Will be live tweeting the Flynn hearing, which is here (but probably overtaxed already).

Powell: Flynn defendant w/o a prosecutor. Says Sullivan appointed Gleeson to "usup" role of prosecutor.

Powell going after Sullivan bias, been cued by follow-up order on whether Sullivan now has a conflict (he probably does, but it invites judge shopping).

Powell sounds downright sane today.

Srinivasan: Assume I'm focused primarily on request to grant motion and not to focus on order that panel focused on. You agree you're entited to mandamus only if no other adequate means?

Powell: no other adequate means bc of usurpation of power.

[Sanity over]

Srinivasan: Any other case where Circuit granted mandamus before district judge ruled?

Powell: Fokker services. He could have had a hearing.

Srinivanan: Assume everything you've said abt Fokker, assume en banc agrees (just for purpose of question), not focused exclusively on 48a motions, ANY situation in which DC compelled before DC has decided whether to grant motion?

Powell: Went outside boundaries of article III.

[Reminder: Powell applauded Sullivan doing this in Stevens]

Srinivasan: If DC granted motion it would be alternate adequate means?

Powell; violates Article II and Article III.

Rogers: Was Fokker not a case where mandamus after DC ruled?

Powell: We have Fokker now. We know Sullivan has to grant motion, he has to be reined back in.

Powell: No circumstances where he can continue bc his bias.

Powell claims that perjury teed up for additional punishment.

That's news, bc he's not being tried FOR perjury.

Rogers: In Will, SCOTUS stated it never approved of writ for interlocutory appeal.

Powell: Usurp usurp usurp.

If I had a nickel.

Powell says her motion is supported by "stunning exculpatory evidence suppressed for 3 years or more."

Except -- Bill Barr, has said, UNDER OATH, that's false.

Tatel: Sullivan has no standing. Any difference if we en banced sua sponte? Of course we considered petition. DOn't see anything in order that says we granted his petition. If we en banced sua sponte, does it make difference whether Sullivan party?

Powell: Disqualifcation.

Powell: Court can always take case sua sponte.

[We'll see that again.]

[Not sure who this is] Why isn't this same as if you said you'd mandamus before judge decides.

Powell: He's effectively made a decision here, denied two motions opposing amicus. Intruding into Executive Power.

Garland: Do you agree w/Judge Rao's statement that DC has yet to decide motion?

Powell: Yes, I do.

Garland: SO the panel got that wrong?

Basically Garland is laying groundwork that Powell is whackier than even Rao.

Garland: Imagine that SCOTUS had ruled clear 4A case, and ruled against defendant, defendant would still have to appeal. That's the normal way criminal cases go.

Powell: When they're dealing with solely legal issues.

[Solely legal issues?]

Powell is now argue that Exec Power is not about laws.

Remember, she's solidly on the other side of this in Stevens.

Griffith: Q is not whether DC must grant 48A, whether may appoint amicus and hold a hearing What is it in rule 48A itself or our cases that prevents DC from conducting a hearing?

Powell: SCOTUS no substantial role.

Powell says Sullivan can't investigated Govt's stated reasons for dismissing case. Except govt HAS CHANGED its reasons.

Griffith: Is it ministerial or no?
Powell: It's pretty ministerial.
Griffith: No, it's not. Judge has to do thinking.

Griffith solidly in the "not a rubber stamp" camp.

Griffith: What type of hearing is permissible?

Sullivan: Call in and ask if move to dismiss. Ask if Brady.*

*Bill Barr has said, under oath, it's not Brady

Powell: Only discretion he has if it's with prejudice.

[Okay, I bet we're back here when he says w/o prejudice.]

Griffith: You've argued you've got a very strong case. Why not appeal?

Powell: Every cases says he has to dismiss.

Griffith: We don't know what he'll do.

Powell: Nothing about what he's done has been done in any case.

Griffith: I don't understand your statement, appointment of amicus, that's common.

Powell: not in criminal. He can't just go out on his own. Steps all over Article II authority.

Millett: Where in DC did you raise Separation of Power args?

Powell: You're saying that before appointment of Gleeson, that was your opposition to orders DC issued later.

[TIME MACHINE BABY]

Millett: After that, where's your objection?

Powell: Already on file.

Millett: No no no, that was a different amicus.

