Sidney continues with why he should recuse himself. Saying he appointed Gleeson to advance his own personal agenda. He's ignoring the materials provided by DOJ on the record recently.

She also objected to him allowing the filing yesterday by Strzok's attorney, one of the dirtiest FBI agents ever.

"If you want to file a motion to recuse - you probably should have filed it - file a motion." He's giving her a week to file it.

She says she will file it. Sullivan asks what her next point it.

Sidney consulting her notes.

She's objecting to JS's assertion that Flynn refused to cooperate in the VA case; she says the govt asked him to lie (Van Grack) and that he could not do that (also Van Grack threatened Flynn), referencing edits to plea papers.

Sidney has other arguments; Sullivan says he'll give her a chance later. Asks if Gleeson has objects tot he summary. Gleeson says he thinks Sullivan did a great job with the summary.

Sullivan ask Gleeson to put on the record whether they have discussed the case outside of the court. Gleeson says no.

Sullivan now asking DOJ what the next steps would be if he denies the motion. Would it be the motion to withdraw? He wants to know the status of the DOJ's discussions with the law firm Covington on the ineffective assistance issue.

Mr. Kohl now responding; Motion to Withdraw has not been resolved yet. Reminding judge that such motions are to be liberally granted, quoting Sullivan's language that he would not accept pleas from someone who didn't think he was guilty.

Kohl saying they did do review of Covington file and claim of threats to son. There was some discussion in an email of an "understanding" that the son would not be prosecuted and limiting the use of that information.Says it's concerning; something the court would need to look at.

Mooppan jumps in to say the withdrawal issues further emphasize the reason why the dismissal motion should be granted; they don't intend to prosecute this case.

JS asking if DOJ knows of any case on all fours with this one. This is a phrase lawyers use to mean "exactly" the same.

Kohl now reminding the judge of a notorious set of cases in our courthouse where the agent had stolen drugs (coke or heroin, I can't remember) for his own use if I recall correctly and DOJ had moved to dismiss cases where people were serving sentences when those facts came out.

Sullivan says he of course remembers those cases. He's saying he'll read any opinions on those cases if there are any, but he doesn't remember there being opinions. Kohl is agreeing with that; Sullivan says he will double check.

Mooppan says there are no precedents to deny the motion either.Sullivan asking about dismissing with our without prejudice.Mooppan says they are asking for w/prejudice.
He says that part is not a matter of constitutional law. (I don't agree with that.) But he's trying to placate.

Sullivan now asking about the uncharged criminal conduct in the plea - this is the FARA conduct, not the false statements. He's asking whether a future AG could charge that & whether w/ or w/o prejudice would affect that. Says not to read too much into his questions necessarily.

Mooppan conceded that the FARA charge would be separate from the false statement charge legally. (This is probably right.) Kohl agreeing.

But Kohl is pointing to language and changes to it in the plea papers that changed the intent language on the FARA claim; says some of what was presented to Sullivan is not all that it appears & that the VA federal judge had problems with it too.

Sullivan now asking about the materiality because of his findings of materialty in the Brady motion (which Sidney didn't ask to reconsider). Mooppan saying the issue legally for prosecutorial discretion is whether DOJ thinks of the materiality, not whether sufficient for a jury.

Kohl (who is doing a great job) says that factually the record is different now than then when Sullivan ruled. He points to questions that Sullivan asked at the sentencing hearing. He says what matters is "what is actually true."

He says it is Sullivan's questions that have unraveled the case - properly. This is similar to what we argued in our brief - that Sullivan's order on Brady is what has brought the problems to light. Kohl is a soothing presence in the hearing. He's an old hand.

He's taking Sullivan through some of the facts that undermine the materiality - that have come out since Sullivan ruled. Pointing out that FBI itself did not think the interview was RELATED to the investigation. How then can it be material?

Relying on Barnett's independent assessment that after reviewing the transcripts there is nothing wrong with the calls with Kislyak so how can it be related to the investigation?

Now mentioning Priestep's questions about what is our goal? Kohl saying this is a red flag that there is a problem with the interview? Why is the FBI doing an interview then. Getting someone fired is not the FBI's job.

Says Gleeson's arguments basically assumes materiality. If Gleeson's questions are so relevant, why didn't the FBI agents explore those issues?

Further followup was deemed unnecessary, so how can Gleeson's arguments be material.

Since these facts are so "all over the map" it raises the definite issue of whether there was in fact any real investigative purpose to the interview. He says they can't prosecute because someone is connected if there's no evidence.

Sullivan saying wouldn't it have been more appropriate to file to reconsider the motion to dismiss for the Brady claim. He spent 100 pages on his ruling on it. Why didn't they just file a pleading saying we've got new evidence & think the case is bad. (Isn't that what they did?)

Kohl is going a GREAT job here. Saying the more we did the review - because of your great Brady order Judge! - the more we became convinced that the actual facts did not support the allegation of crime in the plea.

