We will and with a brief rebuttal from mr. Flynns counsel and the council of United States. Please proceed. Thank you chief judge, may it please the court, general flynn is a defendant without a prosecutor, and litigation without controversy between the parties to the case. Instead of granting dismissal as required as a matter of law, John Sullivan denied defense motions, appointed mr. Gleason to usurp the job of the prosecutor, raised perjury but as iter his head, was noted, the job of United States attorney is occupied. Adding the unconstitutional burdens of process to punish michael flynn, John Sullivan discarded any semblance of the adjudicator. As a cornerstone of any system of justice worth the label. Required. Gs are judge sullivans position for rehearing must be flatly denied with language that a judge has no injury or standing to seek relief in this court. Sullivan has invested himself in the prosecution of general flynn, it is mandated disqualification for the glaring appearance of bias to millions of citizens. Issue required to vacate the appointment of mr. Gleason for intrusion into the soul article to of the of the execut. And to grant the dismissal as a matter of law. Only department of justice can decide the Public Interest and myriad factors inherent in pursuing prosecution. This is not an ordinary motion on which there can be Factual Development or debate. The case to file the the motion as to which the executive branch has the full disclosure and determinative authority. The government must drop the case and every court in this country requires the motion to be granted. I will begin the questioning. Can i ask you the following question. We are focused primarily on the request required the District Court to grant the motion, and to put aside from moment to the other forms of relief. I am focused on the panel that focused on the panel that required the court to grant the motion of dismissal. You agree that there is an entitlement to that form of relief only if theres no other adequate . Means . Yes your honor, and there is no other adequate means, there is a fact that there is no discretion involved on the District Courts part in addressing the motion. Are you aware of any other case in which it has been granted to compel any court before the District Court itself has decided whether its going to grant the motion . Before the court itself has decided whether to grant a motion . Now that we have the services, which you know as you wrote it, that with the law it is clear that this motion has to be granted. Every 48a motion in the history of the country has ultimately been granted. He couldve had a hearing. He has had ample time, he couldve had counsel appear in front of him. Im not even focused on the 48a motion so much, for the purposes of this question, i will assume that everything you have said about the decision has been correct, and i will assume further that the court agrees even though this was a Panel Decision. But i am focused on deals of other adequate means. And whatever you might think about the clarity, this will be true of all kinds of decisions that are on the books. Im not even focused on 48a motions, just any kind of motion pending before District Court, are you aware of any situation in which a District Court has been compelled to grant or deny the motion before the District Court itself has been willing to grant or deny the motion . Powell i dont know of any other court that went outside of the boundaries of article three from the requested amicus, which is not provided for in the rules of the court. Judge srinivasan if the District Court grants the motion, that would be adequate alternate means would it not . Ms. Powell no sir, because the process is the problem. The process is what violates the article three and article two. The denied the motion months ago but instead we had the unconstitutional burden being imposed on the process to he created. He has absolutely no authority to create. All he is entitled to do is to review the motion on its face and grant it. Theres no precedent for denying it. Judge srinivasan thank you. I will let my colleagues ask questions and followup. I appreciate your answers. No questions, thanks. Judge srinivasan judge rogers . Judge rogers i will follow up briefly. In what sense do you understand the case . In the sense that you understand the judges assumptions and the panel opinion, was this not a case where it was granted after the District Court had ruled . Yes, mandamus was ruled after the first agreement. And because we have that we know that judge sullivan has to grant this motion, and because he went through the guard rails of any bridge of article three construction whatsoever, he has to be reined in and at the very minimum mandamus must be issued. Appointment of mr. Gleason. And there are circumstances now under which judge sullivan can continue on this case, because his bias demands his disqualification. The very appearance of bias is enough to demand his disqualification, and here we have a long history of decisions made on the basis of extrajudicial compact and the extra to show extrajudicial contact, and the blistering oped in the Washington Post which led him to amicus he appointed. He even waived the requirement of local counsel and added additional perjury and contempt charges over general flynns head. The perjury is now teed up for additional punishment at the recommendation of the amicus. Judge sullivan has failed to follow the mandamus itself for 15 days and took the unprecedented step of seeking rehearing by filing his own petition in this court when he has absolutely no standing to do so. Taking on the mantle of an active litigant has to disqualify him from proceeding any further in this case if all the things that happened before were not