Case no:20-5143 In re: Michael Flynn
Listen to the hearing here.
From neal katyal to Everyone: (8:32 AM)
Thanks so much for joining George and me today as we cover the Michael Flynn oral argument, about to take place in our nation’s second highest court. We’ll be hearing today from Sidney Powell, Flynn’s lawyer, as well as from Jeff Wall, the Deputy U.S. Solicitor General. Both will argue that Flynn’s prosecution should be dropped and that the trial judge (Emmet Sullivan) should grant the dismissal of the prosecution. They believe the Judge erred by appointing an amicus (friend of the court) to argue what DOJ would ordinarily argue – that the prosecution should be maintained. Beth Wilkinson, one of America’s top trial lawyers, will be representing the Judge in court today, arguing that the Judge acted appropriately.
If you want to focus on comments by George and me, and not the listeners, reminder to double tap the center of your screen and that should move the comments down. Another way to do it is to swipe the comments down. On android phones we’re told it doesn’t quite work, in which case you may have
From George Conway to Everyone: (8:32 AM)
This should be interesting. The key here for this argument is the procedural posture. As we were discussing, the district judge hasn’t decided anything other than he’s going to hear argument on the motion.
From neal katyal to Everyone: (8:33 AM)
A word about the 3 judges hearing the case today. Karen Henderson was nominated by Reagan in 1986 to the U.S. District Court for the District of South Carolina and by H.W. Bush in 1990 to the D.C. Circuit. Before that, she worked in private practice in North Carolina and then in the Office of the Attorney General for the State of South Carolina. She recently voted to dismiss the McGahn subpoena case. Henderson wrote a concurrence arguing the following:
“I join Judge Griffith in concluding that, under United Sates Supreme Court precedent, the Committee lacks standing. I am reluctant, however, to endorse what I view as McGahn’s catergorical stance. In his swing for the fences, McGahn has passed up a likely base hit. First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. ...
From neal katyal to Everyone: (8:34 AM)
Judge Robert Wilkins was nominated by President Obama in 2010 to the U.S. District Court for the District of Columbia and then in 2013 to the D.C. Circuit. Before joining the D.C. Circuit, Judge Wilkins spent a great deal of his career working at the D.C. Public Defender Service, first as a staff attorney and then as Special Litigation Chief. He then became a partner at Venable in 2002, where he specialized in white collar defense, intellectual property, and complex civil litigation. I think that Judge Wilkins overlapped with Judge Sullivan at the district court, working at the same court for four years, if memory serves.
From George Conway to Everyone: (8:34 AM)
The only unusual aspect is his appointment of a former juicy to argue the side that the parties (Flynn and the DOJ) aren’t arguing, which is that the court should deny the motion to withdraw the guilty plea and dismiss the case.
From neal katyal to Everyone: (8:34 AM)
And finally....
From neal katyal to Everyone: (8:34 AM)
Judge Neomi Rao was nominated by president Trump to the D.C. Circuit in 2019. Before that, she worked at the Office of Information and Regulatory Affairs at OMB and was a professor at Antonin Scalia Law School. Since joining the D.C. Circuit a year ago, Judge Rao has already ruled for the Trump Administration rather consistently. She dissented from the D.C. Circuit’s decision allowing the House Judiciary Committee to see certain confidential documents from the special counsel investigation. She also voted in the majority to allow the Trump Administration to move forward with the first federal executions since 2003. She also dissented in the D.C. Circuit decision allowing various House Committees to subpoena Trump’s financial records. I could go on…
From George Conway to Everyone: (8:34 AM)
Judge, not juicy lol
From George Conway to Everyone: (8:35 AM)
And that, IMO, should be fatal to the mandamus petition in the court of appeals because (1) judges clearly have the power to hear arguments on what they should do an (2) the parties can always appeal if they think the judge ultimately decides the motion wrongly.
From neal katyal to Everyone: (8:36 AM)
Right now Judge Wilkins is talking, asking about a prior precedent
From neal katyal to Everyone: (8:37 AM)
Wilkins is right now really focusing on the procedural posture -- as George reminds us, this is a mandamus petition -- an extraordinary request to interrupt what a trial judge is doing and run to the court of appeals
From neal katyal to Everyone: (8:37 AM)
I'm going to summarize here what the case is about for those who missed George's great description a few minutes ago on camera
From neal katyal to Everyone: (8:38 AM)
Factual Background: On December 1, 2017, Michael Flynn—President Trump’s first national security adviser--pleaded guilty to one count of making materially false statements to the FBI in violation of 18 U.S.C. Section 1001. First, he admitted to lying about conversations he had with Russian ambassador Sergey Kislyak about sanctions the Obama Administration had imposed on Russia for interfering in the 2016 election. Flynn claimed to the FBI that they did not discuss the sanctions when, in fact, they had discussed the sanctions, Flynn had advised Russia not to escalate the situation, Kislyak agreed, and Flynn reported this information back to senior officials in the Trump transition team. Second, Flynn admitted to lying about conversations he had with Russia and officials from other countries regarding a UN Security Council resolution condemning Israeli settlements. He claimed he simply asked them what their votes would be when, in fact, he had requested that they vote against the resolution.
