It is even what it said in richard. You can ask for the reasons,. What if theth court is concerned about favoritism being displayed to a politically powerful defendant . Is that a proper reason to have a hearing . Mr. Wall no. That is a concern that is not the domain of rule 48. Judge griffith what is your authority for that . Mr. Wall in the United States, i would say richards or falkirk. It does not matter. The District Court might believe the government has a bad motive to do all sorts of things, favoritism or something else. But everybody agreeing that the United States cannot be made to bring a prosecution even if it even ifeven if it is its motive is not regular or impermissible, the same is exactly true of a prosecution. There are checks on that. Judge griffith what would be an appropriate hearing for judge sullivan to call on these facts in this case . What are the outer limits of what he could do or what the government would think is appropriate . Mr. Wall i dont think there is one on the facts of this case. We have the house of the defendant you areiffith so saying no hearing at all would be appropriate . Mr. Wall even if you need to understand the motion. As a substantive matter to try to get behind the motion for some motive or another, no. Judge griffith what do you mean if he needs to understand i am trying to get at what you think would be an appropriate hearing for judge sullivan to call in this case. What would that hearing look like . Mr. Wall from these facts, i dont think there is an appropriate hearing. I think in other cases you can imagine where a district was trying to understand the law. Judge sullivans breach made clear that he understands the law. He think it is a he thinks it is a different standard and he wants a hearing to probe our motives. Those sorts of hearings will be permissible. Judge griffith thank you very much. Chief judge sprinivasan thank you. Good morning. Said,ght ms. Powell had does the following of the 48 a motion by the government have to get approved by the solicitor . Eneral or attorney general mr. Wall this illicit or general is to be not involved. The solicitor general is typically not involved. Judge millett im trying to figure out, like judge griffith, what that legal court is meant to cover and what it does not allow, it helps to understand what it does allow. I think you might have said it would be ok, i just want to confirm, referring judge wilkins, he was hypothetical about information coming in from the money passed from the defendant to the ausa. Do you agree that it would be appropriate for the district a to have arule 48 hearing and ask the government what was the real reason for your decision . You said in your motion, i think it was hypothetical evidence has come to my attention, maybe it is wrong, but here is the video. Can the District Court pushed to ask that question, what is the real motive here . Mr. Wall in the sort of evidence you are hearing, no. Judge millett that is not what i said. I said have the attorneys come for hearing. Here is the video, i have shared it with you, counsel. You know what video im talking about. Maybe he will play again in court. And say, what is your real reason . Mr. Wall i dont think that is appropriate to your here is how it should be handled i dont think that is appropriate. I think the judge can call u. S. Attorney judge millett so the District Court cannot ask whether it was lied to by the government in a filing . Mr. Wall not under rule 408a it can ask for purpose of sanctioning judge millett can it do that after it dismisses the case . Mr. Wall i think you could do it before or after as a matter of sanctioning an attorney judge millett i have no idea. Can you issue sanctions or hold a government attorney in contempt after the case is dismissed . Mr. Wall i dont know the answer. Judge millett i dont know either. Mr. Wall can you supervise officers of the court judge millett it is clearly not settled whether the District Court can mr. Wall it may be. Judge millett well, i could not figure out either but you have more experience than me. Mr. Wall the basis for that would be judge millett the question is you have a motion and at least argument is grant it and go home. The District Court looks at that motion and says, i fear i have been like you in that motion. The opposition is that the District Court has to grant the motion in which it feels it was lied to and maybe it is a violation of court rule with that very document, it nevertheless has to grant it and cannot inquire about whether or not it was lied to. That is the governments position before granting the motion. Mr. Wall yes. It is not reviewable in that way. Judge millett rule 408a, when it says leave of court, did you know the Supreme Court is left open, the question of whether any other Public Interest decides harassment of a defendant in your position is protecting the integrity of the court from the very process in talking it im not about general Public Interest, i am talking about this narrow interest, protecting the integrity of the court and the court process, that is not allowed. Mr. Wall im saying that is the main of sanctions and contempt. Domain of sanctions and contempt. Judge millett is it your position that there is no such interest inquiry . Mr. Wall of the time you are outlining, yes. Judge millett so just limited to defendant harassment . Mr. Wall it is defendant harassment and ensuring that the parties have reached authoritative positions. When they no longer want to proceed, that is considered a choice by both parties, yes, the court cannot seek the prosecution. Auricle two and three do not permit that. Article two and three do not permit that. Judge millett can they do that in the District Court . Mr. Wall no, cannot explain why . Judge millett i will give you a couple of questions. I am being nudged by the chief court here. The motion for reconsideration, you did not do that either . Mr. Wall they were dismissed. Judge millett go ahead and