Court of appeals heard oral argument Via Teleconference on whether they should order the trial judge of the d. C. District to dismiss the justice departments perjury case against michael flynn. Well show you that oral argument next. Michael t. Flynn, the honorable emmett g. Sullivan. Good morning, counsel. Well here first from ms. Powell. Good morning. This is Sidney Powell for petitioner michael flynn. Were here now to stop further 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 should all of the factors that go into that, include the provision of evidence that came to light through an independent review by mr. Jensen who not only had ten Years Experience as an fbi agent, but ten years as a federal prosecutor before attorney general barr tasked him to review this case. It cannot go on any longer. This is the quintessential case because we have both issues of judicial of prerogatives and a clear abuse. Theres no case or controversy any longer. 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 essential argue that the District Court has no role. But when the Supreme Court was reviewing a denial of a rule 48 motion made by the government, the court did an independent evaluation. The Supreme Court believed it had a role to form 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 regularity applies to everything the attorney general has done and there is 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 of i dont see how that works because the court also said that it would not presume bad faith by the government. So the court gave the government the benefit of the presumption of regularity, but it still performed an independent evaluation. Only to the extent the court said it was not clearly to the contrary to manifest Public Interest. There was no further proceeding of any significance, certainly no amicus appointed, no background investigation. It was an interview of the policy and its application to the facts of renaldi. And the court issued that. And it said it gives no power to the District Court to deny a prosecutors role to dismiss charges based on disagreement with the prosecutors lets suppose the District Court has issued a minute 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. He can look at it on the face of the documents that have been filed, but i dont think in renaldi than it went farther. Only the executive can wave the willingness of the government to prosecute and there would be no remedy. The court cant make the government prosecute this case. Well, in thompson, another Supreme Court case that was cited by at least the government in their briefing. I cant remember if you cited it in yours also, the Supreme Court was reviewing the denial of a rule 48a motion by the government and it said it performed, quote, an independent examination of the record, closed quote. And that was despite the generals suggestion that they dismisses the case. Do you agree that thats what the court said it did in thompson. Buno, but i think that means reviewing the documents that the government provided and 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 doesnt have the authority to do that. And without a case in controversy, hes without jurisdiction to do anything further. If we were here your petition you are the the rulings under review are the failure of the 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. And the judiciarys lack of competence to review the prosecutions initiation of charges equally applies to the dpa decision. Either way you believe that a case that was not even a rule 48a case undermines what the Supreme Court did when the court itself performed an independent investigation 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 youre saying the Supreme Court got it wrong in those cases. 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 misconduct. Aside for the fact we had motions to withdraw pending that were very well documented this. Record contains enormous evidence of government misconduct and suppression of brady evidence. The judge doesnt have the authority to appoint an amicus that Justice Ginsburg wrote the unanimous decision for, he cant create new issues. 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. It seems like you have a good argument of an alternative 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. He doesnt have the authority now to go beyond the record and do anything except that. We would be deplaying tlaying t inevitable. 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 defense team. The toll it takes on a defendant to go through this is absolutely enormous and its not justified by this case. This is most impressive motion to defense ive ever seen in decades of practice and the most welldocumented. In fact, in judge leon, i think it was 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, the government dismissed and the judge wrote that decision explaining how the position had to be vacated. This is judge henderson. If judge sullivan had just kept this motion waiting, it would be one thing. Hes set a hearing for midjuly. By the end of july, he will have granted the motion. He doesnt have the authority to conduct that hearing, your honor. Hes appointed this amicus to go beyond the scope of his authority as a member of the Judicial Branch into the prerogatives of the department of justice. I realize that. But you also know the courts have said hes not merely a rubber stamp either. 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. The only authority that their best case is richards in which the Third Circuit on a motion to dismiss a Sexual Misconduct claim against someone in the Virgin Islands in a Territorial Court said we have 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 case describes richards as requiring a dismissal because the authority severely cabined the reason clearly contrary to the Public Interest. The prosecutor acting in bad faith, things like that, and theres none of that here. If judge sullivan had 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 a hearing on july 16th. It will go beyond that. I think its clear from the amicus position now that they want to take general flynn to sentencing as soon as possible and impose upon him the maximum sentence. And to make us go through that process when the ultimate result has to be the grant of the motion to dismiss, the governments just wasting resources pursuing this and the toll its taking on the defendant is certainly irreparable harm. I would like to ask you go ahead. Why couldnt we hold this and lets see what happens on july 16th . Because the damage continues to accrue by the day, 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 appointment the amicus under judges decision. I dont understand