Millett: WHERE is your opposition to appointment of Gleeson?

Powell: 201 and 203.

Millett: This will work a lot better if you just let me ask my questions. No objection, no opposition to Gleeson. And in minute order, May 19, Following schedule, subject to MTR.

Powell: I think mistake in docket order.
Millett: So no motion to reconsider.
Powell: No, that's the purpose of mandamus.
Millett: You said could have pushed them as he did in Stevens. What pushing in Stevens case was okay?
Powell: Asked if Brady material. Wishy washy.

Millett: In this case, a large part of govt motion is discovery of new material that qualifies as Brady, correct?
Powell" Correct.

NO, THAT'S INCORRECT!! GOVT HAS NEVER SAID IT WAS BRADY, AND BILLY BARR SPECIFICIALLY SAID UNDER OATH IT WAS NOT.

Powell: SCOTUS and Appellate courts routinely appoint amici.
Millett: IS there a rule that says they can or can't?
Powell: I don't know.

Millett: I think you agreed w/Griffith that this was not a ministerial. Can court use 48A to make sure courts not being abused?

Powell: No they may not.

Pillard: Richard suggests no clear and indisputable right against argument on Rule 48A.

Pillard: You do try to distinguish. Prosecutors had briefs, court could read briefs. Do you disagree? Do you think wrongly decided?
Powell: Key witness recanted, now 20 years ago.
Pillard: DO you disagree w/Richards on its own terms. Only distinction appointment of amicus?

Powell keeps saying there's a 100 page MTD with exculpatory evidence.

That remains untrue, no matter how many times she says it. In fact FLYNN had most of this information when he pled guilty.

Pillard: It's the process you're objecting to bc we don't have a merits ruling.
Powell: Would have to be remanded to different District judge. Judge Powell showed bias by appointing an amicus. An adversary system is so we get the law right. Strongest args on both sides.

Pillard: Your arg is no he can't hear best arguments, he has to drop it like a hot potato.

Powell: Can't make Article II prosecute case.

Srinivasan cuts off Powell while she tries to restate, very limited motion.

Wilkins: Different case, bc of exculpatory evidence that we're moving to dismiss. Appoint amicus bc nuns and bishops saw prosecutor take briefcase full of cash.

AGAIN THERE IS NO BRADY HERE, EVEN BILLY BARR SAYS SO UNDER OATH.

Wilkins: Is appointment of that amicus improper?

Powell: Yes, would have to go up to AG and SG.

Powell is making an argument for bribery here.

Powell: He cannot go behind prosecutors in a case, and certainly not in this case.

Wilkins: Asking you to answer my hypothetical.

Powell: Would have to refer for prosecution.

Rao now warming up her softball arm.

Rao: It seems you think he can hold a hearing. is there anything else he can do?

Powell: Extremely limited. Virtually no role. There's just not much in face of govt's decision not to prosecution. Up to them, allocation of existing resources.

Powell now suggesting that DOJ did this for allocation of resources issues, even thought DOJ has spent 3 months on it since.

Rao [searching for a way to rescue Powell]: Reassignment?

Powell says poor Mike Flynn can't have the world piling up on him when the govt has decided to drop case.

Srinivasan: Suppose only 48A. Issues is Mandamus to require judge to grant mandamus. Suppose, also for purpose of arg, I agree on Fokker. If District received 48A, he said schedule a hearing, want to make sure I understand. Entitled to Mandamus?

Powell: No sir.

Henderson: Are you familiar with Ezra Pound, some circumstantial evidence so strong when you find fish in milk. Does that apply in this case?

Powell: I believe it does.

Garland: Record point. Panel had been in error. I don't see ruling on, docket 202, no denial of that motion.

Powell: Did not enter for denying that.

[This is going to be decided on technicality of Powell fucking up process]

Garland: Are there some words where he said "I deny the motion to dismiss."

Powell: I misspoke if I implied that.

Garland: On bias question, panel found DC did not include inability to decide case fairly. Want us to reverse panel's finding? Or only out of petition 4 rehearing?

Powell: Carried forth more on facts of case. A lot more since then.

[She's making shit up again.]

Garland: Are you saying you didn't argue these points and they didn't consider it or these points occured after?

Powell: A little bit of both. Panel considered statements made at sentencing. Unclear whether they considered other.

Garland: Did you argue other factors?

