Sidney raises all the liberty harms to Flynn and urges the court to see the case for what it really is and put an end to it.
Wall says he "feels a bit rope-a-doped!" He points out how WB just keeps minimizing everything she's said before about the factual development. This is very strong language from an appellate lawyer. It's basically accusing the other lawyer of lying. He finds WB dishonest (I agree).
Wall urges the court to issue the writ, saying that what Sullivan clearly plans to do is outside the lines and inappropriately pits the Executive and Judicial branches against each other and the Court should not permit that.
The case is submitted. They will now retreat into their ivory towers and debate what to do. There is no way to tell when they will decide it.
My gut reaction is that they aren't going to issue the writ. Of course, I thought that the last time too & they did. Henderson and Rao are still on board with the writ, but Wilkens, Rogers, Tatel, Millett, Pillard, and Garland at least I think are not.Griffith may be a no also.
Of course, "not issuing the writ" does NOT (necessarily) mean giving Sullivan a free rein.
On the Flynn hearing tomorrow, August 11, in the DC Circuit -— Techno Fog (@Techno_Fog) August 10, 2020
A link to get to the live audio stream (9:30 am EST) can be found here:https://t.co/yTwKCET6oy https://t.co/q2ha3F82BG
Must see viewing...LOTS of judges asking questions and Sullivan's lawyer arguing "he's a judge...he can do anything he wants!" or "he's a party, but a special one,' but then again, "he's not a party, he's a judge!" and, "like Peter Strzok, he may have sounded biased, but he never let it affect his work!" haha
ReplyDeletefyi only- Source No. 2 identified...not a joke....
ReplyDeletehttps://twitter.com/FOOL_NELSON/status/1292495349974798336/photo/1
Oh dear. Looks like the origin of "golden shower" fantasies has been solved.
DeleteHere's the link to the oral argument: https://www.youtube.com/channel/UCa63PLarrn0AmtHw-ooYtuw
ReplyDeleteAlso, you can go to the DC Circuit's web site, then select Case Information, Oral Arguments, & Today
I guess we know how Garland's going to vote.
ReplyDeleteI just tuned in (audio only?). Who is male lawyer giving argument to court?
ReplyDeleteThat is probably Jeff (?) Wall from SG office.
DeleteAs a woman, I am appalled at the bitchy tone of the female judge I am listening to right now. Name wasn’t clear….
ReplyDeleteI believe Judge Millett.
DeleteJohn M. Reeves
ReplyDelete@reeveslawstl
·
23m
In listening to the Flynn en banc oral arguments thus far, I am constantly struck by one thing:
Not a single one of the DC Circuit Judges appear to seriously believe that it would be proper for Judge Sullivan to deny the DOJ's motion to dismiss the Flynn prosecution.
This link identifies who is speaking:
ReplyDeletehttps://www.c-span.org/video/?474473-1/michael-flynn-perjury-dismissal-case-rehearing&live&vod
It appears that what's going on is that the judges in questioning the government and Flynn attorneys are focused on propriety of the mandamus at the stage that it took place, nature of the hearing that might be allowable re motion to dismiss, stuff like that.
ReplyDeleteWhen they question Sullivan's lawyer I'm guessing that they'll get into the issue of: What does Sullivan think his role is--does he think he's a party or what? Wall for the government did get into that a bit.
Remember--the court can deny the mandamus but still come out with a ruling favorable to Flynn in many other ways and which would pretty much shut the whole thing down quickly. That's why Reeves stressed that none of the judges appeared to think denying the motion to dismiss would be proper.
So, as discussed, this may end up being the court trying to figure out the best way to put a stop to this mess that Sullivan has created, without trying to make new law or set precedents they may later regret. None of that is really lib v. conservative.
We shall see.
Judge Wilkins is a screaming nincompoop.
ReplyDeleteRob S
From what I'm seeing Wall seems to be doing a terrific job.
ReplyDelete>> Techno Fog
Delete@Techno_Fog
·
1h
Flynn Hearing -
US Acting Solicitor General Jeff Wall discusses the decision to dismiss the charges:
"The AG sees this in context of non-public information."
"It may be possible that the AG had before him information that he was not able to share with the Court." <<
>> https://twitter.com/Techno_Fog/status/1293203265291718656 <<
A possible clue of things to come...
It's a very sound argument. It rests on the scope and authority of the executive power in our constitutional order. Judicial power doesn't extend to all such discretionary matters.
