then later withdraw his plea and maintain innocence. No district judge has ever raised specter of contempt for that, happened here with Sullivan.
The reasons are that it may be perjury, but it's not contempt.

Wall: I think raising that creates a real question about why now and why this defendant? It's not a harm to sep of powers but I do think its fairly troubling.
It seems like a sword over the defendant's head and more than what this district court is legally allowed to do.

Garland notes Wall was asked how often mandamus is granted in sep of powers cases. Wall said the process is the problem here + hearing itself.
Garland: So how to draw a line between this sep of powers claim leading to mandamus & those in other district courts not leading to it?

Wall: if we threw away questions around standing, the constitutional principles have got to be crystal clear. you must have a clear right and not just on the merits.

Millett back at grilling Wall, saying nothing compelled Flynn to start turning over documents. Nothing Gleeson said demands a response to every argument.
Flynn attys could have said, we stand on our filing, we say no more & if court finds a basis to rule against us, we appeal.

Millet: Doesn't that process protect you and the separation of powers?
Wall says no.

Millet presented a hypothetical: Say on the first day of trial, in presence of court, the defense atty hands a briefcase overflowing with money to the prosecutor and the gov't upon receipt of that briefcase submits a rule 48 motion to dismiss,

It is 10 pages long, it has affidavits and it says there was a Brady violation in this case but in the presence of the district court money has exchanged hands
Wall's position is, the district court has no choice but to grant that motion to dismiss.

And that would be true even if it was unclear whether the district could pursue criminal charges after the case is dismissed?
Wall: The court can pursue sanctions --
Millett: But you're saying the bribe has to be finished, the deal must be closed?

Millett: Citing Fokker, says: a district court judge is not obliged to accept something on its face that appears to make a mockery of judicial power

I need to break from live-tweeting to prepare my report on today's hearing for @CourthouseNews. Stay tuned.

Live stream continues here: c-span.org/video/?474473-…

Story coming out soon but my takeaway today - based on the line of questioning presented only- I wouldn't be so confident if I were Mr. Flynn.

STORY: The en banc D.C. Circuit showed little patience today for the lawyer fighting to get Michael #Flynn’s prosecution dismissed without a study of the government’s motives.
courthousenews.com/flynn-argument…
@CourthouseNews