Transcripts For CSPAN2 DC Circuit Oral Argument In Michael Flynn Perjury Dismissal Case 20240712

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 in the case before him in any way. He wants to he cant. But in faulker services we appointed someone who defend judge leons order and this is well, thats what ms. Wilkinson is doing here before this court. Shes the analogous piece of that proposition, not mr. Gleason. Thats true. And you have no problem with her, obviously. No, obviously, shes entitled to be here on behalf of the judge. Appellate courts often allow amicus participation, but the District Court doesnt in criminal cases, theres no rule for that. If you file the brief as amicus in the District Court, you couldnt do it. All the documents have to be corrected. I asked you earlier if amicus to file a motion in support, a brief in support of a motion to suppress, whats your answer . Is there authority for that . Yes or no. I would think theres authority for that based on a motion that another party had filed if the judge wants to allow it, it would require a based on what rule. I dont believe theres a rule, but there have been other cases in the District Court level, but its been in support of a position of one of the parties, not in support of a judge trying to gin up additional charges himself. Just with respect to the rule 48a motion, its your contention that if for some reason mr. Flynn opposed the governments motion, it would be okay for an amicus to enter an appearance, to file briefs in support of mr. Flynn, right . Well, at least there would still be a case in controversy before the court and that would be up to the District Court whether to allow leave to do that. I dont see a provision in the rules for it, but generally speaking District Courts kind of do what they want to do within pounds of reason. So theres authority for it so long as theres a case or controversy, is that im just trying to understand your legal reasoning here. The legal reasoning is that he essentially appointed mr. Gleason as a special prosecutor, that he doesnt have the authority to do. If hed asked mr. Gleason, position, to weigh in on a side that existed in the case, that might be permissible. I would probably still argue go e ens against it, but i wouldnt have sought a rit of mandamus on it. Isnt it also your argument that impermissible to have an amicus brief under the rules of the court . Yes, thats one of our arguments here. Theres no rules providing for it. Like i said, ive seen it done in District Courts as long as its on the side of the party that seeks to continue the litigation, just not on behalf of the judge as an apartment prosecutor himself. All right. Are there any other questions . Okay. Miss powell, well give you a couple of minutes in reply. Next is mr. Wall. Thank you, your honor. May it please the court, jeff wall for the United States. A number of questions that the court has asked, and i want to say two points, one on the merits of you, judge wilkins and one on harms to you, judge henderson. By the way, i think thats the right order to take them in recent mandamus course like faulker and blumenthal, and asked whether there was a clear and undisputable right and then turned to mandamus and if the courts have rule 48 motions, then i think its easier to see, judge henderson why its so harmful to allow this process it to play itself out on the District Court. Taking the merits first, judge wilkins. Rinaldi is a case, 15 it assumed the broader standard and said even that can be satisfied, a motion after the judgment not just after a plea or trial, but after judgment. And thompson of course was just a case we wanted to pull the prosecutor and the Supreme Court and even thereafter in the court of appeals, it sent it back to the District Court to allow us to do that, but i completely grant judge wilkins, neither, you know, of those cases look at substandard for rule 48. They revolved rule 48 applies contra to assertion, review. Theres no emergency cal line at the plea. The case that does that, that we rely on for mandamus is the courts decision on faulker, and thats for the denial of rule 48 motion. How did you revolve that when the case solve that was not appeal in what he did dpa, he explained how dpas and rule 48 motions are now separated off. The language goes through that especially when it leads to charges, dismissing squarely within the prosecutorial discretion. If there is no oversight power in the courts, no involvement by the judiciary and this is no substantial role for court. If we write about what it says with respect to rule 48 then to turn to my. 2, judge henderson henderson, its a question of what is appointed for the proceedings at the distant court is required by circuit case law to grant the rule 48 motion . G believe it stands for proposition that the District Court cant perform independent evaluation of the record . I think it does in the following sense. I understand fokker to mean if tomorrow is with the agreement that was at issue in fokker, District Courts im going to set up a process for deciding whether to grant disagreement. Other from both sides on how to resolve about what you gone to ease on particular defendant evidence of course did all of that, understand that to be yes, straightforward violation of fokker. Again its not just the sort of idea that there would be some reefs and here the harm is briefs, both an open reef and page two of the reply parts appointed to investigate they state the profitable decisions, the prostitute motives. The order itself says that, which is under review says that amicus is about to present arguments in opposition to the governments motion to dismiss. Thats the order under review. So with it doesnt say anything about, you know, fact development or anything else. With all respect, two points. First, were not here we hear on mandamus and mandamus is direct speech is going to do something. Its not review of an order. Here we are asking the District Court be directed to grant the rule 48 motion. But second, beyond the order the reason for entering the order as having been explained we now know what well gone below. Respondent wants to inquire into what this our process control decisions and motives. The District Court is concerned there was improper influence. On the one hand, suggested in respect to the amicus flat out allege the misconduct on the part of the attorney general even if the president of the United States. Thats going to mean, in the District Court you, will have to come in and answer those questions and defend against them, and thats all the cost of this court laid out in fokker. In order to have the sort of proceeding some of these questions are assuming, this court would have to issue mandamus, take off the table evidentiary proceedings and the like, take off the table contempt. You would have to say just rule 48 48 motion, you address that and then come back to this court. But at that point thats the proceeding. Theres a the distant court doesnt have the authority to appoint amicus to advise it on whether it should issue an order to show cause for contempt . Judge wilkins, we have not argued that District Court generally lacks the power to appoint amicus. Either under the rules, more like a under their Inherent Authority, but what we have said is the particular amicus