answer that. I have one more quick procedural question. The court did not provide notice that it would appoint enriquez and when it did not, he merely after the it. Eemed a considered decision we were not aware of any requirement to ask for reconsideration of a decision, especially a considered one. We did not tell the District Court it should not have done that. Judge millett one more thing, there has been some talk about self interest in the case. Is the governments view it appropriate to raise recusal issues if the District Court judge, if the parties have not asked to recuse . Mr. Wall i think that would be an odd requirement. Judge millett i think the recuse itself, even before there ,as any filing by judge flynn already asked for this qualification of the judge. Are you aware of any case that has granted that, a mandamus granted . Mr. Wall no, im not aware that a court has ever been faced with a situation like this one. This is unprecedented. Judge millett thank you. Chief judge sprinivasan thank you. Morning, mr. Wall. Mr. Wall good morning. I think we all always huge to the government. I think it is clear that courts complete under rule 48 a. I appreciate the mandamus alongside recusal of this roof judge at the panel stage. Of the district judge at the panel stage. Timeshare and separation of powers is. Rotecting articles also in this case, the district judge was also skeptical as you know in accepting the plea in the first place. Flynn would have been sentenced long ago. Judge, athe district the governments urging accepted the plea as supported by the government evidence. The government urged him to dream up the order. Said, we commit our burden of proof beyond reasonable doubt. He looked at that. And now you are insisting that the District Court contradicts an order that he previously granted, he previously got on board and you are saying, actually, never mind. Rule 48 requires leave of court. He has to participate. Judge would not enter an order without doing what he could do to understand both sides a district judge. Be is not appointing him to the judge, he was appointing him he was not appointing him to be the judge, he was appointing him to get the strongest argument. Appreciate that your argument today has focused almost entirely on the prospect of a factual inquiry that i think you said the district judge seems to want to engage our prop. Engage in. He never said he asked for it. There is no order of discovery here. It is just arguments about the existing record, the best lawyers argument about the existing record, what is the flynns n general mr. Wall they are ready critical. The first is, you are certainly for a small subset of when you actually have a plea. You are not offering the district what is biz contradicting what is was offered earlier. It involves no form of judicial action and the court never exercises its power. Accepting a plea is different from allowing the executive to let a case go as a constitutional matter. To take the second part of your question, you are right that the District Court never entered an order per se. Hasust appointed one and now filed briefs asking for it. He has said that to this court in briefs to the panel and at various points in his petition. I think the council backed away from that and said he just wants to have a hearing and asked some questions. It was believed that discovery and evidence and probing of the issue. If the court think that is not the issue, and i think that should be among the limits took place on the District Court when the case goes back. If all we are doing is arguing about 48, the District Court is explained has explained what is legal view is. There is no basis for looking behind what we have done on the face of the notion itself. It is even clearer that we ought to get mandamus because there is no reason to have an unnecessary preseason unnecessary proceeding. It is hard for me to see what the point of these formal procedures is at all. I think the panel was correct to enter mandamus. Doesnt that cut exactly the other way . You have not even asked the District Court to vote yet. The basic differential between this case and every other case except for richardson. Said you are, you not asking the District Court to contradict itself, but you are asking him to accept if you are not asking him to do something, you would not be here to mandamus him. You would be judged to sign off under rule 48 a. Right . Right now there is a plea in place because there will be a sentencing hearing tomorrow. Points, in two the motions dismissed, we laid out the fact that we thought we were entitled to have the motion dismissed granted. Rather than accepting that argument, the District Court has convened this proceeding, invited the public to participate. In moving forward, we are not asking the District Court to contradict cells. We are contradict itself. We are asking the District Court to say the attorney general has not made a policy judgment and it is no longer in the interest of the u. S. To prosecute whether or not the government could move forward on a factual basis. I am bound to that decision because that decision is under the constitution. There is no inconsistency between those two things and that is why the court says that signing off on a dpa or allowing the court to dismiss prosecution is not like accepting a plea under rule 11. It does not invoke course of power. It does not involve formal or traditional action. It just agreed to let a case go. Judge pillard exactly. It is just really striking and remarkable. What is the government worried about if none of the inquiry you are highlighting has even been scheduled . He wanted an argument. Is do youast question ms. Ith ms. Pyle powell that it is not the reading of 48 a that imposes the limitation on the court being able to deliberate but the separation of powers overlaying . The history of the rule is that there actually was a robust contemplation that it would be scrutinized whether or not it