Griffith: Throughout arg this morning you've been stressing Rule 48A protection of defendants against vexatious prosecutions. But that's not sole purpose, right?

Griffith: Also to examine cases of favoritism against politically connected defendants.

Powell: Rinaldi.
Griffith: That's one purpose, not sole purpose.
Powell: Sole purpose given any form.
Griffith: Allow a district court judge to examine political favoritism.

Powell: The history is what the history is.

Powell: TO my knowledge it has not been endorsed.
Griffith: Different than being rejected.

Millett just got Powell, after a VERRYYYYYYY long pause, to concede there was a difference between Watergate motion to file amicus and an invited amicus.

Millett seems to be having fun letting Powell fuck herself over.

Millett: Can judge ask if it was lied to in filing at District Court.

[The District Court was lied to, btw, abt these files being new.]

Pillard, going back to politically favored defendants. Leaves open whether 48A is broader.

Pillard: you may be right not a case allowing court denying motion based on other public interest concerns, not clear and indisputable right against application of 48A in circumstance in which motions prompted by improper considerations?

Pillard; Rule 48a may invite, but if it does, unconstitutional.

Wilkins: Earlier hypothetical, if D judge said hearing on rule 48a and have nuns and priests testify and view video tape showing over handing over of cash, no authority to hold a hearing?

Powell: He does not under Rule 48A, need to refer for prosecution.

Wilkins: Fokker?

Rao [seeing she has nothing here]: No further questions.

Wall: COncurrence of all three branches.

[Reminder: There is a pending DOJ filing calling for prison time for Flynn]

Wall: DC plans to conduct intrusive inquiry. DC says court should ignore those harms. But court is a party, fact and substance matter, even apart from govt, Flynn can invoke SoP harms in defense of own liberty.

[Note: Wall effectively conceded the basis they won before was BS]

Srinivasan: In opening focused on brief at mandamus. If you take out of field of vision that brief, still mandamus, no adequate alternative?

Wall: I would bc I think panel briefs more concerning. Sullivan explicit he wanted affidavits on both Rule 48A and contempt.

Srinivasan: Fokker, judge held a bunch of proceedings, judge telegraphed kinds of questions.

Wall: Maybe I misunderstand Fokker, did not think substantial proceedings after mandamus.

Srinivasan: To ask abt proposed DPA.

Wall: I would be surprised if [holding a hearing on prosecutorial abuse] were not mandamusable now.

Wall is changing his stance from what he said in the panel, about whether Sullivan can have a hearing.

Wall: This is meant to probe prosecutors reasons and this is what he intends.

Henderson: 455 and 455b. Waived it?

Wall: Happy to address. Govt's view is that Sullivan not a party to file rules, we do not thing b5i problem. for those who think he is entitled to file, statutory problem.

[Wall can't argue this bc of their EXTREME AII issue]

Wall: We did not agree w/Flynn that disqualification merited. Filed a petition not permitted under rules, suggests level of investment that is problematic, gone further to decide legal standard, pages 14-15, Fokker nothing to say, and Ammidown remains good law.

Wall just flipflopped.

Rogers: Is your position that filing by DC in urging that mandamus impermissible, that THAT is bias that would require reassignment?

Wall: NOt saying ACTUALLY suggest DC is biased. Not ACTUAL partiality problem.
Rogers; Appearance.
Wall: as we read rules not permitted.

Again, Wall's argument is breathtaking from a COnstitutional standpoint.

Rogers: I'm just trying to understand scope, SCOTUS

[she keeps coming in and out]

Rogers: By saying there are questions he wants to ask to understand govt motion, that that alone is sufficient. Originally all I was going to ask, why harm to govt, when it didn't file.

Wall: I'm just responding to a Q put to me under rule 455a, guidance under rule 48A, take off table some of facutal inquiry.

[Shorter Wall: We care more abt having to explain ourselves than any charge of bias]

Wall: There's nothing speculative abt injury to Exec, probing Exec Branch is what we, and Fokker, says is constitutionally impermissible. Not speculative issues, but certain.

Tatel: Same Q Srinivasan asked Powell. Any case at all where Appeals writ to conduct any inquiry at all.

Wall pretends there's a case; Cheney. It was just a process for setting up discovery.