is improper, for all the same reasons going through an elaborate process would be improper in the dpa context under fokker. If thats true then it has to be true for rule 48 context which would fokker is recent with respect to dbas. Were not saying the District Courts dont have the power to do this generally. What were saying is here there are problems with this particular appointment of the amicus. Just to get back to your question, i think once we know those are the harms theres no reason not to take that final step because we know the harms of going to play out. This has already become anything is only becoming more of a public spectacle, particularly in light of the amicus filing in the District Court two days ago. It threatens toward not just the executive and his prosecutor discretion and its delivered of processes but, frankly, threatens to do harm to the judiciary as well. If i could ask you. The court, our court has repeatedly declined to grant mandamus separation of powers violation. Im wondering if you can be more specific and more particular about what with the concrete separation of powers violation is here wax rule 48 does allow legal court. So is the problem, what persuasive is a problem . What precisely is infringement . I think judge rao, the separation of powers harms here, youre right, it can be very subtle and very abstract and a lot of cases. I think they are at start and is concrete here as they come. Because here we know from whats transpired below and from the briefs in this court the with the District Court is contemplating is a sort of intrusive fact intensive inquiry into what they said our host the factual questions. Why do particular prosecutors not signed the brief . Why did he turn general make this decision, was he right on these various grounds . What about the uncharged conduct with respect to the turkey statements . Were going to have to brief and barely put on evidence in defense of all of that so that the District Court can then reach a decision in circa law compels them to grant that motion. I think it is an intrusive process and it is good on the executive and we cant ignore that is playing out in a politicized environment that has made worse by the kind of, honestly, the 70 page that the court appoint amicus fosse filh alleges the president and attorney general have engaged in great misconduct. When youre working with those allegations are forcing us to defend against them, all in the context where this courts case law says thats exactly what courts shouldnt be doing. Very substantial role in the quote, its hard for me to see a much but all of the 48 a opinions from every court has said the court has some role in that the role involves making sure that theres not something that is being done 30 contrary to the Public Interest. So then there must be some case where, or some set of circumstances where as unfortunate as the clash of the two branches of government might be, where rule 48 48 doesnt w, isnt that right . I think its right in the following sense. 40 8a does work in cases where its impose motion. Even what it is we dont dispute the court can ascertain its got to consider decisions of the parties. It has a prosecutor being bribed. But we do say an unopposed motion to dismiss relatively small set of applications under 48 a thing with the parties agree and theyre both making consider decisions, yes, the court is required to grant in light of the car such as concerned that this court a sconce in fokker. The sycophancy judge wilkins to drive this home is i understand responded to accept that everything i i just said is rit in the preplea situation. They agree of the defendant had not pleaded and this is an ongoing prosecution, we could pull this back, the read nothing a court could do about it, couldnt force us to go to trial and a court even if or upset about our motives couldnt perform any oversight. It would do to grant a motion. The move that to make is key to the merits on page 19 of replace is a that fokker issues for the doesnt apply once the court has accepted the plea. I think thats got to be wrong for no fewer than four reasons. First, once we know its not the concern of the rule in most of the cases which preplea cases didnt we know its not what the rule writers of it. The constitutional concerns of the same after the plea. When no one want to pursue the executive and the soul of a controversy between parties. Third, we know as you said they use can dismiss even after judgment, even after trial at alone after a plea. Theres no magical plea line. Fourth, fokker rejected exactly this distinction. It said accepting the plea agreement to be sure of the judicial act, that falls on the Courts Authority. Once you know that plea line, theres nothing magical about that in terms of the rule 48 of the constitution, i think the case on the merits collapses and theyre just back to judge hendersons question about the harms and why grant mandamus, white grant mandamus now. Fokker made clear that are different considerations at different stages of a criminal case. To the extent even if we credit them, that fokker is binding on rule 48a. And here we have to make different district judges that as a part of their obligations under rule 11 made factual findings as to materiality and the basis for plea, et cetera. And so the governments motion doesnt just implicate the governments position. It implicates those rulings the District Court judges have made. So the case isnt in the same posture as it would be prior to a plea agreement in that respect. I absolutely agree with part of that, judge wilkins. Its certainly true that are different concerns at different stages, and fokker says accepting the plea agreement does call on the Courts Authority because it has to ascertain whether there such a basis the plea by the contrast that with dismissal. Take a case like parted to screw with is once you cross that plea line and defend has pleaded, suddenly everything that follows invokes the Courts Authority in some way that changes the calculus because fokker says thats not true. The best example is in the seventh circuit. The District Court, it wasnt just a plea. It was a sentence, and in light of the sentence the government wanted to dismiss some of the charges because it no longer wanted to pursue them. The District Court is upset about that and wouldnt allow the government to dismiss and the seventh circuit said look, it doesnt matter, even if the government is trying to get about the District Court Sentencing Authority its the master of its own case. It gets to decide when to bring or when to dismiss charges. I agree rule 11 acceptant of the plea agreement if thats what is before the court, thats different but fokker lane which is clear about this. It says accepting tpas and dismissal rule 48 are not formal judicial action imposing or adopting terms undefended for parties. Its not the court sign of anything. The judges not take back anything hes done, not expressing the opinion of the covers case, not seeing his agrees with discreet. He hes just acknowledging a coequal branch exercise of its executive power. I the question about i have a question about your position, the United States position, about its representation in support of the role 48a motion. Is it your position that the government does not have to state all of its