The washington journal this morning. We send you over to live coverage of the d. C. Circuit court of appeals. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2020] these adding unconstitutional burdens of process to punish michael flynn, judge sullivan discarded any semblance of an impartial adjudicator that he had been extolled. As the cornerstone of any system of justice worth the label. Four rulings are required to conclude this article. The judges position must be flatly denied with clear language the judge has no standing to seek relief in this because hee ruling has invested himself in his prosecution of general flynn, there is now a glaring appearance of bias to millions of citizens. Requires the vacation of and forth, they must compel the District Court to grant the dismissal as a matter of law. Only department of justice can decide the Public Interest and myriad factors inherent in pursuing prosecution. This is not an ordinary motion on which there can be Factual Development or debate. The case to file the dos motion as to which the executive branch has the full disclosure and determinative authority. The government must drop the case and every court in this country requires the motion to be granted. I will begin the questioning. Can i ask you the following question. Primarily on the request required the District Court to grant the motion, and to put aside from moment to the other forms of relief. Thatfocus on the Panel Focused on the panel that required the court to grant the motion of dismissal. There is anat entitlement to that form of relief only if theres no other matter adequate means question mark means . And there isonor, therer adequate means is a fact that there is no discretion involved on the District Courts part in addressing the motion. Are you aware of any other case where has been granted before theny court District Court itself has decided whether its going to grant the motion . Have theat we services, which you know as you wrote it, that with the law it is clear that this motion has to be granted. Every 48 a motion in the history of the country has ultimately been granted. He couldve had a hearing. He has had ample time, he couldve had counsel appear in. Ront of him im not even focused on the 48 a motion so much, for the purposes of this question, i will assume that everything you have said about the decision has been correct and i will assume further that the court agrees even though this was a panel decision. But i am focused on deals of other adequate means. And whatever you might think about the clarity, this will be true of all kinds of decisions later on. Im not even focused on 48 a motions, just any kind of motion pending before District Court, are you aware of any situation in which a District Court has been granted or denied the motion before the District Court itself has been willing to grant sidney motion motion. Sidney i dont know of any other court that went outside of threeundaries of article from the requested amicus, which is not provided for in the rules of the court. If therinivasan District Court grants the motion , that would be adequate alternate means would it not . Sidney no sir, because the process is the problem. The process is what violates the article three and article two. The denied the motion months ago but instead we had the unconstitutional burden being imposed on the process to he created. He has absolutely no authority to create. All he is entitled to do is to review the motion on its face and granted. Grant it. Theres no precedent for denying it. Judge srinivasan thank you. I will let my colleagues ask questions and followup. I appreciate your answers. No questions thanks. Judge srinivasan judge rogers . Rogers i will follow up in what sense do you understand the case . Sense that you understand the judges assumptions and the panel opinion, was this not a the dame us was granted after the District Court had ruled . Mandamus wasin the first agreement. And because we have that we know that judge sullivan has to grant this motion and because he went through the guard rails of any bridge of article three construction whatsoever, he has to be reined in and at the very be issued. Damus must and there are circumstances now under which judge sullivan there are no circumstances now under which judge sullivan can continue because his bias demand his disqualification. The very appearance of bias is enough to demand his disqualification and here we have a long history of decisions made on the basis of extrajudicial compact and the blistering oped in the Washington Post which led him to choose the amicus hero white he appointed. He even waived the requirement of local counsel and added additional perjury and contempt charges over general flynns head. The perjury is now teed up for additional punishment at the recommendation of the amicus. Judge sullivan has failed to follow the mandamus itself for 15 days and took the unprecedented step of seeking rehearing by filing his own petition in his court when he has absolutely no standing to do so. Taking on the 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 sufficient. Ge srinivasan the Supreme Court had stated that it never approved the use case, writ in a criminal which would not have the effect of his dismissal. It is knowledge saying that mandamus could never be used, but it is noticed that it has been invoked specifically where the action of the trial court totally defied the government of its rights to initiate an for where the court overreaches judicial power to deny the government the truth of the valid conviction. Neither of the situations apply here. So why is it appropriate to use mandamus to review the procedural steps the District Court took in connection to the consideration of the governments motion . Sidney the usurpation of power does apply here. That is exactly what judge sullivan did when he appointed mr. Gleason in the stead of the government as soon as the government moved to dismiss the prosecution. Theres no authority whatsoever on a judge to pylon pile and add his own prosecutor against a criminal defendant. That this is a rule 48 a motion as opposed to a particulars issue makes all the difference in the world. Only the government can decide when to stop a prosecution. Thats the authority hes intruding on. Hes not entitled to ask any questions whatsoever when more than a