From neal katyal to Everyone: (8:38 AM)
Finally, Flynn admitted to lying in government documents about the extent of his work for the Turkish government. Flynn admitted repeatedly both in writing and orally before the District Court that he had made these false statements, and Judge Sullivan repeatedly found that Flynn’s lies were material. The government filed multiple memoranda and briefs asserting the seriousness of Flynn’s conduct.
In late 2019 and early 2020, Flynn requested that the Attorney General review the case for alleged Brady violations and then requested fifty categories of documents and information from the government and requested that the case be dismissed based on the alleged Brady violations. Judge Sullivan denied the motion. In early 2020, Flynn submitted a sworn affidavit contradicting his prior sworn statements, claiming his innocence, and moving to withdraw his guilty plea. He claimed that he pled guilty because of intense time pressure and pressure from the Special Counsel’s Office.
From neal katyal to Everyone: (8:38 AM)
In May 2020, the government’s lead prosecutor filed a notice of withdrawal, and later that day, the government filed a motion to discuss the information against Flynn with prejudice. After spending two years claiming that Flynn’s lies to the FBI were material, the government claimed that the lies were not material. Judge Sullivan appointed former prosecutor and retired federal district judge John Gleeson as amicus to present arguments in opposition to the government’s motion to dismiss and to address whether the court should issue a show cause why petitioner should not be held in criminal contempt for perjury. Flynn then filed a petition for a writ of mandamus in the D.C. Circuit.
From George Conway to Everyone: (8:39 AM)
Flynn’s lawyer is arguing.
From neal katyal to Everyone: (8:39 AM)
Mandamus is an extraordiny thing. You are going to hear a lot about it – it’s essentially a legal move that allows someone to go to the court of appeals – even while trial court proceedings are going on – and order the trial judge to do something. If that sounds unusual, it’s because it is. DOJ routinely OPPOSES mandamus because criminal defendants all the time want to stop their trials and complain about an error. This whole litigation in the DC Circuit is beyond unusual.
From George Conway to Everyone: (8:39 AM)
That is the key.
From neal katyal to Everyone: (8:40 AM)
Flynn's lawyer just said no court has ever denied a 48a request from the govt. That's not quite true. The 5th Circuit en banc in US v. Cox said it was inappropriate to dismiss the prosecution -- the controlling opinion said ultimately the judge may have to do so--but is permitted to inquire into any nefarious activity by the prosecutor
From neal katyal to Everyone: (8:40 AM)
The whole idea of Rule 48 is to shine sunlight on govt corruption or wrongdoing. And that's what stinks here -- Flynn and now DOJ are trying to shut down an investigation before it happens
From George Conway to Everyone: (8:40 AM)
Article III courts under the Constitution can only decide live controversies. And Flynn’s lawyer is arguing that because
From George Conway to Everyone: (8:41 AM)
Both parties agree on what should happen, there is no case or controversy for the court to decide.
From neal katyal to Everyone: (8:41 AM)
This is an impt question-- I think from Judge Henderson -- she's asking why Flynn can't just come back after the trial court rules in Flynn's case. This is critical
From George Conway to Everyone: (8:41 AM)
that is indeed critical
From neal katyal to Everyone: (8:42 AM)
To get mandamus, Flynn has to explain why NOW is impt. His lawyer's answer didn't cut the mustard -- she said the trial judge has no authority to proceed. That argument can be made in EVERY criminal case. Mandamus is for the extraordinarily rare case
From George Conway to Everyone: (8:42 AM)
The problem is that Flynn’s lawyer’s jurisdictional argument proves too much, even apart from the high standard of mandamus. It would mean that you’d never be able to settle a civil case with a court order. It might even mean a court can’t take a guilty plea.
From neal katyal to Everyone: (8:43 AM)
waste of resources is some gumption after 2 years of plea
From George Conway to Everyone: (8:44 AM)
This argument is wrong also because courts have jurisdiction to decide whether they have jurisdiction.
From neal katyal to Everyone: (8:44 AM)
Again, all of the lawyer's answers here are the same things every deft argues -- you can't get mandamus for any of this. Judge Wilkins is right that this is a "run of the mill" request in a high profile case
From George Conway to Everyone: (8:44 AM)
In fact, the district judge has an affirmative obligation to consider carefully whether he has jurisdiction.
From neal katyal to Everyone: (8:44 AM)
George's point here is impt -- a court always has jurisdiction to examine whether it has jurisdiction. Judge Sullivan should be able to launch an inquiry to figure out what powers he has.
From George Conway to Everyone: (8:45 AM)
On the question whether the judge can appoint an amicus, Flynn’s position isn’t supported by the opinion from Justice Ginsburg she’s discussing.
From neal katyal to Everyone: (8:45 AM)
It's not unusual for a federal court to appoint amicus (friend of the courts). Indeed, when the Justice Dept throws in the towel in criminal cases in the supreme court, the court appoints someone to argue what the prosecutor would have otherwise argued
From George Conway to Everyone: (8:45 AM)
The Supreme Court and other courts in fact appoint amicus curiae all the time. Exactly.