reasons in support of dismissing the case . Only those it chooses to share with the court . It is, judge wilkins, but i dont think anything i simply could is coming to dismiss without providing an explanation. We do that at times and District Court certainly granted. No Appellate Courts have reversed them. Here we did. We went beyond what we thought we are obligated to do under circumstances. We provided a robust explanation to the District Court and we think whatever rule or he might require as a procedural matter, we have more than that hurdle as ms. Powell said. I think this is one of the most robust rule 40 motions you will find. So i guess to understand my concerns, suppose you have case where federal Law Enforcement officers pleaded guilty to a criminal civil rights violation for using Excessive Force, and then the government says they have uncovered some brady evidence and are moving to dismiss under 48a period after a guilty plea. But part of the reasoning of the authorities was that as to why the didnt believe they would be able to prove this case beyond a reasonable doubt was that the victim is black, the defendant Law Enforcement officer is white, and they did not believe the jury we believe the black victim over a white officer without corroborating evidence, and thats unfortunate but thats the reality. And so that was one of the reasons for dismissing. But they thought that wouldnt play well so they didnt say that in the motion. They just said that the exculpatory evidence was the reason they are dismissing. Is that proper . So twopoint. One is equal what is practical. The legal one is theres an easy way to do with that even the mandamus posture. I think fokker is clear that the government as long as it provides any reason at all can dismiss. So yes, i think that the motion there should be considered but these were to do that is to say look, even you think theres room for some kind of we think its [inaudible] its not clear and indisputable im sorry. I couldnt hear about ten seconds of that. Can you repeat whatever you said . Sure, im sorry. If you thought that it wasnt clear under fokker, whether the court could allow that type of explanation, that you could try to lead leave the open and to y look, what other the net might be on the merit, its clear and indisputable that wherever the bar is, the government met it here to its explanation. The practical thing i would say is, i certainly hope the government has never filed a motion like that and im not aware of it, and even then yes, i think the core should have to grant it because the government whatever its motive no member no more wants to. Use other defense walking in attaching that motion and bringing armstrong cleansing the government is making raciallybased decisions in its prosecutions and based on your hypothesis that sounds like did a pretty good for that. There are remedies or this other than meeting to contort rule 48 to get into what the executives motives are. If theres remedies for it, they cant be a remedy for unless you know that its happening. If the government doesnt have to disclose all its reasons, then you never know that its happening, right . But thats all the court is allowed to ask whether any of the reasons. You would never know that it is happening, right . That were uniquely true in a case like fokker, judge wilkins. The physical could always say look, i think the u. S. Attorney has cut a sweetheart deal with corporate defendants here, and somewhat to get some breathing and i want a hearing on whether there was improper influence to bear on this. The point in fokker is its not the courts to police with executive as pure or impure motives. The remedies for those occur in political and public arenas, retaliation from other branches, dismissal of corrupt executive officials, even impeachment if it comes to it. But rule 48, fokker says, is that the mechanism for policing the kind of harms that you are worried about. If a court could do this sort of thing you are talking about, then i think fokker has to be either with respect to rule 48 or dpa, the court conceded that executives and whether you could always inquire, and understand that in going to be exactly what fokker shuts off. But are you suggesting, i mean, normally when the standard is that there is a presumption of regularity, what about the case in which the District Court feels that presumption is overcome on the face of a material presented by the government . So two points, judge rao. First, i dont think the presumption is relevant here and let me put to this way. If the District Court thought the government had a bad faith motive for declining to bring up our situation, i think of when degrees the court couldnt force the u. S. To bring the case. The same is true for maintaining a prosecution. As fokker said theres no over several for the courts. This is the key thing, when it refers to the recession of regularity, its not saying that some exception to the rule its laying down in a situation. If a look at that passage of the opinion all it is doing is listing that as another reason for adopting its rule. Courts are very loath to secondguess the reaction to clear evidence of constitutional, unconstitutional motive. It gives that as a reason for reading rule 48 its way. Its not adopting some exception to its reading of the rule that even if it were they would still be entitled to mandamus because armstrong is completely clear that you have to have clear evidence of an unconstitutional motive to rebut the presumption. They can argue about whether they think the attorney general is right about this or about that, but theres nothing remotely approaches clear evidence of an unconstitutional motive. Thats what you need to rebut the presumption even if the were relevant. So their regularity in your would only be an. Net other types of irregularity . Thats right because its only an unconstitutional motive that would allow the court to step in that you need independent constitutional limit like a racialbased prosecution. So yes, if they did socorro thought he is a dream where paving his friend, that would be terrible conduct. There are political remedies for that but there are not judicial remedies under rule 48, if considered decision of the executive branch is that no one wishes to proceed, it doesnt have to bring the case and by the way, there is no longer an article case of controversy. Even if the prosecutor was dismissing the case because it did not believe that a white Police Officer should have to answer for using Excessive Force on a black defendant, and they say that in their pleading under rule 48a, the District Court still has to grant the motion . Judge wilkins, i dont think the court conforms the executive to keep the case alive in the absence of the case of controversy. As i tried to set earlier and made will be a basis for dismissing other prosecutions, but even if you disagree, the reason hypothetical has forced the because its an unconstitutional motive. You can bracket that question off if you think fokker isnt as categorical as i do because theres nothing like that here. I dont think you can leverage that to say if we can require what this legal court mean then . What work at all this leak of course do the . It does work of course with respect to oppose motions to dismiss and the work that it