I believe my Filing to the District Court [BRIEF AMICUS CURIAE SUPPORTING *PARTIAL* DENIAL OF THE GOVERNMENT’S MOTION TO DISMISS] may have impacted the oral argument conducted on Friday in the Appellate Court; as noted in a prior blog, recall that it was based on the ToI essay published a week ago.
Recall that copies thereof remitted via e-mail to 11 attorneys who obviously overlap, so it’s possible that its unique existence could influence the proceedings; candidly, my goal remains to provide Judge Sullivan an “exit ramp” after he documents the inability to sentence Flynn for “Perjury,” mirroring what he did after discovering DoJ errors when Senator Ted Stevens was inappropriately prosecuted.
[To be clear, know that this was sent to the District Court because Sullivan had invited multiple Amicus briefs; the Appellate Court hadn’t solicited anything and, thus, I would have been forced to file a motion to seek an “appearance” and then to justify why a pro se applicant was suddenly emerging. Here, because the three attorneys who argued the case during the Friday colloquy had been recipients of the Filing that had been remitted two days prior, the anticipated effect was to affect what might soon transpire.]
In contradistinction to the prior posting, this will not recapitulate the extensive set of Internet citations that encompassed a spectrum of viewpoints, including 22 from one author that aggressively argued that Mandamus should be granted; instead, it’s preferable to review how the event was portrayed.
Before getting into the “weeds” of the proceedings, it is VITAL to share a crucial ObamaGate revelation; newly declassified “Annex A” demonstrated that Obama and his cronies knew the debunked dossier at heart of unlawful surveillance (leaked to the media) lacked verification (and was BULL) well before they used it AND well before Mueller took over the Russia probe.
K.T. McFarland posited that Comey tried to emulate J. Edgar Hoover when trying/failing to blackmail Trump; she also feels the “Walls are coming in on Trump conspirators” and that Flynn Will Be a ‘Free Man’
If there Is justice.
Returning to Flynn, a partisan wistfully concluded, “Judge Sullivan and Deep State Attorneys Argue Government can continue to charge you, hide evidence, fine you and bankrupt you AFTER charges [have been] Dropped”; liberal Jonathan Turley was felt to have torched Judge Gleeson’s “breathtaking” arguments.
But these two anticlimactic observations are less subject to scrutiny than are the analysis of oral argument (which Flynn was felt to have won) and the handicapping of the Circuit Court that concluded, “It All Comes down to one judge.”
Based upon the C-SPAN-2 audio/transcript, I still feel the Appellate Court will remand the case rather than granting the Mandamus; whereas “everyone” feels this will yield development of the theme in Sullivan’s brief that might justify sustaining a contempt charge, I still feel quotes from all three judges reflected knowledge of the law (as I covered tersely in my essay) that allows Judge Sullivan to preclude functioning solely as a “potted plant.”
A friend commented on the aforementioned/extensive debate-summary and I replied with a personal distillation of what was being said in real-time; both of our observations were consistent with the recap of the hearing c/o at Lawfareblog AND with how the RedState blogger mellowed overnight.
Legal “junkies” may choose to listen to the entire brisk discussion, which is as long as is a feature film (100 minutes); those wishing to note the potential impact of my motion may note what occurred an hour into the discussion (@ 59:28) c/o CoJ attorney Hall (perhaps sensing erosion of his argument):
…AT A MINIMUM, IN ORDER TO HAVE THE SORT OF REGULAR ORDER YOU ARE TALKING ABOUT, THE COURT SHOULD STILL ISSUE A MORE LIMITED FORM OF MANDAMUS. THAT . THAT TAKES ALL THE TABLE THIS EVIDENTIARY QUESTIONS AND PROBES THE MODES AND YOU HAVE TO DEFEND AGAINST THAT. THEY SAY IN THE BRIEF NOTE AFFIDAVITS AND DECLARATIONS END QUOTE AND IT SEEMS TO ME AND WANTS AN EVIDENTIARY DISCOVERY PROCESS. I THINK THAT CLEARLY SHOULD BE OFF THE TABLE. IF ALL WE’RE TALKING ABOUT IS FOKKER AND WILL 48, WE CAN COME BACK TO THE CIRCUIT AND AT A MINIMUM YOU NEED THAT IN ORDER TO GET REGULAR ORDER YOU’RE TALKING ABOUT. THEN I WOULD SAY, JUDGE HENDERSON, THE REASON I THINK YOU SHOULD GO A STEP FURTHER IS IT’S JUST NOT TRUE, AS LIMITED, IT JUST DENIES OR GRANTS RULE 48 MOTION, IT’S STILL NOT THE CASE THE PARTIES HAVEN’T SUFFERED HARM, THE HARMS ARE OBVIOUS TO GENERAL FLYNN. THE HARMS TO THE GOVERNMENT ARE WHAT I AM FOCUSED ON. YOU HAD AS YOU SAY POTENTIAL AMICUS. YOU AT ALL OF THESE ALLEGATIONS BEING LOBBIED AT THE EXECUTIVE BRANCH. WE WILL HAVE TO THAT ANY PUBLIC FORUM AND IT POLITICIZED FROM IT. THAT’S THE THING THAT FOKKER WALKS TO THE HARMS AND SAYS WE SHOULDN’T BE DOING. IT INVADES OUR DELIVERY PROCESS. IT VENTURES LAW-ENFORCEMENT, SETS UP A CONFLICT BETWEEN BRANCHES….
This theme of a “limited mandamus” became a focus of subsequent debate; thus, it seem that my filing may have favorably affected the colloquy.
Ultimately, it seems that the case was/is “live” in the absence of a final (dismissal) order and, thus, Sullivan is free to probe the circumstances that led to the DoJ’s reversal; this would not violate the “separation of powers” concern because the judicial proceedings encompass the initial executive initiative (and any dissatisfied party would not be deprived the right to appeal).
If the mandamus is “narrowed,” Sullivan can scrutinize; if it’s denied (more likely), then Sullivan can be totally unleashed.