Up next, live coverage as the d. C. Appeals Court Hearings argument via teleconference, will they should vote on the case of michael flynn, National Security advisor. 5143 in re michael flynn. And the honorable emma g sullivan. Good morning, well hear first from miss powell. Good morning, may it please the court. This is sydney powell for 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 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 if ib fbi agent, but 10 years before mr. Barr asked him to review this case. It cannot go on any longer. This is the quintessential case from mandamus, for prerogatives and a 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. Its over this is judge wilkins. Good morning. Good morning. I have a question about the role of the District Court. You snessentially argue the District Court has no role, but in in rimaldi, a ruling by the government. The court did what was 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 regular layerty 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 the i dont see how that works because the court also said in rinaldi, that it would not presume that faith by the government, so the court you know, gave the government the benefit of their presumption of regularity, but it yet and still performed an independent evaluati 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 can go investigation in rinaldi, it was a review of the petite application and to rinaldi. This court issued the mandmmus to assure that prosecution agreement was entered and in doing so said the lead of Court Authority gives no power to the District Court to deny a prosecutors rule 48a to dismiss charges based on the prosecutors charging authority. And the District Court had issued the order saying that 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. And that was despite the suggestion that the court simply dismissed 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 and without a case in controversy, hes without jurisdiction to do anything further. I mean, if we were 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, and the court said that the courts withholding of approval would amount to a substantial and unwarranted intrusion on the executive branchs fundamental prognosis tiffs prerogatives, and constitutional dismission equally applies to the dpa decision, so either way so youre using faulker that 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 argument there, that there was any bad faith by the government or that the presumption of regularity didnt apply . You think that im sorry. That 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 misduct and 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 of brady evidence. Its just the judge cant he doesnt have the authority to point amicus under the smith case that Justice Ginsburg just wrote the 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 theres no other alternative, not a single case in the country has ever affirmed the denial of a motion to dismiss under 48a. Then it seems you have a pretty good argument you have an alternative avenue of review. If he denies the motion, you can come back here on appeal and you can cite all of those precedents to our court and we can decide that issue at that time. But he doesnt have the authority now to go beyond the records and do anything except that. We would simply be delaying the inevitable and going through inordinate process in the process of doing that. I mean, we just got dumped on a 72page brief that we have to answer by wednesday with 500 pages of exhibits. Everybody else in this case is being paid by the government except my clients team. The toll it takes on a defendant to go through this is enormous and not justified case. This is the most impressive motion to dismiss ive ever seen in decades of practice and the most welldocumented. In fact, in judge leon, i think a twopage motion to dismiss pursuant to which he dismissed three defendants for the government after guilty pleas just a couple of years ago. And of course, in re United States the government dismissed and judge poser wrote that decision explaining how the special prosecutors position had to be vacated and the motion to dismiss granted and mandamus. This is judge henderson. If judge sullivan had just kept this motion waiting and languishing, it would be one thing, he has set a hearing for mid july for all we know by the end of july he will have granted the motion. But he doesnt have the authority to conduct that hearing, your honor. He has appointed this amicus to go far beyond the scope of his authority as a member of the Judicial Branch into the prerogatives into the department of justice. I realize that, but you also know that the courts have said hes not merely a rubber stamp either. So theres nothing wrong with him holding a hearing as far as i know. I dont know of any authority that says he cant hold a hearing before he takes action. Well, the only authority that in their best case is in re richards and a motion to dismiss a Sexual Misconduct claim against someone in the Virgin Islands in a Territorial Court said weve got to have a little sunlight on the reasons here because the only reason given was in the interest of justice. And certainly, thats not sufficient. But even that case, it was actually altered by the courts decision or discussed by the courts decision in hsbc bank, the case out of mr. Gleasons court that reversed his overreaching authority on reviewing of 48a dismissal and that hsbc case describes richards as requiring a 48a dismissal because it severely cabined the review to clearly contrary to the Public Interest, meaning the prosecutor acting in bad faith, such as bribery, fecklessness, animus, and theres none of that here. If judge sullivan denied the motion to dismiss on this record, we would be entitled to mandamus right now. To drag this out another six months, it wont be just a hearing on july 16th. It will go beyond that. I think its clear from the amicus right now, they want to take general flynn to sentence as soon as possible and impose the maximum sentence and to make us go through the process when the ultimate result has to be the grant of the motion to dismiss. The governments just wasting resources out the wazoo pursuing this and the toll its taking on the defendant is certainly irreparable harm. Why couldnt we hold this in abe abeyance. Because he has no jurisdiction, because he doesnt have the authority to go do what hes trying to do or has done. He didnt even have the authority to appoint the amicus under Justice Ginsburg decision. I dont understand that argument. I mean, suppose in a runofthemill criminal case well, its not runofthemill because the government has evidence from a drone camera that was positioned to look through upstairs bedroom windows into the defendants home and the defendant moves to suppress and including the cat0. Institute and other organizations seek to participate as friends of the court in support of that motion to dismiss. Youre saying that the District Court wouldnt have authority to grant