From neal katyal to Everyone: (8:45 AM)
I did it myself when I ran the Solicitor General's Office.
From neal katyal to Everyone: (8:46 AM)
So far this lawyer is doing nothing but making her case weaker.
From George Conway to Everyone: (8:46 AM)
The case that Flynn’s lawyer is talking about was one in which the Ninth Circuit went through great lengths to get someone to make arguments on behalf of one side that that side didn’t make. It was extreme.
From neal katyal to Everyone: (8:46 AM)
Question from Judge Rao-a recent Trump appointee. Very smart judge, though she's written some very questionable opinions in her little time on the bench
From George Conway to Everyone: (8:47 AM)
Courts very frequently appoint amici when one side switches sides and the Court is still being asked to do something. Example: A wins in the court of appeals in a case against B.
From George Conway to Everyone: (8:48 AM)
B takes the case to the Supreme Court, and A then says, I don’t care about the case any more and I’m not filing a brief.
From neal katyal to Everyone: (8:48 AM)
Judge Rao is perhaps trying to do damage control here -- she's saying the judge may be able to appoint an amicus to look at whether Flynn engaged in contempt of court. It's a bit of a red herring because the amicus has filed his brief and said contempt shouldn't be filed against Flynn. So it's a bit of a false compromise, not behind the veil of ignorance
From George Conway to Everyone: (8:48 AM)
The Supreme Court will appoint an amicus, because the case is still live, because B is asking the court to do something—reverse the decisino. Exactly right, Neal, the contempt issue doesn’t matter.
From neal katyal to Everyone: (8:50 AM)
The goal of oral argument is to change a mind. So far this hasn't done that, and in fact may have hurt her cause with her allies
From George Conway to Everyone: (8:51 AM)
These “facts” that Flynn’s lawyer’s argument are distorted. But they are also irrelevant to the issue before the court of appeals.
From neal katyal to Everyone: (8:51 AM)
But the Trump Deputy Solicitor General Jeff Wall will argue soon. He's an incredibly gifted advocate
From George Conway to Everyone: (8:51 AM)
The fact is, Flynn lied. He admitted to a court twice that he lied. And the suggestion that Flynn was tricked is absurd.
From George Conway to Everyone: (8:52 AM)
He acknowledged to the deputy FBI director before the interview that he realized the FBI had transcripts of Kislyak’s calls.
From neal katyal to Everyone: (8:52 AM)
George, as usual, exactly right. Very hard to get around Flynn's lies
From neal katyal to Everyone: (8:52 AM)
And also from an intelligence perspective -- the Russians knew he had lied, since they were the party to the conversation. So they had massive blackmail over him. Not investigating would have been a complete dereliction of duty.
From George Conway to Everyone: (8:53 AM)
He knew that because he was a sophisticated national security professional. He was well aware that the call was likely recorded and transcribed by the US government.
From neal katyal to Everyone: (8:53 AM)
Flynn had convos with Kislyak, the Russian ambassador, saying he'd try to moderate sanctions, he then lied to the FBI about it, the US had intercepts of the convo documenting the convo with Kisylak (which came out a couple of weeks ago in transcript), and so the Russians knew they had this over Flynn.
From George Conway to Everyone: (8:54 AM)
And he had to have known full well that it’s a crime to lie to the FBI.
From neal katyal to Everyone: (8:54 AM)
And Flynn wasn't a nobody -- he was the President's National Security ADviser. One of the 2 or 3 most impt positions in the entire executive branch!
From George Conway to Everyone: (8:54 AM)
Exactly, Neal: by lying to the Vice President and the FBI, he opened himself up to blackmail, because the Russians knew the truth.
From neal katyal to Everyone: (8:54 AM)
When I was in the govt, the National Security Adviser was a step under God.
From neal katyal to Everyone: (8:54 AM)
It's outrageous to think that the FBI shouldn't have investigated this.
From George Conway to Everyone: (8:55 AM)
Trump fired Flynn because he lied to Pence. And Flynn told exactly the same lies to the FBI. Judge Henderson pointed out that in one of the cases that Flynn and the US rely on, the court of appeals appointed an amicus curaie oops
From George Conway to Everyone: (8:56 AM)
curiae t
From neal katyal to Everyone: (8:56 AM)
Again, this is Judge Wilkins asking how far Flynn's argument about amicus briefs goes
From George Conway to Everyone: (8:57 AM)
He’s picking Flynn’s lawyer apart.
From neal katyal to Everyone: (8:57 AM)
I've placed some info about each judge at the top of our chat
From George Conway to Everyone: (8:57 AM)
And she’s overstating what the judge did in appointing former Judge Gleeson.
From neal katyal to Everyone: (8:57 AM)
Judge Rao trying to throw a lifeline to Flynn lawyer now
From George Conway to Everyone: (8:57 AM)
He’s not being appointed as a special prosecutor. There is also no rule prohibiting the appointment of an amicus.
