Flynn is a defendant without a prosecutor and litigation now without any controversy between the actual parties to the case. Instead of promptly granting dismissal as required as a matter of law, judge sullivan denied two defense motioning opposing any amicus at all, appointed mr. Gleeson to usurp the job of prosecutor, and went forth to right theening wrotes he perceived. To right the wrongs he perceived. The job of the United States attorney is otherwise occupied. In adding these unconstitutional burdens of process to punish Michael Flynn, judge sullivan discarded any semblance of the unbiased, impartial adjudicator this court extolled in the 2019 chapter of that case saga. As a cornerstone of any system of justice worth the label. Four rulings are required to conclude this novel article three excess. Judge sullivans petition for rehearing must be flatly denied with clear language that a judge has no injury and no standing to seek relief of this courts rulings. Because judge sullivan has invested himself in his own prosecution of flynn, the disqualification of glaring appearance of bias to millions of citizens. Third, issue to vacate the unconstitutional appointment of mr. Gleeson for intrusion into the sole article two functions of the executive branch. Compel the District Court to grant the dismissal of the matter of law. Only the department of justice can decide the Public Interest and myriad factors adherent in pursuing a prosecution. This is not an ordinary motion on which there can be Factual Development or debate. This is a rule 48a, case motion as to what the executive branch has sole discretion and determinative authority. The government has dropped the case and every 48 a decision in the country required this motion be granted thank you, ms. Powell. I will begin the questioning. Can i ask you the following question . Assume with me that im focusing primarily on the request to require the District Court to grant the 48 a motion and put aside for a moment the other forms of relief you are requesting. Im focused on the one that the panel decided the case on, which is requiring the District Court to grant the motion for dismissal under rule 48 a. And you agree that youre entitled to that form of relief only if theres no other adequate means to retain the relief . Yes, your honor. There are no adequate means to retain the relief because of the usurp of power and the process, and the fact theres no discretion involved on the District Courts part in addressing a 48a motion. Are you aware of any other case in which it has been granted to compel a District Court to decide a pending motion in a particular way, granting it or denying it before the District Court itself has decided whether it is going to deny the motion . Now that we have the services which of course you know as you wrote it that the law is clear that this motion has to be granted. Every 48a motion in the history of the country has ultimately been granted. He could have had a hearing. He has had ample time, but he could have had counsel appear in front of him, but theres not im not even focusing if i can stop you for one second. Im not focused on rule 48a motions as such. For purposes of this question, i will assume, and for purposes of this question, i will assume that everything you have said about the decision all along is correct, and i will assume further that the court agrees with that even though it was a Panel Decision. Im focused on the mandamus that deals with other adequate means. Whatever you might think about the clarity of that, thats going to be true of all kinds of decisions that are on the books. Im not even focused exculusivey on 48 a motion im asking any kind of motion before a District Court, are you aware of any situation in which a District Court has been compelled under mandamus to grant or deny the motion before the District Court itself has decided whether to grant or deny the motion . No, sir, because i dont know of any other case where a District Court has set about the process that this District Court did, that went outside the boundaries of article iii from its very inception, from the minute he requested amicus which is not provided for in the rules of the court at all. If the District Court grants the motion, then that would be adequate alternate means, would it not . No, sir, because the process here is the problem. The process is what violates both article iii and article ii. [inaudible] denied the motion three months ago to be precise. In case weve had the unconstitutional burden that cheney talks about being imposed on us. Appreciate your answers. Thank you. No questions, thanks. Thank you, judge rogers . I will follow up briefly. [inaudible] the chief judges assumption and the Panel Opinion. Was it not a case where mandamus was granted after the District Court had ruled . Yes, mandamus was granted after the District Court had ruled on the deferred prosecution agreement. And because we have that now, we know that judge sullivan has to grant this motion, and because he went through the guardrails of any bridge of article iii construction whatsoever he has to be reined back in and at a very minimum mandamus must be issued to vacate the appointment of mr. Gleeson and there are no circumstances now under which judge sullivan can continue on this case because his bias demands his disqualification. Just the very appearance of bias is enough to demand the disqualification. Here we have a long history of decisions made on the basis of extrajudicial contact and the blisering oped in the Washington Post that led him to choose the amicus he appointed. He even waived the requirement of local counsel for him. Hes added additional perjury and contempt charges over general flynns head that