Judge Sullivan’s lawyer, Beth Wilkinson, has argued that he has the authority to explore whether the proposed dismissal served “due and legitimate prosecutorial interests” or was instead contrary to the public interest, suggesting that he needed to examine “the facts and circumstances.” The Trump administration has reacted with alarm to the notion of an intrusive factual inquiry requiring it to show what went into Mr. Barr’s move to dismiss the charge beyond the rationale it has cited in public filings.
On Tuesday, Jeff Wall, the acting solicitor general, urged the court to again order the case dismissed immediately. But even if the court instead lets the judge proceed, Mr. Wall said, it should instruct him not to pry into what was behind the statements the Justice Department made in its court filings because, he argued, the constitutional system of separation of powers is “meant to guard against oversight and scrutiny of this core executive discretion.”
But while also arguing that the Justice Department did not have to explain its thinking, Mr. Wall suggested that Mr. Barr might have had a secret reason for dismissing the case.
“The attorney general, of course, sees this in a context of nonpublic information from other investigations,” he said, adding: “It may be possible that the attorney general had before him information that he was not able to share with the court. And so what we put in front of the court were the reasons we could, but may not be the whole picture available to the executive branch.”
On behalf of Judge Sullivan, Ms. Wilkinson argued against imposing any restrictions or instructions on what kind of questions he could ask at the hearing, assuming he is allowed to hold one. Among other things, she noted that because the written briefs are not complete, it is not clear what all the issues are.
But she also repeatedly emphasized that to date he has not ordered any steps that would require the submission of internal Justice Department documents or sworn declarations. And she noted that if he asked about internal deliberations at the hearing and Justice Department lawyers declined to answer, he might choose not to pursue the matter.
Ms. Wilkinson also argued that orders like the one Ms. Powell has requested — a so-called writ of mandamus — are supposed to be for extraordinary situations in which there is no other remedy. Here, if the normal process plays out, Judge Sullivan might decide to dismiss the case, she noted — or, if he decides not to do so, that ruling could then be appealed.