does for the far smaller unopposed motions in a situation like this, is it allows the court to make sure that you can have prosecutor who is being bribed and is considered position of the defend the defendant has been properly canceled. Imagine a situation where defendant agrees for dismissal without prejudice even with the government has repeatedly been bringing charges and dismissing them on the eve of trial. District court is wanted in asking the defendant are you sure about this . Because it sure seems like the government yanking your chain. So why isnt that the case if the government makes a considered but racist decision, that it just doesnt want to have a white officer stand trial for Excessive Force on a black victim, that the District Court can deny been motion and then the political chips can fall where they may, and perhaps under pressure on the public or congress or whatever, the District Court may not be able itself to force government to prosecute the case. May be of the pressures from a and the media, a new prosecutor is appointed and the case proceeds. Why isnt that exactly what leak of course should operate to do . Judge wilkins come your question or think recognizes the answer which is as you say there is no power to make executive move for to trial which goes to show why this is at the concern of rule 48. But if the government cant make the case go away and the case is in limbo, then while it is in limbo, pressure could be brought to bear on the government to reconsider decision, right . Let me say to her things. First, as judge kavanaughs explained, the ruling for that kind of equal protection violation to dismiss other cases, its not to compose a government to afford with this prosecution. Second, even if you disagree with the reasoning of that, if you that kind of the case with the prosecutor put forward on its face in the motion evidence complete evidence under armstrong of an unconstitutional motive, i think you could bracket off that case and as a constitutional matter, we dont have anything like that here. Just to square the circle, you cant leverage that back to saying you could acquire in some armstrong type case because the face of the motion disclose possible constitutional violation but then you can inquire in another case. That within eat the rule. I think aiken is right there are other remedies for the equal protection violation. Its not meant to be taken care of under rule 48. You dont have to agree with me on that because here no one is arguing, that even responded, that on the face of the motion to dismiss that the government filed there is any unconstitutionality, theres any evidence that were violated the equal protection clause or anything like that. Thank you. Mr. Wall, let me ask you, you threw out a question probably 30 minutes, what would be the harm in going ahead and mandating the granting of the motion to dismiss . The harm is, to me anyway, regular order. And mandamus is a drastic remedy. You know that. We all know that. Nobody has been able to find a case in which mandamus has issued where the District Court has not acted in the sense of a ruling, and order, something that we can review. Now, this district judge has taken two actions. He has appointed an amicus, and he sat hearing. Now. Now, unless you agree with ms. Powell that the setting of the hearing is something thats that leaves at the appointment of the amicus, and granted, he may have chosen an intemperate amicus but that doesnt mean that he is going to deny this motion. And considering that drastic remedies that mandamus is, considering theres no precedent that allows us to move without an order, i dont see and considering theres a hearing set for july 16, i dont see why we dont observe regular order and allow him to rule. For all we know he will say this amicus brief is over the top, the dismissal motion is granted. Judge henderson, a few point. Yes it is an extraordinary risk if we say this is an extra very case. I think we are well past regular order. I agree with that. I agree it is an extraordinary case. And i think i would say, at a minimum, at a minimum in order to have the sort of regular order you are talking about, the court should still issue a more limited form of mandamus. That. That takes all the table this evidentiary questions and probes the modes and you have to defend against that. They say in the brief note affidavits and declarations end quote and it seems to me and wants an evidentiary discovery process. I think that clearly should be off the table. If all were talking about is fokker and will 48, we can come back to the circuit and at a minimum you need that in order to get regular order youre talking about. Then i would say, judge henderson, the reason i think you should go a step further is its just not true, as limited, it just denies or grants rule 48 motion, its still not the case the parties havent suffered harm, the harms are obvious to general flynn. The harms to the government are what i am focused on. You had as you say potential amicus. You at all of these allegations being lobbied at the executive branch. We will have to that any public forum and it politicized from it. Thats the thing that fokker walks to the harms and says we shouldnt be doing. It invades our delivery process. It ventures lawenforcement, sets up a conflict between branches, and so i agree we dont know thats going to happen. We have judge sullivan who is an old hand. Hes an excellent trial judge, and he may say to himself at least, you know, i asked for advice and im ignoring it and im granting the motion to dismiss. Should he be allowed to do that . Judge henderson, judge sullivan is an experienced judge on the District Court. Because we are past regular order, with cross into the mandamus threshold. If we had gone about this a different way, i might agree with you that order to be maintained. But because we reached a point where we had a District Court in its brief, raising questions about modus, the court is apparently contemplating [inaudible] layout exactly why weve done what we have done. All of this playing out against the backdrop of these incredible harmful allegations. And i just, i think if it isnt already, it has threatened to become and will be, a sort of public spectacle that a fake mandamus is warranted to. I agree with you, judge henderson. I wish we were not here but we are. Fokker is clear about granting rule 48 motion, so its why we have these unnecessary proceedings when theyre really going to do damage to the executive branch at this point, given the way they set up an environment theyre playing out in . At the government didnt file petition for mandamus. Mr. Flynn did. Its very sorry, judge wilkins. I dont want to get too much in the government deliberative process because of course the whole point is thats not permissible under rule 48. But what i can say is there was uncertainty in the District Court about what the District Court is going to do. And on the same day the diss record set the Briefing Schedule before made any final decision, general filed his mandamus position. At that point we do decide whether to support it on whether to file a duplicative petition that risk slowing us down and we decided to support the mandamus petition. I think honestly it would be artificial to cabin off the separation of powers harm