Tatel: There is no case where mandamus before a decision.
Tatel: In brief, you argue usurpation of judicial power to second guess govt justification, Exec is entitled to confidentiality. Don't courts regularly scrutinize? Batson hearing.

Garland: If it were true that court granted sua sponte, do you think court does not have authority on its own to rehear?

I get the feeling one of the surprise endings here is that Circuit DID decide sua sponte.

Garland: Are we stuck in every mandamus case with whatever 3 judge panel decides.

Wall: Only Q is if appropriate use of court authority.

Garland: Sorry to interrupt but Chief has been very parsimonious about time he gives us.

Garland: You provided 3 reasons and you believe all three are true. Was that optional?

Wall: We went further than obligated. AG sees this in context of non-public info--

Garland: This was reason given and you gave this reason.

******Wall: AG may have had before him information he was not able to make public,*********

*****Wall: AG made decision based on a lot of info, some of it public, some of it not. ******

Garland: DC has not done anything but order you to show up and brief the motion.

Wall: Disagree. Meant to probe motives.

Wall: Undervalues harms to coequal branch to answer questions.

Garland; In Cheney there was an order for discovery. There hasn't been a discovery order yet.

Wall: Order setting up process to make us defend exercise of core exec duty. Doesn't take seriously harms to coequal.

Garland: Every day when I was an AUSA, accusations were thrown my way. Part of job of being prosecutor. Don't understand how, if each of those were separation of powers case, we'd have vast number of mandamus cases.

***Wall: It's meant to guard against oversight and scrutiny of core exec branch discretion. ***

Wall says it's okay to probe whether a prosecutor has gone rogue.

Note, Tim Shea's excuse for MTD was bullshit, patently false on its fae.

And DOJ has changed its publicly stated reasons. So ... Shea was rogue.

Wall: Favoritism is not the domaine of Rule 48A. Court may believe govt has bad motive, but everybody agrees that US cannot be made to bring prosecution.

Wall says NO HEARING AT ALL would be appropriate.

Wall: On these facts, I don't think there would be an appropriate hearing. He wants to probe our motives. No hearing on that will be permissible.

Millett: Does filing of 48A have to get approved by SG and AG?

Wall: Rare they go to AG, SG is not generally invovled, AG was involved here.

****Millett: So not something that routinely happens.****

Millett: Busload of nuns. Real reason. I think you said Brady violations.

THEY DID NOT SAY IT WAS BRADY VIOLATIONS THEY DID NOT SAY BRADY THEY DID NOT SAY BRADY THEY DID NOT SAY BRADY.

Millett: What is wrong by playing video and saying what is real reason. Cannot ask if they were lied to in filing. Can they say after dismissing case?

Wall: Before or after.

Millett: Can you hold atty in contempt after ruling? Not settled.

Millett: DC says, fear I've been lied to in that motion, violation of court rules, nevertheless must be granted.

Wall: Yes.

Millett: Your position is protecting integrity of court and court process not allowed.
Wall: Domain of sanctions and contempt.

Millett: Just defendant harassment?
Wall: And ensuring both parties agree.

Millett: Did US raise objection to appointment to Gleeson?

Wall: No. Want to know why?

Millett: Briefing order?

Wall: No, arguments in MTD.

Wall provides a totally nonlegal explanation of why they didn't object to appointment of Gleeson.

Millett: Is mandamus appropriate before any request to recuse?
Wall: But bias came up in mandamus.

[Wow, totally undermined the bias argument]

Pillard: Not a judge in this city that doesn't grant govt great deal of deference. But integrity and independence of court is also [] here.

Pillard: District Judge was also skeptical in plea colloquy.

Pillard: But the District Judge accepted the plea at your urging. He didn't dream up the plea. Now you're insisting that DC contradict an order that he previously got on board. You're saying, "actually nevermind." What self-respecting Article III judge would simply jump?

Pillard: Appreciate that your arg is on factual inquiry. All he scheduled was briefing an argument on law. never said factual development. No order on discovery. Just lawyers arguments on existing record, what is the intrusion on General Flynn's rights?

Wall: Yes, govt no longer wants to prosecute. For small subset you actually have a plea. [by small he means 2, with this one]

Wall: Accepting a plea is different from letting a case go, from a constitutional matter.

Wall now playing defense, asking for limits on remand.

Wall: Govt has explained why.