those motions . No, im saying that he doesnt have authority to appoint an amicus to do the job, that the government would have done if the government chose to continue the prosecution. And appoint amicus on the position, but the court cant do it on its own motion . No, im saying that the court cannot substitute its role for that of the government, it cant take the place of the attorney general or appoint from one to take the place of the attorney general, thats precisely judge posner rejected in re United States, he cant go outside his lane to appoint somebody to do the job the order appointing amicus appointed him to present arguments in opposition to the governments motion to dismiss. Thats all that it says in that paragraph. So how is that violating article 2 to appoint someone to present arguments in opposition . Opposition . Because the government had already made the decision to stop and the governments the only entity that can make that decision. The department of justice is the only entity that can decide whether to pursue this prosecution. The judge has no way of doing that on his own through amicus or special prosecutor or anything else. The government has quit and its time to leave the field. Miss powell im sorry. Go ahead. What about what about appointing amicus for the contempt charges . I mean, the Supreme Court in the young case that i had said that the comfort can appoint a private party to prosecute contempt charges. Do does your argument also apply to the contempt charges . Yes, as pointed out and we did in our brief, con at the point in time doesnt lie for perjury in these circumstances. There are 500 people in the National Data base of registry of exonerations who would otherwise be susceptible to perjury prosecutionings because they entered guilty pleas, but they were actually innocent. That goes to the merits of whether contempt could actually be found, but what about the appointment of the amicus to look into con at the point in time charges . Theres no basis to do that either. He doesnt have the authority to prosecute anyone for contempt. Thats not the judges place to add on charges, thats solely within the prerogatives of the department of justice. , but with the Supreme Court decision in young . I dont i dont see that inconsisten inconsistency. So in young the court said that the District Court can appoint a private party to prosecute charges. Well, in the circumstances of this case contempt cannot lie by virtue of him having to withdraw his guilty plea. Yeah, let me ask you one other question about the contempt charges. If we decide a reassignment here is not appropriate would we have any grounds for reaching the contempt question . I dont believe mr. Flynn petitioned for rit of mandamus on the contempt question itself. Are there any grounds that we would have to reach that question . Simply the fact that the judge doesnt have the authority to do it and theres no continuing case or controversy. Controversy. Can i ask a question about the continuing case or controversy point . In thompson 1980 Supreme Court case that i referred to earlier that was cited in the briefs, the Supreme Court the solicitor general suggested to the Supreme Court that the case be dismissed under rule 48a. And the Supreme Court did not itself dismiss the case and the Supreme Court did not declare that there was no longer a case or a controversy. Instead the Supreme Court remanded the case to the court of appeals for reconsideration in light of the governments present position. So in that case the Supreme Court did not treat the fact that the government had filed a rule 48a motion as ending the case so that there was no longer a case or controversy. Dont you agree . Well, if i recall that case correctly, it was a mandamus for a mandamus. And the Supreme Court decided the Appellate Court needed to address additional issue. That is not our situation with the fact that not a single court in the country had as ever refused to affirm a 48a motion, theres no basis to proceed with this case. The government is the only entity, the department of justice is the only entity under article 2, section 3, that can prosecute the case. And they have decided not to do this for a number of reasons, not the least of which is the appalling suppression of exculpatory evidence thats gone on for as long as three years, the fact that the fbi agents literally made up statements to put in a 302. The fact that agent or mr. Prestap had a discussion with Andrew Mccabe trying to get the defendant to lie and what is our goal here, and came back the next day, reconsidering the fact that they had decided not to show him the evidence that they had, like they do with everybody else, the fact they decided not to give him a 1001 mention not the least not even a warning of course, no warning, but not even to mention 1001. They sent agents over there, according to mr. Comeys testimony, just told him a couple of agents were going to drop by, was that okay. He said, sure, he works with them all the time. This is appalling a travesty of justice that a man has been dragged through this for three years in a case that was concocted by the fbi, and evidence falsified and else. The government has provided pre has provided extraordinary documentation and the only thing left to do is for the judge to order the dismissal of this case. The delay the judge cant do an independent evaluation of the record before entering that dismissal . No, he could look at the reco record. He can look at the record, but the only thing to do as a result of that is to order this dismissal because of the presumption of regularity that attaches and the fact theres no clear evidence of anything else. He cant make up these things he calls reasonable plausible questions that doesnt even relate to the motion to dismiss. And proceed to drag this out forever. Its just not i mean, its contradictory to faulker, contradictory to rinaldi, contradictory to the in re United States and the 4th circuit in smith and 5th circuit in hamm. Where in the orders of the review did the District Court say anything about reasonable plausible questions . Its in their brief. Thats not the order under review though. The order under review is, from your perspective is him not granting the motion that not granting the motion itself is grounds for mandamus. And the appointing the amicus to do anything. So i so we have to find both of those things to be improper to justify amicus . Is that your position or is one of them, in i one of them by itself grounds for mandamus . I think either one is for mandamus. Let me ask you something about this appointment of amicus. In faulker services, we ourselves appointed amicus, if judge sullivan had not appointed amicus, would you be telling us we couldnt appoint amicus . No, maam, you can appoint amicus to weigh in on any issue the court of appeals wants to weigh in on as long as its in the case and the court of appeals didnt create it. What judge sullivan do was created his own issues that he wants to investigate that arent related to the motion to dismiss or i