here just because we didnt file our own petition when theyre presented in stark relief. Certainly if that were important to the court should at least give us opportunity to file some short mandamus petition they could be consolidated with general flynns because we are here they are serious, it would be great to judge rao spoiled, start separation of powers concern is a notsosubtle abstract things that present themselves in the article to an article iii cases. You have a court that is considering whether to keep alive youre talking about regular order and then you are saying we didnt file mandamus petition, but if thats important, then give us relate relator after at to file one. Thats far from regular order here, and you are arguing that, you know, if you are not inclined to grant the principal relief by the people who filed the motion, then grant some form of limited mandamus relief. You are making that argument even though you dont have mandamus petition before us. None of that is regular order, counsel. Judge wilkins, ill grant little about this case is regular order at this point. I dont think that are not filing a mandamus petition should be taken as legally relevant in any way. We are a petition the regular occurs in court including the Supreme Court. We make the full range of arguments and are a legal argut and are harms are considered by those courts as i think they should be here. My only point to judge henderson was, it gets back to regular order. You need at least a mandamus that would take off the table of the evidentiary proceedings and questions and attempt. Even if you just narrowed it to the legal question of the meaning of rule 48 which would admit most, vast bulk of the court appoint amicus brief is no longer relevant, even then you still want have to take additil step of granting mandamus. Those who question the First Impression but both this court and the seventh circuit sent the constitutional principles are so clear we will get mandamus, and he will not just the constitutional concerns under article to an article article h of the decision in fokker itself. I keep coming back to in fokker the district, we knew what the District Court did. We dont hear. Oh, i agree and i think its possible they could come up at an earlier stage in fokker, this court would granted mandamus. But once they grants mandamus in fokker and explains why it is doing get and it explains how it reads rule 48 and says a dozen different times that this prosecutorial discretion, courts gets goodness, this oversight, its not just impugning the decision of the District Court. Its impugning everything the District Court was doing that led up to it because courts dont have any substantial role. They have quote oversight power in court. I dont once you know that from fokker, then i take the point, this is not briefs in hearings. That is that of this is shaping up in the District Court but even if were somehow limit it to a more normal type proceeding without all of the stuff responded once to get into, that all now squarely foreclosed by fokker. I understand, seems to me now it indisputably is enough. Mr. Wall, im concerned about your fallback position that we could grant some kind of partial relief. I mean, wouldnt that require the court to articulate actually far more legal standards about what precisely is on and off the table . This seems to be a lot of law to be making in the mandamus posture and seems much less clean than just issuing a writ of mandamus. I was just wondering whether, i mean, if you really think a partial mandamus would actually be more minimalist than a clean writ of mandamus . No, judge rao. Any be very clear about this. The writ of mandamus is warranted. It is clear and indisputable that rule 48 motion has to be granted under rule 48 and if we are right about that that is the reason to let these harmful proceedingsso sat in the District Court. We completely agree that the cleanest way to resolve the case under fokker is to grant the writ. I wish us a link to judge henderson that if the court sort of has these concerns about i was just explaining it seems unfair to the petition government to say you should observe regular order because theres nothing about these proceedings threat to be regular. To put them back on a regular track to grant at least some kind of mandamus but i completely agree with you that that does require you to say look, fokker is clear it does have evidence that it does require you to address intent. The clean away is just to say fokker is clear that the court is a great rule 48 motion. Given the harms to the defendant and the government, the [inaudible] i will fall grant judge henderson is an extraordinary writ and we do not ask for an ordinary case and on your dispute between private parties would not be appropriate but this is separation of powers case. You take a case like cheney we think about discovery brings the branches and a possible conflict and Supreme Court grants mandamus, this case it seems to me is two steps beyond that. You have actual conflict between the branches were the court wants to inquire into why we did this in the face of allegations if there was some impropriety, and understand that to be exactly what was said in fokker, courts may not do. I really dont think its hard to see what the harms are going to be to the government over the next couple of months if we and the defendant are put through the process, which is all for not if it is a day District Court is required by law to grant our notion. Well, lets drop the phrase regular order and lets talk about one of the requirements, i discovered anybody mention, and that is the adequate remedy at law. Thats what im talking about as far as regular order. Assuming you have an indisputable right, and that to me seems pretty clear, you still have to say why there is no adequate remedy at law. And i could repeat, but why is there none it on july 16 judge sullivan grants the motion to dismiss . So ill take one more stab, judge henderson, and i think its this. Even if a month or two from now the court grants a rule 48 motion, in the meantime you have proceeding thats forcing us to explain ourselves, to do it apparently through affidavits, declaration, some kind of an evidentiary process in the District Court, i dont know whether, at the disagrees very careful and its breeze not to see exactly what it envisions, but the dis accord has left itself room for not just documents of that kind, witnesses and all the rest, and that is going to intrude, its going to all the harms on fokker, on a delivery process. I think the court has to take account of the fact that respondents briefs and amicus impugn the motives the attorney general of the United States and is going to pull the judiciary into a fight that should be played out in a public, political arena. I think those are real harms to the executive branch, even if at the end of having been put through that whole process, and what threatens to be a spectacle in District Court, the District Court ultimately grants the rule 48 motion. Fokker says District Court shouldnt be doing these things, its hard to imagine a case where a District Court would do something foreclosed by fokker. I would be more harmful than what were facing on the circumstances here. If ever the court were going to set a District Court needs to