[EXCEPT WHAT YOU'VE SAID HAS CHANGED 3 TIMES]

Pillard: Doesn't it cut exactly the other way. Basic differential between this and every other case. Not asking court to contradict, but you are asking him.

Pillard: he could call a sentencing hearing tomorrow.

Wall: That's right. [Not sure if it was ref to her point]

Wall: We're not asking DC to contradict himself. We're only asking him to say AG has said policy reason not to prosecute, and I am bound ot that decision bc that decision vested to him under Constitution.

Pillard: It's just striking and remarkable, what is the govt worried about, if none of the inquiy has been scheduled. [Wall tries to interrupt] Do you agree thta not 48A not about rule, but just separation of powers. It doesn't matter that that's the way to read it, bc Sep of P?

Wall: When you saw what are the harms, it's Cheney all over again.

Pillard: Shouldn't the DC be able ot hear and consider, whatever is in the record now, what are the strongest arguments on both sides, why govt doesn't believe going forward?

Pillard: If he just wants to hear both sides.

Wall: That's not what this is.

Wilkins: In your view Fokker forecloses any factual development? Yes or no?

Wall: Beyond ensuring that authoritative position, prosecutor hasn't been bribed.

[Note: Shea got a promotion bc he did this.]

Wall: Court can ask AG or DAG whether they want to dismiss.

Me: OKay then, Billy Barr just got himself an invite to this hearing!

Wilkins: Suppose years from now, the video shows AG taking the bribe.

Wall: Remedies for that, wouldn't need to be 48A, no one would argue that it would address that kind of corruption.

[This is hilarious]

Wilkins: Defendant still gets his dismissal?

Wall: Everyone agrees that govt cannot be made to prosecute case.

Rao: So, um, Mr. Wall, first question, dispensing panel which rested on govt failure to file mandamus. Why has got not filed mandamus?

Wall is making a crazy-ass argument that process doesn't matter.

Shorter Wall: It would be distracting if we followed the most basic kind of procedure.

Wall: Courts look all the time at third party interests.

HAHAHAAH.

He's arguing that Sullivan can't look at THE PUBLIC interest though!

Rao: No one arguing that court can deny Rule 48A.

[Note, not everyone is engaging with that either]

Rao: On separation of power, an appeal is not considered an adequate remedy for separation of power.

Wall; I understand that skepticism on court bc appeal is not going to be adequate remedy. at least it needs to place limits on what panel thought it needs to impose.

[Wall is trying to ask for mandamus w/o mandamus]

Srinivasan gets back in the record that govt relying on case where ruling already issued.

Henderson: Contempt for perjury. If judge things hoodwinked, he can hold in contempt.

Wall: Altho it's not our goose being cooked, not uncommon for defendant to withdraw his plea.

[HOLY HELL SG IS ARGUING FOR DEFENDANTS]

Everyone always threats contempt as ONLY about hsi guilty pleas.

It's not. Flynn's sworn statements also conflict on Turkey.

Tatel: What's your very very best argument.

[Bc the argument so far sucks?]

Wall is not answering Tatel's question.

Wall; It would have been harder case if there had been no hearing, once it's on books, haring foreclosed.

Wall just did something crazyass applying pre-plea to post-plea. I can't even write it up.

Garland: How do we draw a line bt this leading to Mandamus, and others. A lot of Sep of P that challenge actions of various Admins. Arg on Appropriations was that allegedly unauthorized spending violation of Sep of Power, would it be appropriate to mandamus and not wait?

Wall tries to dodge another ACTIVE separation of powers claim, pretending he doesn't know what JUST happened in. this court. Why is Congerss' SoP remedial, and having to go to a hearing is not remedial.

Garland: I',m giving you the hypothetical that Constitution says Congress decides on spending. And Exec says I'll do it anyway. Does that not even have to be heard by District.

Wall: IN YOUR HYPOTHETICAL YOU CAN PAY BACK MONEY.

Basically, Wall is saying you can unbuild a wall w/o injury but you can't unhear a hearing.

Ultimately, Wall is arguing that all Separate Pigs Of Power are Equal, But the Executive Is More Equal.

Wall: Separation of Powers doesn't require courts to stop injuries, but it does prevent courts from injuring Exec.