From neal katyal to Everyone: (8:58 AM)
This theory would mean can't have amicus briefs when DOJ confesses error Jeff Wall, Trump Deputy Solicitor General just begininning
From George Conway to Everyone: (8:58 AM)
Wall is from the Solicitor General’s office and argues on behalf of the United States He will soon be Acting Solicitor General Like Neal was! Again they are focused on a case called Fokker
From neal katyal to Everyone: (9:00 AM)
This is getting very in the weeds. I'm not sure it's advancing the ball much.
From George Conway to Everyone: (9:00 AM)
That case addresses the standard under Rule 48 for dismissing cases
From George Conway to Everyone: (9:01 AM)
But that doesn’t go to the question of whether in the district court here gets to decide how Rule 48 applies in this case—what Fokker means And the judge gets to decide that.
From neal katyal to Everyone: (9:01 AM)
Exactly, and it's quite an overreading to say Fokker means dct can't evaluate case first before deciding what to do
From George Conway to Everyone: (9:02 AM)
Judge Wilkins question just nailed the right point
From neal katyal to Everyone: (9:02 AM)
Judge Wilkins just asked that question Yes!
From George Conway to Everyone: (9:02 AM)
Exacty—why doesn’t the judge get to decide if you are right about rule 48 and Fokker
From George Conway to Everyone: (9:02 AM)
If Wall is right, you’d be able to file mandamus petitions anytime the law was clear
From neal katyal to Everyone: (9:03 AM)
Wall says there would be harm from an inquiry. What kind of world do they want? One where the prosecution can just do anything -- after a deft pleas guilty -- and the court can't inquire?
From George Conway to Everyone: (9:03 AM)
You’d get to preempt judges all the time
From neal katyal to Everyone: (9:03 AM)
Oh yes, absolutely George. We haven't even got to mandamus. That makes this argument even more absurd.
From George Conway to Everyone: (9:03 AM)
and mandamus would be the norm and not the extremely unusual exception Because frankly, most of the time, district courts are applying clear legal principles
From neal katyal to Everyone: (9:03 AM)
And to think that DOJ is supporting this -- when there are 1000s of criminal defendants who want to file mandamus in the middle of their criminal trials for Brady violations, lack of jurisdiction, etc, is ridiculous
From George Conway to Everyone: (9:04 AM)
The fact is, though, that the law isn’t clear here in the way that Flynn and the DOJ suggest Which is why they are trying to short circuit the judge by filing for mandamus
From neal katyal to Everyone: (9:04 AM)
Right, and for mandamus the right has to be clear and indisputable.
From George Conway to Everyone: (9:04 AM)
They are afraid the judge might write a strong opinion against them.
From George Conway to Everyone: (9:04 AM)
At least that’s my speculation or suspicion about why they are doing this
From neal katyal to Everyone: (9:05 AM)
Wall trying to say only this amici is improper, but I don't see why. It would mean courts can't appoint amici when DOJ confesses error. That's a very established practice Avoiding a public spectacle is not a mandamus standard And the public spectacle was created by his boss! Judge Rao again with a lifeline--asking Wall to explain what the harm really is
From neal katyal to Everyone: (9:07 AM)
Wall's argument is so disrespectful to district ct -- calling it intrusive -- before even letting the judge conduct it. This makes very little sense--the normal thing to do is let the judge do it, and then it can be reversed on appeal if there's a problem.
From George Conway to Everyone: (9:08 AM)
Exactly
From neal katyal to Everyone: (9:08 AM)
It's also such a weird argument. Because the amicus has accused DOJ of serious misconduct, that's why the district court can't inquire? If the amicus said "oh, it's only moderately bad," then Wall would say "not enough to justify an inquiry." Catch 22.
From neal katyal to Everyone: (9:09 AM)
Jeff is an extraordinary advocate, but this is an embarrassing oral argument. It's an absurd position, at odds with decades of law.
From neal katyal to Everyone: (9:11 AM)
The issue here is this: Flynn already pled guilty. The best case the government has, Fokker, was not about that. The argument the Judge is making here is that once a defendant pleas guilty, control over that turns from the Executive to the Judiciary.
From George Conway to Everyone: (9:11 AM)
These are all fine arguments to make—before the district court
From George Conway to Everyone: (9:11 AM)
The district court gets to decide this in the first instance.
From neal katyal to Everyone: (9:11 AM)
nice, George
From George Conway to Everyone: (9:11 AM)
And none of this strips the district court of power to hear these arguments as to why it should dismiss the case. Especially the argument that there’s no jurisdiction.
From George Conway to Everyone: (9:12 AM)
It’s a fundamental principle of judicial jurisdiction that even if the court doesn’t have jurisdiction over a case, it has the jurisdiction to decide whether it has jurisdiction.
From neal katyal to Everyone: (9:12 AM)
Note that in 4 minutes, IG live will go down momentarily. You'll have to resign on -- just like when you signed on the first time this morning. Hit my IG live story button again, and it'll bring you right back. I'll cue you when
From George Conway to Everyone: (9:13 AM)
And if the court wants to hear argument over whether it has jurisdiction, it has the power to do that. And in essence, that’s all the district judge has done.
