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

Mr. Walls, part of u. S. Department of justice. The honorable emme g sullivan. Would morning, counsel. We will hear first from ms. Powell. Good morning. May it please the court, this is Sidney Powell for position or michael flynn. We are here to stop further impermissible intrusions into the sole power of the executive branch under the take care applause to decide to dismiss a case and what circumstances warrant that dismissal. Dismissal. Ge extensive and thoroughly ocumented motion to dismiss this prosecution, weighing as it should all the factors that go including the provision of extraordinary exculpatory evidence that came independent ugh an review by mr. Jensen who not only had 10 Years Experience as 10 years as nt but a federal prosecutor before barr asked him to review this case. It cannot go on any longer. This is the quintessential case. Executive prerogatives and a clear abuse of discretion. No authority to do anything further in the case. There is no case or controversy any longer. Parties have decided, the he alsont has quit, and as no authority to go into the reasons behind the executives dismiss the to case. This is judge wilkins. Good morning. Morning. I have a question about the District Court. You essentially argue that the has no role. T renaldi from the Supreme Court the denial of a rule 48 motion made by the court did what t called independent evaluation of the unusual circumstances disclosed by the record. Supreme court believed it an a role to perform independent evaluation. Here he District Court have that same role . Not under the circumstances of this case. The authorities are that given presumption of regularity applies to everything he attorney general has done, and there is no clear evidence whatsoever to go behind that given the documentation, briefing thats been provided, there is nothing further for the court to do. There is no indication. There is no clear evidence. Factor or actual behind the governments determination i dont see how that works ecause the court also said in renaldi that it would not the me that faith by government, so the court gave the government the benefit of of regularity on but yet it still performed an evaluation. Court to the extent the said it was not clearly, contrary to the manifest Public Interest. Further proceeding of any significance, certainly amicas appointed. It was simply a review of the policy and its application to facts of renaldi. Day court issued the man ust, of course, to proceed to make sure the prosecution agreement was entered and in doing so it said the lead court gives no power to the District Court to deny a tosecutors rule 48a motion dismiss charges based on disagreement with the exercise of authority. The District Court, saying it independent o an evaluation of the record and an opinion on the governments 48a motion in due course. Is that error . Error. Hink that is he can look at it on the face of been cuments that have filed, but i dont think in enaldi, that they went further than the governments statements of what it was doing and why it was doing it. Weigh thexecutive can willingness. The court cant make the case. Nment prosecute this well in thompson, another Supreme Court case that was least the government in their briefing, i cant cited it in yours lso, the Supreme Court was reviewing the denial of rule 48a motion by the government, it said that it performed independent examination of record. That was despite the suggestion that the court simply dismiss the case. Disagree thats what the court said that it did in thompson . No. All that means is reviewing the documents that the government provided and the status of the record before it. Ot investigating new possibilities or assuming the role of the prosecutor to see bout adding on perjury or contempt charges. He simply doesnt have the authority to do that. Nd without a case in controversy hes without jurisdiction to do anything further. Ean mandamus petition, the rules under review are the court, district grant the motion, so you believe just him not the motion is sufficient grounds in and of justify mandamus, right . Also said theourt courts withholding of approval would amount to substantial and unwarranted intrusion on the executive branchs fundamental prerogatives and the judiciarys lack of confidence to review the prosecutions initiation and charges according to weigh equally applies to the dpa decision. Either way you believe that a case that 48a case, n a rule undermines what the supreme and did in renaldi thompson, when the Supreme Court independent med an evaluation of the record when argument there, that there was any bad faith by the government or that the regularity didnt apply . Do you think no. The Supreme Court got it wrong in renaldi and thompson . No. That the independent review of the record consists of just that, a review of the record, and the record in this extremely pros could ted, a you forrial. We had om the fact motions to withdraw pending that were very welldocumented. Record contains enormous evidence now of government misconduct and the sunpression brady evidence. Its just the judge cant he oesnt have the authority to appoint an amicus, that there was just a unanimous decision for. He cant go out and create new issues. F course he can look at the materials before him and we welcome him doing that but to go ahead and grant the motion because there is no other alternative, not a single case in the country has ever affirmed denial of a motion to 48a. Ss under it seems like you have a retty good argument, an alternative avenue of review. If the motion is denied you can on appeal and you can cite all of those precedents decide ourt and we can that issue at that time. But he doesnt have the go beyond the o record and do anything except that. We would simply be delaying the inevitable and going through an process, in the process of doing that. On, a 72pagemped brief that we have to answer by of esday, with 500 pages exhibits. Everybody else in this case is eing paid by the government except my clients defense team. The toll it takes on a defendant go through this is absolutely enormous and its not justified by this case. This is the most impressive motion to dismiss i have ever practice, andes of the most well documented. Nd, in fact, in judge leon, i think it was a