I thought the tone of the brief was a bit too starchy, too many superlatives and therefore hyperbolic. What some appellate lawyers call 'gorilla language' which is often ineffective. Having said that, Powell's one of the premier appellate lawyers in the land, so she knows what she's doing.
One small quibble which might not be so small: she only referred to a "case or controversy" (which is jurisdictional requirement, the failure of which calls for automatic dismissal of the case) once. She really did not otherwise develop the argument.
On reflection, the case or controversy argument is really a question of mootness because once the dispute ends, there is nothing left to decide. It seems obvious and simple to me. Quoting from a pretty good synopsis of the point:
law2.umkc.edu
"The case-or-controversy limitation on the judicial power also generally prevents a federal court from deciding a question that once affected the rights of litigants, but no longer does. Moot, and therefore non-justiciable, cases include challenges to convictions after the convicted defendant has died, challenges to the legality of a war that has ended, and challenges to restrictions placed on a business that has since closed."
In Flynn's case, the DOJ no longer has a criminal controversy with him, and Flynn has no dispute with the DOJ, so the dispute is therefore moot - the parties agree that the case should be dismissed.
Seems rather simple to me. The requirement under Criminal Rule 48 (a) that the judge grant leave is wrong. Jurisdiction - the power to hear the case - ceases to exist once the parties agree. There may be a few ministerial acts the judge can act on, such as a return of property, payment of filing fees, etc., but there is n o way that he constitutionally keep the main dispute - Flynn's alleged criminal liability - alive. |