Griffith: SoP, but help me understand, how is it to breach SoP for the govt to ask questions? Why can't govt object? Why not follow normal course?

Now Wall is worried about a spectacle.

You know. A guy working for Trump.

Millett: Follow up on Griffith, in other criminal cases, and Cheney wasn't a criminal case. When I try to understand your harms, you want mandamus v Gleeson.

Millett: There's that compels you to turn over documents. Why isn't that?

Wall: I think that the process itself is harmful. You could stand there and create record on your silence.

[Trust me, Wall, you've done FAR MORE damage by revealing Barr has secret reasons here.]

Millett: Your position is ASKING THE QUESTION is the Constitutional violation. Little surprised abt lying to court.

[THIS WAS NOT BRADY THIS WAS NOT BRADY THIS WAS NOT BRADY]

Note: There also was no affidavit here.

Millett cites Fokker that says a judge does not have to accept something that's a mocker of judicial power.

Millett corrects Wall by saying that a bribe IN THE COURTROOM wouldn't matter pre-plea.

THE GOVT DOESN'T CLAIM THERE'S A BRADY VIOLATION.

Wall is arguing that a judge is helpless at preventing rampant bribery in her courtroom.

Pillard is basically defending judicial integrity and Wall thinks judicial integrity has to bow to Exec.

Wall: I'm not saying it doesn't involved judicial integrity,

Reminder: Billy Barr has said judge has discretion.

Wilkins: Why isn't it proper interpretation of 48A and 44B in Millett's hypothetical, if judge finds a bribe in her courtroom, decides that she does not want to be a party to it, why not deny 48A, judge can't force, defendant just moves to dismiss bc of impermissible delay.

HAHAHAHA.

Wall now saying there are other ways to deal with bribery.

But doesn't much give a fuck about other ways to deal w/judge being unwilling to be party to corruption.

Wall: How far away we are from bribery in front of judge.

Also Wall: But if we had to do a hearing where it might be witnessed, the Exec would forever be harmed.

Wilkinson: Mandamus unwarranted when Judge has yet to make a decision.

Wilkinson: Nor can govt, which did not petition for mandamus, show harm. Relied on speculation. Sullivan is not a party, what we did is suggest something court can do on its own,

Srinivasan: Anything a judge can do in terms of setting out what judge wants to hear further that would entitle mandamus?

Wilkinson: Difficult in a vacuum. Determining what the issues are. I could see govt objecting if AG was ordered to appear.

Wilkinson: DC might say, You're right, I'm not going to do that. Judge could accept their answer and move on.

Srinivasan: Nothing judge could ask, bc govt always has remedy, can decline to answer. What do you do w/SG's discussion of Cheney?

Wilkinson: Cheney different bc Judge DID issue an order and give judge a chance to reconsider.

Wilkinson: Govt HAS answered questions already. I think govt misspoke when they said not going to answer 70-page brief, they have filed a response, haven't asserted any privilege. Facts of this case not similar.

Rogers: Your reading of Cheney is absent elements that SCOTUS would not have ruled as it did? Some of language in Cheney was very broad.

Wilkinson: As applied, it was bc it asserted privilege generally. They shouldn't have to do that. Different than here, where govt responded.

Q (Tatel?): Does judge have discretion? If it doesn't I don't understand purpose of hearing.

THE ATTORNEY GENERAL SAID HE HAS DISCRETION ON TEEVEE SO IT MUST BE TRUE.

THE FUCKING MOTION TO DISMISS SAYS JUDGE HAS DISCRETION. IF DOJ IS WRONG ON THAT THROW OUT THE WHOLE DAMN MTD.

It sounds like Garland is on the stairmaster or something.

I guess he's trying to stay healthy for his eventual SCOTUS confirmation.

Wilkinson calls Wall on falsely claiming that bc Sullivan NOTED that there were no declarations to support the MTD Sullivan was planning on getting them.

Shorter Wilkinson: Wall made up what Sullivan was going to do.

Griffith: Maybe you should tell us what will be pursued?
Wilkinson: I can't. One example, issue raised abt Acting USA signing brief by himself. Signed off by entire DOJ. That answers question.

Griffith: Is 48A limited to protecting defendants.
Wilkinson: Much debate, most focused on protecting public interest when there might be favoritism rewarding or dismissing prosecution.

FTW, I was among those who got booted along with Wilkinson, which I guess is some kind of badge of honor.

