Will expand on hearing later after I have some time to digest notes, and hopefully a transcript appears quickly. But I do have an odd thought that I would not have had before the hearing ... the outcome might end up going someplace here beyond this panel.
And this is not necessarily good for Gen. Flynn. I think its possible that the Panel rules 2-1 for Flynn, and Judge Henderson writes an opinion that sends the matter back to Judge Sullivan but with some very limiting instructions on what "standard" he can apply...
And that "standard" dramatically narrows the scope of his intended inquiry. BUT, by issuing such a "standard", Judge Henderson would create an opportunity for the full court to step in and take the matter en banc to consider whether they all agree on her standard.
The en banc court, dominated by Dem. appointees, could then create a much more favorable standard to Judge Sullivan's intentions, and allow much broader inquiry into the DOJ decision-making behind making the motion.
That decision would then be subject to potential appeal to SCOTUS. I'm not sure they would take it up. SCOTUS might look at it and think "We need to see how this standard plays out in district courts before we decide whether it is, in fact, a "separation of powers" problem.
Which means that Sullivan would have the ability to conduct the hearing in the manner he wants to conduct it -- and at the end of the day I think he ends up granting the motion to dismiss, but only after conducting the spectacle DOJ is trying to avoid.
Shipwreckedcrew had this very interesting exchange with Gary Wheeler:
Judge Henderson is the swing vote. Early on, she indicated that she was inclined to wait (deny the writ) and see what Judge Sullivan does. But her last question to the Government lawyer about the executive branch self-correcting should give Flynn some hope.
The fact that she [threw] it in at the very end with a question to Wall is very significant IMO. Its a basis for her to stake out Art II separation of powers basis to grant writ without even touching the "standard" from "leave of court."
Wall stuck the landing.