that. The government has evidence from a drone camera that was positioned to look through upstairs bedroom windows and to the defendants home and the defendant moves to suppress and including the Cato Institute and other organizations seek to participate as friends of the court in support of that motion to dismiss. Youre saying that the direct 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. Can appoint a motion, but the cou court cant do it on its own motion . No, im saying the court cannot substitute its role for that of the government. I cant take the place of the attorney general or appoint someone to take the place of the attorney general. Thats precisely what the judge rejected. He cant go outside of his lane to appoint somebody to do the job the order appointing the amicus appointed him to present arguments in opposition to the governments motion to dismiss. Thats all that it says in that paragraph. How is that violating article ii, to appoint someone to present arguments in opposition . Because the government had already made the decision to stop and the government is the only entity that can make that decision. The department of justice is the only entity who 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. Go ahead. What about appointing amicus for the contempt charges . The Supreme Court in the young case says that the court can appoint a private party to prosecute contempt charges. Your argument with respect to the appointment of the amicus apply also to the contempt charges . Yes, as ours pointed out and our brief, contempt doesnt lie for perjury in these circumstances. There are 500 people in the National Database of registry of exonerations who would otherwise be susceptible to perjury prosecutions because they entered guilty pleas but they were actually innocent. To the merits of whether contempt could actually be found, what about the appointment of the amicus to look into contempt charges . Theres no basis to do that either. He doesnt have authority to prosecute anybody for contempt. Thats solely within the prerogatives of the department of justice. With the Supreme Court decision in young i dont see that inconsistency. In young, the court said that the District Court can appoint a private party to prosecute the charges. In the circumstances of this case, contempt cannot lie by virtue of him having moved to withdraw his guilty plea. Let me ask you one other question about the contempt charges. If we decide that reassignment here is not appropriate, would we have any grounds for reaching the contempt question . I dont believe mr. Flynns petition is on the contempt question itself. Is there any grounds we would have for being able to reach that question . Simply the fact that the judge doesnt have the authority to do it and theres no continuing case or 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 there was no longer a case or controversy. 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 for controversy, dont you agree . If i recall that case correctly, it was a mandamus for a mandamus and the court needed to address an additional issue. Thats not our situation. With the fact that not a single court in the country has 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 ii section 3 that can prosecute a case and they have decided not to do this for a number of reasons, the fact that the fbi agents made up statements to put in a 302, the fact that there was a discussion with Andrew Mccabe about 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 they had, like they do with everybody else. The fact they decided not to give him a 1,001 mention, not even a mention, of course, not even to mention one thousand one. They sent agents over there, according to mr. Comeys testimony, just told him a couple of agents was going to drop by and he said, of course, sure he works with them all the time. Its a travesty of justice that this man has been dragged through that this man has been dragged through this for three years on a case that was absolutely concocted by fbi agents with help from the department of justice. And evidence falsified and everything else. The the government hgovernment extraordinary documentation, and the only thing left to do is for the judge to order the dismissal of this case. The delay cant do an independent evaluation on the record before entering that dismissal. No, he could look at the record. He could look at the record and 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 dont even relate to the motion to dismiss and proceed to drag this out forever. Its just not i mean, its contradictory to the services, its contradictory to the United States and the Fourth Circuit and smith and the fifth circuit and hamm. Where in the orders under 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, not granting the motion itself is grounds for mandamus. And appointing the amicus to do anything. But yes. So, we have to find most of those things to be improper to justify amicus . Is that your position . Or is one of them, any one of them by itself, grounds for mandamus . I think either one by itself is grounds for mandamus. Theyre independent grounds for mandamus. Let me ask you something about this with amicus. In folker services, we ourselves appointed amicus. If judge sullivan had not appointed amicus, would you be telling us that we couldnt appoint amicus . No, maam. You can appoint amicus to weigh in on any issue the court of appeals wants amicus to weigh in on as long as its an issue within the case and the court of appeals didnt create it. What judge sullivan did here is created his own issues that he wants to investigate that arent related to the motion to dismiss or even the case before him in any way. But in folker services, we appointed someone to defend judge leons order. Well, thats what ms. Wilkinson is doing here before this court. Shes the analogous piece of that proposition, not not mr. Gleason. Thats true. 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 not even a provision in the rule for that. In fact if you go try to file a brief as amicus in the District Court you cant do it properly. All the docket entries have to be corrected. Theres no provisions for amicus in criminal cases. So, i asked you earlier if an amicus could file a motion in support of 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 what . The motion that another party has filed, if the judge wants to allow it. Based on what rule . I dont think theres a rule for it, but i do believe that, for instance, there have been other cases but its been in support of one of the parties, not in support of the judge trying to gin up additional charges himself. Well, just with respect to the rule 48a motion, its your contention that if fo