From George Conway to Everyone: (9:14 AM)
If he denies the motion, then the gov’t and Flynn can argue he didn’t have the power to do that and didn’t have jurisdiction by then filing a mandamus petition or taking an appeal.
From neal katyal to Everyone: (9:14 AM)
Odd that mandamus hasn't even been discussed with Wall yet
From George Conway to Everyone: (9:14 AM)
yes
From neal katyal to Everyone: (9:14 AM)
Again, Wall says no appellate court has reversed, but US v. Cox is to the contrary -- en banc 5th circuit
From neal katyal to Everyone: (9:16 AM)
OK, in about a minute IG Live Story will sign off. Please just re-sign on again just the way you did this morning. Definitely come back -- as Beth Wilkinson coming up! She's Judge Sullivan's lawyer, it will be really interesting!
From neal katyal to Everyone: (9:17 AM)
So again, when you are kicked offjust hit the circle on my Instagram page (the one that's the picture of the Black Lives Matter DC mural). Welcome back to George Conway and I covering the hearing of Michael Flynn.
From neal katyal to Everyone: (9:19 AM)
In the gap, there was a colloquy by Judge Wilkins of whether courts can police nefarious activity by prosecutors under Rule 48. Wall is leaning very very heavily on the DC Circuit in Fokker, seems way overread.
From neal katyal to Everyone: (9:21 AM)
Wall is being slippery here, saying a court can't force or maintain a prosecution. But what the Judge is doing is understanding the language "with leave of court" to make sure there's nothing nefarious when a pleas is dropped. That's why US v. Cox so impt -- the court says you can't force a prosecution, but a court can inquire into corruption/discrimination/improper action by prosecutors. Wall isn't answering that at all.
From George Conway to Everyone: (9:21 AM)
I agree, but most important is that Fokker doesn’t get them around the strict rules about mandamus. It doesn’t entitle the parties to go around the district judge and straight to the Court of Appeals under the current circumstances, which is before the district judge has decided whether the parties are right.
From George Conway to Everyone: (9:22 AM)
So most of this argument is beside the point now. This is what they should be arguing before the district judge.
From neal katyal to Everyone: (9:22 AM)
Totally George. It's weird that we've gone so long with no mandamus questions for Wall--whereas Flynn's lawyer got a lot. Maybe they will come.
From George Conway to Everyone: (9:22 AM)
Sometimes judges don’t ask questions about the obvious because its so obvious
From neal katyal to Everyone: (9:23 AM)
If not, there are 2 reasons: a) the judges have already made up their minds, as the questions to Flynn's lawyer suggested -- that mandamus isn't met; or b) they've changed their minds in the last half hour.
From George Conway to Everyone: (9:23 AM)
The fact that the judges can ask these pointed questions about the government’s position on the merits makes clear that there’s no mandamus to be had
From neal katyal to Everyone: (9:23 AM)
Yes, a) is the more likely outcome. But I think it's very strange that we've not had mandamus q yet. To remind readers/listeners--mandamus is the procedural writ Flynn has tried to use here. woah, Wilkins goes there
From George Conway to Everyone: (9:24 AM)
I love this line of questioning
From neal katyal to Everyone: (9:24 AM)
If prosecutor doesn't prosecute a white cop because they are racist, what is the remedy? court powerless?
From George Conway to Everyone: (9:25 AM)
The question for the government—are you saying that any form of impropriety is beyond bounds for the district court to investigate
From George Conway to Everyone: (9:25 AM)
the government’s position on the merits has two problems:
From neal katyal to Everyone: (9:25 AM)
Wall distorts question. Judge Wilkins is admitting court can't force prosecution, but it can hold case in limbo so prosecutors reevaluate
From George Conway to Everyone: (9:26 AM)
(1) Rule 48 says “leave of court” meaning it’s not automatic and the court gets to exercise discretion
From neal katyal to Everyone: (9:26 AM)
Yes, otherwise rule 48 is meaningless. I don't think Jeff is answering the question.
From George Conway to Everyone: (9:26 AM)
(2) once the case is filed, and especially once the plea is taken, it’s no longer just a question of prosecutorial discretion Because the court’s power has been invoked
From neal katyal to Everyone: (9:27 AM)
Judge Henderson coming on mandamus now
From George Conway to Everyone: (9:27 AM)
And it becomes a judicial question, not just a question of executive decisionmaking Which is why Rule 48 says what it says.
From neal katyal to Everyone: (9:27 AM)
This is very bad news for Jeff Wall, Trump, and Flynn
From George Conway to Everyone: (9:27 AM)
Yes, this is very bad.
From neal katyal to Everyone: (9:27 AM)
"No one has found a case where mandamus has issued, where the dct hasn't acted."