twopage motion to dismiss pursuant to which he ismissed three defendants, after guilty pleas just a couple of years ago. In the course, everybody united states, the government poser wrotend judge that decision explaining how the prosecutors position had to be vacates and the motion to dismiss had to be granted on mandamus. Let me ask you, this is judge anderson. If judge sullivan had just kept motion waiting and languishing it would be one thing. Hes set a hearing for midjuly. Know by the end of july, hell have granted the motion. But he doesnt have the authority to conduct that hearing, youre honor. Hes appointed this to go far the scope of his authority as a member of the Judicial Branch into the department of the of justice. I realize but you also know the courts have said hes not rubber stamp either. So there is nothing wrong with as far as a hearing i know. I dont know of any authority hat says he cant hold a hearing before he takes action. The only authority, their best case is in rerichards in on the e Third Circuit motion to dismiss a Sexual Misconduct claim against someone Virgin Islands in a territorial court, weve got to sunlight on the reasons here because the only reason given was in the interest justice. And certainly thats not sufficient. Even that case, it was courts altered by the decision, or discussed by the hsbc bank, ision in the case out of mr. Gleesons reversed his overreaching authority on dismissal. Of 48a and that hsbc case describes 48a rds as requiring a dismissal because the district ourts authority severely cabined the review contrary to the Public Interest meaning the bad faith acting in or against ery, am his own selfinterest and there is none of that here. If judge sullivan had denied the to dismiss on this report we would be entitled to mandamus right now to. Drag this out another six months, i mean, i wont just be 16. Earing on july it will go beyond that. I think its clear from the now, that they want to take general flynns entencing as soon as possible and impose upon him the maximum possible sentence. Make us go through that process when the ultimate result the grant of the motion to dismiss, the overnment is just wasting resources pursuing this, and the defendantaking on the harm. Rtainly irreparable go ahead. Why couldnt we hold this in lets see what happens on july 16 . Because the damage continues accrue by the day. Because he has no case or and no rsy before him, jurisdiction, because he doesnt have the authority to go do what hes trying to do or has done. He doesnt even have the amica undero appoint decision. S i dont understand that argument. Suppose in a runofthemill riminal case, its not runofthemill because the overnment has evidence from a drone camera that was positioned to look through upstairs bedroom and into the defendants home. To the defendant moves suppress, and amica, including Cano Institute and other organizations, seek to friends of the court in support of that motion saying the youre District Court wouldnt have authority to grant those motions . No. Im saying that he doesnt have amicus ty to appoint an to do the job that the government would have done if chose to ment had prosecution. On the motion but the court cant do it on its own motion . No. Im saying that the court cannot that of its role for the government. It cant take the place of the attorney general or appoint take the place of the attorney general. Judge precisely what postner rejected in re united states. His lane to utside appoint somebody to do the job amicus rder appointing pointed him to present arguments n opposition to the dismiss. Nts motion to says. S all that it in that paragraph. Violating article to presentnt someone arguments in opposition . Had cause the government already made the decision to stop. The government is the only entity that can make that decision. Department of justice is the only entity that can decide this r to pursue prosecution. The judge has no way of doing amicus his own through or a special prosecutor or anything else. Itsovernment has quit and time to leave the field. Sorry. Go ahead. What t about, this is about appointing amicus for the charges . The Supreme Court in the young case said that the court can party to private prosecute contempt charges. To the arguments back appointment of the amicus also apply to the contempt charges . Yes. Our amicus pointed out, and e did also in our brief, contempt doesnt lie for perjury in these circumstances. 500 people in the national database, registry of who would s, otherwise be susceptible to perjury prosecutions because pleas but d guilty they were actually innocent. Goes to the merits about whether contempt could actually be found but what about the of the amicus to contempt charges . There is no basis to do that either. He doesnt have the authority to for contempt. Ne thats not the judges place to add on charges. Hats solely within the prerogatives of the department justice. Supreme court [inaudible] see that inconsistency. Said that the istrict court can appoint a private party to prosecute charges. Of this circumstances case, contempt cannot lie by moved to having withdraw his guilty plea. One other sk you question about the contempt charges. Finding ise that the not appropriate, would we have ny grounds for reaching the contempt question . Flynns believe mr. Petition for where it of is to be able to ds reach that question . Simply fact that the Judge Authority to do continuing is no case of controversy. Ask a question about the continuing case. Supreme court 0 case that i referred to earlier, cited in the briefs, the Supreme Court, supreme solicitor general suggested to the Supreme Court that the case be dismissed under 48a and the Supreme Court case,t itself dismiss the did not upreme court declare there was any longer a indicate. He Supreme Court remanded the case to the court of appeals for light of the n in position. s present so in that case, the supreme not treat the fact that the government had filed a 48a motion as ending the case so there was no longer a dont youcontroversy, agree . Well, if i recall that case correctly it was a mandamus for mandamus. What the Supreme Court decided was that the Appellate Court additional dress an issue. Thats not our situation. Not a single that court in the country has ever 48a motion,ffirm a basis to proceed with this case. The