First, a caution — it is ALWAYS dicey to predict the outcome of an appeals court hearing based on what you think you “hear” from the Judges in the form and substance of their questions.

That said, the hearing this morning did not seem to be one of those situations where the judges were “holding their cards close to their vest.”  The sentiments of each judge seemed to be relatively obvious, with each expressing concerns about what the problem appears to be in the district court, what the possible remedy might be at this stage, and whether the appeals court should or should not wait for the proceedings in the district court to come to an end before weighing in with their views.

In reviewing what took place, I’m going to go through each of the “players” one-by-one, and give my impressions of their participation in the hearing.  After that, I’ll make some general observations about what I heard.

The three judges on the panel were Judge Karen Henderson, Judge Robert Wilkins, and Judge Neomi Rao.  Judge Henderson was first appointed to the DC Circuit by Pres. Bush 41 in 1990, and was a federal district court judge between 1986 and 1990 when she was appointed to that position by Pres. Reagan.  Judge Wilkins has been on the Circuit Court since 2015, and before that was a federal district court judge in the District of Columbia — a colleague there of Judge Sullivan.  He was appointed to both positions by Pres. Obama.  Judge Rao was appointed to the Circuit Court in 2019 by Pres. Trump.  Prior to that, she had no judicial experience.  She was an official in the Office of Management and Budget and had been a long-time professor at the Scalia School of Law at George Mason University, where she taught Constitutional Law and Administrative Law.

The fact that Judges Henderson and Wilkins have both served as district court judges — the trial courts in the federal system — was a significant factor in their attitudes in my view.  As noted, Judge Wilkins was for four years a colleague of Judge Sullivan on the DC District Court bench.  But, given that both Judge Henderson and Judge Sullivan have been part of the DC Circuit as judges for more than 30 years, there is no doubt in my mind that they are close colleagues as well.  Judges of the various circuits get together at various types of professional events on a regular basis.  It is a small “club” that they are all members of, and close personal bonds often attach. It’s famously known that among the Justices to whom the late Antonin Scalia was closest to was Justice Ginsberg.  The friendships cross all political boundaries.

Appellate judges go to great lengths to not needlessly embarrass their trial court colleagues in the district courts.  So I think there is little or no chance that this panel will issue any ruling that questions the integrity of Judge Sullivan in what he proposes to do — and what he has done so far.

As for Judge Henderson, early in the hearing in questioning Sidney Powell, attorney for Gen. Flynn, the judge seemed to focus on the question of whether it was just too early for the Circuit Court to jump into this issue.  She seemed to express somewhat surprisingly strong sentiments about waiting for Judge Sullivan to conduct his hearing and issue his decision.  It could be that he grants the motion to dismiss, and intervention by the Circuit Court would not be needed at all.  In questioning Dep. Solicitor General Jeffrey Wall, she returned again and again to the phrase “regular order”, meaning that it seems the best path would be to allow the district court to serve its function, resolve disputed factual issues, make legal determinations, and then come to the Circuit Court for review if necessary.  That’s the way the process is designed to work.  She noted the failure of any party to ask Judge Sullivan to reconsider his orders scheduling a hearing and appointing amicus counsel.  She referred to Judge Sullivan as an “old hand” — a district judge who clearly understood his role and his function, and asked what harm would come from simply allowing the process to play itself out in “regular order”, and ask for Circuit Court intervention only if something happened that was immediately objectionable and subject to mandamus or appeal?

But I think Judge Henderson’s hand-wringing might not have been as earnest as she made out.  The issues she raised were all obvious on the day Gen. Flynn’s attorneys filed the Petition.  Nearly all petitions of this type are summarily denied by appeals courts without them ever seeking briefing — much less an oral argument — from the parties.  And asking Judge Sullivan to personally respond to the Petition is nearly unheard of.  So if Judge Henderson was really convinced that “regular order” should prevail, and Judge Sullivan should be allowed to finish the case in a manner informed by his 36 years experience as a district court judge, she could have allowed that to happen simply by voting to deny the Petition after it was first filed.  But that didn’t happen.  Instead, the parties were ordered to file briefs, and Judge Sullivan was ordered to respond.  Today nearly two hours of oral argument took place when only 45 minutes were scheduled.  And Judge Henderson agreed with Dep. SG Wall when he observed, at one point, that nothing about this case in the lower court could be considered as having proceeded according to “regular order.”

