Good morning, peeps! Flynn argument starts in five minutes. Getting my tea ready!
"Oyez, oyez, oyez! The Court is now sitting. God save the United States and this Honorable Court." The Court says. Now observing a moment of silence in honor of Judge Williams, who passed this week.
Flynn's case is the only case. Sidney up first. Says Flynn is a "defendant w/o a prosecutor." She's starting with the facts. Says JS departed from impartial role, raised sword of perjury over Flynn, shouldn't have appointed Gleeson, etc.
She wants three things: JS can't petition, must be removed, Gleeson must be unappointed, mandamus must issue. Says the Separation of Powers rules; it's a Rule 48 dispositive motion; all cases require a dismissal.
Chief now asking questions. Focusing on mandamus question. Asks her to agree there must be "no other adequate means for relief." Sidney agrees. Says that there isn't because it's basically a non-discretionary decision.
Chief asks if there's any case issuing mandamus before the trial judge rules. Sidney says no, but now that Fokker is law and is so clear that's why it's warranted.
Chief asking if, even so, does she know of any cases where it's been done. She says no, but she also doesn't know of any cases where the district court has gone so far outside the lines of Article III.
Chief is done; Henderson has no questions. Rogers now getting Sidney to agree Fokker issued mandamus AFTER trial court ruled. Sidney agrees, but says Fokker now makes it clear JSullivan is outside the lines. At a minimum requires the disqualification of Gleeson.
She's pointing out again all the facts showing JSull is doing unusual things. Sidney is doing a good job. She sounded a a little nervous just at that beginning - like adrenalin nerves. She's doing a strong job - better than last time.
Rogers now asking about a SCt case (Will). Sidney distinguishes it - this case concerns Rule 48 - a rule that uniquely deals with the Exec power.
Rogers done now. Tatel now asking if it's a problem that JSull has standing or not if the Court en banced the case sua sponte. Sidney concedes not.
Garland up. (The judges are doing this remotely, so it's one at a time in a way that a normal argument isn't.) Posing a hypothetical about a clear case - on all fours as lawyers say - pending in the trial court; can a defendant just mandamus it. Why isn't appeal the remedy?
Sidney says it's not just a question of the clarity of the law. THIS IS A SEPARATION OF POWERS CASE. That's the point. The district court is going beyond it's powers.
Griffith up now, focusing on whether Rule 48 is ministerial. Why can't he "just hold a hearing?" Sidney says it's basically just ministerial. Griffith not happy. This is because the mandamus needs to be so clear.
Sidney explaining that the PROCESS here is unconstitutional, not just the decision to dismiss at the end.
Griffith saying amicus common. Sidney says not in the criminal trial court.
Judge Millett now. She's asking technical questions about what objections Sidney made or when she moved to reconsider Sullivan's actions in the trial court. Now asking how much "pushing" Judge Sullivan could do at a hearing. Sidney says not much.
Now asking about appointing amicus and whether rules address it. Last question is about Rule 48 itself. Can courts use the rule to protect their own processes. Sidney says no.
Judge Pillard up now. Says she's found only one case on whether mandamus is appropriate before the trial court ruled - it was denied. (Richards) Says it doesn't suggest no briefing can be had. SIdney points out this case was briefed - 20 pages from DOJ.
They are debating Richards. SIdney trying to point out that case doesn't deal with Sep. of Powers. Pillard focusing on procedure.
As I said, the case for the Court of Appeals is about the courts, not about Flynn. The questions are pretty hostile and focused on the courts - both of them - not on Flynn.
Wilkens up now. He has a hypo - a case where a group of nuns see the prosecutor taking a briefcase of cash & a professor seeks to be appointed amicus to raise that with the court. It's the most extreme example of a Rule 48 and Separation of Powers fact pattern as we've discussed.
Sidney does a good job of saying the Sep of Powers would still require the dismissal under Rule 48 and the judge would just have to refer that fact pattern to DOJ to prosecute the prosecutor for bribery. Me - you either believe in the separation of powers or you don't.
Rao up now. Wants to know what a judge could do. Sidney says basically just hold a hearing and make a ruling.
Rao now asking about the removal of Sullivan if they don't grant mandamus - would that cure. Sidney says the removal and vacating of appointment of Flynn would cure the process/constitutional rights problem.