DeleteI was watching on CSPAN until it broke away for a pro-forma congressional gaveling in.
ReplyDeleteWhen questioning Ms. Powell, several judges passed. Those that did question were Garland, Griffith, Pillard, Millet, and Wilkinson; maybe a couple others, but not to the degree these judges did.
With Acting Solicitor Wall, they seem to like setting up hypotheticals rather than dealing with the case in hand, with Garland actually using the hypothetical of the executive spending money that congress has not appropriated. Do you think Trump left a mark with his latest executive orders?
DJL
Wilkinson has not made her case.
ReplyDeleteNo. And I'll point out that the female judge you were mad at earlier is now giving her a very rough time.
DeleteGood! I lost the live feed when the pro forma session intervened. Not hearing same things at time you are. I just heard Judge Henderson pull the rug out from under Wilkinson. Henderson is not the one disapproved of.
DeleteMy feed finally got to Millett. Shrill but unimpressive (though she was once considered to be top talent for a Dem Supreme Court nomination) I wasn’t “mad” at her. I just thought her shrillness to be inappropriate in someone in her position.
DeleteI'm disgusted that the queries about "what will stop Sullivan from witch-hunting" weren't more aggressive.
DeleteThey let Wilkinson get away with "I see no plans for that".
At minimum, they should've probed on:
"why shouldn't we stipulate, that if Sullivan does any more than a *minimal* probe into specified legal aspects, we'll then automatically give Powell all the relief she could ever dare seek"?
The drift, that Sullivan was anything other than a super-partisan hack, did nothing to repudiate the System's current rep for being lackeys of the DS etc.
Why doesn't idiot Sullivan read the evidence the DOJ posted. There is more than enough there to dismiss the plea deal.
DeleteRob S
Because. Orange Man bad.
DeleteApologies--I'm off to the dentist. A temp crown came off, need to have it reglued.
ReplyDeleteThe one with the transceiver or the cyanide?
DeleteGriffith is wrong about "with leave of court" in a case the prosecution, with concurrence of the defense, seeks to dismiss with prejudice. When that is the case, the judiciary is in fact a "rubber stamp". It is nothing more than a formality at that point. But Griffith's ego clearly cannot accept that there are circumstances when a judge is not omnipotent and has no discretion.
ReplyDeleteGriffith: a George W. Bush appointee.
ReplyDeleteWill Chamberlain comments that he has never heard of an Appellate hearing running 4 hours.
ReplyDeleteThinks court will take the middle exit ramp: deny mandamus on narrow, procedural grounds to forestall future premature Mandamus motions clogging the docket, but writing an order that puts Sullivan (or his replacement if he is DQ'd) in a judicial straight-jacket that compels him to stay between the lines and simply accept the motion to dismiss, without holding hearings and trying to fondle/second guess DOJ's justifications for dismissal.
If I had to guess, that's where I'd come down. It appeared to me that in the questioning they were essentially probing to find a good exit. As Reeves pointed out, none of the judges seemed aggressively anti-Flynn. Rather, they were uncomfortable with going the mandamus route before a ruling on the order, while aware that the problem was caused by Sullivan. Most of the judges seemed aware that trying to investigate the Executive Branch's motives for dismissal is a no-go area.
DeleteDID DQing Sullivan for being a "party" get argued convincingly? No account I've seen addresses that question, which I think is the easiest exit ramp for the Appellate court
DeleteI believe Rao raised that.
DeleteIt was discussed obliquely a few times, but then near the end of Sullivan's presentation, a judge, I believe Rao, brought it up directly asking about his status, and when Sullivan's lawyer denied he was a party, the judge noted that he had filed the request for rehearing under Rule 35, which is only available to a party, and there was some tension in the exchange. It's like a blizzard in July to have a major proceeding in Fed appellate court without a firm basis for it under the Rules, so this was a major deviation from normal procedures, just to have the hearing! In fact, most courts of appeals don't even give oral arguments to most full-blown appeals of cases anymore. They have to be specially requested and the court has to find some reason it wants it in a particular case.
DeleteThey've allowed Sullivan to put them in the position of being unable to make everyone happy--and no doubt the SCOTUS has had an eye cocked on this circus. IMO, the mandamus was perfectly justified on the basis that the procedure begun by Sullivan was an infringement on the Executive's discretion.
DeleteSo whats next? The court issues something, in several weeks is what I expect.
ReplyDeleteMandamus seemed to be sticking in their craws. Did they get enough to support dismissal? I don’t see how they can let Sullivan get away with his turning prosecutor with Gleeson.