grant rule 48 motion, thats what fokker clearly requires. It seems like this would be the classic case. All right. Are there any more questions . No. If not, then will hear from ms. Wilkinson. Thank you, mr. Wall. Thank you, judge henderson, and may it please the court. The petition asks ask this couo grant really an extraordinary remedy or mandamus, to present, to prevent this District Court from even considering or questioning a pending motion. This court should deny that. Three reasons. First, the government subversion as this court has pointed out is still pending and it may very well be granted. Alternatively least available below. Second, the law does not clearly and indisputably foreclose the District Courts consideration of the governments motion. Third, it would be inappropriate to grant mandamus in a case involving open questions where the government is raising novel arguments that were not raised below. As this court has said, it is essential for those questions to be raised below to maintain the regular order. No one disputes a federal District Court in the second case a legitimate exercise or prostitute discretion specific as it disagrees with that. But that is not the issue before the court. The issue is whether a federal District Court judge can appoint and amicus to provide adversarial briefing before really on emotion that requires leave of course. The answer is must be yes. So in the case where both the government and the defendant agree that the motion to dismiss, isnt the appointment and amicus creating an article iii article iii case of controversy where there isnt one . That is the case in controversy here for several reasons. One as you know the government and the defendant are asking for the motion to be dismissed with prejudice. By definition there cannot be a ruling dismiss those charges with president s if prejudice if they dont have jurisdiction. Everyone in this case agrees that this motion, if it should be granted should be granted with prejudice so the charges are ended. What happens though, another would ask you this, if the District Court were to determine if the motion to dismiss should be denied . Then what happens . Then we go on to sentencing mr. Flynn, even though the executive is no longer pressing its prosecution . There is no reason at this point to fear that the disaccord is going to deny the governments motion to dismiss. But if for some reason the facts are the answers to the questions at the hearing date some basis for that, im sure the parties including the government this time and mr. Flynn with file another motion or another writ for mandamus. And that happened, the court said and denied the first motion, because they said the government had not had the chance to actor in fact, only when the agency announced that it would not rule did this court issue a writ of mandamus. Here were not in any situation similar to that. As judge henderson said, the court, you only set a Briefing Schedule and as a hearing for july 16. The order to the amicus as circumscribed is when presenting arguments in opposition and theres no suggestion the court is going to call witnesses or do anything of the parade of deplorable. All this court is doing is getting advice. And what answer is a article judge three supposed to apply in this context . In speeders in order to set the motion to dismiss, will 48 just says there must be leave of court. Whats the standard the District Court judge must apply . The governing law here, as fokker reiterated, we have to look at whether the presumption of regularity or the was a clear violation of the Public Interest for the court to sears to consider whether it can deny the motion to dismiss. So that as a presumption as you mentioned earlier, and the question is, is it any basis to overcome the presumption . That would guide the courts inquiry after receiving the briefing and asking questions of the government and the parties. But, i mean, isnt, the Public Interest not a a standad that is mentioned in the rule, and i mean, they are not constitutional since mcgovern, the Public Interest with respect to whether prosecution goes forward, isnt that Public Interest one that is committed only under article ii, to the executive branch, into the politically accountable executive branch, not to an article iii court . Generally, yes, your honor. They protect and consider the Public Interest but in rinaldi the Supreme Courts specifically held that the standard i think you know in footnote 15 with a said they are not willing, they are allowing the motion to dismiss and they found it did abuse discretion by the said we have not decided whether you could consider a rule 48 in light of the Public Interest. In fact, the dissent thought it was clearly an independent basis to review a rule 48 motion. But in any event that law is not clear here. Has no clear and indisputable standard for this court to issue a writ of mandamus based on the fact that the standard is unclear as to how you determine leave of court and any kind of abuse of discretion or discretion. What we do know is in this court, in the Circuit Court in fokker, provided for review by the court of governments motion and allowed for questioning. When you decided the case in fokker, judge leon questioned the parties including the government open court on several occasions and he had conferences. When fokker was decided, no one stated in that opinion you cannot ask questions. You cannot have a hearing. In fact, a government never took judge leon up on mandamus. Theres a situation the government argues that fokker necessarily rebuke that approach by the District Court. What is your response to that . Thats not what fokker says. What fokker says is about the District Court judge abused his discretion when he denied the motion which was a speedy trial motion necessary for the deferred prosecution agreement, when he stated that he disagreed with the governments prosecutable decisions. That indeed is an improper basis to deny a motion to dismiss. That was the circumscribed rolling of fokker. Fokker does that do with rule 48 as youve talked about but it certainly doesnt say you cant have consideration for scrutiny. In fact, this is just the opposite throughout the opinion. They talk about scrutiny and about it being circumscribed by they dont say the court has no right to ask questions. And here all the judge is doing is receiving briefings and having hearing. The parties, the petition and the government, didnt object to that below. How does the presumption of regularity then apply in a situation like this . Before asking questions, you know, appointing amicus, doesnt the District Court have to determine that presumption is overcome . No, your honor. The court could not determine whether the presumption had been overcome without least questioning the government about its motion to judge wilkins was pointed out when he was saying if you had a pleading and the government did it include all the facts because they only wanted to present certain facts, the court by definition have to inquire to determine whether that presumption was overcome. The court was a clear that there is a presumption, so what is a longheld climb to overcome the presumption but theres nothing in fokker that says he may not question the government. And affect the government answers these