sufficient. The Supreme Court stated that it never approved the use of the writ in a criminal case, which would not have the effect of his dismissal. It is knowledge saying that mandamus could never be used, but it is noticed that it has been invoked specifically where the action of the trial court totally defied the government of deprived the government of its rights to initiate an application for where the court overreaches judicial power to deny the government the truth of the valid conviction. Neither of the situations apply here. So why is it appropriate to use mandamus to review the procedural steps the District Court took in connection to the consideration of the governments motion . Sidney the usurpation of power does apply here. That is exactly what judge sullivan did when he appointed mr. Gleason in the stead of the government as soon as the government moved to dismiss the prosecution. Theres no authority whatsoever for a judge to pile on and add his own prosecutor against a criminal defendant. The fact that this is a rule 48a motion as opposed to a particulars issue makes all the difference in the world. Only the government can decide when to stop a prosecution. Thats the authority hes intruding on. Hes not entitled to ask any questions whatsoever when more than a mere conclusion or a statement has been made. In this case we have a 100 page motion to dismiss supported by exculpatory evidence that was suppressed for three years or more. This is an extraordinary case. The process he created is beyond the pale as judge ginsburg said in sentencing smith. Thank you. I want to make sure judge rogers has no further questions. Thank you. Just a quick question. You argue judge sullivan has no standing to file petition. Does that make any difference . According to the courts order, it considered his petition. Hisf course we considered petition, we consider all petitions. My question is, if we does it make any difference whether judge sullivan as a party has standing . Terms ofl it does in the disqualification issue. The court can always take a case through thank you. I have no further questions. Judge srinivasan thank you, judge garland . Judge garland imagine the Supreme Court has decided in issuing District Court, squarely, and without any doubts. And the person moves for some Summary Judgment based on that case. I dont have to agree, you have to decide this before you decide whether or not it applies, and if you dont decide in advance of the motion, im going to mandamus you. Why is that not the same as this . Im assuming that you agree that even if the Supreme Court had decided an issue in the District Court directly on point, that would not be enough to mandamus the judge before the judge decides, agreed . Ms. Powell it would not because situationot be a 48a that involves the core powers of the executive branch. Judge garland the Supreme Court had decided that the executive branch had this power, and the plaintiffs were claiming it does not. And the judge had not made up its mind yet, would you agree that still the District Court has to make the decision before you can appeal . Or before you can seek mandamus or do anything else . Ms. Powell he has effectively made the decision. He denied two motions opposing amicus at all and denied our request to dismiss the motion be granted before he appointed mr. Gleason, and started the whole process leading to the executive power which he said we cannot do. Judge garland so you disagree with the District Court firmly presiding over the case which has yet to decide the governments motion . Ms. Powell yes, i do disagree with that. I went back and i look at the record again and realized we had filed a request for him to grant that and oppose the amicus twice before he even appointed mr. Gleason. Judge garland thats the amicus question, what about the dismissal of the case . Sidney in that motion around docket 200 we requested again the dismissal be granted. Judge garland so the panel just had bad luck . Ms. Powell it was my failure to point out to the panel that that previous motion had been granted , but we corrected that in our opposition to the petition for rehearing. It is different it is no different from the summary context. Its a criminal case in which the defendant and all the Constitutional Rights are supposed to benefit the defendant. Judge garland we have lots of cases where we have reversed a District Court error in a criminal case, but there was no ability for that defendant to do anything but appeal the conviction, they could not mandamus the court. Imagine of the Supreme Court had decided a Fourth Amendment case, clearly applicable to that defendant and in that defendants favor, and then the District Court ruled the other way. The defendant would still have to appeal, even that the defendant was restricted and the conviction stood, isnt that right . Thats the normal way Court Criminal cases go. Ms. Powell that is the normal way criminal cases go when you are dealing with solely legal issues and the government has not walked in and said i quit. When the government is the only entity that can pursue a prosecution. Judge garland so its not a question of the clarity of the law at the time. No, its not just a question of the clarity of the lot the time. Its a function of the Sole Authority of the executive branch being the one to prosecute. All the discretion invested in it to way into the factors of dropping a prosecution and the court cannot continue a prosecution on its own, which is what judge sullivan has tried to do and has done very effectively for three months. Judge garland so if all the District Court had done was asked mr. Flynn and the government to rethink the scope of 48 and the separation of power arguments, you committed amicus but did not appoint amicus is that correct . No, i think we still would. I think thats far more procedure and process than is allowed by precedent on any 48 a motion in the history of the country. Judge garland thank you. Judge srinivasan thank you. Judge griffith . Judge griffith as i see it, the question before us is not whether the District Court must grant the 48a motion, but rather it made in amicus and held a hearing before deciding that motion. In your view, what is it in rule 48a itself or in our cases that prevents the District Court from conducting a hearing before deciding the motion . Ms. Powell the Supreme Court and this court have said the court has no substantial role whatsoever in ruling on a 48a motion. The leave of court provision is not a license for him to investigate the stated reasons the government has for dismissing the case. Judge griffith what is the role of the language then . You make it sound ministerial. Ms. Powell it almost is ministerial. Judge griffith what does almost ministerial mean . It is or it isnt, yes or no. Ms. Powell its pretty ministerial. Judge griffith thats not helpful. Its not ministerial and you know its not. Its not ministerial, so that means the judge has to do some thinking about it, right . The judge is not putting a rubberstamp on the language of the rule itself. So arent you just arguing about what the judge must do to rule on the motion . I take it your point is that the rule itself forbids the conducting of a hearing before motion, is that your position . Ms. Powell no, its the decision in rinaldi. Judge griffith to prevent any hearing before the motion . Ms. Powell it prevents any inquiry behind the governments stated reasons and any substitution of judge sullivans opinion. Judge griffith what type of hearing is permissible . Ms. Powell he couldve called the parties in and said does the government moved to dismiss, the government says yes, and he said is this brady material and they couldve said yes or no, or like he pushed on the stevens case. But to have any contrary testimony to ask the plausible questions he had that he mentioned in his brief that he wants to ask. None of that is permissible whatsoever because rinaldi makes it clear that the leave of court provision is only to protect the defendant from being harassed by the government. So the only discretion he has is whether it is to make sure it is with prejudice as judge sullivan did in another case. The government wanted to dismiss the Court Without prejudice and he said no, it has to be with prejudice. Thats what he did in the stevens case on a twopage most motion to dismiss. Judge griffith you have stated in oral arguments that you believe you have a strong case for the District Court on rule 48a, right . Ms. Powell yes. Judge griffith in that case, why mandamus . Why not appeal if judge sullivan does not grant the motion to dismiss, why not appeal . Ms. Powell because the process he has started and intends to pursue violates the article to ii powers of the executive branch and bond entitles general flynn to stand on those constitutional principles. The separation of powers and by alleged harm that occurs to him by the violation of his Constitutional Rights. I think it was in another case to a prompt termination of these proceedings, instead of a trial of the governments decision to dismiss, which he has no discretion or authority to inquire behind whatsoever. Every case in this country that has ever addressed rule 48a has require it be granted. Every one. Judge griffith and you dont think thats what will happen on this one . We dont know, do we . Ms. Powell we know its unconstitutional, the process tramples all over the executive branch is independent authority to do it, as well as what went into his decisionmaking. Nothing about what he has done since he got the motion to dismiss has been done in any other case. Not one single step of the procedure. To add on someone to prosecute the defendant as mr. Gleason wants to do judge griffith i dont understand your statement, the appointment of an amicus before the court to argue of you not presented by the party is common. Ms. Powell not in criminal cases. Theres no rule provision for it. You can just go out on your own and do this. It steps all over the article ii branch authority. There is nothing fair about aligning people against a defendant as if there were not enough. Judge griffith thank you. Good morning ms. Powell. A few questions for you. Where in the District Court did you waive the separation of powers . Ms. Powell it was in a motion we filed. Amicus started because of an email send to chambers on behalf of the selfdescribed watergate prosecutors, on which they copied me, evidencing their intent to seek judge millett so you are saying your opposition to that amicus filing was just before the appointment of mr. Gleason and before the Briefing Schedule was issued in the full process, that was your opposition to orders that the District Court issued later . Ms. Powell yes. Judge millett just to be clear. Your answer is yes. That was your opposition to the watergate prosecutors, but no mr. Gleason. Ms. Powell no. Judge millett and after the District Court issued that order appointing mr. Gleason, wheres your objection . Ms. Powell the separation of powers objection was already on file. Judge millett that was a different amicus. Where is the big argument here has not mentioned once the brief about the watergate prosecutors, its all about mr. Gleasons appointment to take over the prosecution to inquire and scrutinize mr. Gleasons arguing for this, to scrutinize the governmental motives. Where is your opposition to the appointment of mr. Gleason . Ms. Powell our original opposition i believe was on 201 and 203. Judge millett thisll work a lot better if you let me get my questions, sometimes i just nee