Henderson asking a rhetorical question based on an Ezra Pound quote about finding a fish in the milk - some circumstantial evidence is so strong that it is what it is. Sidney laughs.
Henderson is saying what I've been saying: the writing is on the wall about what is going on, are we just going to ignore that? ha
Chief asked her to assume he agrees with Fokker (Ha! he wrote it) and whether mandamus would be appropriate if all Judge Sullivan did was hold a hearing. She agrees not.
Garland asking about the removal - whether she wants to overrule the panel opinion on that point. Sidney points out that JSullivan has since filed the petition for rehearing and so has doubled down on bias.
Garland also asking technical questions about docket entries about the amicus issues. They finally sort out what happened.
Griffith then asks about the history of Rule 48 being for addressing cases where prominent people benefit unfairly. Sidney says the history is what it is, but no court has interpreted the Rule in that direction.
The answer is that that history has been overcome by Sep. of Powers law that comes after.
Millett now asking pointed (really kind of nasty in tone) questions about the proposed order Sidney submitted to the district court on the amicus issue.
Pillard and Wilkens get Sidney to confirm she thinks Wilkens extreme hypothetical still means the district court must grant the motion.
SG Wall gives a nice opening focusing on the SofP issues. He says there is no adequate alternative to what Judge Sullivan is planning to do.
Chief asks - if you take out what Sullivan filed in the Court of Appeal - is what Sullivan did just in the district court enough to warrant a mandamus. Wall says yes, Fokker & SoP makes clear Sullivan can't do what his order show he was going to do.
Chief now asking if the Fokker trial judge had telegraphed what he was going to do, would mandamus have been appropriate before he ruled? Wall says yes, although harder because Fokker didn't exist yet, but now it does.
Chief asking if district court just scheduled a hearing to understand the reasons in the motion would that be OK. Wall says probably but the court here is signalling that it trying to probe the Gov't decision making, which is prohibited by SoP.
Henderson says it was Thoreau, not Ezra Pound, with the fish quote! Ha!
Henderson asks Wall about the Sullivan's standing and removal issue. SG says the Gov now agrees - because of the petition for rehearing by Sullivan - reluctantly that Sullivan has an appearance of bias at this point & should be removed.
Rogers probes this - just defending itself creates an appearance of bias? Wall agrees that's not a problem. He thinks that Sullivan's acts in petitioning & his description of the substantive law - that he's going to apply - shows appearance of bias.
He specifically invites the court to give Sullivan instruction that Fokker and the SoP must be enforced if the court is not going to issue mandamus and send the case back to him.
Rogers says she's confused about what Wall thinks is allowed for the judge to ask about and why isn't the harm speculative?
Wall saying asking to understand the reasons and impermissible probing behind the executive branch decision making are two different things.
Tatel up now. Asks if any case has taken the ruling out of the district court's hand. Wall FINALLY mentions writ of prohibition and says some of those cases do so. He says the process itself is the harm and the court is empowered is prevent that.
Tatel asking about SG's brief claiming govt has confidentiality in decision making. Tatel giving examples in the law where the court routinely inquires into govt reasoning. Why different here?
Boy these judges are apparently just resistant to the Separation of Powers arguments. Wall correctly points out that dismissal IS DIFFERENT from all other kinds of ordinary rulings that don't involve a core executive branch duty. Yes!
Garland up now. He's focusing on the four standing arguments that the SG raised (which I don't like, as you know). He's asking if the court sought to hear the case itself if that would be a problem. Wall says no, the court has the power to do it itself.
Garland reviewing the 3 reasons DOJ put in the motion to dismiss with Wall. Wall confirms them and says they didn't need to do that much, but on the facts of this case they chose to.
Garland saying the DOJ could stiff-arm the judge if it wanted to at the hearing and if the district court tries to go further it could just refuse. Wouldn't that be fine? Wall says that's not what Judge Sullivan is signalling he's going to do.
Wall says Garland's proposal "undervalues" the harm to the Executive. He agrees no order to comply, but the process is requiring them to defend the accusations of their decision. Garland saying that happens to prosecutors all the time.
Wall says in the vast majority of cases there is no SoP issue in that kind of scrutiny. This case involves a core Executive branch function. (This is why we argued in our brief that Rule 48 is the ONLY rule that creates this issue.)
Griffith up now. He wants to focus on "leave of court" language in the Rule. What's the scope? Wall says it can ask for the reasons, and it can protect the defendant, but that's it.