government is the only entity, department of justice is the only entity under article 3 section 3 that can prosecute the decided not have to do this for a number of reasons not the least of which the appalling case of exculpatory evidence. F. B. I. At at the literally made up statements to 302. Into a the fact that mr. Prestab had a Andrew Mccabe about trying to get the defendant to lie, and, what is here, and came back the next day reconsidering the fact hat they had decided not to show him the evidence that they had, like they do with everybody decided not t they to even give him a 1001 mention, of course, arning, no warning, not even to mention 1001. Hey sent agents over there mr. Com eys agent, this is an i am falling injustice. Its a travesty of justice that has been dragged through this for three years on case that was absolutely concocted by f. B. I. Agents with some help from the department of justice. Evidence falsified and else. Thing the government has provided and ordinary documentation the only thing left to do is for dismissalto order the of this case. The delay independent o an evaluation of the record before entering that dismissal . No, he can look at the record. He can look at the record and, as a result thing of that is to order dismissal because of the presumption of and ularity that attaches the fact there is no clear evidence of anything else. Hecant make up these things calls reasonable, plausible relatens that dont even to the motion to dismiss. And proceed to drag this out forever. Just not its renaldi, its o ontradictory to the enre united states, and the fourth in smith and fifth ham. It in were aware that the istrict court says anything about reasonable, plausible questions. Its in their brief. Thats not the order under though. He order under review is, from is him not tive, granting the motion, not is ting the motion itself grounds for a mandamus. To do pointing the amicus anything. So yes. So we have to find both of things to be improper to ustify amicus, is that your position, or is one of them, any one of them by itself grounds for mandamus . Either one by itself is grounds for mandamus. For are independent grounds mandamus. Let me ask you something of t this appointment amisus. Judge er services, if sullivan had not pointed amicus, us that we telling couldnt appoint amicus . No, maam. You can appoint amicus to weigh in on any issue that the Court Appeals wants an amicus to weigh in on and the court of it. Eals didnt create what judge sullivan has done here is created his own issues that he wants to investigate arent related to the otion to dismiss or even the case before him in any way. In social services we defend d someone to judge leons order. Thats what ms. Wilkerson is doing here before this court. Shes the analogous piece of proposition. Not mr. Gleeson. Thats true. You have no problem with her obviously. Obviously, shes entitled to here on behalf of the judge. Appellate courts often allow amicus participation but the District Court doesnt in criminal cases. There is no provision in the that. Or in fact, if you go and try to amisus in theas an District Court you cant do it properly. All the document enters had to be corrected. Provision for amicus in criminal cases. Earlier, if anyou amicus could file a motion in a brief in support of a motion to suppress, whats your answer, is there authority for that, yes or no . I would think there is authority for that. A motion that another party has to d if the judge wants allow it, it would require a leave of court, i would think. Based on what rule . I dont think there is a rule for it. Believe, for instance, there have been cases in the its ct court level, but been in support of a position of one of the parties. In support of a judge trying up additional charges himself. To rule ith respect to motion, its your ontention that if for some reason, mr. Flynn opposed the governments motion, it would be enter an micus to ppearance to file briefs in support of mr. Flynn, right . Well, at least there would still be a case in continue before the court and it would be up to the District Court to allow leave to do that provision in the rules for it but generally speaking District Courts can do want to do within the reason. Of so there is authority for it so long as there is a case or controversy . Trying to understand your legal reasoning here. The legal reasoning is that appointed mr. Gleeson as a special prosecutor. That he doesnt have the do. Hority to gleeson, forked mr. Example, to weigh in on a side that existed in the case that permissible. I would probably still argue against it, but i wouldnt have of m writ of t it. Damus on isnt your argument also its mpermissable to have amicus in criminal cases under the rules of the court . Yes, that is one of our because there is providingdinger for it. Judge t on behalf of the and independent prosecutor himself. Right. Are there any more questions . Ms. Powell, well give you a couple of minutes to reply. Wall. Is mr. Thank you, uranium. Jeffy it please the court, wall from the united states. Haveld like i hope ill an opportunity to address some some i want to address two points. On the merit, to you, judge wilkins, and one on harms to you, judge henderson. Think, bit way, thats the right order to take them. Cases like ndamus bloomingthal, e they asked if there was a clear and indisputable right on the merits and then turned to the mandamus factor and i think that akes particular sense here because if were clearly right leave olker, it doesnt an overnight power, rule 48 to ons, i think its easier see judge henderson why its so harmful to continue to allow itself out to play in the District Court. Taking merits first, judge renaldi was a case in which the court assumed, i think 15, clear from footnote assumed in the broader standard and then said, even that be satisfied so the trial court has abused its discretion, denying a motion, a bit way, that came after judgment in this case, not just after a plea or a trial but after judgment. Thompson, of course, was just a case in which we wanted to hold prosecution we asked the the court even there of appeals sent it back to the District Court to allow us to do grant t i completely judge wilkins, neither one of those cases resolves the for rule e standard 48. The rule 48 applies contra district review. Magical line. Agine