Petitioner michael flynn. We are here now to stop further impermissible intrusion into the sole power of the executive branch under the take care clause to decide to dismiss a case and what circumstances warrant that dismissal. The government here provided an extensive and thoroughly documented motion to dismiss this prosecution, weighing as it should all of those factors that go into that, including the exculpatory evidence that came to light through an independent review by mr. Jenson, who know the only had 10 Years Experience as an fbi agent, but 10 years as a federal prosecutor before attorney general barr asked him to review this case. It cannot go on any longer. This is the quintessential case from mandamus, because we have issues of judicial hurts her and at usurpation clear abuse of discretion. The judge has no authority to do anything further in the case. Theres no case or controversy any longer. The parties have decided, the government has quit, and he also has no authority to go into the reasons behind the executives determination to dismiss the case. This is judge wilkins. Good morning. Good morning. I have a question about the role of the District Court. You essentially argue the District Court has no role, but in rinaldi, where the supreme rule by thenying a government, the court did what it called an independent evaluation of the unusual circumstances disclosed by the record. So the Supreme Court believed that it had a role to perform an independent evaluation. So doesnt the District Court here have that same role . Not in the circumstances of this case. The authorities are that, given the fact the presumption of regularity applies to everything the attorney general has done, and theres no clear evidence whatsoever to go behind that, given the documentation, reasoning, and briefing that has been provided, there is nothing further for the court to do. Theres no indication, theres no clear evidence, theres no actual factor or reason to go behind the governments determination. I dont see how that works, because the court also said in rinaldi that it would not presume bad faith by the government. So the court gave the government the benefit of the presumption of regularity, but it yet and still performed an independent evaluation. Only to the extent the court said it was not clearly to the contrary to the manifest Public Interest. There was no further proceeding of any significance, certainly no amicus appointed. Certainly no factual Background Investigation in rinaldi, it was a review of the petite policy and its application to the facts of rinaldi. This court issued the mandmmus to make sure the deferred prosecution agreement was entered. Said the leave of Court Authority gives no power to the District Court to deny a prosecutors rule 48a to dismiss charges based on the disagreement of the prosecutors charging authority. Once the District Court issued an order saying it intends to do an independent evaluation of the record and will issue an opinion on the governments 48a motion in due course. Is that error . I think that is error. I mean, he can look at it on the face of the documents that have been filed, but i dont think in rinaldi that they went farther than the governments statements of what it was doing and why it was doing it. Only the executive can weigh the willingness of the government to prosecute, and there would be no remedy. The court cant make the government prosecute this case. Now in thompson, another Supreme Court case that was cited by at least the government in their briefing, i cant remember, you cited in yours also, the Supreme Court was reviewing a denial of a rule 48a motion by the government and it said that it performed quote, an independent examination of record, closed quote. That was despite the solicitor generals suggestion that the court simply dismiss the case. Do you disagree that thats what the court said that it did in thompson . No, but i think all that means is reviewing the documents that the government provided and the existing status of the record before it. Not investigating new possibilities or assuming the role of the prosecutor to see about adding on perjury or contempt charges. He simply doesnt have the authority to do that. Without a case in controversy, hes without jurisdiction to do anything further. Your mandamus petition is you are the rulings under review are the failure of the District Court to grant the motion, so you believe that just him not granting the motion is sufficient grounds in and of itself to justify mandamus, right . Well, the the court said that the courts withholding of approval would amount to a substantial and unwarranted intrusion on the executive branchs fundamental prerogatives, and the judiciarys lack of competence to review the dismissal of charges, according to wade, equally applies to to the dpa decision, so either way. So you believe a case that was not even a rule 48a case undermines what the Supreme Court did in rinaldi and thompson when the Supreme Court itself performed an independent evaluation of the record, when there was no no argument that there was any bad faith by the government or that the presumption of regularity didnt apply . Sorry. Im do you think the Supreme Court got it wrong in rinaldi and thompson . No, im saying that the independent review of the record consists of just that, a review of the record. And the record in this case is extremely well documented, of prosecutorial misconduct and the suppression of brady evidence that warrants dismissal under any circumstance. Aside from the fact we had motions to withdraw pending that were very well documented. This record contains enormous evidence now of government misconduct and the suppression cant evidence. It is just, te he doesnt have the authority to appoint an amicus, that there was just a unanimous decision for. He cant go out and create new issues. Of course he can look at the materials before him, and