Griffith asking about favoritism by the prosectors? Wall says a firm NO. He says there a political checks on that. That is the clear SoP problem.
Griffith asks what could the judge do? What would be an appropriate hearing? What would it look like? Wall says: On these facts, there is no appropriate hearing. Sullivan wants a hearing to probe Gov motion and that is impermissible.
Millett up. Asking of filing of a Rule 48 motion requires SG approval? Wall says no.
Millett using Wilkens hypo about nuns seeing a prosecutor bribed. Could the judge in that situation ask the govt about it's motives? Wall says that's not appropriate under Rule 48(a). While case is pending, she asks?
She means to find out if the judge was lied to. Wall says that's not part of Rule 48, but could be a sanctions action.
Millet asking procedural questions now. She feels like the Chief is pushing her for time! She wants short answers.
Wall agrees they didn't object to appointment of Gleeson or reconsideration in the trial court. Wall says because they weren't aware of any requirement to do so - ha!
Pillard up now. She says they are oh so deferential to the executive, but the judicial branch has concerns here too. She's faulting the executive for changing course on the case. This is protectionism of themselves as judges.
If it's just lawyers arguing about the existing record, what is the intrusion on the rights of Flynn/DOJ? Wall points out Sullivan had said fact development is possible, however, and asks the court to tell the district court not to do that.
Pillard saying DOJ is asking the court to reverse itself. Wall says no it isn't. The court does not put its imprimatur on a Rule 48 motion.
Pillard asking about the history of rule again. Wall says the history is being overstated and that yes, SoP rules the case. Wall continues to say the arguments she's making are again "undervaluing" the harm to the Executive branch.
Pillard asking about appointment of amicus. Wall saying the appointment here is problematic because the process the district court is actually doing here trenches on the Executive branch's powers.
Wilkens up again. Using his hypo about a prosecutor who is perhaps taking a bribe. Wall says a hearing on whether the Govt really wants to dismiss is all the court can ask about under Rule 48. There are other forums for addressing the bribery.
Wilkens bumps it up to whether the AG is the one being bribed. Wall emphasizing that Rule 48 just doesn't provide the district court a forum for addressing this. The Constitution is the basis for this conclusion.
Rao up now. Why hasn't gov filed a separate mandamus petition? Wall says he doesn't understand why that would be necessary given that they are a party and have presented their arguments. The name of the pleading is elevating form over function.
Wall says mandamus is equitable; says he doesn't see how the law or common sense would require them filing a word for word the same pleading with a different name on it.
Rao asking whether he knows of a case where the Court found a SoP violation and mandamus was DENIED. Wall says no; where there is a genuine harm to SoP from the process, mandamus has always issued. At a minimum, the Court should give instructions to Sullivan.
He says the Court should tell Sullivan: to give Fokker a better look, take fact development off the table, and rule quickly.
Henderson talking about the contempt part of the Gleeson appointment order. She posits that could give the judge a separate forum but could also show the judge is going to get the defendant one way or another.
Wall says this is one of the most troubling aspects of the case. Raising the spectre of it - especially why now and why this defendant? does seem like a sword over the defendant's head. No judge has tried to do this.
Rogers passes. Tatel asks for the best argument that it is clear and indisputable that the trial court has no substantial role based on these facts.
Wall quotes Fokker's language that there's no substantial role for the district court to engage. He points to the constitutional backdrop as the driving force. There's no difference between pre or post plea. He says no judgment here so no conviction!
Garland worried about a "flood" of cases for mandamus to this Court. He has a hypo: Congress claims Executive branch is spending money in violation of the appropriations clause. Why can that case be handled on appeal and this one is a mandamus?
Wall says the difference is that in that case the other two branches are pushing their rights and it is a money case, the separation of powers harm can be remedied, unlike the intrusion of Executive powers here?
Garland says the money can't be unspent, so the harm is still there. Why doesn't it just open up all SoP cases to mandamus?
Wall says but the mandamus is a directive to a judge so in that case it would be different than just ruling on the positions of the other two branches. Here it is the judicial branch imposing the SoP harm, and mandamus is the remedy for that species of SoP harm.
Griffith up again. Why can't DOJ just refuse to cooperate with anything Sullivan asks that would violate SoP? Wall says this Court made that argument in Cheney and the Supreme Court said it was insufficiently respective of the Executive harm.