ali the courts decision on volumeter, thats the decision resolves the denial rule 48 motion. When do you resolve that of case was not an appeal the rule 48a motion . He did, was he and rule 48 dpa motions are separated off, approve of the plea in order for the court to say that this justified, the air is so clear. Look at what has to be the rule under rule 48. That has to be the rule for this as well. That to be central to judgment. I think the language, if you look squarely within thereutorial discretion, is no involvement by the judiciary. If we are right about what it 48, they will be a question of the proceedings if the District Court was required to grant thatourt motion. The point of this is to investigate the prosecutorial decision and motives. Itself says that which is under review. Amicus is appointed to present opposition. That is the order under review. It does not say anything about fact development. We are here on mandaumus. It directs the District Court do something. The District Court is concerned with the proper influence here. That alleged that there was misconduct on the part of the attorney general and the president of the united states. You will have to come in and answer those questions. That is all of the systemic cost this court laid out. Have this anodyne proceeding that some of these questions are assuming, this court has to issue mandamus. You would have to take off the table contempt. You would have to rule 48 motion. The District Court does not have the authority to appoint amicus to advise it. We have not argued that the District Court lacks the power. The particular amicus here is the problem. This would be improper. To be the rule for this. Or the reasoning. We are not saying the District Courts dont have the power to do this. We are saying that there are problems with this particular appointment of the amicus. Once we know that those farms, we know there is not a reason to take those final steps. This is becoming more of a public spectacle. If i could just ask you, our court has repeatedly declined to grant mandamus on the abstract violation of powers. Wondering if you can be more particular about what this is here. Rule 48 does allow that. What precisely is the problem . Ere powers, youation of are right, it can be very subtle and abstract. What the District Court is contemplating is an intrusive inquiry into what they say are a host of factual questions. Why do particular prosecutors not signed the brief . Why did the attorney general make this decision . Was he right . What about the uncharged conduct . Andill have to brief apparently put on evidence in. Efense of all of that i think it is an intrusive process. It will harm the executive. You cannot ignore that it is playing out in a politicized environment that is the worst of the kind. When you are looking at those kind of validations, it is supporting us. Exactly what court should not be doing. It is hard for me to see something clear. A opinions from every court has said that the court has some role in that. There ises making sure not something going on. There is some set of circumstances that is unfortunate as the clash of two branches. Isnt that right . I think it is right in the following sense. Wheres work in cases there is an opposed motion. Where the parties agree, they can both be considered decisions. If the defendant hadnt pleaded, there would be nothing the court could do about it to force us to go to trial. We would need to grant the motion. It does not apply once the court has accepted the plea. It is not the concern of the rule in most of these cases. We no longer want to proceed. That even after judgment or trial, there is no magical line. Excepting the plea agreement is a judicial act. That is just letting a case go. Line,ou know that plea there is no magical thing about that in the constitution. Then we are just back to her question about the harms and why grant mandamus . Why now . It make clear that there are different considerations to the extent that even if we credit , in here, wending have two different distinct district judges who made factual findings. Motion does not just implicate the governments position. Thatplicates the rulings District Court judges have made. I certainly question that. There are different concerns at different stages. It contrast that with dismissal. Disagree with his once you have crossed that plea line, suddenly everything that changes the calculus. The District Court was not just a plea. They no longer wanted to proceed with them. The District Court would not allow them to dismiss. Even if the government is trying to get around the sentiment. To bringto decide when or dismiss charges. The language is crystal clear. These are not formal judicial actions. He is not taking back any time he is done before. This is poor executive power. About your question about the representation and support of the rule. It is your position that the government does not have to stay all of its reasons in support of dismissing the case. Chooses to share with the court. It is. We do this at times and District Courts routinely grant them. Here we went beyond what we thought we were obligated to do. We think whatever rule 48 may require, we have clear that hurdle. Suppose you have a case where a federal Law Enforcement officer has pleaded guilty to a criminal civil rights violation for using Excessive Force. Sayshen the government they have uncovered some evidence and are moving to after a guilty8a plea. They did not think they would be able to prove this case beyond a reasonable doubt. Black, theis defendant is white. They did not believe that a jury would believe the black victim over the white officer without her operating evidence. Corroborating evidence. That was one of their reasons for dismissing. They felt that would not play well. So they did not say that in the motion. They just said the exculpatory evidence was the reason they are dismissing. There is an easy way to deal with that here. Clear that the government can dismiss. I think that motion there should be granted. The easy way to do it that is to , it is not clear and indisputable. Could not hear about 10 seconds of that. Can you repeat what he said . If you thought it was not clear whether the court could allow that kind of explanation, you can try to leave that open and say, whatever that may be on