mere conclusion or a statement has been made. In this case we have a 100 page motion to dismiss supported by exculpatory evidence that was suppressed for three years or more. His is an extraordinary case the process he created is beyond just judge ginsburg said in sentencing smith. Thank you pasan one make sure judge rogers has no further questions. I want to make sure that judge fought judge rogers has no further questions. Judge hazel you sent judge you said thatl there was no standing . Sidney of course we can according to the petition we of of course we consider the petition. Is, [indiscernible] does it really make any difference if judge sullivan is a party or has standing . Sidney it doesnt terms of the disqualification issue. The court can always take a case through judge srinivasan thank you. Judge tatel thank you i have no further questions. Judge srinivasan thank you, judge garland . Garland imagine the Supreme Court has decided in issuing District Court, squarely. And without any doubts and the person moves for some new judgment based on that case. You haveave to agree, 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. Why is that not the same as this . Im assuming that you agree that even if the Supreme Court had decided an issue in the district port, directly on point, that would not be enough to mandamus the judge before the judge decides, agreed . Sidney it would not, because it would not be a 48 a situate situation that involves the core powers of the executive branch. Judge garland the Supreme Court had decided that the executive power, and the judge had not made up its mind yet, would you agree that still the District Court would have to make the decision before you can appeal . Or before you can seek mandamus or do anything else . Sidney he has effectively made the decision. He denied two motions opposing amicus at all and denied our request to dismiss the motion before he even granted mr. Gleason and started the whole process leading to the article to executive power which he said we cannot do. Disagreeland so you with the District Court firmly presiding over the case which has yet to decide the governments motion . Sidney i do at this point disagree with that. I went back and i look at the record again and realized we had filed a request for him to grant that and oppose the amicus twice before he even appointed mr. Gleason. Sidney thats the judge garland thats the amicus question, what about the dismissal of the case . Sidney in that motion around docket 200 we requested again the dismissal be granted. Judge garland so the panel just had bad luck . Sidney it was my failure to point out to the panel that that previous motion had been granted but we corrected that in our opposition to the petition for rehearing. Case in whichl the defendant and all the Constitutional Rights are supposed to benefit the defendant area judge garland defendant. Judge garland we have lots of cases where we have reversed a District Court error in a criminal case, but there was no ability for that defendant to do anything but appeal the condition, they could not mandamus the court. Imagine of the Supreme Court had decided a Fourth Amendment case, clearly applicable to that defendant and in that defendants favor, and then the District Court ruled the other way. The defendant would still have to appeal, even that the defendant was restricted and the conviction stood, isnt that right . Thats the normal way court cases go. Sidney that is the normal way criminal cases go when you are dealing with solely legal issues and the government has not walked in and said i quit. When the government is the only entity that can pursue a prosecution. Judge garland so its not a question of the clarity of the law at the time. Sidney no its not just a question of the clarity of the lot the time. Its a function of the Sole Authority of the executive branch being the one to prosecute and the discretion invested in it to way into the factors of dropping a prosecution and the court cannot continue a prosecution on its own, which is what judge sullivan has tried to do and did very effectively for three months. Judge garland so if all the District Court had done was asked mr. Flynn and the government to rethink the scope of 48 and the separation of , you committed amicus but did not appoint amicus is that correct . Sidney i think thats far more procedure and process than is allowed by precedent on any 48 a motion in the history of the country. Judge garland thank you. Judge srinivasan thank you. Judge griffith . As i see it, the question before us is not whether the District Court must grant the 48 a motion, but amicus andade in held a hearing before deciding that motion. In your view, what is it in rule cases that or in our prevents the District Court from conducting a hearing before deciding the motion . Sidney the Supreme Court and this court have said the court has no substantial role whatsoever in ruling on a 48 a motion. Illegal corporate vision is not a license for him to investigate the stated reasons the government has for dismissing the case. Role griffith what is the of the language ithen . You make it sound ministerial. Sidney it almost is ministerial. Judge griffith what does almost ministerial mean . It is or it isnt, yes or no. Sidney its pretty ministerial. Judge griffith thats not helpful. Its not ministerial and you know its not. So its not ministerial so that means the judge has to do some thinking about it right . The judge is not putting a rubberstamp on the language of the rule itself. So arent you just arguing about what the judge must do to rule on the motion . Point is that the the itself for bids conducting of a hearing before motion, is that true russian mark true . Sidney no, its the decision in rinaldi. Judge griffith to prevent any hearing before the motion . Sidney it prevents any inquiry behind the governments stated reasons and any substitution of judge sullivans opinion. What type ofh hearing is permissible . Sidney he couldve called the parties and and said does the government moved to dismiss, the government says yes, and he said is this brady material and they couldve said yes or no, or like he pushed on the stevens case. Or to have any contrary testimony to ask the plausible questions he had that he mentioned in his brief that he wants to ask. None of that is permissible because rinaldi makes