Setting the Scene: Today’s Flynn Hearing

I’m still doing household chores so haven’t read the Judge Emmet Sullivan response and government and Flynn reply briefs at the DC Circuit in Mike Flynn’s petition for a writ of mandamus as closely as I would have liked.

But before today’s hearing, I wanted to recall what the posture is.

The question before the Circuit should be whether Flynn is entitled to any help at the DC Circuit. It should be whether Sullivan has taken an action that is so egregious — and so injures Flynn — that it merits the DC Circuit weighing in to overturn Sullivan’s action.

The only action Sullivan has taken, though, is appointing an amicus, something that is soundly within normal judicial discretion.

The Circuit — with a panel including the shamelessly hackish Neomi Rao — ordered the sides to brief whether Sullivan had to grant DOJ’s motion to dismiss right away, what should be a premature question in any case. Effectively, Flynn has argued that DOJ had a reason to dismiss the prosecution and DOJ has argued that this is a separation of powers issue (in both its response and reply, the government has argued against what it argued before Sullivan and what Bill Barr has conceded publicly). Even while strictly arguing the mandamus issue (including the DC Circuit’s approach to Roger Stone’s similar premature petition for mandamus, which was properly rejected), Sullivan’s response also raised the outstanding allegations against Flynn on his Turkish influence peddling.

All of which is to say the arguments (Flynn, DOJ, and Sullivan will have have 15 minutes to argue) likely won’t be addressing the legal issues that should be before the court, and Flynn and DOJ have already made claims that aggressively conflict with the record in this case. One detail Flynn has relentlessly obscured is what information was available before Flynn allocuted to his guilt a second time; basically everything that is public already was known to him.

Add in the fact that DOJ is now claiming that a judge cannot stop DOJ from dismissing a prosecution of the President’s buddy for no good reason, and we should expect that today’s hearing will pose a grave risk to the rule of law in this country.

You can stream the hearing here.

35 replies
  1. harpie says:

    Thanks for putting this up Marcy!
    Hearing scheduled for 9:30 AM ET. [12 minutes from now]

    “we should expect that today’s hearing will pose a grave risk to the rule of law in this country.”

    It does feel that way…uggh…

  2. Tyler says:

    Shitshow is surely a correct prediction.

    Ultimately I think the root of the problem here is that Flynn is *right* on his seperation of powers argument. But, of course, Sullivan hasnt actually done anything yet so why is the DC circuit involved? And then the 3 judge panel that Flynn drew? I’m convinced the man could bankrupt a casino if he ever sat down at a craps table.

    • bmaz says:

      Flynn is NOT right on separation of powers, in fact dead wrong. He is arguing straight up both against a formal statutory rule of criminal procedure and against the inherent authority and power of the court. It is Flynn who is completely full of shit on separation of powers. Flynn is arguing that the Article II executive can blithely fly in the face of the other two co-equal branches, the Article I Legislative and Article III court. Arguing that it is the court violating “separation of powers” is seriously ludicrous.

      • Tyler says:

        I think we largely agree and i wasnt being very clear.

        I mean in a more general sense, if Sullivan ultimately denies the motion to dismiss, Flynn will be right that there is a seperation of powers issue there. Sullivan hasnt done that yet. There is no reason to be in front of the DC circuit on a writ of Mandamus today.

        Sullivan can hold hearings and order briefings and the like. But at the end of the day, i just dont see how he can do anything but dismiss if the government is withdrawing their case, even in bad faith.

        • bmaz says:

          Oh, I do not think we agree at all. There is no separation of powers argument whatsoever germinated by Sullivan denying the underlying motion and proceeding to sentencing. None.

        • chicago_bunny says:

          “i just dont see how he can do anything but dismiss if the government is withdrawing their case, even in bad faith.”

          Maybe if the case was at a different stage. Sullivan obviously couldn’t force DOJ to prosecute, or to put on a case they don’t want to put on.

          However, this case is in a posture where Sullivan doesn’t need the prosecutors do anything else. Sullivan has received the plea, he’s received the sentencing recommendation. All he has left to do is decide the sentence. The rules don’t obligate him to grant the motion without inquiry.

          • Marinela Selseth says:

            Yes, the prosecutors presented the case to the court and they won. They cannot re-play the game.
            If they do, the court needs to at least understand what new evidence lead to the change in prosecutors.
            Without the new evidence, the prosecutors dismissal looks like a flip-flop, plain corrupt.
            The ball is in Sullivan’s court for sentencing.

            • Das Robot says:

              They’re essentially asking the judge to vacate his findings which puts the issue back in front of him to consider if the mandamus isn’t granted. Something like that methinks.

            • FL Resister says:

              Thank you for putting that so succinctly. Gleeson has made that point with a pen using ink mixed with reason and the tears of Lady Liberty.

        • Lawg says:

          There is a separation of powers issue, you are entirely correct. The three powers may be co-equal but they do not share discreet, bright line limitations on their respective exercise, they overlap each other in a myriad of ways. Courts routinely limit their remit and defer to the executive and legislative branches as they see fit and according to the law. DOJ policy is always a factor in how lower Court’s decide cases implicating federal law.
          Flynn’s prosecution was always a politically driven hit job, and the higher Courts are right to want no part of a district court judge’s quixotic play for libshit plaudits.

          • bmaz says:

            This is absolute bullshit. But, hey, thanks for trolling by with garbage. You managed to make it crystal clear with your first and only comment ever that you do not know your ass from a hole in the ground about separation of powers.