the merit, it is clear where the bar is. I certainly hope that the government has a motion on that. You would see other defendant saying the government is making racially biased claims. I think there are remedies for this that get into what the executive motion are. If there are remedies for it, that cannot happen unless you know it is happening. Then the government and this not have to risk disclose all of its reasons. If the District Court is not allowed to ask if there were any other reasons, you would never know that it is happening. The District Court could always say, the u. S. Attorney cut a sweetheart deal with corporate defendants. Hearingome argument in whether there was improper influence brought to bear on this. The point is that it is not to the courts to police whether the executive has impure or pure motives. Rule 48 is not the mechanism for this. If a court could do this kind of thing, then it has to be a letter. The court could always inquire and that is exactly what that shuts off. Normally the standard is that there is a presumption of regularity. What about the case in which the District Court found that that presumption is overcome . I dont think that presumption is relevant here. Everyone agrees the court could not force the u. S. To bring the case. Oversight within the courts. Refers to the presumption of regularity, it is not saying there is some exception the rules laying out in that situation. If you look at that passage, it is just listing that is another reason for adopting this rule. It gives that as a reason for reading it that way. It is not adopting some exception to the rule. Even if it were, we would still be entitled to making this. Armstrong is completely clear that you have to have clear evidence of an unconstitutional motive. Forthn argue back and about whether you think the attorney generals read about this or that. Ce regularity in your view would only be a permissible motive . There not other types of irregularities . That is right. That only unconstitutional would allow the court to step in. There are not judicial remedies under rule 48. They dont have to bring the case. Even if the prosecutor was assessing the case, they would not believe that a white Police Officer would have to answer for using Excessive Force on a black defendant. Pleadingthat in their under rule 48 a that the District Court still has to. Ring a motion earlier, itd to say may be viewed that position. This is the kind of thing that could qualify for armstrong. There is nothing like that here. I dont think you can leverage that to say this is what we require. What work at all does that do then . It works in opposed motions to dismiss. Ofre is a small fall or set unopposed motions. It is the considered position of the defendant. Imagine a situation in which the defendant creates a protests. Are you sure about this . It sure seems like the government keeps yanking your chain. Why is that the case that if the government makes a , theyered racist decision do not want to have a white officer stand trial for , that theforce District Court can denied the motion and then the political chips can fall where they may . Perhaps under pressure from the. Ublic the District Court may not able to prosecute the case. A new prosecutor is appointed in the case succeeds. Your question recognizes the answer. There is no power to make the executive move forward. If the government cannot make the case go away in the cases in limbo, while it is in limbo, pressure could be brought to bear on the government to reconsider its decision. The remedy for that is to dismiss other cases. Even if you disagree with the reasoning, if you have that kind of a case where a prosecutor , if yout in motion could bracket off that case as a you cantonal matter, leverage that back. That would eat the rule. There are other remedies for the equal protection clause. You dont have to agree with me on that. No one is arguing that on the motion, there is any unconstitutionality. There is any evidence that we violated the equal protection clause. Thank you. Let me ask you, you throughout a russian 30 minutes in, what would be the harm mandatingd and granting the motion to dismiss. The harm to me his regular order. Mandamus is a drastic remedy. You know that. No one has been able to find a case in which mandamus was issued in which the District Court did not act ended ends of ruling and order. He has appointed an amicus. Unless you agree with ms. Powell that the setting of a hearing is ,omething that can be raised that is the point of the mandamus. He may have chosen and intemperate amicus. That he does not mean will deny this motion. Considering the drastic remedy that mandamus is, considering there is no precedent that allows us to remove without an , and considering there has been 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. Extraordinaryan writ. This is an extraordinary case. I agree. It is an extra in a case. At a minimum, the court can still issue a more limited form. It occurs to me that they want to clear up this process that should be on the table. Contempt should be on the table. All we are talking about is the meaning of rule 48. The court will decide that at the meeting. It is just not true that he grants the rule 48 motion. It is still not the case that the parties are obvious. We have all of these accusations being lobbied at the executive branch. We will have to answer them. It invades our deliberative process. There is a constant between branches. We dont know that is going to happen. The judge is an old hand. I asked for advice. I am ignoring it. I am granting the motion to dismiss. Should he be allowed to do that . We have crossed into the mandamus threshold. If we had gone about this a different way, i would agree with you. Order ought to be maintained. But since we have reached a thet where you have district raising questions about prosecutorial motive, the court is apparently contemplating how to extend ourselves. All of this pulling out about the backdrop of these incredibly harmful allegations. This will become the kind of public skeptic spectacle that mandamus has. It is clear about rating this solution. The government did not file a petition for mandamus. Flynn did. That is very fair. There was no decision on what the District Court was going to do. It released a Briefing Schedule before