perjury is now teed up for additional punishment at the recommendation of the amicus. Judge sullivan failed to follow the courts mandamus itself for 15 days and took the unprecedented step of seeking rehearing by filing his own petition for rehearing in this court when he has absolutely no standing to do so, taking on a mantle of an active litigant has to disqualify him from proceeding any further in this case, if all the things that happened before were not already sufficient. The Supreme Court stated that it had never approved the use of a writ to review an interlocutory procedural order in a criminal case that does not have the effect of dismissal. It acknowledged that man it wasnt saying that mandamus could never be used but it noted that mandamus had been invoked successfully where the action of the trial court totally defied the government of its right to initiate a prosecution or where the court overreached its judicial power to deny the government the right of a valid conviction. Neither of these situations apply here. Why is it appropriate to use mandamus to review the procedural steps the District Court took in connection with consideration of the governments motion . Your honor, the usurpation of power does apply here. Thats exactly what judge sullivan did when he appointed mr. Gleeson in the stead of the government as soon as the government moved to dismiss the prosecution. Theres no authority whatsoever for a judge to pile on and add on his own prosecutor against a criminal defendant. The fact that this is a rule 48a motion as opposed to the bill of particulars issue and will makes all the difference in the world because only the government can decide when to stop a prosecution. And thats the authority he is intruding on. Hes not entitled to ask any questions about that whatsoever, when more than a mere conclusive statement has been made, and in this case we have a 100 page motion to dismiss supported by stunning exculpatory evidence that was suppressed for three years or more. This is an extraordinary case. The process hes created is beyond the pale as judge ginsburg would say in smith, and if nothing that smith requires that it be ended and mandamus issued. Thank you, ms. Powell. I want to make sure judge rogers had no further questions before proceeding. [inaudible]. Judge . Just a quick question you argue that judge sullivan has no standing to file does that make any difference [inaudible] . Well according to the courts order, it considered his petition for of course we considered his petition. We consider all petitions, but i dont see anything in the order that says we granted or denied it. My question though is if we in fact unbank the case does it really make any difference whether judge sullivan [inaudible] it does in terms of the disqualification issue, your honor. To hear the case the court can always take a case through thank you, thank you. I have no further questions. Thank you, judge . Yes, thank you. Imagine the Supreme Court has decided an issue that is in the District Court, [inaudible], and the Summary Judgment based on that case says i dont have to wait. You have to decide this before you decide whether or not it applies, and if you dont decide in advance of the motion, im going to mandamus you, isnt that the same as first of all, i assume you agree that even if the Supreme Court had decided on the issue, now in the District Court, directly on point, that would not be enough to mandamus the judge before the judge decides, do you agree with i would not, your honor, because it wouldnt be a 48 a situation that involved the core powers of the executive branch. Separation of powers case about the core powers of the executive branch and the Supreme Court had decided that the executive branch has this power. The plaintiffs were claiming that it doesnt. The judge has not made up its mind yet. Wouldnt you agree that still the District Court has to make the decision before you can appeal or before you can seek mandamus or before you can do anything else . Well, hes effectively made a decision here. He denied two motions opposing any amicus at all and denied our request the motion to dismiss be granted before he even appointed mr. Gleeson and then started the whole process that intrudes into the article i i executive power that he simply cannot do. Do you disagree with the judges statement that the District Court currently presiding over the case has yet to decide the governments motion . Yes, i do at this point disagree with that because i went back and looked at the record again and realized we had filed our request for him to grant that and opposed the amicus twice before he even appointed mr. Gleeson. Thats on the amicus question. What about the dismissal of the case question . In that motion, around docket 200, i think, we requested again the dismissal be granted. The panel just got that wrong . Well, it was my failure to point out to the panel that motion had previously been granted, but weve corrected that in our opposition to this petition for a hearing. [inaudible] from the Summary Judgment context or anything like that is. It is a criminal case in which the defendant all the Constitutional Rights are supposed to benefit the defendant. We have lots of cases, dont we, where we have reversed a District Court for clear or plain error in a criminal case, and yet there was no ability of that defendant to do anything other than appeal the conviction. They could not mandamus the court. Imagine that the Supreme Court had decided a 4th amendment case and clearly applicable to that particular defendant, in that defendants favor. And then the District Court ruled the other way. The defendant would still have to appeal, even though the defendants liberty