we welcome him doing that, but to go ahead and grant the motion because there is no other alternative, not a single case in the country has ever affirmed the denial of a motion to dismiss under 48a. Judge wilkins then it seems like you have a pretty good argument, an alternative avenue of review. If the motion is denied, you can come back here on appeal, and we can you can cite all of those precedents to our court , and we can decide that issue at that time. Ms. Powell but he doesnt have the authority now to go beyond the record and do anything except that. Record and do anything except that. We would simply be delaying the inevitable and going through an process, in the process of doing that. Brief that we have to answer by wednesday, with 500 pages of exhibits. Erybody else in this c eing paid by the government except my clients defense team. The toll it takes on a defendant go through this is absolutely enormous and its not justified by this case. This is the most impressive motion to dismiss i have ever practice, andes of the most well documented. Nd, in fact, in judge leon, i think it was a twopage motion to dismiss pursuant to which he ismissed three defendants, after guilty pleas just a couple of years ago. In the course, everybody united states, the government poser wrotend judge that decision explaining how the prosecutors position had to be vacates and the motion to dismiss had to be granted on mandamus. Let me ask you, this is judge anderson. If judge sullivan had just kept motion waiting and languishing it would be one thing. Hes set a hearing for midjuly. Know by the end of july, hell have granted the motion. But he doesnt have the authority to conduct that hearing, youre honor. Hes appointed this to go far the scope of his authority as a member of the Judicial Branch into the department of the of justice. I realize but you also know the courts have said hes not rubber stamp either. So there is nothing wrong with as far as a hearing i know. I dont know of any authority hat says he cant hold a hearing before he takes action. The only authority, their best case is in rerichards in on the e Third Circuit motion to dismiss a Sexual Misconduct claim against someone Virgin Islands in a territorial court, weve got to sunlight on the reasons here because the only reason given was in the interest justice. And certainly thats not sufficient. Even that case, it was courts altered by the decision, or discussed by the hsbc bank, ision in the case out of mr. Gleesons reversed his overreaching authority on dismissal. Of 48a and that hsbc case describes 48a rds as requiring a dismissal because the district ourts authority severely cabined the review contrary to the Public Interest meaning the bad faith acting in or against ery, am his own selfinterest and there is none of that here. If judge sullivan had denied the to dismiss on this report we would be entitled to mandamus right now to. Drag this out another six months, i mean, i wont just be 16. Earing on july it will go beyond that. I think its clear from the now, that they want to take general flynns entencing as soon as possible and impose upon him the maximum possible sentence. Make us go through that process when the ultimate result the grant of the motion to dismiss, the overnment is just wasting resources pursuing this, and the defendantaking on the harm. Rtainly irreparable go ahead. Why couldnt we hold this in lets see what happens on july 16 . Because the damage continues accrue by the day. Because he has no case or and no rsy before him, jurisdiction, because he doesnt have the authority to go do what hes trying to do or has done. He doesnt even have the amica undero appoint decision. S i dont understand that argument. Suppose in a runofthemill riminal case, its not runofthemill because the overnment has evidence from a drone camera that was positioned to look through upstairs bedroom and into the defendants home. To the defendant moves suppress, and amica, including Cano Institute and other organizations, seek to friends of the court in support of that motion saying the youre District Court wouldnt have authority to grant those motions . No. Im saying that he doesnt have amicus ty to appoint an to do the job that the government would have done if chose to ment had prosecution. On the motion but the court cant do it on its own motion . No. Im saying that the court cannot that of its role for the government. It cant take the place of the attorney general or appoint take the place of the attorney general. Judge precisely what postner rejected in re united states. His lane to utside appoint somebody to do the job amicus rder appointing pointed him to present arguments n opposition to the dismiss. Nts motion to says. S all that it in that paragraph. Violating article to presentnt someone arguments in opposition . Had cause the government already made the decision to stop. The government is the only entity that can make that decision. Department of justice is the only entity that can decide this r to pursue prosecution. The judge has no way of doing amicus his own through or a special prosecutor or anything else. Itsovernment has quit and time to leave the field. Sorry. Go ahead. What t about, this is about appointing amicus for the charges . The Supreme Court in the young case said that the court can party to private prosecute contempt charges. To the arguments back appointment of the amicus also apply to the contempt charges . Yes. Our amicus pointed out, and e did also in our brief, contempt doesnt lie for perjury in these circumstances. 