I'm late getting onto the livestream of the Flynn hearing so I am starting to listen to it from the beginning now. It does not go live until about the 44th minute of the stream.

Chief Judge questioning Powell on whether there has ever been a case of an appeals court ordering a district court to rule a particular way on a motion before the judge has ruled on it. Judge does not know of a single case where a court has done what the panel ordered.

She's trying to argue that the process of deciding whether to grant the DOJ's Motion to Dismiss is the violation. BUT the DOJ has to ask for leave of the court to dismiss AND they asked for Sullivan to Dismiss 2 of the 3 charges with Prejudice.

Second judge, wasn't Fokker granted AFTER the court's decision not before the decision.

Powell is not doing well, she has to keep answering questions the judges aren't asking because the answers to the judges question don't help her case...

Judge asks if they heard the case sua sponte (on their own) because he says while Sullivan filed a request, they did not grant his motion, they gave the order on their own.

Powell getting questions on whether the court has ruled on the Motion to Dismiss. She is trying to argue that Judge Sullivan has already ruled, he hasn't, on the basis that he didn't rule on it. She's in a major catch-22 on that.

Judge Griffith What is it you think prevents the court from holding a hearing & deciding on a motion to dismiss. She is caught in a debate over whether the leave of the court is ministerial or not. She admits it isn't ministerial (rubber stamp) but claiming it almost is.

Judge says almost a rubber stamp means it isn't a rubber stamp. If it's not a rubber stamp, then the judge has to have the facts & educate himself on the case to make a ruling on the motion to dismiss.

Judge: If Rule 48 is so strongly on your side why don't you let Judge Sullivan make a ruling on that issue & if you case is strong you can appeal if he doesn't rule in your favor?

If you don't understand the reason this precedent needs set, it is to prevent Swamp creatures at DOJ from dropping charges for corrupt reasons. Like Epstein's case, or like a AG Elizabeth Warren dropping all charges against everyone prosecuted in Spygate or the Coup?

Judge asking why Powell did not raise or make objections on the separation of powers argument to Judge Sullivan instead of to the appeals court.

Judge asking about a Powell statement that the Judge could order all the lawyers in & 'push them' on the Motion to Dismiss. So it undermines her argument that the judge has no authority, when she supported his authority to push DOJ in the Stevens case.

Question about the motion to dismiss used as harassment. In addition to protecting defendants, can the court use 48a ruling to protect the court from prosecutorial misconduct. Powell says no, but this is a key precedent to set so good to hear this come up.

Judge brought up a precedent of a case where a judge took evidence in the "Richards" case. Where appeals court rejected mandamus until the court ruled on the motion to dismiss in this case. She says it's 20 year old so it doesnt' apply. Wrong answer to a court based on precedent.

Also another problem raised, if Judge Sullivan can't do a process to inform his decision, how can he 'dismiss with prejudice'. He has to find facts to decide if that is appropriate, it is not a rubber stamp either. So without fact finding, case can't be dismissed with prejudice!

Powell argued a judge couldn't order a witness to present a video of the prosecutor being bribed for a dismissal at a motion to dismiss hearing. Says he could only refer it to DOJ & then to let the defendant go because guilty prosecutor didn't bring the evidence of the bribe!

She's arguing that if someone has a video of Van Grack taking a bribe to frame Flynn, the judge could not watch that video, because Van Grack did not present it as evidence & the judge can't seek any evidence in the case. Crazy

Judge Garland: 'You claimed that the judge denied your Motion to Dismiss for Egregious Government conduct, there is no such ruling in your case.' The motion to dismiss & writ actually prevented the judge from dismissing the Flynn case for prosecutorial misconduct.

Judge: Rule 48A the purpose of the rule is not ONLY to prevent harassment. It also exists & has a history of allowing the judge to determine if their is a favoritism issue in the dismissal.

Another got Powell falsely claiming that she included a motion to dismiss in her opposition to the Watergate Prosecutors amicus. It is not in the document.

Does the court have the right to ask or press the prosecutors to determine if the court was lied to by the prosecutors in a filing before the court? Powell concedes that the judge could ask those questions before dismissing the case.

Rinaldi & Amidown sp? shows that it isn't an automatic approval of a motion to dismiss. There are reasons that a district court can seek information before deciding.

