Flynn hearing on Motion to Dismiss.

We're waiting for the hearing to begin. /1

Judge Sullivan's clerk is announcing that the Judge will be out shortly; asking live participants to mute their phones when not speaking. /2

The Judge has arrived. Here we go. The clerk calls the case. /3

Attorneys annoucing themselves: Ken Kohl and Hashim Mooppan for US; Fully Flynn team!; John Gleeson for amicus. /4

Judge says he's going to "spend some time" capturing the essence of the argument. He means he's going to talk for a while; then he's going to let them speak and ask questions. /5

JS saying hes' not going to address appointment of amicus; the contempt perjury issue; or the case or controversy issue. /6

JS laying out the issue he's going to address - the motion to dismiss by US. /7

"for the first time in this case" in the motion the US says that Flynn's statements weren't material, it can't prove beyond a reasonable doubt the case, and that it's not in the interest of justice to proceed. /8

JS says he's going to focus on his discretion to dismiss under Rule 48(a).

JS saying Flynn plead before JContreras after a full colloquy aided by experienced counsel. (Ha! counsel who incompetently represented him, in actuality).

JS discussing the sentencing hearing before him where he made inquiry about whether Flynn wanted to wait for all his cooperation to be included. Says it's important to note that sentencing has already started in this case.

JS says he continued (delayed) the actual sentencing to allow for the further cooperation in the VA case against the business partner. Then Flynn hired new counsel.

JS now talking about his standing Brady order - doesn't matter to him the stage of the case, he always requires that Brady order.

JS: Flynn then moved to dismiss for Brady violations, which he denied. And he found that the statements Flynn made were "material."

JS: Flynn then moved to withdraw plea saying innocent. Govt never answered that motion because they had to get info from Flynn's former lawyers, which took a lot of time.

(I'm really boiling down what he's saying). He's laying out the fact pattern basically, which is on the docket of who filed what motions and responses and appointment of Gleeson.

So, he's taken us all the way through the docket. Says he's not going to discuss the outstanding appellate opinions. Says they are both "outstanding" opinions. Says they speak for themselves. The case is now back to him.

Now has brought us up to where we are now in terms of process of further pleadings and agreement to do the hearing today.

JS now discussing Gleeson's argument. Says Gleeson relies on history of the Rule. Relying on Ammidown saying the court has a "role" in dismissal, and not just when the defense opposes the motion to dismiss. Discussing the 1940s history of the phrase "with leave of court."

JS says based on that history Gleeson argues that the leave of court language thus applies to both agreed to and disputed motions to dismiss and is consistent with the Separation of Powers (it isn't tho).

JS says Gleeson is arguing that the potential for corrupt, political reasons for dismissal gives the court at least a narrow window for inquiry even if the defense agrees to the dismissal. Discussing Ammidown again and the protection of the public from such conduct.

JS is laying out Gleeson's argument (he'll get to the US and Flynn's argument). Talking about how the Ammidown case says the court can require the Govt to state it's reasons. The court is not a "rubber stamp" to the prosecutors.

JS now discussing Fokker's clarification of these principles, arguing that the post-plea setting here means the deference to the prosecutor is at its nadir.

He's adverting to the US's counter argument that Separation of Powers controls and the difficulty of forcing the govt to proceed with a case that the govt does not want to pursue.

He's distinguishing Fokker saying it dealt with a case about the Speedy Trial Act; now he's laying out the Govt's view that Fokker really limits the court's role in this situation especially after the Supreme Court cases about Separation of Powers that came after Ammidown.

JS setting forth the US's view that in the overwhelming number of cases the court has no role to deny the motion to dismiss if the govt has put its reasons on the record, citing the Separation of Power's caselaw.

JS seems to be emphasizing the phrase "statement of reasons" Just my observation.

JS setting out the Govt view that it does not matter whether the motion to dismiss is pre or post plea - the Rule does not distinguish between them and the Separation of Powers gives the power to the prosecutor up to the point of conviction.

JS emphasizing the word "sentencing" also. This is because sentencing is fully within the judicial, not prosecutorial power.

Now he's setting out Gleeson's rebuttal - various cases from other circuits - and position that "all that's left is sentencing" so Separation of Powers isn't really an issue.

Based on what he's saying and how he's saying it, it appears at this stage that he's leaning toward denying the motion. But, I have seen many cases where the judge sounds one way all the way up to the end and then gets to the thing that he/she thinks gives the opposite result.

JS now talking about what kinds of things would permit the court to use its discretion to deny the motion - he's laying out Gleeson's arguments that the court can do that.

JS laying out Gleeson's arguments for when a court can deny the motion to dismiss when the defense OBJECTS. This is to say that it's the same standard for when the defense consents, I suspect. Gleeson finds Fokker refined rather than rejected Ammidown. JS says Govt disagrees.

JS laying out Govt argument that Rule 48 doesn't give the judiciary more power than it had before the rule language went into effect, that the Constitutional Separation of Powers is actually the touchstone. Govt says way to address misconduct by prosecutors lies elsewhere.