ReplyDeleteIt's not mandamus as such. It's mandamus before a ruling has taken place. Wall did an excellent job explaining the SoP issue that makes mandamus reasonable in this case, but the court doesn't want to appear to encourage mandamus petitions. The Gleeson appointment, however, raises all sorts of red flags that they know they can't ignore, IMO.
DeleteDQing Sullivan for making himself a "party" is the cleanest exit for the Appellate court, as it is 1) a slam dunk, and 2) it moots the Mandamus motion, obviating the need for the court to deny it.
DeleteProblem: It's not the result that the Dem judges' political masters want.
Delete"the court doesn't want to appear to encourage mandamus petitions."
DeleteThen they should discourage judges from creating extraordinary circumstances requiring extraordinary remedy.
The mandamus concern is a smoke screen- it's totally discretionary, and they just ignore the vast majority of them anyway. If thousands filed for them tomorrow, they'd just ignore them all, or maybe have a clerk do a one-liner denying them. Making them seem like such a huge deal could have been theater? Also, today's hearing was discretionary- if they had ignored Sullivan's petition for rehearing, the panel order would have just gone into effect on its own the following week. This case is so unusual, it's not going to set precedent, cause there will always be a way to distinguish it from any other case!
ReplyDelete"If thousands filed for them tomorrow, they'd just ignore them all, or maybe have a clerk do a one-liner denying them."
DeleteI agree. Shipwreckedcrew has repeatedly made that argument--that they'd be overwhelmed with petitions. For many reasons I don't buy it. OTOH, I can see why judges would want to get it right and not create a precedent. All of this, to me, illustrates the political corruption of our judiciary. Everyone knows this isn't really about the law, and in any impartial judicial setting Sullivan would have been shut down immediately. The obvious solution would have been to disqualify him long ago for 1) bias and 2) ignorance ("treason").
I was also wondering if anyone saw a parallel between the use of the extreme hypothetical with slightly-partisan, au courant facts by Wilkins at the panel hearing, and the others at today's hearing? Does it seem odd for judges to rely on a hypothetical that's completely off-point for so long in a hearing, rather than just to illustrate a distinct point?
DeletePerhaps he's not the sharpest tool in the shed.
DeleteOn Dobbs today, Sidney said that the DoJ etc. had never been denied a motion to dismiss, but I don't recall her making that point in the hearing.
ReplyDeleteIf she is right on that, it sure is, ahem, pertinent.
Did I miss something?
1. DOJ has 100% right to dismiss. This prosecution will be dismissed. Eventually. The current proceedings are all political and all about delay. There are no (zero) substantive issues.
ReplyDelete2. To get a mandamus, DOJ and Sidney need a majority of the 10 judge en banc court. That's 6 judges. There are only three Republican-appointed judges on the panel. And Griffith is suspect. There simply can't and won't be six votes for mandamus. Since mandamus is a discretionary remedy, denying it will do little or no violence to the Court's 'reputation' or jurisprudence. Even though Judge Rao will write a scathing dissent, joined by Judge Henderson. I doubt any other judge joins. But it doesn't matter.
3. The majority will send the case back to 'Judge' Sullivan for a hearing on the Government's motion to dismiss, perhaps with instructions articulating the narrow basis of a district judge's scope of inquiry on a hearing on a prosecution's motion to dismiss a criminal case.
4. There will be no need to rule on whether 'Judge' Sullivan is a party or has standing, or violated the applicable rules relating to asking for an en banc hearing. Nor will the Court necessarily rule on the appointment of Gleeson, etc. They're all moot.
5. 'Judge' Sullivan will not be disqualified.
6. By its actions in ##3, 4 and 5 above the Court will do as little violence to 'Judge' Sullivan's reputation as possible (under the circumstances). It will have simply ordered him to hold the hearing.
7. It may take a few weeks for the en banc Court to issue its opinion (with dissent). 'Judge' Sullivan will take a week or two to set down a hearing date and order the parties to submit briefs. The foregoing process could take a month to six weeks and by then we'll be in late September. 'Judge' Sullivan will then take a couple weeks to rule.
8. If 'Judge' Sullivan can he will find ways to push this out beyond November 3 and, if necessary, the Court of Appeals will cooperate. Ultimately granting the Government's motion to dismiss is political dynamite...for two reasons. One, it contributes further to the utter destruction of the Russia Collusion hoax and two, it frees Flynn to campaign for Trump without the shadow of a guilty plea to felony charges.