Kohl talking about the case agents saying the National Security Letters were investigatively unnecessary and they are saying it's a mess. Denies they are "Monday morning" quarterbacking; it's just that new evidence has come out.

He also points to Jocelyn Ballentine being on the case the whole time; she is career. Kohl ends with: we just genuinely think that there is a problem with this case.

Sullivan saying this isn't like Ted Stevens case; he went to trial & asserted his innocence. Kohl says yes, but they took a hard look at the evidence at the point they got it, which was post plea, but the question is still what can we prove. The IG has gutted all our witnesses.

Sullivan addressing Aitan Goelman's letter of yesterday saying there are interlineations in the documents filed. He wants a certification from the government about those documents. "Unsettling."

JS asking whether he should take DJT's Twitter comments into consideration. (Says he couldn't do Twitter if he had to.) Mooppan representing that the AG had confirmed he didn't rely on them.

Mooppan says DJT's tweets are an opinion about whether the prosecution is just; it's not on the evidence. DJT is agreeing with DOJ's view on that issue. Sullivan wants to know what weight to give them or disregard them or caselaw from other courts about how to handle Tweets.

Kohl saying the further we get from the facts and evidence, the more problematic it is. The way to do it is to look at the evidence; that's what drives the decision.

Sullivan asking about not one of the SCO lawyers not signing on the motion to dismiss. Jocelyn is with the US Attorney's Office and Van Grack withdrew. Mooppan says to give this no weight. The decision is a considered decision by DOJ that is all that matters.

Mooppan telling Sullivan that the staffing on the pleadings is really within the Separation of Powers issue and the court should give that no weight.

Sullivan asking why he should weigh Fokker heavier than Ammidown. Isn't the Rule 48 discussion dicta?

Mooppan says the discussion of RUle 48 in Fokker is part of the holding, citing Supreme Court cases explaining the scope of the holding vs. dicta. Ammidown is the opposite - the Rule 48 discussion there is dicta.

Boom! Mooppan also says Ammidown is from the 70s and the VERY NEXT YEAR, the Nixon case came out saying the dismissal power is exclusively for the executive.

Sullivan asking about history of Rule 48 leave of court language.

Mooppan saying he doesn't disagree with the actual history, but it involves cases where the prosecutor is going rogue, not the "considered" decision of the Executive branch.

Sullivan giving Gleeson a chance to talk now. Gleeson saying he'll answer the question about basis of court's discretion to rule on a Rule 48 motion, but he also has a lot of things to say and hopes Sullivan will let him say it.

Gleeson rambling. He's trying to address everything the DOJ lawyers were saying all this time. He's talking about the FARA issue now. He sounds to me like he's worried that Sullivan is going to grant; he may be reading the room wrongly.

Gleeson saying as amicus he does not have a view on whether the dismissal should be with or without prejudice.

He says Ammidown was not overruled "sub silencio" by Fokker (yes it was, actually.)

Gleeson confirming Sullivan does not need an evidentiary hearing.

Gleeson saying the case is obviously pretextual. He says he's not prone to hyperbole.

Gleeson says he can't believe some of what he's hearing. Says Flynn plead guilty twice. Says people who don't hang around federal courts don't get the solemnity of the guilty plea. You can't do what Flynn did. That is wrong; you can absolutely move to withdraw your plea.

Gleeson thinks Sullivan should give "a lot" of weight to the tweets.

Gleeson seems offended that Flynn had the audacity to change his position. That is an inappropriate response from a judge. When the facts change, so does the legal answer - as Kohl has been saying. Gleeson saying all the new/different reasons are evidence that it's a pretext.

Gleeson's reasoning is just flawed - new reasons ipso facto mean the reasons are flawed/pretextual/corrupt. This is logically wrong and paranoid.

Gleeson mentioning "hundreds" of tweets & re-tweets by DJT. Quoting DJT tweets & interviews now "Maybe he didn't lie" DJT said. Basically if you're Gleeson whatever a person says, even if they're misinformed or were misled by others, what they say is "the truth." This is naive.

Gleeson now just stirring the pot; his florid Trump Derangement Syndrome on full display. He's clearly offended by DJT's inflamatory style. Based on that, he extrapolates that the motion is corrupt. "The only inference" Sullivan can draw is they yielded to pressure.

Sullivan saying he's going to put their arguments on the record now. He has other questions. Wants them to address the Ammidon/Fokker divide. Gleeson first, then Sidney, then DOJ since they are the moving party.

Gleeson: starting with Ammidown/Fokker. Says DOJ's argument about Separation of Powers is blind because it mistakes the procedural posture. Says the dismissal has the power to tarnish the third branch (the courts) by involving it. This argument is legally wrong.

The dismissal neither involves nor tarnishes the courts. The whole point is that its a PURELY executive branch function. That's DOJ's argument. The court doesn't have a role so it doesn't tarnish it.