From neal katyal to Everyone: (9:28 AM)
Reminder this is Judge Henderson, a conservative judge that Trump really needed to win this case
From George Conway to Everyone: (9:28 AM)
If I were Beth Wilkinson (who is arguing for the judge here) I would say, your honors, if you grant mandamus here, you’ll find it very difficult to deny mandamus in the future
From neal katyal to Everyone: (9:28 AM)
"drastic remedy that mandamus is" "I don't see why we don't observe regular order and allow" the judge to rule on July 16
From George Conway to Everyone: (9:28 AM)
And you will be flooded with mandamus petitions that litigants will file when they are afraid a judge may rule against them
From neal katyal to Everyone: (9:29 AM)
This is exactly, ladies and gentlemen, what George and I have been saying the whole time.
From neal katyal to Everyone: (9:30 AM)
Jeff's answer is to try to grant mandamus that take an inquiry into what DOJ did off the table. Um, that's exactly the point of what Rule 48 and this inquiry is -- they are so terrified of having to explain their actions in court. It's Soviet.
From George Conway to Everyone: (9:30 AM)
It cannot be sufficient harm for a mandamus petition for parties to point to the cost of briefing and arguing a motion to do something that the rules say requires leave of court
From George Conway to Everyone: (9:30 AM)
Intemperate amicus??? What?
From neal katyal to Everyone: (9:30 AM)
DOJ is saying -- "block the trial court from inquiring into what we did."
From George Conway to Everyone: (9:30 AM)
These are all fine arguments to make to the district judge And Henderson is saying exactly that Judge Henderson “Shouldn’t he be allowed to do that?” EXACTLY.
From neal katyal to Everyone: (9:31 AM)
This argument is thoroughly unconvincing. Wow.
From George Conway to Everyone: (9:32 AM)
Yes, the judge should get to decide a motion whether to grant leave under a rule that says that granting the motion requires “leave of court." Henderson is clearly the second vote to deny the petition for mandamus.
From neal katyal to Everyone: (9:33 AM)
Wilkins excellent point -- there is no mandamus petition by the govt.
From George Conway to Everyone: (9:33 AM)
Wilkins and Henderson aren’t buying this. So it’s at least 2-1. As Neal pointed out above.
From neal katyal to Everyone: (9:33 AM)
wall's explanation here is gobbley gook. My oh my.
From George Conway to Everyone: (9:33 AM)
Well, in Jeff’s defense, he’s got nothing.
From neal katyal to Everyone: (9:34 AM)
Exactly. Great oral advocate. Nothing based in the law for him to argue though.
From George Conway to Everyone: (9:34 AM)
Jeff is terrific and a good friend.
From George Conway to Everyone: (9:34 AM)
But he’s taking one for the team here.
From neal katyal to Everyone: (9:35 AM)
Totally. But this isn't a circumstance in which a lawyer has to do whatever a client asks. These are really positions that are fundamentally at odds with the long-term litigating interests of the United States. They benefit one person: Donald Trump -- and his friend and ally, Michael Flynn. That's really unfortunate.
From George Conway to Everyone: (9:35 AM)
This is part of the problem with Trump. He’s forcing the DOJ to take terrible, indefensible positions with such great frequency.
From neal katyal to Everyone: (9:35 AM)
DOJ has the strongest of interests in not watering down the mandamus standard, because every criminal defendant wants to interrupt their criminal trial, claim their rights are violated, and run to the appeals court.
From George Conway to Everyone: (9:36 AM)
And the courts of appeals have a similar problem. There is a historic reason why mandamus is so difficult.
From neal katyal to Everyone: (9:36 AM)
Henderson ices the point -- Fokker was really different, as the district court already acted. It hasn't here. There's just no answer. Let the process play out.
From George Conway to Everyone: (9:36 AM)
The Judicial Code (title 28 of the US Code) has very specific limitations on when you can take things up to the Court of Appeals That should be the “regular order” we should be talking about. Wow Rao is expressing skepticism This could be unanimous How embarrassing that would be to the DOJ
From neal katyal to Everyone: (9:39 AM)
Jeff is putting a lot of weight on idea that this isn't a "regular" proceeding. I don't see why, or the votes for that.
From neal katyal to Everyone: (9:39 AM)
Judge Henderson has said its an 'extraordinary" case -- which Jeff is conflating with his "irregular" point. Judge Henderson keeps using that word. I don't think it means what Jeff Wall think it means.
From neal katyal to Everyone: (9:40 AM)
Judge Henderson is asking about adequate remedy at law. This is another way of expressing George's point -- if you have an issue, you can deal with it on appeal later. That's your adequate remedy.
From George Conway to Everyone: (9:40 AM)
Right. If the court denies the motion and then starts holding a trial on Bill Barr’s good faith, they could file a mandamus on that It’s just premature
From George Conway to Everyone: (9:42 AM)
What’s interesting is that in the district court, the court-appointed amicus is arguing that the motion should be denied simply because the government’s basis for supporting the dismissal is pretextual Citing the Supreme Court’s decision in the census case
From neal katyal to Everyone: (9:42 AM)
Jeff's answer again is that he's scared of the inquiry. It's fundamentally unAmerican -- the idea that there can be sweetheart deals from the President and DOJ, and courts are powerless to uncover it -- particularly when the target has already pled guilty to the offense 2x.
