As it appeared to be of interest in a prior thread. I've cut and pasted the bolded portion below from Judge John Gleeson's motion (Doc. 209 - filed on 5/15/2020):
Because the Court’s order and the government’s motion raise important and complex issues, I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury. I respectfully suggest that the Court set a schedule for responses (by the government, the defendant, and any other amici) to my filing, a reply by me to those responses, and oral argument. Upon the resolution of the issues addressed by my brief or raised in response to it, a schedule for any remaining proceedings could be set. Of course, I will proceed in whatever manner and on whatever timeline the Court directs, and I understand the need for an expeditious resolution of the issues identified in the Court’s May 13 order.
On of the issues previously highlighted in the other thread involves the timing of briefs submitted to the Court and potential oral argument.
Based upon this motion, Judge Gleeson wants to have up to June 10th to file his brief. He was appointed amicus curiae on May 13th. Thus, he is is seeking 28 days to file his brief. Anyone practicing in federal court would recognize this as a reasonable time frame. Given the volume of documents and the issues presented, 28 days actually seems to be fairly ambitious.
I expect that Judge Sullivan will grant the motion and order that Judge Gleeson file the brief on or before June 10th.
I also expect Judge Sullivan to enter what is known as a "briefing schedule." As noted by Judge Gleeson, a "briefing schedule" would identify dates by which response briefs ("opposition" briefs) shall be filed by Flynn's counsel and DOJ's counsel. It would also cover other amici briefing which will be submitted to advocate for Flynn's position. It is not unreasonable to expect that Judge Sullivan would allow for 28 days for the submission of response briefs. That would make for a due date of July 8th.
Judge Sullivan would then want to file his "reply" brief . . . addressing arguments raised by Flynn's counsel, DOJ's counsel and amici submissions. As you might suspect, those submissions could be voluminous. Further, Judge Gleeson's motion did not reference potential amici briefs submitted that counter those advancing Flynn's position. Because "reply" briefs are usually limited to arguments raised only in "response" briefs and are not intended to raise new arguments or re-raise previous arguments, the time frame for filing "reply" briefs is often shorter than the original brief and "response" briefs (14-21 days). That written, given the complexities of the issues before the Court and the potential desire to allow amici to file "reply" briefs, it wouldn't shock me if Judge Sullivan allows for 28 days - up to August 5th - for the filing of "reply" briefs.
The Federal Rules of Civil Procedure allow for parties to seek leave to file "surreply" briefs. They are disfavored but allowable under certain circumstances. I don't anticipate that Judge Sullivan's briefing schedule will identify a date by which "surreply" briefs are to be filed. That written, I'd be shocked if Flynn's counsel, DOJ's counsel and/or amici don't attempt to seek leave to file additional pleadings.
Judge Gleeson asks Judge Sullivan to include a date on which oral argument will take place. If the last briefs are submitted on August 5th (again, assuming no "surreply" briefs are filed), I'd anticipate that the very earliest that Judge Sullivan would set for argument would be August 19th (14 days after the last brief). If he wants additional time to review the submissions in anticipation of the arguments and/or build in extra time for those who might seek leave to file "surreply" briefs, the argument could easily be set in early September.
Judge Sullivan could rule from the bench immediately. That, IMO, is extremely unlikely. I anticipate a lengthy written order will be authored by Judge Sullivan.
This is where the time line gets interesting.
If the case is submitted to the Court after argument during the first week of September, that is approximately 60 days before the election. Might Sullivan issue his ruling within 2 months? Certainly possible. Might it take longer than 2 months? Certainly possible. Bottom line . . . expecting an order by Judge Sullivan before the election is a fool's errand - particularly if the briefing schedule plays out as noted above.
If Judge Sullivan does not issue an order prior to the election AND Biden wins the election, there is an approximate 75 day window to Inauguration Day. While I don't expect Judge Sullivan to "sit" on a potential ruling for 4+ months, I've waited longer times for rulings from a federal judge (they have to report to court administration in DC any pending motions that are six months or older) Barring some unexpected development and if the issue remains pending on the eve of the inauguration, I don't see DT Barnum sitting on his hands; I'd anticipate him pardoning Flynn.
