THREAD: I was just going to make a point here based on some research I did late last night & when I pulled it, I realized an even bigger point! So, first the point: Rao was 1 of 3 judges ALL of whom ORDERED Judge Sullivan to response to @SidneyPowell1 petition re @GenFlynn 1/ https://twitter.com/SenWhitehouse/status/1263616352373309440

2/ So "Rao's Trumpy," doesn't make any sense, since, other two judges aren't Trumpy. Henderson is a H.W. Bush appointee and Wilkins is an Obama appointee. And all 3 AGREED to order Sullivan to respond. They didn't have too...

3/ In fact, in the Fokker case, when the court appointed an amicus, one of the 3 judges "dissented" from the appointment. That was the research I did last night that I went to pull to clip for you all. See yellow...and then see green.

4/ So, as yellow highlight shows Henderson didn't want to appoint an amicus. YET Henderson is on the Flynn panel AND AGREED to ORDER Sullivan to respond. Now note the green: Yup, that's right. Wilkins was the other judge on the motions panel that appointed an amicus.

5/ So Wilkins in Fokker wanted to have an amicus help the judge, but not in the Flynn case? Interesting, huh. Now, you might say, "oh crap," the Kavanaugh, Wilkins, Henderson panel of judges didn't decide the Fokker case, so does that mean different judges will decide Flynn?

6/ No. And here's why. Lots of inside baseball. In the Fokker case, the defendant Fokker had filed a motion to appeal the district court's order denying a gov't motion re Speedy Trial act. (It's complicated so don't worry about what that motion was).

7/ Typically you can't appeal an order until the case is all over. But there is something called "the collateral order doctrine" that allows appeals while lower court proceedings are on-going. Fokker relied on that to file the appeal. Fokker's appeal then proceeded as normal.

8/ That meant that it was schedule for oral argument, where a three-judge panel are randomly assigned to hear the case. AFTER the Fokker appeal had been docketed and pending, gov't decided to add suspenders to the appeal and filed a petition for mandamus.

9/ Gov't said if you think collateral order doctrine doesn't apply, then grant us mandamus. After the gov't filed it's petition for mandamus, the 3-judge panel of Kavanaugh, Henderson, and Wilkins appointed the amicus.

10/ Federal appellate courts typically have "motions panels" for every week who handle various miscellaneous motions or petitions, so when the petition for mandamus came in, it went to that panel, and they ordered amicus brief, but then mandamus was consolidated w/ appeal.

11/ And that appeal was already docketed & when oral argument set a new panel appointed. Conversely, Flynn's case is solely mandamus petition & motions panel of Rao, Henderson, Wilkins entered order for Sullivan to respond.

12/ Typically, if motions panel issues a ruling that requires some work on the case, they "keep" the case. So, no reason to think a different panel would be deciding Flynn mandamus.

13/ So, in sum: That Henderson didn't want an amicus in Fokker but Wilkins did, seems suggestive that BOTH wanted to order Sullivan to respond in Flynn case and NEITHER wanted amicus to defend Sullivan.

14/ Point two: Don't panic about the different judges in Fokker on the appointment of amicus & decision. I explained why, but bottom line, it will be Rao, Henderson, and Wilkins.

15/15 And Point Three: @SenWhitehouse is an idiot. END