From George Conway to Everyone: (9:42 AM)
So even if the government loses below, it might not be because the court is inquiring into the DOJ’s deliberative process.
From neal katyal to Everyone: (9:42 AM)
Beth Wilkinson now up.
From neal katyal to Everyone: (9:42 AM)
She's representing the Judge here.
From George Conway to Everyone: (9:43 AM)
In mandamus cases, the district judge is technically the “respondent,” and therefore a party. So it’s not uncommon for the judge to ask a lawyer to make the arguments against mandamus.
From neal katyal to Everyone: (9:43 AM)
She's an extraordinary trial lawyer, one of the very best. She doesn't do much in appeals courts.
From George Conway to Everyone: (9:44 AM)
Beth is arguing exactly that regular order is for the district court to decide first. Exactly the point we were making above. She is properly focusing the court of appeals on the narrow issue before it.
From neal katyal to Everyone: (9:44 AM)
Judge Rao asks first q: there's no controversy since both sides agree.
From George Conway to Everyone: (9:44 AM)
Beth is destroying the no-case-or-controversy argument now
From neal katyal to Everyone: (9:45 AM)
But that's true every time the Justice Dept confesses error -- they agree a prosecution should be dropped. And yet, the court appoints an amicus and argues the position DOJ would have ordinarily argued. It's very standard practice
From George Conway to Everyone: (9:45 AM)
Exactly.
From neal katyal to Everyone: (9:45 AM)
Also, what about plea agreements? Courts have the power to review them -- even if both sides agree. And they can throw a plea out. Or a civil settlement.
From George Conway to Everyone: (9:46 AM)
The answer to judge Rao’s question is that if the district judge denies the motion and enters a sentence, that would involve a final judgment. And that would be appealable.
From neal katyal to Everyone: (9:47 AM)
Under Jeff's theory, and Flynn's, George, what does Rule 48 mean? Why have "leave of court" in there? I don't understand what work it would do
From George Conway to Everyone: (9:48 AM)
These questions are interesting for Beth, because she can’t argue that the judge should do x or y—only the there’s a question for the judge to decide. Only that
From George Conway to Everyone: (9:48 AM)
So she can’t say that the other side is completely wrong but just that the judge gets to decide and he has discretion
From neal katyal to Everyone: (9:49 AM)
The history of Rule 48 is very much on her side.
From George Conway to Everyone: (9:49 AM)
Exactly right, Neal. The rule could have been written to say that the case is automatically dismissed upon the request of the government.
From neal katyal to Everyone: (9:50 AM)
The Supreme Court when it wrote the rule in 1944 referred to a recent case where the court rejected a prosecutor's confession of error. It said it must ensure what happened in the criminal proceeding protects the “public interest” in “promot[ing] a well-ordered society.” Young v. United States, 315 U.S. 257, 259 (1942).
From George Conway to Everyone: (9:50 AM)
There are unilateral provisions like that in the rulebooks
From neal katyal to Everyone: (9:50 AM)
And this is where I think Jeff has really overread Fokker (and Flynn's lawyer).
From George Conway to Everyone: (9:50 AM)
You can dismiss your own petition in the Supreme Court without leave of court at any time just by filing a single sheet of paper
From neal katyal to Everyone: (9:51 AM)
Fokker said a court could deny a motion to dismiss a criminal charge if there were “clear evidence” that the prosecutors had failed to “properly discharge[] their official duties,” page 741
From George Conway to Everyone: (9:51 AM)
you can dismiss your own complaint in a district court without leave of court before the other side has answered
From neal katyal to Everyone: (9:51 AM)
And here, the judge is trying to figure out if we are in that zone or not
From George Conway to Everyone: (9:51 AM)
Beth is making exactly the right argument: To decide whether the government is acting in accordance with regularity the court needs to hear argument.
From neal katyal to Everyone: (9:52 AM)
Judge Rao asks about the "presumption of regularity," a general doctrine that presumes that govt acts in normal ways. (I have to confess every time someone in the Trump era invokes the Presumption of Regularity it's like referring to a manual typewriter).
From George Conway to Everyone: (9:52 AM)
You don’t decide it before having briefing and argument.
From neal katyal to Everyone: (9:53 AM)
Even though Beth isn't an appellate lawyer, she's quite a fantastic one. She's coming right to the point.
From George Conway to Everyone: (9:53 AM)
And a very important point that Beth is making here:
From neal katyal to Everyone: (9:53 AM)
Exactly.
From George Conway to Everyone: (9:53 AM)
That the court-appointed amicus isn’t saying the court should hold a hearing.
From George Conway to Everyone: (9:54 AM)
The answer to Rao’s question is that the amicus is representing the public interest in having an adversarial presentation to the court so that the court can hear all the arguments and get things right
From neal katyal to Everyone: (9:54 AM)
Beth makes the confession of error point about amicus, and the supreme court. Excellent.
From George Conway to Everyone: (9:54 AM)
Yep.
From neal katyal to Everyone: (9:55 AM)
Dickerson was a criminal case So are most all confessions of error.