One caveat to everything noted above . . . Judge Gleeson references his understanding of the need for an "expeditious" resolution. If Judge Sullivan is so inclined, he could enter some type of expedited briefing schedule which shortens the time frame for responses. Given that Michael Flynn is (a) not currently in jail and (b) the government previously recommended no jail time for him, I'd be curious to know what basis will may be cited for an expedited schedule. Seems to me that the primary basis for seeking an expedited ruling would be . . . DT Barnum loses the election, AG Barr loses his job and the DOJ no longer permits Flynn to escape his previously filed plea.
One interesting hypothesis . . . if Judge Sullivan truly believes that AG Barr and Flynn's counsel are "in cahoots," he could sit on the pending motion until after DT Barnum makes a decision on issuing a pardon. If a pardon is granted, everything is mooted and he wouldn't have to rule on a potentially divisive legal issue. If a pardon is not granted, AG Flynn will be fired immediately when the new administration is sworn in and whomever is serving as the interim AG could immediately withdraw the Motion for Leave to Dismiss the case. A withdrawal of the motion would also moot at least most, if not all of the issues subject to the briefing schedule. Again . . . that would avoid ruling on a potentially divisive legal issue.
Finally . . . a question to which I do not know the answer. Can Judge Sullivan grant the motion but convert the dismissal to one without prejudice? I've read somewhere that may be a possibility but I have a hard time believing that would be consistent with FRCP 48(a). While that would open the door to further prosecution (no double jeopardy), converting the dismissal to one without prejudice would seem to prejudice Flynn because he'd be open to all potential charges being reinstated. That seems like exactly the type of conduct that was criticized in prior cases.
Even if the charges are dismissed without prejudice, DT Barnum could issue a pardon so that Flynn can't be charged in the future.
I'm still "betting" on Judge Sullivan granting the government's motion. For me, the timing is now the issue. Right now, I'm leaning towards expecting a ruling after Election Day. Entry of an expedited briefing schedule by Judge Sullivan would likely cause me to alter that particular expectation.
Because the Court’s order and the government’s motion raise important and complex issues, I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury. I respectfully suggest that the Court set a schedule for responses (by the government, the defendant, and any other amici) to my filing, a reply by me to those responses, and oral argument. Upon the resolution of the issues addressed by my brief or raised in response to it, a schedule for any remaining proceedings could be set. Of course, I will proceed in whatever manner and on whatever timeline the Court directs, and I understand the need for an expeditious resolution of the issues identified in the Court’s May 13 order.
On of the issues previously highlighted in the other thread involves the timing of briefs submitted to the Court and potential oral argument.
Based upon this motion, Judge Gleeson wants to have up to June 10th to file his brief. He was appointed amicus curiae on May 13th. Thus, he is is seeking 28 days to file his brief. Anyone practicing in federal court would recognize this as a reasonable time frame. Given the volume of documents and the issues presented, 28 days actually seems to be fairly ambitious.
I expect that Judge Sullivan will grant the motion and order that Judge Gleeson file the brief on or before June 10th.
I also expect Judge Sullivan to enter what is known as a "briefing schedule." As noted by Judge Gleeson, a "briefing schedule" would identify dates by which response briefs ("opposition" briefs) shall be filed by Flynn's counsel and DOJ's counsel. It would also cover other amici briefing which will be submitted to advocate for Flynn's position. It is not unreasonable to expect that Judge Sullivan would allow for 28 days for the submission of response briefs. That would make for a due date of July 8th.
Judge Sullivan would then want to file his "reply" brief . . . addressing arguments raised by Flynn's counsel, DOJ's counsel and amici submissions. As you might suspect, those submissions could be voluminous. Further, Judge Gleeson's motion did not reference potential amici briefs submitted that counter those advancing Flynn's position. Because "reply" briefs are usually limited to arguments raised only in "response" briefs and are not intended to raise new arguments or re-raise previous arguments, the time frame for filing "reply" briefs is often shorter than the original brief and "response" briefs (14-21 days). That written, given the complexities of the issues before the Court and the potential desire to allow amici to file "reply" briefs, it wouldn't shock me if Judge Sullivan allows for 28 days - up to August 5th - for the filing of "reply" briefs.