Griffith: If earlier in a proceeding, judge denies MTD, what then? Would it be inappropriate for Judicial to compel Exec to proceed.
Wilkinson: You could inquire about reasons. Standard for 48A the same, totality of circumstances, in post-plea phase, involved court.

Griffith: Why appoint Gleeson?
Wilkinson: Court looking for opposite viewpoint, full adversarial briefing, fact that Gleeson announced, makes sense to be one of the candidates, flesh out legal arguments. Best analogy I know is Prof Cassel asks SCOTUS to be the amicus.

Pillard: On Mandamus standard, could decide alternative remedies, no clear and indisputable right, which is narrower ground, is there alternative remedy? Or no clear and indisputable right?

Wilkinson: Real contest, but no alternate remedy.

Pillard: Alternative remedy if JUdge denied or postpone?

Wilkinson: Once decision is made, parties could appeal.

Wilkinson: In RE Aikan, this court gave multiple opportunities to act, their refusal to act was considered an action. I don't know that a delay of some sort. This matter could have been over on July 16 if the judge had been able to have his hearing. Appeal, sentencing.

Pillon: If judge said I want a new in depth fact-finding hearing, different Q if there's a clear and indisputable right, separate mandamus question.

Millett: I've been off for about 5 minutes, if I ask something already asked tell me to read the transcript.

If District order said on July 15, there will be evidentiary hearing, is your position that cannot be mandamused?

Wilkinson: I don't think it's clear and indisputable that's inappropriate. Looking and asking questions of the govt --

Millett: If asked a fair inference would be someone from govt would ask.

Wilksinson, They chose to give explanation, they chose to make 17 page response. They didn't say this was injury to Article II. They didn't say that at the time.

[Effectively, DOJ only wants to weigh in if they have impunity against truth.]

Millett: Can judge wait 7 weeks before letting someone out of custody?

Wilkinson: That happens all the time at the District Court. There are examples where DC has a hearing. The court doesn't release

Millett: Doesn't it seem that, he's still under custodial restrictions.

Millett: I can't imagine keeping someone incarcerated for a few more months. Is this as fast as possible? 7 weeks.

Wilkinson: And courts go much longer. I don't think custodial restrictions here anyway like incarceration.

Wilkinson: That's never been an example of irreperable harm, that when someone has been able to travel overseas. This court has had that on al-Nashiri, and court still said, no clear rule that court has to rule w/in 10 days. Flynn has as much liberty as anyone who pled to crime.

Wilkins: Range of public interest factors that district judge can properly consider?

Wilkinson: A court cannot second-guess prosecutorial decision made by DOJ.

Rao: Maybe you can help me understand what precisely District Judge's interest is in rehearing?

[Unclear on concept of public interest.]

Rao: What is the District Judge seeking to vindicate.

[Rao basically waving a sign saying, "I don't understand rule of law appoint me to SCOTUS!!!!"]

Rao: Can judges litigate? What is the judge's interest?

Wilkinson: This court made him a respondent. The court ordered him to respond. [RAO ORDERED IT]

Rao: But that process played out at panel.

[Rao: Why didn't the District Judge follow my batshit order?!?!]

Wilkinson: There are cases where District Judge moved for cert. There's not a vindication of any right. Panel made their decision with three able judges, and now respondent making request, same posture. Most respectfully we're arguing in front of 10 judges.

Rao: Can judges in other cases file to ask that we rule en banc?

Wilkinson: The court was ordered [BY YOU!!!] to respond below.

Rao: Presumption of regularity. Govt has presented a lot of information about irregular behavior, reason to want to dismiss.

[Shorter Rao, Billy Barr accused Obama of irregularity, so why shouldn't he be presumed to regularity?]

Rao seems unaware that YES THERE IS A RULE on Mandamus that if there's an alternate means of relief.

Henderson: Trial judge was ordered not to defend any action by 3-judge panel, file a response, at our invitation.

Henderson: Why Rule 35 allows him w/o any invitation from us to petition.

Wilkinson, My understanding is

Henderson: Excuse me, you invoked Rule 35. I don't think he's a party. The way you required to respond. In terms of interpreting in light of Western Pacific.

Henderson was prepped to get Wilkinson to say Sullivan was not a party. She'll write a dissent on that.