9. But the Dem judges are playing with fire here, hoping they can somehow minimize the damage to Biden's campaign by punting. Its a dicey game because one could argue that taking the hit now (during the August so-called doldrums) is a better bet than taking it later during the heat of the campaign.
They will use every trick in the book to push beyond November 3.
I can't argue against any of the above and won't try to. However, I agree that this is playing with fire.
DeleteAlso, Barr may yet have something to say about any of that, before Sullivan rules, and a new Trump administration may also.
Uncharted waters. We haven't seen the judiciary so at odds with the Executive since early in the New Deal. They blinked then, and assuming Trump is reelected may find themselves in that position again, including CJ Roberts, he of the 'what Obama judges?'
Similarly, Durham and Barr will have to manoeuvre around inevitable Dem claims (screams?) of prosecutorial interference in a national election.
DeleteAs much as I am hoping for devastating indictments from Durham sooner than later, I'm somewhat resigned to the likelihood that vindication will come, if at all, after the election.
This is one reason (among many) why winning the White House, the Senate and the House of Representatives is of transcendent importance.
I've been making regular donations to Trump (who every day asks for more :-)) as well as selected out of state Congressional candidates in tough races. I'm open to doing more, but I live in a Red State where there will not be any close contests...
One more thought about Flynn. In the meantime, Flynn has wrongfully been a defendant in a felony criminal case where he was accused, basically, of conspiring with Kislyak (Putin) to undermine our Government. It is utterly clear now that there was no basis for this prosecution. Yet the United States Courts refuse to stop this travesty. There's your political travesty.
Transendent importance. Dittoes.
Delete"DOJ and Sidney need a majority".
DeleteNo, I understand them to win on a 5-5 vote, as it takes a majority to *override the original* panel's ruling.
If it actually takes a few weeks for the en banc Court to issue its opinion, or if they send the case back to Sullivan, and don't give him a firm deadline (e.g. one week), that'll be a big Tell, that they indeed aim to punt it past 3 Nov.
Given how many knowledgeable folks are following this case like hawks, such a punting approach would indeed be playing with fire, so I have some hope, that this court will seek a way to dodge that fire.
I read that, too, and it's confusing. My understanding is that the en banc rehearing isn't a review of the panel's decision but is a de novo hearing--as if the panel had never heard the case. I frankly don't know.
Delete@Mark
Delete@Mouse
I honestly don't know for sure, either, how many votes it will take. But I'm pretty sure the en banc Court *vacated* the 3 judge panel's ruling. That means it is of no further force and effect. So it would take six judges de novo to enter a mandamus. Maybe there's a real federal appellate lawyer here who knows.
Regardless, I don't think Sidney's got 5 judges or even four. Maybe not even three.
Regardless, the important voice at this point isn't Sidney's, but the voice of the Executive Branch, as represented by the Solicitor General. Jeff Wall did an excellent job yesterday. We can only wait and see.
DeleteJeff Wall was superb. He should have been and should be. He's got the law and the Constitution on his side. I hope Barr names him Solicitor General.
DeleteBut the defendant who is being screwed is Michael Flynn, whose lawyer is Sidney Powell. And it is Sidney whose skill, courage and tenacity has gotten Flynn to this point.
And who in due course will achieve a landmark dismissal in United States v. Flynn.
I take no pleasure.
Deletelet the indictments flow
DeleteSeeing as Mark is a Chicago guy, he may be quite struck by this post by CPD officer Marty Preib, comparing SparkleFart's jihad vs. Flynn, with Lefty practice in similar situations in the Second City (see
ReplyDeletehttp://www.martinpreib.org/rainbo2hotmailcom/2020/5/6/perjury-Trap-of-general-Flynn-rooted-in-Obamas-hometown-2aTLq-Jp4XB ):
"Chicago can be seen as a *laboratory*, from which the public can understand the methods and motives of the national corruption, that took shape under Obama’s administration....
... the movement to arbitrarily *create criminals* out of public servants, in much the same way it appears the Obama administration did to General Flynn, has long been a powerful tactic in Chicago’s political machine.
Over the course of the last three decades, elected officials, law firms, activists, and a corrupt media machine, have *overturned dozens* of murder convictions, on the most *ludicrous* claims of police misconduct....."
He goes on to explain details, of the assault on Det. Reynaldo Guevara's work, in solving the murders of Jacinta and Mariano Soto.