500 people in the national database, registry of who would s, otherwise be susceptible to perjury prosecutions because pleas but d guilty they were actually innocent. Goes to the merits about whether contempt could actually be found but what about the of the amicus to contempt charges . There is no basis to do that either. He doesnt have the authority to for contempt. Ne thats not the judges place to add on charges. Hats solely within the prerogatives of the department justice. Supreme court [inaudible] see that inconsistency. Said that the istrict court can appoint a private party to prosecute charges. Of this circumstances case, contempt cannot lie by moved to having withdraw his guilty plea. One other sk you question about the contempt charges. Finding ise that the not appropriate, would we have ny grounds for reaching the contempt question . Flynns believe mr. Petition for where it of is to be able to ds reach that question . Simply fact that the Judge Authority to do continuing is no case of controversy. Ask a question about the continuing case. Supreme court 0 case that i referred to earlier, cited in the briefs, the Supreme Court, supreme solicitor general suggested to the Supreme Court that the case be dismissed under 48a and the Supreme Court case,t itself dismiss the did not upreme court declare there was any longer a indicate. He Supreme Court remanded the case to the court of appeals for light of the n in position. s present so in that case, the supreme not treat the fact that the government had filed a 48a motion as ending the case so there was no longer a dont youcontroversy, agree . Well, if i recall that case correctly it was a mandamus for mandamus. What the Supreme Court decided was that the Appellate Court additional dress an issue. Thats not our situation. Not a single that court in the country has ever 48a motion,ffirm a basis to proceed with this case. The government is the only entity, department of justice is the only entity under article 3 section 3 that can prosecute the decided not have to do this for a number of reasons not the least of which the appalling case of exculpatory evidence. F. B. I. At at the literally made up statements to 302. Into a the fact that mr. Prestab had a Andrew Mccabe about trying to get the defendant to lie, and, what is here, and came back the next day reconsidering the fact hat they had decided not to show him the evidence that they had, like they do with everybody decided not t they to even give him a 1001 mention, of course, arning, no warning, not even to mention 1001. Hey sent agents over there mr. Com eys agent, this is an i am falling injustice. Its a travesty of justice that has been dragged through this for three years on case that was absolutely concocted by f. B. I. Agents with some help from the department of justice. Evidence falsified and else. Thing the government has provided and ordinary documentation the only thing left to do is for dismissalto order the of this case. The delay independent o an evaluation of the record before entering that dismissal . No, he can look at the record. He can look at the record and, as a result thing of that is to order dismissal because of the presumption of and ularity that attaches the fact there is no clear evidence of anything else. Hecant make up these things calls reasonable, plausible relatens that dont even to the motion to dismiss. And proceed to drag this out forever. Just not its renaldi, its o ontradictory to the enre united states, and the fourth in smith and fifth ham. It in were aware that the istrict court says anything about reasonable, plausible questions. Its in their brief. Thats not the order under though. He order under review is, from is him not tive, granting the motion, not is ting the motion itself grounds for a mandamus. To do pointing the amicus anything. So yes. So we have to find both of things to be improper to ustify amicus, is that your position, or is one of them, any one of them by itself grounds for mandamus . Either one by itself is grounds for mandamus. For are independent grounds mandamus. Let me ask you something of t this appointment amisus. Judge er services, if sullivan had not pointed amicus, us that we telling couldnt appoint amicus . No, maam. You can appoint amicus to weigh in on any issue that the Court Appeals wants an amicus to weigh in on and the court of it. Eals didnt create what judge sullivan has done here is created his own issues that he wants to investigate arent related to the otion to dismiss or even the case before him in any way. In social services we defend d someone to judge leons order. Thats what ms. Wilkerson is doing here before this court. Shes the analogous piece of proposition. Not mr. Gleeson. Thats true. You have no problem with her obviously. Obviously, shes entitled to here on behalf of the judge. Appellate courts often allow amicus participation but the District Court doesnt in criminal cases. There is no provision in the that. Or in fact, if you go and try to amisus in theas an District Court you cant do it properly. All the document enters had to be corrected. Provision for amicus in criminal cases. Earlier, if anyou amicus could file a motion in a brief in support of a motion to suppress, whats your answer, is there authority for that, yes or no . I would think there is authority for that. A motion that another party has to d if the judge wants allow it, it would require a leave of court, i would think. Based on what rule . I dont think there is a rule for it. Believe, for instance, there have been cases in the its ct court level, but been in support of a position of one of the parties. In support of a judge trying up additional charges himself. To rule ith respect to motion, its your ontention that if for some reason, mr. Flynn opposed the governments motion, it would be enter an micus to ppearance to file briefs in support of mr. Flynn, right . Well, at least there would still be a case in continue before the court and it would be up to the District Court to allow leave to do that provision in the rules for it but generally speaking District Courts can do want to do within the reason. Of so there is authority for it so long as there is a case or controversy . Trying to understand your legal reasoning here. The legal reasoning is that appointed