questions all the thing. If you look of rinaldi, in chief judge king of the Southern District of florida scored, called the in and ask questions. The Supreme Court in rinaldi didnt say that kind of question was improper. That happens everyday District Courts when the party files a motion and the judge asked questions. Thats all this happening here. Theres nothing more, nothing less. There is more. There is an appointment of an amicus to oppose the motion to dismiss. That i dont believe is an everyday occurrence. Your absolute right, your honor because normally parties are opposed. All the District Court did was a point in amicus to present arguments in opposition to the governments motion to dismiss. We know because at least sometimes the amicus file that brief, it didnt ask for any witnesses, did not request any factfinding. The point about the regular order, if this court doesnt step into the freight and allows the District Court to do its job, it may well be that the court meet both sides, both briefings, as the compass question and grants the motion to dismiss. What is, i mean, when the government decided to drop prosecution of the defendant agrees, what is the standard there arguing . Who are the argument on behalf of . They are argument on behalf of the additional position, just like this court is often or the Supreme Court does. Dickerson, where the government was not going to challenge the miranda stand and the Court Appointed an amicus to argue because the government chose not to take the position. So youre saying theres some kind of judicial right of judicial power here that the amicus is preventing . No, i think, i mean, i think as was stated theres an inherent power and it occurs at the District Court level, not frequently, for the court to appoint an amicus when it needs advice or legal briefing on an issue. But here its even more important because you need adversarial briefing. What but in a criminal case that is the adversarial process. Its the government against the criminal defendant. Who is what does it mean to have an adversary with the government and the defendant agree . This is representing some kind of Inherent Authority of the court . Its representing the authority of the court to understand the opposing argument. Just like your, your honor, you have the government and the petitioner aligned, and the disregard was brought in to argue the other side. It doesnt mean that this accord things this motion under rule 48 should be denied. All were doing coming forward is arguing the other side, and all the District Court was doing his appointing an amicus is a what is the scope of the authority . Can a motion, unopposed motion be denied . If so what is the standard . The standard is not clear. So what are the outlines, what other cases, what do they say about the Courts Authority to ask questions and to make the decision . The amicus is in an adversary. They are not saying you are saying amicus is used to provide understanding about the law to the District Court . I think its, the amicus is an adversary in the sense that he was directed to take positions opposing the governments motion to dismiss i believe the government and the petitioner would certainly see the amicus as an adversary and thats important because the court doesnt have to listen to the amicus. As judge henderson said the court is an experienced judge. He cant ignore the amicus. He can take some of the point under consideration and then he can ask his questions and make his ruling. But he wanted to hear the judge. I think here, as you also recognize, that is a core article to power over prosecution. Even the weakest understandings of article ii admit the executive power, you know, includes control over prosecution. I think you have to articulate here what is the article iii short stay . There was a conflict between article to an article iii, and article iii powers articulated was the District Court essential function of protecting individual liberty in a criminal file. But here i think, i guess im wondering if you cant articulate what is the power veiling article iii power at stake . In the case with the government and the defendant agree on the motion to dismiss. Fokker made that up by saying the court is allowed to question the presumption of regularity of the prosecutable decision, even when the defendant and the government agree. Even in nixon, your honor, the court, citing the framers, make clear even though you are allocating the sovereign powers among three coequal branches, the framers of the constitution sought to provide comprehensive system of separate powers are not intended to operate with absolute independence. And here you have the government exercise its article to powers coming in and asking the court to make an independent plea. Is that the court make a legal finding and factual finding as fokker says, the court has exercised its coercive power and convicted the defendant. Theres a Public Convention so the government didnt have to go through that and thats very important for article iii power. But your study into the shoes of the jury and saying raised on the finding we can adjudicate this defendant guilty. Now the government is coming back and saying we want you to dismiss those charges, and apparently vacate your findings of guilt. Its not clear what they want to do about the actual plea because thats that subject of this mandamus. The plea agreement that is between the government and the defendant, and what the effect of that is, if the charges are dismissed. But they are asking the Court Executive branch to coming and reverse or vacate its findings and so the court has the right, the duty, and the language under leave of court to ask the government questions. Rule 48 language thats been in the statute for over 80 years at the Supreme Court suggested and congress approved, theres not a case since that language went in that says leave of court is meaningless when the parties agree, and thats the government and the petitioners position. To be clear, they are saying those words mean nothing when the defendant and government agree. That makes no sense under all the cases starting with rinaldi and it makes no sense in light of all the cases around the country where every has at least considered whether the court below abused its discretion when they denied a motion to dismiss. Sentencing a person where the executive branch wants to drop it. When you leave accorded might not mean that much in introductions but a rubberstamp. True, it is a circumscribed review, limited inquiry a court can do under the standard but it doesnt say no review, it doesnt say no questions in the governments position, asking the government questions that somehow it is their record of carmina District Court every day of the week. It went on in rinaldi. It didnt stand up and say we didnt have to answer them. They gave the court the information and the government certainly knows how to provide information as appropriate and this is why all these issues should have been brought up to the District Court. If the government is not like the process of the amicus or the briefing or the petitioner didnt they should have raised it and they come to you. The government says with respect to the case or controversy in the article to prerogatives, even the government and the motion says we are moving