Millett: Cheney wasn't a criminal case. We don't know what the district court would ask or require. Nothing requiring DOJ to act in this case; they could stiff-arm and appeal. Wall says that doesn't work. Millett interrupts him.
After raising Armstrong, she doesn't want to let him distinguish it. Wall says again - the process is harmful. He gives example of DPA: The district court could not redo the facts in Fokker because Fokker already says what the answer is, so that would be mandamisable.
He says same rule should apply here. The court has no substantial rule under Fokker, so if it's going outside that scope in a RUle 48 case, just like a DPA case, the right to mandamus is clear.
Millett gives hypo of bribe with lies to district court about the bribe and reason for motion to dismiss. Court can't refuse to participate in this bribery situation?
Wall says that's not what Rule 48 is doing. It must let the prosecution be dismissed and use other means to address the bribery issue. The court cannot require the prosecutor to pursue a criminal case based on the constitution.
Pillard up again. She's also focusing on judicial integrity concerns. Wall says Rule 48 leave of court hurdle is low. He says granting the motion does NOT involve the court in agreeing with the executive branch. The court could write a decision disagreeing with the reasoning.
Pillard talking about Ammidown's language giving the court a role and the balance between the executive and judicial branch's after a plea. Wall says even Ammidown says the court can't refuse to grant the motion because it disagrees with the govt's reasons.
He again asks the Court to direct Sullivan to limit his inquiry. He says Fokker, Heckler, ICE (BLE), Nixon all are intervening law that restricts the inquiry.
Wilkens again. Why can't the court just deny the motion, sit back and let the defendant move to dismiss for delay when the govt just stops prosecuting the case. Wall says this still involves the judge in ruling on the gov't motives, which it can't do.
Wilkenson up now. Chief asks if there is anything the district court could do pre-hearing/pre-ruling that would indicate it's doing something warranting mandamus?
WB says hypothetically maybe asking a specific official to appear. Chief says setting that aside, anything else? WB agrees. Chief asking about Cheney - which rejected the idea that you can just stiff-arm the judge and said mandamus could lie?
WB says there was an order to disclose information in Cheney and govt raised privilege. Chief says but the SCt. Cheney said even having to go through the process is a problem. WB says the govt here hasn't raised any claims of privilege here as in Cheney.
Henderson passes. Rogers asks about the broad language in Cheney protecting Executive Branch. WB says language is broad, but that was to protect Executive Branch from overly broad inquiry.
Rogers yes, but that was the factual scenario in Cheney unlike what we have here. Asking if Cheney language is limited enough to preclude mandamus here. WB says oh there is no evidence Sullivan will engage in a broad inquiry here. It's all speculation.
Tatel: Sullivan can ask questions, fine. Can he deny the motion? WB says in some case, there would be discretion to. Tatel: Then what? WB: says no role for Executive after that. Sentencing is the only thing left. Tatel: Then what? WB: Appeal and likely reversal.
Tatel: Exactly, so we are going thru all this why exactly? WB: even if the ultimate answer is predictable, that doesn't make it mandamusable.
Garland up now: All Sullivan did was order briefing and a hearing. Panel opinion and Flynn and DOJ focus on the things in her briefs in the Court of Appeals about what the district court will do. Asks if she's forecasting what the district court will do? WB denies this.
She says they are speculating. No basis for saying the district court will engage in a "circus" and won't follow the law. She just denied Sullivan will ask the questions that she outlined in her brief about the lines of inquiry that he could pursue.
She claims he's just going to listen to the arguments of the lawyers and ask "follow-up" questions and then rule. (This is just blinking the clear reality of what was clearly contemplated.)
Garland asking whether Rule 48 includes protecting against favoritism. She thinks that is left open.
The conference call of the court just dropped WB! They are trying to reconnect her to the argument. So we are waiting.
WB is back.
Griffith ask if the case was at an earlier stage, then what would happen. Could the judicial branch compel the govt to go forward? WB says no, but at this stage, the power and integrity of the court are involved.
Griffith asking her view of Gleeson. WB says it makes sense to appoint Gleeson to oppose the govt since his position was publicly opposed - basically he would make strong argument on that side.
Millett is dropped, so Pillard is next. She asks what the narrowest ground the district court could rule on - she's searching for the scope of the available alternate remedies that Flynn/DOJ would have.