  3. Raven Eye says:

    Rao has a future on Fox News. She keeps trying to paint a picture that the Amicus is Satin’s messenger who will bend Sullivan to his will. Her bias is shockingly visible…To the extent that Wilkinson seems to be compelled to dumb-down her points.

    • bmaz says:

      And, yet, Sullivan stepped right into that shitpile by appointing Gleeson, who had the appearance of lack of neutrality. You could see this coming fifty miles away.

      • Raven Eye says:

        Is Rao consistent, dependent on what she gets fed, or a wild card?

        In other words, would we have seen a similar performance no matter what, did Gleeson feed her raw meat, or is she usually all over the map?

        [50 miles? Geez — I couldn’t even see one of those Trump baby balloons 50 miles away with my spotting scope.]

          • Rugger9 says:

            In her short time on the bench here, she’s already made several pronouncements and rulings to make the Legal Hall of Shame (if one exists). There might even be enough to be forced to ask the question “Do you want the whole list or the top ten?”.

            However, hearing Henderson asking questions of Wall and Powell I get the sense she is very unlikely to grant this move by Powell and DOJ. She focused on the fact there is a hearing on July 16 and why couldn’t Sullivan be allowed to hear all of the arguments then? SHe kept pulling Wall back to the fact that Fokker had a decision to review which did not apply to the current situation because Sullivan hasn’t rule on the motion to dismiss. That was even before Wilkinson spoke. Rao kept trying to expand the question into Article 2 versus 3 but I think Wilkinson handled that pretty well. Popehat has a string that included an opinion of Powell’s performance. Bwa-ha-ha-ha.

            Wall didn’t have enough lipstick for the pig he was trying to sell. It almost sounded like legal seppuku even while his sync kept dropping and how he couldn’t reveal the internal deliberations (duh!).

      • Rugger9 says:

        Appearances count here to a point, but it will be magnified by the RWNM into a froth, for which many examples (like the Dept of Ag issue during the Obama administration) show that railroading had occurred. During Iran-Contra, Lt Col. Ollie North had been in front of Congress in full uniform to project the war hero mode. Daniel Inouye (a real war hero) should have ripped him to shreds for that alone, but when one looks at Doonesbury from that time it was clear that the space puppy stood in for North, and the appearances were sufficient to not challenge him on his lies (for which he was later convicted which was overturned because he had been offered immunity).

        Those standards have not changed with respect to conservative activity, IOKIYAR will always apply and Reagan’s 11th commandment (Thou shalt not speak ill of a fellow Republican”) ensures lockstep compliance to whatever coverup desired by the DJT WH using Frank Luntz’s talking points. That has been enforced by primaries and as the TEA Party took hold even Reagan wouldn’t make it to the general election now.

        • Silly but True says:

          North’s immunity and conviction is actually more interesting and nuanced than that.

          North received use immunity from Congress that covered all information North divulged could not be used against him, as opposed to transactional (“total”) immunity. North could still be prosecuted — and was — but his prosecution could not rely on any information from him.

          His indictment originally came with multiple conspiracy charges in co-conspiracy with Air Force Maj. General Secord, John Poindexter and Hakim. North’s three other co-conspirators had no immunity and could all be prosecuted themselves on North’s information. So government proceeded with complex conspiracy case.

          It was only midstream, after reaching court that North won on severability because of his use immunity; and also government dropped all of the conspiracy charges for same reason.

          North went to trial individually for some 24 charges and was convicted on three of them: obstruction of Congress, document shredding, and false statements.

          His convictions overturned on appeal not precisely because he had immunity, but rather because immunized information was impermissibly used to prosecute him.

          Government could have retried him, but it would have to in effect isolate all charges from any information North divulged; he divulged the entirety of the Affair, the point of the Congressional Hearing and why ghey immunized him. Consequently, that was practically an impossible bar.

          One supposes that with enough care, and planning from origination of case, it could have beeb possible to construct a case wholly isolated from any immunized information, but that just wasn’t the way the government constructed its original conspiracy enterprise case.

          It is a case study of the Interesting implications of use immunity on a larger case, and distinction that use immunity cases can still be prosecuted, but may require much more care.

  4. earlofhuntingdon says:

    Per EW, Wall argues that it is fundamental to the president’s Art. II authority that he be able to interfere with the prosecution of his buddies. In the real world, that’s called obstruction of justice, a serious felony and one that tripped up Scooter Libby. It’s an argument that is throwing EW into her briar patch.

    Wall’s notion of “self-correction” – if the Prez fuggs up, only he can and should fix it – is the public analog to corporate self-regulation. While a Chicago Law School and FedSoc creature Neomi Rao might find that persuasive, the public record is clear: self-correction, like self-regulation, is a contradiction in terms.

  5. Jenny says:

    Thank you Marcy.
    Listening to the hearing what jumped out of me was Sidney’s Powell’s statement:
    “The government has quit and it’s time to leave the field.”

  6. scribe says:

    From what I can tell in the news reports, the argument did not go well for DoJ.
    Which is refreshing.

    • Silly But True says:

      If one looks at Sullivan’s “take leave” hearing as a battle and dismissal of case as the war, today suggests that the battle will be won and the war will be lost. Yes, it looks like there is sufficient support to not bar Sullivan from a review, based on the court’s own Art. power of review. But there also looked like there was even broader support by all three judges that the review must ultimately end in upholding DoJ’s dismissal, and that if Sullivan somehow manages to do anything different than dismissal after the upcoming hearing is held, then the three judges expect the same issue to immediately land back in their court to which they’ll be inclined to order Sullivan to dismiss at that time.

  7. Zinsky says:

    This case will be looked at with wonder by future generations of legal analysts – how the Hell did the government of the United States get so backasswards and sideways??

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