As for Judge Wilkins, I was struck by what I thought was a lack of a “probing” quality in his questions.  My impression is that he does have as an earnest position that which Judge Henderson seemed to stake out — that it’s just too early for mandamus, the trial court judge should finish his work in whatever fashion he thinks is necessary to resolve the issues presented by the motion, and the parties can take up that outcome at the appropriate time and in the appropriate fashion.   He made an effective point that the only “Orders” Judge Sullivan has issued are for a briefing schedule and hearing, and with regard to appointment of amicus – and neither of those orders are challenged in the Petition.  The heart of the Petition is Gen. Flynn challenging Judge Sullivan’s “inaction” — his refusal to rule on the motion forthwith — which is somewhat unique.  He noted that the mandamus cases relied upon by Gen. Flynn all had “orders” from the lower courts that the appeals court was being asked to overturn.  No one had asked to have Judge Sullivan’s orders overturned — only that he be directed to do something he just hadn’t done yet, which was to rule on the DOJ motion to dismiss.

Judge Wilkins also made the point that is well-covered in the briefs that the “leave of court” language in Rule 48(a) obviously means something in terms of granting judicial discretion to review the motion.  He said that while the standard that a lower court should use in such a review might be unresolved, he questioned whether a mandamus proceeding is the right vehicle for setting such a standard given the limited nature of the record before the appeals court and the limited nature of the legal briefing.  Judge Wilkins gave a pretty clear indication that he thinks mandamus is not warranted, and the matter should be left to Judge Sullivan to resolve, and the parties should then proceed from there.

Judge Rao was probably the easiest one to decipher, but at the same time, I thought she asked the most “interesting” legal questions of both sides.  She asked Beth Wilkinson, the attorney for Judge Sullivan, where the standard “clearly contrary to the public interest” came from since it’s not in the text of Rule 48(a)?  She asked why wouldn’t the Executive, a branch politically answerable to the voters/public, be the better choice to determine the “public interest” since they are accountable, unlike an Article III judge appointed for life.   That was a great question, and Wilkinson could offer no meaningful answer.  Judge Rao wondered that if the standard is really unknown, why should the appeals court sit back and let Judge Sullivan conduct this wide-ranging inquiry in the face of the serious “separation of powers” issues the government has raised?  What about the damage to separation of powers that flows simply from the fact that Sullivan conducts the inquiry, separate from what his ultimate decision might be.  She seemed to be really setting the table or an effort to define more precisely what the scope of Judge Sullivan’s review can legitimately be — with her view likely to be it’s far more circumscribed than that which he seems to have in mind.

Judge Rao also asked some tough questions of Wilkinson about the DOJ position that there is no longer a “case or controversy” when the government and defendant in a criminal case both ask that the case be dismissed, and about what purpose was served by Sullivan appointing an amicus counsel to “oppose” the DOJ motion on behalf nobody apparently.   Wilkinson struggled to formulate a coherent response, and Judge Rao observed that in a criminal case there are just two sides, and when those two sides’ interests are aligned, who is the judge seeking representation on behalf of when he appoints an amicus counsel?

Finally, Judge Rao asked what was the countervailing interest of the Article III judiciary in denying an unopposed motion?  What interest does the Judiciary have that it is seeking to vindicate by not allowing the parties, by mutual agreement, to end their legal dispute?  This came right at the end of Wilkinson’s time, and she offered no real meaningful response.

As for the attorneys.  Sidney Powell started off arguing the DOJ position about judicial usurpation of power, and no role for Judge Sullivan to play in the circumstances of this case where presumption of regularity should apply.   I think Judge Wilkins did her a favor by switching over to questions about whether mandamus is a suitable vehicle for relief, and whether the decision in US v. Fokker really controls since it was not a case involving Rule 48(a).  I say he did her favor because I think she understood that Dep. SG Wall coming behind her was probably the better advocate on the separation of powers issues that are the foundation for cutting off what Judge Sullivan has announced he is going to do.  Most of the questioning of Powell had to do with whether mandamus at this stage was the correct vehicle for the relief she was seeking, and about her objections to the nature of what Judge Sullivan has announced he intends to do.  When she was given two minutes of extra time at the end, she spent some time on the nature of the injustices done to Gen. Flynn by the FBI and SCO, right up to the end when they continued to withhold relevant and possibly exculpatory material from him. I didn’t think it was the strongest way to wrap up because it sounded more like a press conference.  But Judge Henderson then gave Dep. SG Wall another 2 minutes, so it wasn’t the last word.

Dep. Solicitor General Wall did most of the “heavy lifting” on the separation of powers argument, and as is often the case in this kind of situation when the SG’s Office participates, he knew the subject much better than any of the judges who asked him questions.  He alone made the best arguments about the “harm” that would be done to the Exec. Branch by allowing the case to continue on the “regular order” suggested by Judge Henderson because of what Judge Sullivan was proposing to do.  He said that the Exec. would suffer harm on a separation of powers analysis by being forced to submit to questioning or examination under oath, maybe production of documents to the court, or other means of fact-finding that Judge Sullivan might undertake to answer his “questions” about DOJ’s motives in moving to dismiss the case.  All of that would diminish the Executive and elevate the Judicial branch on a subject where near absolute discretion is vested in the Executive.  He argued that the only area recognized for such a searching inquiry is where there is evidence that unconstitutional consideration may have entered into the charging decisions.  That might justify what Judge Sullivan was proposing, but in an unopposed motion Judge Sullivan is cutoff from conducting such an inquiry by Fokker which says charging decisions, and decisions to continue a prosecution, are to be made by the Exec. “without judicial oversight.”  Dep. SG Wall was clearly the most effective oral advocate because he had the best command of the case law and answered the questions with the most ease.