The Federal Rules of Civil Procedure allow for parties to seek leave to file "surreply" briefs. They are disfavored but allowable under certain circumstances. I don't anticipate that Judge Sullivan's briefing schedule will identify a date by which "surreply" briefs are to be filed. That written, I'd be shocked if Flynn's counsel, DOJ's counsel and/or amici don't attempt to seek leave to file additional pleadings.
Judge Gleeson asks Judge Sullivan to include a date on which oral argument will take place. If the last briefs are submitted on August 5th (again, assuming no "surreply" briefs are filed), I'd anticipate that the very earliest that Judge Sullivan would set for argument would be August 19th (14 days after the last brief). If he wants additional time to review the submissions in anticipation of the arguments and/or build in extra time for those who might seek leave to file "surreply" briefs, the argument could easily be set in early September.
Judge Sullivan could rule from the bench immediately. That, IMO, is extremely unlikely. I anticipate a lengthy written order will be authored by Judge Sullivan.
This is where the time line gets interesting.
If the case is submitted to the Court after argument during the first week of September, that is approximately 60 days before the election. Might Sullivan issue his ruling within 2 months? Certainly possible. Might it take longer than 2 months? Certainly possible. Bottom line . . . expecting an order by Judge Sullivan before the election is a fool's errand - particularly if the briefing schedule plays out as noted above.
If Judge Sullivan does not issue an order prior to the election AND Biden wins the election, there is an approximate 75 day window to Inauguration Day. While I don't expect Judge Sullivan to "sit" on a potential ruling for 4+ months, I've waited longer times for rulings from a federal judge (they have to report to court administration in DC any pending motions that are six months or older) Barring some unexpected development and if the issue remains pending on the eve of the inauguration, I don't see DT Barnum sitting on his hands; I'd anticipate him pardoning Flynn.
One caveat to everything noted above . . . Judge Gleeson references his understanding of the need for an "expeditious" resolution. If Judge Sullivan is so inclined, he could enter some type of expedited briefing schedule which shortens the time frame for responses. Given that Michael Flynn is (a) not currently in jail and (b) the government previously recommended no jail time for him, I'd be curious to know what basis will may be cited for an expedited schedule. Seems to me that the primary basis for seeking an expedited ruling would be . . . DT Barnum loses the election, AG Barr loses his job and the DOJ no longer permits Flynn to escape his previously filed plea.
One interesting hypothesis . . . if Judge Sullivan truly believes that AG Barr and Flynn's counsel are "in cahoots," he could sit on the pending motion until after DT Barnum makes a decision on issuing a pardon. If a pardon is granted, everything is mooted and he wouldn't have to rule on a potentially divisive legal issue. If a pardon is not granted, AG Flynn will be fired immediately when the new administration is sworn in and whomever is serving as the interim AG could immediately withdraw the Motion for Leave to Dismiss the case. A withdrawal of the motion would also moot at least most, if not all of the issues subject to the briefing schedule. Again . . . that would avoid ruling on a potentially divisive legal issue.
Finally . . . a question to which I do not know the answer. Can Judge Sullivan grant the motion but convert the dismissal to one without prejudice? I've read somewhere that may be a possibility but I have a hard time believing that would be consistent with FRCP 48(a). While that would open the door to further prosecution (no double jeopardy), converting the dismissal to one without prejudice would seem to prejudice Flynn because he'd be open to all potential charges being reinstated. That seems like exactly the type of conduct that was criticized in prior cases.
Even if the charges are dismissed without prejudice, DT Barnum could issue a pardon so that Flynn can't be charged in the future.
I'm still "betting" on Judge Sullivan granting the government's motion. For me, the timing is now the issue. Right now, I'm leaning towards expecting a ruling after Election Day. Entry of an expedited briefing schedule by Judge Sullivan would likely cause me to alter that particular expectation.