was restricted and that conviction stood. Isnt that right . Thats a normal way criminal cases go, isnt it . Thats the normal way criminal cases go when theyre dealing with solely legal issues and the government hasnt walked in and said i quit when the government is the only entity that can pursue a prosecution . So its not just a question of the clarity of the law at the time. , no it is not just a question of the clarity of the law at the time. Its a function of the Sole Authority of the executive branch being the one to prosecute all the discretion is vested in it to weigh all the factors that go into dropping a prosecution, and the court cant continue a prosecution on its own, which is essentially what judge sullivan has tried to do here and has done very effectively for three bt mos. Three months. All the District Court had done was ask mr. Flynn and the government to brief and orally argue the scope of rule 48 and the separation of power arguments and permitted amicus but did not appoint amicus, you would not have the argument, is that correct . No, i think we still would. I think thats far more procedure and process than is allowed by precedent on any 48 a motion in the history of the country. Okay. Thank you very much. Thank you. Judge . Thank you, ms. Powell. As i see it, the question before us is not whether the District Court must grant the 48a motion. The question is whether the District Court may appoint an amicus and hold a hearing for deciding that motion. In your review, what is it in rule 48a itself or in our cases that prevents the District Court from conducting a hearing before deciding the motion . Well, the Supreme Court and this court has said that the court has no substantial role whatsoever in ruling on a 48a motion. The leave of court provision is not a license for him to investigate behind the stated reasons the government has for dismissing the case. What is the role of the lead of Court Language then . From your comments today, you make it sound as if its ministerial . It almost is ministerial. What is almost is ministerial mean . Is it ministerial or not . Yes or no . Its pretty ministerial. Thats not ms. Powell, thats not helpful. It is not ministerial. You know it is not. Its not ministerial. So that means that the judge has to do some thinking about it; right . The judge is not simply a rubber stamp, the language of the rule itself, and a history of the rule says the judge is not a rubber stamp. Arent you just arguing about what the judge must do to educate himself or herself to be able to rule on the motion . And i take it your point is that the rule itself forbids the conducting of a hearing before the motion, is that your position . No, sir, it is the constitution and the Supreme Courts decision in renaldi and this courts decision it prevents any hearing before the motion . It prevents any inquiry behind the government stated reasons for the motion. It prevents any substitution of judge sullivans opinion of [speaking over each other] what type of hearing is permissible, ms. Powell . He could have called the parties in and say does the government move to dismiss . And the government says yes, and he could have said well is this brady material . They could have said yes or no or like he pushed them a bit on the stevens case, but to have any evidence, any contrary testimony, to ask the quote plausible questions he had that he mentioned in the brief that he wants to ask none of that is permissible whatsoever because the renaldi provision says the leave of court is to protect the defendant from being harassed by the government. The only discretion he has is whether to make sure it is with prejudice, as judge sullivan himself did in his decision in the pitts case. The government wanted to dismiss it without prejudice and he said no it has to be with prejudice. Thats what he did in the stevens case on a two page motion to dismiss filed by the government. Ms. Powell, youve stated in oral argument today that you believe you have a very strong case before the District Court on rule 48 a; right . Yes. Yeah, you have a strong case. In that case, why mandamus . Why not simply appeal if judge sullivan does not grant the motion to dismiss under rule 48a . Why not simply appeal that . Because the process he has started and intends to pursue violates the article ii powers of the executive branch and entitles general flynn to stand on the constitutional principles of separation of powers and the alleged harm that also occurs to him by the violation of his Constitutional Rights and i think it was exparte peru said to a prompt termination of these proceedings, instead of a trial upon a trial of the governments decision to dismiss, which he has no discretion or authority to inquire behind whatsoever. Every case in this country that has ever addressed rule 48a motion has required it be granted. Every one. You dont think thats what will happen on this one . Its the we dont know, do we . The fact is we dont know he hasnt ruled yet. The process hes proposed tramples all over the executive branchs independent authority to do it as well as what went into his Decision Making. Nothing about what he has done since he got the motion to dismiss has been done in any other case we could find. Not one single step of the procedure. And to add on someone to prosecute the defendant as mr. Gleeson wants to do, when i dont understand your statement. I mean, the appointment of amicus is for a court to argue a view thats not going to be presented by the parties. Thats common. Not in court in criminal cases, your honor. Theres no rule provision for it. It violates versus perry. He cant just go out on his own and do this and it steps all over article ii executive branch authority. Okay.