to dismiss because we dont want to prosecute this white defendant from beating and using Excessive Force against a black victim, that the court would be compelled to grant the motion to dismiss and that the remedy for that sort of unconstitutional bias would be defendant in other cases filing some sort of armstrong motion or i guess some i guess action and branches after the dismissal to reprimand the executive and that is the response to that type of view. I strongly disagree with that. The case law known by the court started with rinaldi, examples where a court can deny motion, it is not a constitutional violation, you heard mister wall mentioned it a few moments ago. That could be an example where a prosecutor was bribed, the motion to dismiss, could be a basis, focus the government was acting in a racist way, to uncover them through questioning, that would be a basis to dismiss. At this point, it depends on the posture of the case. It was an early decision in the case of the defendant hadnt pled guilty, theres more limited options but there is still public pressure that could come as a result of the court issuing that motion, the more difficult question, the more interesting question is the article 3 court has supervisory power over that defendant, the court has jurisdiction over sentencing. The question is the Police Officer pled guilty and the government disagrees to dismissal and the court denies it, the court the Court Sentence that defendant. There is certainly a basis for the judge to deny the motion to dismiss on those grounds. Thank you. The District Court is not acting as a prosecutor. He is considering the governments emotion and proceeding from all the parties. After hearing the arguments judge sullivan will do what he is called on to do on a daily basis. The motion was such a combined inquiry there is no clear and indisputable justification for the court to enter the fray now, stopping the District Court judge from carrying out his responsibilities. Thank you. Any more questions . I dont think either counsel has any time. Missed powell, why dont you take two minutes . There were no valid rule 11 proceedings to take the guilty plea, but mainly the first judge should have recused already, he must seriously recuse a few days later for the same reasons that would have existed when he recused 7 days later he should have recused immediately and the government knew that information the general flynn didnt. The colloquy judge sullivan did was not a full quality at all, he had many many questions including how this impeded the government investigation, it was refuted by the extraordinary exculpatory evidence that Mister Jensen disclosed that was hidden from the defendant for three years was that makes this case different from every other case. When that happened in stevens judge sullivan had no problem dismissing it at all. The two page motion to dismiss, basically produce the evidence and dismiss the case. While we make a special exception for general flynn is beyond my capacity to understand the law when every case in the country has a grant of a motion to dismiss and not deny one in any way shape or form. Every appellate case has affirmed the grant of a motion to dismiss or said the case has to be dismissed. They dont have any ability to question behind the perspective on the decision absent in armstrong problem which doesnt exist here or clear evidence, not imagining this but clear evidence of serious wrongdoing that indicates that save on the part of the government and rinaldi makes clear that leave of court provision was included to protect the defendant from prosecutorial harassment. There is neither a case or controversy here any longer. The government and defendants agreed the case must be dismissed as the government is not going to carry on the prosecutions to buy article 3 court. The motion should be granted on all counts. Thank you, ms. Powell. Mister wall, why dont you take to it . Can you hear me . Yes. A couple of brief points. The Central Point in the merits, once they conceded that falconer does not allow the situation, there is no way to make the executive proceed with the prosecution. There is no way to force the government in that situation, there is a matter of leading the rule of interpretive principles or constitutional concerns that would establish the situation. That is not what rule 48 had. Rereading the notion that it is too early in time. I think there are real problems that will come from the questions they want to ask about the uncharged conduct, not just why we no longer wants to maintain this prosecution but why we havent brought charges against this defendant, there were prosecutions off the table. What they want to ask why certain prosecutors signed particular briefs whether they general gave like policy judgme that federal interest is no longer warranted and the manner in the District Court, what we are going to say as a factual or legal matter in terms of disclosing processes and the like it is clear why courts were not supposed to go down this road and at the end of the line it only partially left the station but that is why they said trains are never supposed to leave in the first place to respect the division of Constitutional Authority in the executive and judiciary, article 2 and article 3 concerns like the one judge rollins is raising a real harms here and if we know what has to happen at the end of the day, with all respect the District Court should be directed to do it now rather than unnecessary proceedings. Let me ask you something in your brief, that is a harm to article 2, the benefits of self correction. This record before us if there was bad faith, in the original prosecution. Shouldnt we allow article to to selfcorrect . Absolutely. This goes even if we dont have motions, the independent rationales, three independent rationales on certain legal bases, not the respondent has served a word about the portion of the motion, the attorney general says looking at circumstances surrounding the fbi interview of general flynn and the way it went on and wasnt communicated to others, he concluded it was no longer in the interest of justice preceding the prosecution. That is the kind of judgment is at the core of article 2 power. Outside the military concept with the article to judgment, in the motion whether we were required to or not, and in the 48 motion. Do my colleagues have any questions . Know. All right, counsel, your case is submitted. Madam clerk, if you will adjourn court. The Honorable Court is adjourned until wednesday december 9th at 9 30 and. All participants are in and directed talk mode. Conference is ending. Today virginia senator mark warner and democratic congressman Gerald Connolly hold a virtual townhall discussion with voters to talk about a number of issues including Police Reform and covid19. Live coverage begins at 1 00 pm eastern on cspan2. Binge watch booktv this summer. Every saturday evening at 8 00 pm eastern settle in and watch your favorite nonfiction authors. Starting saturday with pulitzer prizewinning historian doris kearns goodwin, author of tweet histories and well known for her work on american president s especially team of rivals, next saturday we feature New York Times bestselling author david marinus. Watch booktv all summer on cspan2. Arizona governor doug ducey