we made any final decisions. At that point, we had to decide whether to support or file a additional petition. We decided to support the mandamus petition. It would be artificial to cavern off separation of powers harms here. Just because we did not file another petition. If that were important to the court, it should give us the opportunity to file some shortened mandamus. We are here saying there are serious, stark separation of powers concerns playing themselves out. These are subtle, abstract things that come up in these cases. You have a cord that is considering whether to keep alive. You are talking about regular order. And then you are saying you should file a mandamus petition. That is far from regular order here. That if youarguing are not inclined to grant the principal relief by people who file the motion, and grant some kind of limited mandamus relief. You are making that argument even though you dont have a mandamus petition before us. None of that is regular order. That very little about this case is regular order. I dont think not filing a mandamus petition should be taken as legally relevant in any way. We already responded to supporting a petition. We make the full range of arguments in our legal argument. My only point was it gets back to regular order. Take off the table the evidentiary proceedings in question. Even if you chests narrowed it to the legal meaning, it is no longer relevant, you still ought to take the additional step of granting mandamus. Those were questions and first impressions. Principlesutional are clear when it comes to mandamus. Here we have not just the constitutional concerns of article two and three, but the decision itself. To theep coming back dick schaap knew what the District Court did. We did not know there. It says it doesnt different times that there is prosecutorial discretion. There is no oversight. It is not just impugning the decision of the District Court. It is impugning everything the District Court that was coming out. Once you know that from fokker , if it does not brief that hearing, lets not have this issue coming up in the District Court. Even if we were somehow to limited to a normal proceeding, we would respond to all of the things in this brief. I am concerned about your fallback decision that we could grant some kind of harsh overlay. What does that require the court to actually have as legal standards . What precisely is onandoff the table . It seems much less clean then issuing the writ of mandamus. If you really think this partial mandamus would be more then a clean writ of mandamus. We need to be very clear about this. If the court has these concerns about granting a writ, it can seem unfair to the petitioner and the government that you should preserve regular order. Nothing about these proceedings threatens to be regular. It does require you to say that fokker does not have evidence. The cleaner way to do it is just that theokker is clear court has to grant the rule 48 motion. I will fully grant that it is an extraordinary writ. In an ordinary dispute between private parties, it would be possible here. In this case, it seems to me we are two steps beyond that. We have actual conflict jan the branches. The court wants to inquire as to why we did this. In the face of allegations that there was some kind of impropriety. Courts may not do this. It is hard to see what the harms are going to be. If at the end of the day the District Court is required by law to grant our motion. Lets drop the phrase regular order and talk about one of the requirements. I dont think i heard anybody mention it. You granted that you have an indisputable right. Why is there nine if on july 16 the judge grants the motion to dismiss . You will have a proceeding that is forcing us to explain ourselves. To do it through affidavits and declarations. That will intrude. The court has to take account of that. They are impugning the motives of the u. S. It will pull the judiciary into a fight. I think those are real harms to the executive branch. Even if at the end of having been put through the whole process, in what threatens to be a spectacle in the District Court, at the District Court will ultimately grant the rule 48 motion. That fokker says District Court should not be doing these things, it is hard to imagine a case where the District Court within for something by fokker that will be more harmful. If ever the court were going to say a District Court needs to grant the world 48 and motion, thats what it requires. It seems like this would be the classic case. Are there any more questions . No. If not, well hear from miss wilkerson. Thank you mr. Walt. Wall. Thank you, judge henderson, and may please the court . The petition asks to grant an extraordinary remedy to prevent this District Court from questioning a pending motion. This court should deny that for three reasons. First, the government pointed out it is still pending and it may well be granted. , available below. Second, the law does not foreclose the District Courts consideration of the governments motion. It would be inappropriate to case wheremus in a the government is raising novel arguments that were not raised below. This court has said these questions are essential to be raised. To maintain the regular order. You cannot secondguesss a legitimate prosecutorial discretion. The issue is whether a federal District Court judge consigning expedited grieving Briefing Schedule. In a case such as this where the the government and senate agree that the motion to dismiss, isnt the amicus creating controversy where there isnt one . Is a case of controversy here for several reasons. They are both asking for the motion to be dismissed with prejudice. The parties once that because they do not want another prosecutor to come back and look at these charges and bring these charges against mr. Flynn. Everyone in this case agrees , the chargesion are ended. If the District Court said this should be denied, then what happens . Then we go on to sentencing mr. Flynn even though the executive is no longer part of his prosecution. I am sure the parties including the government and mr. Flynn will file another motion for the writ of mandamus. It is because the government has not had the time to act. Only when this Agency Announces that it will not rule. The order to the amicus is circumscribed is