WB thinks a postponement might be a denial warranting mandamus, but probably not enough of a delay here for that. She thinks it would be better for there to be a ruling for the Court of Appeals to evaluate - a denial obviously.
Pillard asking if Sullivan were to be clear he was doing an in-depth hearing that would be different, WB basically agrees, premised on the idea that the judge will follow the law, which she thinks this experienced judge will do.
Millett is back. She asks if a clear intent for an evidentiary hearing that would inquire into the genuine grounds for the dismissal could be mandamused?
WB says they have to show up and then reject the stuff they don't like. Millett interrupts, saying Cheney says they don't have to do that. WB says, well but the govt hasn't asserted any of the grounds that Cheney said were problematic.
Millett has a new hypo: post plea, DNA comes in to totally exonerate a defendant who is incarcerated, can the district court set up a briefing schedule for weeks and hold a hearing. WB says that happens all the time - she's completely right about that.
Millett says, ok, but is that right? WB says okay, but there's no cases saying that that is irreparable harm. It just is what it is.
Wilkens up. He wants to know what the public interest factors are that the district court could explore. WB says not second guessing the prosecutor, but things like judicial integrity in the process.
Rao up now: What is the judge's interest way in petitioning for rehearing and in continuing to scrutinize the dismissal motion. WB: for rehearing it's to protect the mandamus standard; keeping it limited to extraordinary. Rao:a judge has an interest in legal standards generally?
WB: This court made him a respondent in this case. Rao: what exactly is the judge trying to vindicate? WB points to cases where district courts asked for cert (to the Supreme). She says Sullivan has no interest.They made a suggestion to the court to do something it can do itself.
This is an astonishing, fascinating argument. She says he's just asking 10 to decide what the 3 decided; it's not like a new request or that he has a interest separate from his original response which they invited.
Rao: taking WB to task for backing away from her pleading and now claiming it's "just a hearing." WB says well that would be my error for suggesting more; that doesn't mean that's what will happen. And DOJ can stiff-arm anyway.
Rao: Would we be setting a rule that mandamus can never issue in the absence of a ruling? WB says no, it depends.
WB relying on the presumption that district courts do their job and follow the law.
Henderson up. Pointing to limited role of judge under Rule 21 so why can he petition for rehearing under Rule 35 w/out their leave.
WB says it's a suggestion to the court to act only. Henderson agrees Sullivan not a party, but says WB invoked a rule only parties can use.
Rogers asking about removal issue. WB says Sullivan will follow Court's decision. Roger references Wall's suggestion that the Court give some instructions to Sullivan on remand. Asks if that's necessary? Wall is strong on the process problems. What's her response?
Should they clearly say what they think the "leave of court" language means for Sullivan to see?
WB: No instructions necessary due to the expansive briefing in this court and below on the scope of "leave of court." She sees no basis to suggest invasive briefing. (I'd like to see Wall's face at that statement.)
Sorry - invasive questioning in that last tweet.
Tatel and Garland pass. Griffith asking what would be appropriate questioning? WB avoids this, saying she sees no basis for inappropriate questioning on these facts.
Millett up now. She's focusing on Flynn's harm. She agrees he can raise SoP arguments himself - as a liberty interest. WB says Flynn didn't try to hurry it up to address that issue before the district court, tho. All other judges pass.
Sidney raises all the liberty harms to Flynn and urges the court to see the case for what it really is and put an end to it.
Wall says he "feels a bit rope-a-doped!"He points out how WB just keeps minimizing everything she's said before about the factual development.This is very strong language from an appellate lawyer. It's basically accusing the other lawyer of lying. He finds WB dishonest (I agree.)
Wall urges the court to issue the writ, saying that what Sullivan clearly plans to do is outside the lines and inappropriately pits the Executive and Judicial branches against each other and the Court should not permit that.
The case is submitted. They will now retreat into their ivory towers and debate what to do. There is no way to tell when they will decide it.
If you're wondering why they are calling Wall by the name "General Wall," that is a courtesy accorded to the Solicitor General of the United States.
My gut reaction is that they aren't going to issue the writ. Of course, I thought that the last time too & they did. Henderson and Rao are still on board with the writ, but Wilkens, Rogers, Tatel, Millett, Pillard, and Garland at least I think are not.Griffith may be a no also.