From George Conway to Everyone: (9:55 AM)
The problem that the Ginsburg opinion that Flynn’s counsel relied on is that there there was adversarial presentation—but the Ninth Circuit didn’t like the quality of it.
From George Conway to Everyone: (9:56 AM)
Even when there is adversarial presentation from the parties, a court can allow an amicus to present argument. The Supreme Court does it all the time in allowing the US to argue as amicus curiae dozens of times a year.
From George Conway to Everyone: (9:56 AM)
It even did it with a private amicus in one of the gun cases When it allowed Paul Clement to argue on behalf of an amicus There’s nothing wrong with that.
From George Conway to Everyone: (9:58 AM)
And even if the court hadn’t appointed an amicus, there would have been amici seeking to file briefs (in fact I joined an amicus brief) I joined an amicus brief before the district court in the case—I should have mentioned that before
From George Conway to Everyone: (9:59 AM)
Beth is making an important point here. There is a case or controversy because the district court is being asked to undo its own decision.
From neal katyal to Everyone: (10:00 AM)
Beth's argument may come off as a little bloodless -- about rules, mandamus, etc. But one important thing here is for the court to have the power to make sure that something really nefarious hasn't happened -- when someone who is deeply politically connected pleas guilty twice and then DOJ changes its view.
From George Conway to Everyone: (10:00 AM)
And that’s no different than the situation we discussed above when someone takes an appeal from a lower court decision and no one is opposing the appeal. There’s still a case or controversy and sometimes courts appoint amici in order to hear adversarial argument.
From neal katyal to Everyone: (10:01 AM)
George--since the President can pardon Flynn, how is the Executive power ra-ra song that Judge Rao pushes, and that Jeff Wall insists on, threatened? I don't get it. President still has full power
From George Conway to Everyone: (10:01 AM)
Beth’s argument is bloodless simply because this mandamus petition in the end presents an incredibly narrow and simple question
From neal katyal to Everyone: (10:01 AM)
I agree as to why the argument is bloodless. I was just explaining to folks what is at stake I'm very curious what you think of my pardon question, George
From George Conway to Everyone: (10:02 AM)
It doesn’t, Neal. The government’s power here is the power to ask the court to dismiss. The power to dismiss is vested in the judge because it’s a case properly before the judge. That’s the proper separation of powers analysis.
From George Conway to Everyone: (10:03 AM)
There’s no answer to your pardon point.
From neal katyal to Everyone: (10:03 AM)
The government has 2 powers here, George, right, not one. One is rule 48 dismissals--and that's encumbered by "leave of court." But the other is article 2 pardon power. That doesn't have the same encumberance. So I don't understand how any of this can infringe on Article 2 presidential powers.
From George Conway to Everyone: (10:04 AM)
Exactly. The executive power doesn’t include the power to require the court to exercise its discretion in a particular way.
From neal katyal to Everyone: (10:04 AM)
It would, of course, force Trump to act like a leader and do it himself, instead of having Barr do the dirty work for him.
From George Conway to Everyone: (10:05 AM)
It includes the power to argue to the courts that they don’t have discretion to deny a motion.
From neal katyal to Everyone: (10:05 AM)
But that's all about, ironically, what the unitary executive theory is all about. It's what Jeff Wall was saying about the President being accountable. Yes, he can exercise his power and be accountable through it -- through the pardon power
From George Conway to Everyone: (10:05 AM)
Or to appeal an improper exercise of discretion. So Flynn’s lawyer is now arguing in rebuttal. She’ll only have a couple of minutes here.
From neal katyal to Everyone: (10:06 AM)
Flynn's lawyer is summing up. George and I will be on camera, on this channel on IG, right after the argument to analyze a few things.
From neal katyal to Everyone: (10:07 AM)
So stay tuned on here. We'll keep it to a few minutes of reax Rebuttals are not supposed to be speeches reaffirming your prior stated views. They are supposed to go after the best arguments by the other side. This isn't.
From neal katyal to Everyone: (10:08 AM)
Wow, amicus rebuttal. Don't see that usually.
From George Conway to Everyone: (10:09 AM)
Jeff is now going back to the merits. He’s avoiding the mandamus standard as much as possible.
From neal katyal to Everyone: (10:09 AM)
Again, I think he had to start with mandamus.
From George Conway to Everyone: (10:09 AM)
Now he’s getting to it.
From neal katyal to Everyone: (10:09 AM)
That's the ball game, and to stack it to the end is very telling
From George Conway to Everyone: (10:10 AM)
yep
From George Conway to Everyone: (10:11 AM)
It’s hard to see what the harm is—because the briefing is essential already done In the district court. All that’s going to happen now is an argument like this one in the district court. And that isn’t much of a harm.
From neal katyal to Everyone: (10:12 AM)
Judge Henderson's last question is interesting. Not sure what to make of it.
From George Conway to Everyone: (10:12 AM)
So Henderson threw Wall a favorable question there.
From George Conway to Everyone: (10:12 AM)
But she was much more pointed about the mandamus standard.
From neal katyal to Everyone: (10:13 AM)
This argument in the end didn't seem particularly close. We'll break it down on camera momentarily. Stay tuned, right here!