only presenting arguments in opposition. All this court is doing is getting advice. How is it supposed to apply in this context . In order to assess the motion to dismiss. Will leave the court. What is the standard that the judge must apply . Here isoverning law still good law. We have to look at whether there was a clear violation to deny the motion to dismiss. To assumption you mentioned earlier. The Public Interest is not a standard that is mentioned in the rule. In our constitutional system of government, this is due to if the prosecution goes forward. Not to an article three court. Generally yes, your honor. Those protect and consider the Public Interest. The Supreme Court held out that standard. They found that it did abuse discretion. Whether you can consider a rule 48 in light of the Public Interest. It was clearlyd an independent basis for reviewing that motion. But that law is not clear here. The standard is unclear based on out abuse ofe discretion. This circus Court Circuit court both provided for a review by the court. And allowed for questioning. The judge questions the parties including the government. He had conferences. But fokker was decided. No one stated in that opinion that you cannot ask questions. The government never took the judge up on mandamus. There is no situation. The government argues that rebuked thatarily approach by the District Court. What is your response that . Fokker that is not what says. It says that District Court abused his discretion when he denied the motion which was a Pretrial Motion necessary for the prosecution agreement. That he disagreed with the governments prosecutorial position. That is an improper basis to dismiss. Does not say that you cannot have consideration or scrutiny. It says the opposite. The scrutiny and about it being circumscribed. But they dont say the court has no right to ask questions. Judge is doing is receiving a briefing and having a hearing. The petitioner and the government will adjust to that. They have no alternative. How does the presumption of regularity apply in a situation like this . People are asking questions. Doesnt the District Court have to consider that it was overcome . No. The court could not determine whether the presumption was overcome. If the government did not include all of the facts because they only wanted to present certain facts, they would have to inquire to see if the presumption was overcome. The court was clear that there is a presumption. It is a long hill to climb to overcome that. But there is nothing in fokker that says you may not question the government. The government answers these questions all the time. All the prosecutors came in and asked questions. The Supreme Court did not say that kind of questioning was improper. That happens all the time. The judge asks questions. That is all that is happening here. That i dont believe is an everyday occurrence. You are absolutely right. Normally parties are opposed. Unusualere is the circumstance where both parties agree. All the District Court did was option an amicus foreign to dismiss. They did not request any factfinding. It may well be that the court looks at both briefings and grants the motion to dismiss. What is the incentive here . The government decided to drop a prosecution. What is the standard that they are arguing . What are they arguing on behalf of . Ofthey are arguing on behalf of the adversarial position just like this court does often. The government was not going to challenge that standard. The coined up Court Appointed an amicus there. You are saying that there is some kind of judicial right or power here that the amicus is representing . As he stated, there is an inherent power. It is important for the court to appoint an amicus. Here, it is even more important. It is an adversarial briefing. The government believes mr. Flynn is lying. A criminal case, that is the adversarial position. What is it even mean to have an adversary when they agree . Is this representing some kind of Inherent Authority of the court . Representing the authority of the court to understand the opposing argument. You have the government and the petitioner aligned. It does not mean that the District Court says this should be denied. What is the scope of the authority . Standard . E the standard is not clear. Say . Do they than the amicus is not an adversary. It is just to provide understanding about a loss. The amicus is an adversary in the sense that he was directed to take positions opposing the government dismissal. It is important because the court has to listen. The court is an experience judge. He can ignore the amicus. He can take points under consideration. Then he can make his decision. You have recognized there is a core of power in the prosecution. I think he has to articulate here, what is the power of article three at stake . Was an articulated position of the District Court. Think, what is the power at stake . You have a case where they agree on the motion to dismiss. By sayinglay that out the court was allowed to question the presumption of regularity. It says the same thing. The court made clear, the framers of the constitution looks to provide enshrinement of the system. Governmentve the instituting these powers. Making an independent finding for a plea. The court has exercised its coercive power. You are stepping into the shoes of the jury. We can adjudicate this defendant guilty. Now this government is coming back and saying, we will not dismiss those charges. And vacate your findings of guilt. Because that is not substantive. The plea agreement is between the government and the defendant. How effective that is if they charges are dismissed. They are asking the executive branch to reverse or vacate its findings. Dutyourt has the right and to ask the government questions. There is not a case since that language went in that says that is meaningless. That is the government and petitioners position. They are saying those words mean nothing. Every angle has been considered. Perhaps the leave of court may not be a stance. Own, ite words on their is hard the ability for a court to keep 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. The District Court asked the prosecutors questions and it didnt stand up and say we didnt have to answer them. They answered the questions. They gave the court the information and the government totainly knows how to refuse 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 instead 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 rinaldi and cases around the country, give examples where a court can deny motion, it is not a constitutional violation, you heard mister wall mentioned it a few moments ago. Those cases provide that it could be an example where a prosecutor was bribed, hes not gonna put that in the motion to this ms. Dismiss, this could be the basis for motion to dismiss. 