Thread by @willchamberlain

Flynn hearing thread

Srinivasan asks for another case in which mandamus has been granted to compel a district court to decide a motion in a particular way

Powell tries to answer with rule 48(a), but Srinivasan wants to focus on the broader mandamus question

And Powell responds - no, she doesn't have a case at hand.

Srinivasan ask- well, if the District Court grants the motion to dismiss, wouldn't be "adequate alternate means" of getting the relief Flynn seeks?

Powell responds - no, it's the process that's the problem.

Judge Henderson has no questions

Judge Rogers asks whether mandamus was granted in Fokker *after* the District Court had ruled

Powell concedes the answer is yes

Judge Rogers notes that mandamus has been warranted only in extreme cases - where government has been denied the "fruits of its conviction" - and asks why it is appropriate to use it to review Sullivan's procedural steps

Powell argues that this is an extraordinary case

I think the better answer here would have been to focus on the language of Fokker that says the district court cannot even inquire into the prosecution's decision to dismiss

Judge Tatel asks a procedural question: can the court rehear the case sua sponte, even if Judge Sullivan's petition was improper (because Judge Sullivan is not a party)

Powell rightly concedes the obvious, that the court can hear the petition sua sponte

Judge Griffith (I think) asks a few hypotheticals about whether an appellate court can issue mandamus before the motion has been ruled on

Powell contends that the motion had in fact been ruled on. The judge asks whether she says the panel opinion is wrong...

And Powell responds - yes, but that was my fault.

And that wasn't Judge Griffith, it was Judge Garland

Now Judge Griffith is asking whether the "leave of court" requirement in rule 48(a) is "ministerial" (meaning that there's no meaningful discretion for the judge"

She says it's "pretty ministerial"

But now she gets to the right answer

Powell's best answer is that it's ministerial *if* the defendant agrees with the motion

And she should root that in the language of Fokker, which again rules out the sort of inquiry Judge Sullivan wants to conduct

Now Judge Millett

She asks "where in the district court did you raise the separation-of-powers issue"

Powell says she did so in response to the request to file an amicus brief by the "Watergate prosecutors"

Milllett says - that was before Gleeson was appointed, where is your opposition to the appointment of Mr. Gleeson?

Powell says that the response to the Watergate prosecutors is the answer

Millett brings up the "motion for reconsideration" issue, and asks whether such a motion was filed

Powell contends that her petition for mandamus was filed before the reconsideration issue was even brought up by Judge Sullivan, and that the docket got the timeline wrong

This is pretty rapid-fire from Millett, feels like a cross-examination, there's no way Millett will side with Flynn and Powell

Now Judge Pillard

She is discussing a 3rd Circuit Case - In re Richards - where the specific issue in this case (whether mandamus is appropriate to stop a hearing on a rule 48(a) motion) and came out the wrong way

Powell tries to diminish the case

Pillard presses Powell on whether she agrees with the Richards case

She says - Richards was right when decided, wrong now

Pillard actually does a great job of summing up Powell's position on the 48(a) leave of court requirement - that it's ministerial unless the defendant's interests are at stake

Judge Wilkins asked a hypothetical that I didn't really follow

Judge Rao is now asks what, exactly, a district court judge can do under the "leave of court" requirement of Rule 48(a)

Final question to Powell from Judge Srinivasan

Hypothetical about a more limited request for a hearing under 48(a) - whether it would be ok for a Judge to schedule a hearing just to understand the government's stated reasons for dismissing the case

Powell says yes

Judge Henderson asks a rhetorical question about circumstantial evidence and references an Ezra Pound quote about milk smelling like fish or something

Her point being (I think) - Judge Sullivan's behavior is so ridiculous it provides evidence he was violating the Fokker rule

Missed a few questions there from Tatel/Garland/Griffith, apologies

Now Judge Millett is again pressing Sidney Powell on whether her answer to the Watergate Prosecutors amicus brief suffices as an answer to the order appointing Gleeson

Now Judge Pillard - following up on the historical purposes of 48(a), whether it can be used to look into prosecutions clearly contrary to the public interest

Powell should answer with Fokker - even if the Supreme Court has not foreclosed this line, Fokker has in the DC Circuit

Ok, Sidney is done (after 1 hour of argument!)

Up comes Jeff Wall

Jeff Wall starts off with the best argument: The motion to dismiss has to be granted because of Fokker and separation-of-powers concerns, and because it's such a clean issue, the hearing offends the separation of powers

Judge Srinivasan asks: take away Judge Sullivan's prejudicial comments from the rehearing briefs, do we still need to grant mandamus?

Wall points out that the earlier comments in the panel briefs are also not good

Srinivasan wants to take those out of play

Wall makes two points

1) You can't ignore the arguments made in the panel brief, they describe what the hearing would look like

2) Even if you just look at the proceedings in front of the District Court, Judge Sullivan did precisely what Fokker prohibits

Wall is making another very strong argument

Basically - in other circuits, Judge Sullivan's hearing might be permissible

But Fokker precludes the exact inquiry Judge Sullivan is seeking - and that was Srinivasan's opinion!

Wow - Jeff Wall is now saying that Judge Sullivan should be disqualified because Judge Sullivan filed a procedurally improper petition for rehearing

"We have reluctantly come to the view that there is a question about...impartiality."

Judge Rogers is now asking a followup on bias - whether Judge Sullivan suggesting that mandamus is improper is evidence of bias

Jeff Wall says no - suggests only that there is an appearance of bias because of 1) the procedural flaw and 2) the rejection of Fokker in the brief

This is a pretty sophisticated point

Basically, in his petition for rehearing, Judge Sullivan suggested that he will have free rein to conduct a hearing on 48(a)

Wall says - that's suggests he's biased on the pending motion before him

Wall also says something interesting - that if DC Circuit is going to refuse mandamus, it should provide guidance to Judge Sullivan about what exactly he's allowed to do under rule 48(a)

Smart request, it gives the judges an off-ramp to confine Judge Sullivan to his lawful role

Now Judge Tatel

First question: Are you aware of any case at all in which a court of appeals has issued a writ of mandamus to prevent a district court hearing of any kind

Wall doesn't have one at hand, but analogizes well to the Cheney case in the Supreme Court

Second question: Is it really true that the courts can't examine the government's stated reasons for dismissing this case? Tatel analogizes to other types of hearings where courts examine government decision-making

Wall points out - 1) that's what Fokker says and 2) those analogies are cases where there's a statutory requirement that the executive explain itself, whereas this is a case where there's a rule saying the judge can't second guess our use of discretion

Really interesting colloquy between Garland and Wall about the harms to the government from the hearing Judge Sullivan wants to conduct, I'll try to summarize maybe on the Periscope

LOL this hearing is taking forever needed to take a break

Judge Tatel asks Wall for his best argument

And Wall just starts reading from Fokker

I love it

I'm taking a longer break, follow @McAdooGordon for continued live-tweeting of this hearing

https://twitter.com/McAdooGordon/status/1293210935440691203?s=20