A second judge asks about a video of a defendant bribing the prosecutor to dismiss. Powell argues that the judge can't review it & has to approve the Motion to Dismiss without observing the evidence.

DOJ is up now, focusing on Fokker. Focuses on harm to DOJ if the judge seeks evidence of corruption & prosecutorial misconduct.

Arguing solely on the Separation of Powers issue, that the judicial branch has no authority to try & figure out if DOJ is acting in an illegal or corrupt manner in a prosecution against a defendant.

Judge asking for Govt view on whether he is a party to the case or needs to be disqualified. Govt does not necessarily agree to that, but thinks filing for en banc is problematic & may make him a party needing disqualification.

Concedes that Sullivan has the authority to decide if the motion to dismiss is in the public interest, but worries that Sullivan filing for en banc means he has prejudged the motion to dismiss.

DOJ rejects the notion that there is any actual bias by Judge Sullivan. But that there might be an appearance of bias issue even though their is no evidence or real bias.

Judge questioning DOJ claim that judges can't question the governments reasons for making a decision. When there are plenty of precedents that there are narrow exceptions where there has been bad faith on the part of the government. Nothing but bad faith by DOJ in the Flynn case.

Government stated 3 reasons why it thought the Flynn case should be dismissed. Don't you think that is enough? DOJ says it didn't have to give the reasons & often don't. DOJ may not be able to share all the reasons with the court due to other investigations.

Judge says that Sullivan can hold his hearing & government can refuse to answer on the separation of powers argument.

Very interesting, DOJ confirms that Rule 48 can be used by a judge to determine if a prosecutor has gone rogue... Did anyone in SCO go rogue?

But he argues it isn't appropriate for judge to rule on DOJ favoritism to a defendant. That there are political checks on it.

In other words, the appropriate sanction is not for the judge to find out why the charges are being dropped but for Congress to impeach the Attorney General for dropping the charges...

Judge, would it be appropriate if there is evidence of a bribe can the court ask DOJ to explain if it was a bribe or discretion. Or just accept the dismissal.
OOJ says judge can't ask under Rule 48 if a bribe lead to the motion.

Judge asks if the court can discipline prosecutors after dismissing the case even though it knows it has been lied to in the motion. DOJ says no not under Rule 48A can a judge ask DOJ if they are lying to him in the Motion to Dismiss.

Judge says the integrity of the courts is also a major issue with separation of powers. Notes that Judge Sullivan did not believe Flynn was guilty, DOJ insisted that Flynn was guilty & it had the evidence to prove it beyond a reasonable doubt. DOJ hasn't corrected any of that.

DOJ says that the judge doesnt have the authority to ask if DOJ's decision is legitimate.
Can make sure the prosecutor has not gone rogue or been bribed. But only if prosecutor is dismissing against DOJ & executive branch because of the bribe. If Admin agrees with briber it's ok.

DOJ again points out impeaching the Attorney General is the proper sanction, not the court refusing to give leave to dismiss...

Judge: So what if prosecutors have been caught withholding Brady material & lied to the judge about it, are you saying the judge can't ask DOJ to explain it? Fokker says DOJ can't ask judge to dismiss under Rule 48 & Rule 43 if it is making a mockery of the justice system.

Really good question if submitting a motion to dismiss to conceal Brady violations is making a mockery of the court. Therefore dismissing under Rule 48 would be making a mockery of the justice system. Rule 43 prohibits the court from participating in a mockery of the court.

Judge quotes Amidown footnote saying that judge has the authority to gather information to inform his decision on a motion to dismiss.

DOJ arguing that even if a prosecutor committed a crime in front of the judge, that shouldn't be considered in the motion to dismiss.

Wilkinson for Sullivan starting now.

Mandamus is not appropriate for a pending motion. Judge hasn't even asked questions of the government. This is all based on speculation of what the court might do not on anything the court has done.

No reason for recusal, no need to consider the judge a party to this case.

Rule 48 was not written just to protect defendants from harassment but also to protect the integrity of court proceedings including preventing favoritism in dismissing charges.

Q? Do you want Dem DOJ to be able to dismiss all charges against the Coup plotters without question?

Wilkinson pointing out that this case could have been over on July 16th if the Mandamus wasn't filled to 'speed up' the decision.

Looks like the end of it got cut off. Doubt there was much more important info to discuss.