was clinical favoritism. Is it political favoritism. Is it also your view because the separation of powers grants that unconstitutional . Mr. Wall i think that overstates the history. There are some drafts that mention favoritism. But they did not put any mechanism in the rule for allowing the court. I am not sure the history is clear on those. It is reading that language in light of constitutional principles and avoidance. Your other question very quickly, when you say what are the real harms, i think that is training all over again. What are the harms you can assert executive privilege. You dont have to answer these questions. You can stand on your motion, he can hold you in contempt, what is the big deal. I think it understates the separation of powers. It is hard for me to read that and think it is not among the harms he is talking about to the executive branch. Last pillard just a very shouldnt the District Court be able to consider in light of the strongest argument, and i am not talking about facts, whatever has been the record, that is all that there is, should the district be able to hold a hearing in light of the strongest argument on both sides why the government believed the evidence does not support Going Forward . Do you agree that he should not be able in that 48 a does not authorize him to have a lawyer talking and kind of hearing and guide him an exercise in the leave of Court Authority . Mr. Wall we have not said that the District Court does not have the power to appoint that in cases generally. The problem with that appointment here is like Everything Else the court is doing, it is designed to entrench an executive power. The courts have already said, i am not sure how i can prove this dpa, i think it is to leaning in the corporate defendants. The best argument about whether i should approve this or whether it is too lenient, depend on how weak it is. It says there is no substantial role for the court and whatever the district judge pillard he did not say that though. He said i want to understand, im sorry. Im interrupting. If he just wants to understand what the governments position is and he thinks the adversary system is the way to get there, and he can appoint the government on one side and have the government argued someone on the other. We dont have an objection to that. Mr. Wall just to be clear, that is not what this is. Judge pillard we have a difference of opinion on that. We have to draw a line. Mr. Wall the District Court told you if you live in the hearing position petition, it says it wants to see whether the Public Interest was served and whether there is geomet prosecutorial interest. This is not a lack of understanding. The District Court fully understands the United Statess position. It wants to inquire into whether or not deposition is legitimate. That is exactly what articles to in three do not allow. And three do not allow. Chief judge sprinivasan judge wilkins . View, there is a Factual Development at the rule 48 a hearing, yes or no . Mr. Wall beyond ensuring that you have the authoritative positions of the parties, yes. You can make sure the defendants counsel and the prosecutor has not gone rogue or been bribed, but outside of that, yes. So it in mys hypothetical, there is a videotape of the u. S. Attorney taking a suitcase full of cash and the judge wants to have a hearing on that because that same u. S. Attorney signed the motion. You would say that that hearing is appropriate or not appropriate from the rule 48 a . Mr. Wall i would say the hearing to make sure that the executive actually wants to dismiss is not a problem. But if the u. S. Attorney shows up and says, i want to dismiss, we will deal separately with that. Judge wilkins excuse me, sir. My hypothetical is that the u. S. Attorney is the one in the videotape making a bribe and the judge makes that. The person standing in front of him, the u. S. Attorney is the person in the videotape. Mr. Wall that is the toughest case at the margin i will give you. If the answer from the executive whether some, then individual in the executive branch has committed a crime is not the domain of rule 48 a. The executive branch could prosecute on separate authorities. But it would not be a basis for denying the rule 48 a motion. It would be a separate criminal proceeding involving a corrupt attorney. Judge wilkins and that is based ker . Aul mr. Wall and the constitutional backdrop. If the attorney general said, yes, i would like to dismiss and for good reasons, i would simply look into whether the u. S. Attorney took a bribe. I think the court will be required to grant the motion and dismiss the prosecution. It could not keep it alive. Judge wilkins suppose there is a hypothetical situation 10 years from now with the administration where the attorney general is in the bribes. E taking the no authority under 48 a to dismiss the case . Mr. Wall my answer is still the same. The remedies for that are so obvious that it would not need to be the domain of rule 48 a and i dont think anyone has contemplated that rule 48 a is meant for that exact sort of public corruption. Judge wilkins so the case would still get dismissed as to that defendant who bribed the attorney general . The attorney general might be able to be prosecuted or impeached but the defendant would get off free as a result of committing a bribe . Is that the way 48 a works . Mr. Wall maybe if i can come at it a different way. In the majority of cases where what we are talking about are not charges, even the District Court agrees that there is no rule for courts to play under rule 48 a, even if they think the executive has failed to prosecute for some improper reason like bribery, favoritism, or corruption. Everyone agrees that the executive cannot be made to prosecute the case, no matter how impermissible its motive for declining to do so. All we are saying is as a rulebased matter, the same rule applies to rule 48 a if we have brought the charge. Dismissing it, the same as