I thought Beth Wilkinson was largely ineffective — not because she did a poor job, but because the questions put to her didn’t really solicit any meaningful answers.  She repeatedly said the Circuit Court should not prejudge what Judge Sullivan might do, and it was wrong to predict simply based on his orders that he might deny the motion.  The amicus brief was simply an advocacy document produced at his request, and it doesn’t necessarily reflect his views — he might disregard it altogether as being poorly reasoned.

The one Judge who did push Wilkinson was Judge Rao as I noted above regarding her questions about where the “public interest” standard came from, and whether there really is an established standard for Judge Sullivan to follow.  Wilkinson offered not good or coherent answers to the tough questions, and was best simply advocating that Judge Sullivan simply be allowed to do his job.

Wilkinson ended her time by giving about 45 seconds of canned script that she had obviously prepared in advance.  In my experience that’s usually a bad sign because it suggests that the judges don’t think you have anything further to add, and they just let you run out the clock reading from your notes.  It’s the proverbial “Stop talking when the Judge looks over at the clock on the wall” moment.

One final note — I thought it was disgraceful of Judge Wilkins to introduce, and then return multiple times, to a hypothetical question he posed to Dep. SG Wall about a situation where DOJ might move to dismiss a prosecution of a white police officer charged with beating a black suspect, where the motive for the dismissal might be the racist belief that a white officer should not have to face charges for beating a black suspect.

The hypothetical was inapposite and not on point at all with any question before the Circuit Court, and Dep. SG Wall dealt with it relatively effectively given that I’m sure he was surprised by the hypothetical as stated.

But for Judge Wilkins, an African-American Judge appointed by Pres. Obama, to suggest such an incendiary example in the argument on a case that has NO issues of racial bias or police misconduct borders on race-baiting of the worst kind.  He could have fashioned the same hypothetical in several other ways, using constitutionally suspect classifications such as religion or national origin.  But to introduce the subject of police brutality against African-Americans, and link that to a hypothetical decision by some DOJ official to dismiss the case for race biased reasons in the aftermath of George Floyd’s death is just deplorable.

Finally,  I think Judge Henderson showed her cards with her very last question posed to Dep. SG Wall at the very end of the hearing.  She prefaced the question by saying that she wanted to ask about something not raised in the briefing — which is unusual.  She said that it seems to her that the “misconduct” by DOJ that is reflected in the motion seemed to be misconduct in the past — which I took to mean a reference to the SCO’s handling of the matter.  She said that when that is the case, is there any purpose served by the Art. III judiciary standing in the way of the Art. II Executive’s effort to “self-correct” its own prior misconduct.

I tweeted that that moment “There it is.  HENDERSON GETS TO IT AT THE VERY END.”

I think she set up two moves on her part with her statements and her questions, and not wanting to be needlessly critical of Judge Sullivan.  She hid her play by holding this to the very last moment.  As the most senior Judge in a 2-1 decision with Rao, she will write the opinion.  I think she’s going to say the standard to guide a district court’s Rule 48(a) inquiry is not defined, and Fokker Services deals directly only with Speedy Trial Act motions so it is only instructive, not binding.  She’s going to then point to a lot of case law that says “In no circumstance is it appropriate for a district judge to substitute his view of the “public interest” for the view expressed by the Executive in ruling on Rule 48(a) motions.  There is other case law saying that the government need not “prove” its justification to the satisfaction of the court.  The limit on whatever discretion is given to a judge by the “leave of court” language is most restrictive when dealing with unopposed motions since the only two parties to the proceeding are asking for the same thing.  I think she’ll say when the Exec. sets forth in the papers that the motion is intended as a form of “self-correction” for prior investigative or prosecutorial errors, there are little or no grounds for an Article III court to place any other considerations ahead of that expression of the “public interest” or “interest of justice” when set forth in that manner.  I think she’s going to say that Sullivan is entitled to conduct an inquiry, but the inquiry is limited to the record as it now exists — the history of the case as reflected in the Court’s file, and the justification set forth by the government in the motion.  Beyond that, he’s not allowed to inquire further and “get behind” the decision-making process in the same manner as might be justified by an allegation of a constitutional violation or other “manifest injustice,” which are the only grounds upon which a district court may deny an otherwise properly justified Rule 48(a) motion to dismiss.

With all that, and $8 dollars, you can get a Caramel Macchiato at Starbucks.