THREAD re: @GenFlynn hearing.
1) Based on yesterday's hearing, I predict that Judge Sullivan will not only DENY the DOJ's motion to dismiss the case, but will do so BEFORE the election. (cont) @SidneyPowell1 @McAdooGordon @RonColeman @ProfMJCleveland @MarinaMedvin

2) The DC Circuit's en banc opinion denying mandamus made it all but explicit that they expected Judge Sullivan to grant the motion to dismiss, and to do so "with appropriate dispatch." I do not believe Judge Sullivan fully appreciates what the DC Circuit meant by that.

3) While I believe Judge Sullivan interprets the phrase "with appropriate dispatch" to mean he should hand down a decision before the election, Judge Sullivan does not seem to think the DC Circuit expects him to grant the motion in the first place.

4) This is, frankly, stunning, but the nature of his questioning yesterday demonstrates this to be the case. Fokker is crystal clear that a judge may NOT deny a mtd bc he disagrees with the reasoning of the govt or questions the motivations of the govt.

5) Yet Judge Sullivan's entire questioning yesterday focused almost exclusively on the Govt.'s reasoning for seeking dismissal. This is a TEXTBOOK--and I truly mean TEXTBOOK--example of something Fokker and the Separation of Powers doctrine forbids.

6) Even more incredibly, I think Judge Sullivan honestly does not believe the DOJ will seek mandamus following his denial of the motion to dismiss, even though the DC Circuit opinion strongly indicates that they could do so and would most likely grant mandamus in that instance.

7) If Judge Sullivan denies the DOJ's mtd before the election, there is NO QUESTION the DOJ will seek mandamus in the DC Circuit, and it is practically guaranteed the DC Circuit will GRANT mandamus in that context.

8) The ONLY reason the DC Circuit denied mandamus the last time was bc, in their view, Judge Sullivan had not yet ruled one way or the other on the motion. Once Judge Sullivan denies the motion to dismiss (as I expect him to do), we are in a whole new ballgame.

9) Caselaw is CRYSTAL CLEAR that mandamus is appropriate when a trial judge denies the Govt.'s motion to dismiss a criminal case. This is a universally-recognized principle in federal appellate law, not a "conservative" or "liberal" reading of the law.

10) I honestly do not think the DC Circuit, in denying mandamus last time, expected Judge Sullivan to go down the path he did yesterday. The entire oral argument audio, and the opinion itself, focused on how there was no guarantee Judge Sullivan would do what he did yesterday.

11) Now, all bets are off. I can literally see in my mind the DC Circuit judges who denied mandamus listening to Judge Sullivan's questioning yesterday and cringing on a level worse than anyone who listened to last night's Presidential debate may have cringed--with good reason.

12) The DC Circuit offered Judge Sullivan a way out to save face, but he has apparently not recognized its invitation to do so. It is now INEVITABLE that, when and if Judge Sullivan denies the motion to dismiss, the DOJ will seek mandamus, and obtain it.

13) And even if Biden should win the election, this should not deter the DOJ from seeking mandamus. Per the 22nd Amendment, "The terms of the President and Vice President shall end at noon on the 20th day of January..."

14) Thus, even if Biden wins in November, he will not become President until noon on January 20, 2021. Until that exact moment, Donald Trump will be the President, and thus vested with "the executive power."

15) Despite what some people would like to believe, the "executive power" includes the prosecutorial power of the DOJ, and as such the President is the one vested with such executive power. U.S. Const. Art. II, Sec. 1. The DOJ is NOT a sort of "fourth branch" of govt.

16) Thus, nothing would prohibit the DOJ from continuing its mandamus case seeking dismissal of the @GenFlynn matter even if Biden were to win the election.

17) To be clear--in discussing this, I am NOT predicting who will win the presidential election. I am simply discussing whether a Biden win would have any LEGAL effect on a DOJ mandamus petition prior to Jan. 20. It wouldn't.

18) And I cannot see how any court could deny mandamus on the ground that a new, incoming administration may wish to take a different route with the prosecution. Until a new administration comes in, it has no "executive power." Legally speaking, this is all that matters.

19) Thus, I predict that Judge Sullivan will deny the DOJ's motion to dismiss, and that the DOJ will seek mandamus, and will continue to seek mandamus even if Biden wins, up to and until January 20, 2021. There is more than enough for a ruling before then.

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