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. If it was an early decision in the case and 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. Could the Court Sentence that defendant . I dont know the answer but 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. Nor has he made up his mind about the pending issues. He is considering the governments emotion and proceeding briefing from all the parties. After hearing the arguments , judge sullivan will do what he is called on to do on a daily basis. He will decide the motion. With 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 . Madame clerk, i dont think either counsel has any time. Correct. Ms. 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 mysteriously recused 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 but general flynn didnt. The second guilty plea colloquy judge sullivan did was not a full colloquy at all. He ended by asking many including how this was material and how this impeded the government investigation. All of that is refuted completely by the extraordinary exculpatory evidence that Mister Jensen disclosed that was hidden from the defendant for three years. That makes this case different from every other case. When that happened in stevens judge sullivan had no problem dismissing it at all. He didnt inquire behind 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 affirmed 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 why they made a decision absent in armstrong problem which doesnt exist here or clear evidence, not imagining , but clear evidence of serious wrongdoing that indicates that indicates bad faith on the part of the government. 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. The government is not going to carry on the prosecution and cannot be forced to buy a court outside its bounds. The motion should be granted on all counts. Thank you, ms. Powell. Mr. Wall, why dont you take to it . Can you hear me . Yes. A couple of brief points. I did not hear the respondent addressed what i think is a Central Point in the merits, once they conceded that falconer does not allow the court to go further with regards to the preplea situation, there is no way to make the executive proceed with the prosecution. There is no way to force the government in that situation, and you dont have any argument. There is a matter of leading the rule of interpretive principles or constitutional concerns that distinguish the situation. Thats not what rule 48 is meant for. 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 want to maintain this prosecution but why we havent brought charges against this defendant. Everybody conceded prosecutions off the table. They want to ask about conduct and why certain prosecutors signed particular briefs whether they agreed with our position or did not. They want to ask about the reasons the attorney general gave like policy judgment that federal interest is no longer warranted, and if the court thinks about the manner in which we have to answer those questions and District Court, what we have to say, whether its factual or a legal matter in terms of disclosing processes , i think it is clear why falconer said courts are not supposed to go down this road. I understand why 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 in light of article two and article three concerns like the one the judge was raising. There are 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 and harmful proceedings. Let me ask you something in your brief but i dont think you mentioned it this morning. That is a harm to article 2, the benefits of self correction. This record before us if there was bad faith, it occurred in the original prosecution. Shouldnt we allow article two to selfcorrect . Absolutely. This goes to the question asked earlier. If we could legally come in and not give reasons for the motion, we did give that the attorney independentthree rationales. Has said a word about the portion of the motion where 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. I think no one disputes that is the kind of judgment is at the core of article 2 power. Difficult to imagine outside the military context a more poor article two judgment. If we put that in the motion whether we were required to or not, it is required to grant the rule 48 motion. Thank you. Do my colleagues have any questions . No. No. All right, counsel, your case is submitted. Madam clerk, if you will adjourn court. The Honorable Court is adjourned until wednesday cspans washington journal, every day, we are taking her calls live on the air, on the news of the day and discussing policies that impact you. Coming up, the prodirector of university of law schools discusses proposals for abolishing or defunding the and the Property Environment Research Center talks about the greater american outdoors act and the federal governments role in public Land Management and conservation. Watch cspans washington journal live at 7 00 eastern this morning. Join the discussion with your phone calls, facebook comments, messages, and tweets. Federal government at work in d. C. And throughout the country, use the congressional direct reefer Contact Information for members of congress, governors, and federal agencies. What your copy online today at cspan store. Org. Next, a look at measures related to the coronavirus pandemic that are challenging Civil Liberties in the u. S. And including theld, enforcement of stayathome orders and reductions in medical resources. Eugene mayer, resident of the federalist society. I would say for most of you who are interested but did not get a chance to catch other panels, they will be on our website. As well more detailed biographies of the speakers. To moderate our panel on Civil Liberties and covid19, we have a fellow at the Hudson Institute and longtime president of aei