https://mobile.twitter.com/McAdooGordon/status/1271498745683771397
Leslie McAdoo Gordon
@McAdooGordon
That is clear from numerous things that Judges Henderson & Rao said, & I think even Wilkins, who was the most antagonistic to the DOJ/Flynn position generally. Debating the scope of Sullivan’s right to review isn’t going to change the ultimate answer for any of them.
The other thing that made this clear is how Sullivan’s counsel, Beth Wilkinson, backpedalled vigorously in the argument from what’s in her brief. To hear her at the argument, you would think Sullivan just has a couple of questions. Face with rolling eyes That is not what her brief says!
The DOJ lawyer hammered that at the end, giving the judges the specific pages in Wilkinson’s brief where she laid out a broad scope of inquiry. Wilkinson all but disavowed that in her argument because the judges all generally agreed Sullivan can’t “2nd guess” DOJ.
So, the question for the court is: if the court isn’t a “rubber stamp” to DOJ in this situation, but also “can’t 2nd guess” DOJ either, then what in the world is the standard? Shockingly, I predict they won’t answer that question! Upside-down face
What they should do is grant the mandamus & tell Judge Sullivan to grant leave to dismiss. DOJ is right that any inquiry by Sullivan into DOJ’s decision making violates the separation of powers. Based on today’s argument, I think the chances of that are close to zero, however.
What I think they will probably do is deny the mandamus, but write an opinion that says they of course expect Sullivan to follow Fokker, which they will save gives him a right to review the DOJ’s motion, but they won’t say how or to what extent his inquiry can go.
That decision lets Sullivan hold the hearing on July 16th & make a ruling on the motion. If he grants the motion for leave to dismiss, that’s the end of the case. If he denies it, Flynn will file another mandamus petition & the chances that one gets granted are close to 100% imo.
The upshot is that what the Court of Appeals has done by requiring Sullivan to respond to the mandamus petition & holding this argument today is to *informally*, rather than formally as DOJ requested, lay down some ground rules.
These informal rules are: 1. DOJ can (and probably will now) refuse to accede to any request or demand from Judge Sullivan that it thinks violates the separation of powers. This is stunning because in general, the Gov doesn’t want to directly flout a judge. It won’t be shy now.
2. Sullivan should ignore the craziness that Gleeson gave him as “advice” in his amicus brief. He also should limit his review of DOJ’s motion to avoid invoking a separation of powers problem. (Since they aren’t saying where that line is, good luck everyone figuring that out.)
3. Flynn has to suffer the expense/stress of the case continuing because that’s just how the cookie crumbles. (The Courts of Appeals really do not care about this issue. Ever.) But, if Sullivan doesn’t do right & give leave to dismiss, he can file for mandamus again & succeed.
From the Court of Appeals point of view: problem solved. Flynn will get his dismissal; DOJ can stiff-arm the judge; Sullivan saves face if he takes the hint & conducts a sober hearing & doesn’t rule the “wrong” way ultimately; the Court doesn’t have to rule now, but can later.
The “only” problem with this outcome is that: (1) it undermines their precedent in Fokker, (2) it’s unfair to the defendant & DOJ, & (3) it leaves open the possibility that Sullivan doesn’t take the hint & they have to fix a bigger mess later than the one they have now.
THank you for posting that - I was going to later today when I had time and you beat me to it.
thanx for the recap steven w.
missed anything on it today.
It's infuriating that Judge Sullivan is still dragging this show out, now a month since the DoJ withdrew the charges.
It seems like you probably listened to the oral arguments, which were live-cast on the net this AM. For anyone else who would like to listen to the audio of the hearing: This post over at the Conservative Treehouse has this link which in turn contains the full audio.
One commentator over there, John Comnenus, who I'm not familiar with, made a couple of other good points:
The simplest way to fix this is for Durham to hurry the heck up and bring some charges against van Grack or Strozk for framing General Flynn. Maybe Durham and Barr could look out the window and see that the Left is destroying the country. Undoubtedly the Inability of anyone to hold to account the most senior police and law enforcement officials for corruption is emboldening everyone else on the the Left. They break the law and act with impunity. If Durham doesn’t hurry up there won’t be a functioning country left.Time to bring the offense into the game. Thanks again for your post and analysis.By the way, were the judges here really sending a message to Barr that you ain’t going to win your cases against Comey, MCCabe etc in Washington DC. Durham can charge whoever he wants, but I bet no Washington DC jury will find anyone guilty regardless of how compelling the evidence is.
Obama broke America & it looks increasingly unlikely it can be put back together.
If the ploy is for the DS to delay Gen. Flynn from stepping in to a position of authority prior to the election in November then all these quasi-legal shenanigans make some modicum of sense; and shows the depths these anti-constitutional fellow travelers will go to achieve their dirty ends... and raises the question of why there are so few of the good guys willing to get down in the mud with these creeps.
You had to know when Sullivan pulled this ludicrous legal maneuver and brought in the big legal gun from on high that the fix was in. I suspect there will be no resolution until DJT either wins or loses in November.