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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.