it clear that the legal core provision is only to protect the defendant from being harassed by the government. Isthe only discretion he has whether it is to make sure it is with prejudice as judge sullivan did in another case. The government wanted to dismiss the Court Without prejudice and he said no, it has to be with prejudice area thats what he did in the stevens case on a twopage most motion to dismiss. Statedriffith you have in oral arguments that you believe you have a strong case for the District Court on rule 48 a, right . Sidney yes. Judge griffith in that case, why mandamus . Appeal if judged amos judge sullivan does not grant the motion to dismiss, why not dismiss . Sidney because the process he has started and intends to pursue violates the article to powers of the executive branch and bond entitles general flynn to stand on those constitutional principles. And byaration of powers the violation of his Constitutional Rights i think it was in another case to a prompt termination of these proceedings, instead of 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 48 a has require it be granted. Everyone. And you dont think thats what will happen on this one . We dontw to we know, do we . Sidney we know its unconstitutional, the process trembles all over the executive branch is independent authority to do it, as well as what went into his decisionmaking. Nothing about what he has done since he got the motion to dismiss has been done in any other case. Not one single step of the procedure. To add on someone to prosecute the defendant as mr. Gleason wants to do judge griffith i dont understand your statement, the appointment of an amicus before is common. Sidney not in criminal cases per theres no rule provision for it. You can just go out on your own and do this. The article toer executive branch authority. Abouts nothing there aligning people against a defendant as if there were not enough. Judge griffith thank you. Powell. Morning ms. A few questions for you. Court didhe district you waive the separation of powers . Sidney amicus started because of an email send to chambers on behalf of the selfdescribed watergate prosecutors, on which they copied me, evidencing their intent to seek judge millett so you are saying your opposition to that amicus filing was just before the appointment of mr. Gleason and before the Briefing Schedule was issued in the full process, that was your opposition to orders that were issued later . Sidney yes. Judge millett just to be clear. Your answer is yes. There was your opposition to the watergate prosecutors, but no mr. Gleason. Sidney no. Judge millett and after the ,ourt appointed mr. Gleason wheres your objection . Sidney the separation of powers objection was already on file. That was att different amicus. The argument here has not mentioned once the brief about the watergate prosecutors, its all about mr. Gleasons appointment to take over the prosecution to inquire and gleasons arguing for this, to scrutinize motives. Where is your opposition to the appointment of mr. Gleason . Sidney our original opposition and 203. Was on 201 thisll work a lot better if you let me get my questions, sometimes i just need a quick yes or no. Objectionsition, no to the appointment of mr. Gleason, youre just referring back to argument you made to the watergate amicus. On may 19,order setting up this Briefing Schedule and amicus, the District Court said the following proceedings should be subject to a motion of reconsideration, did you file that motion . Sidney no. Judge millett ok. Sidney no we had filed to get rid of mandamus because thats the remedy for the usurpation of power. Judge millett i thought the mandamus was filed after that . Am i wrong . There is ahink mistake in the order of the ,ocket entry that is the purpose of mandamus. Judge millett ok. Sure. In response to one of my colleagues that the District Court could have brought the government and all of the attorneys and for a hearing and push them a bit was i think your phraseology, as in the stevens case, can ms. Powell not very much. Millett what pushing in the stevens case was ok . Ms. Powell he asked the government if the material that had been withheld from senator stevens was brady material, and they were wishywashy on that and then they admitted it was virtual and that was the virtual extent of it. A part of the motion to dismiss was the discovery of new material, correct . Ms. Powell correct. Judge millet you have mentioned the court cannot appoint an aicus to argue against defendant once the government has sided with the defendant. Ms. Powell at the District Court level, the courts have no provisions for the appointment of amicus in a criminal case. By virtue of the case there is a civil judge millett there is a Supreme Court rule that says they can appoint amicae in criminal cases in the interest of a defendant . Ms. Powell the Supreme Court and Appellate Courts routinely is there a role in the Supreme Court saying they can or cannot do that a rule in the Supreme Court saying they cannot or can do that . Ms. Powell i do not know. The Supreme Court appoints amicae whenever it wants to. Judge millett one last question for you. Role of thebout the court in 48a. It can prevent harassment of a defendant. Correct . Ms. Powell current act correct. That is rinaldis decision. Judge millett i think you would agree that this is not a purely ministerial process. 48a to protectse their own prostheses to make sure that prosecutors are not abusing the process . Ms. Powell they cannot. It is not for that purpose. Judge millett ok. Thank you. Chief judge srinivasan judge pillard. Morning. Lard good decision, i think the only decision i have been able to find the deals with whether or appropriate was before a district judge has even had an opportunity to rule under a 48 motion is the decision in richard. And they are, the Third Circuit denied mandamus because the trial court had not even had a hearing on rule 48a. We have not decided this issue in our circuit, but richards suggests there is no clear and indisputable right against losing an argument on rule 48a. Ms. Powell go ahead. You are opposing the argument on the motion. That is why you got mandamus, am i right . Ms. Powell yes, because there is no adversary because the parties have consented. General flynn and the government have agreed to the motion to dismiss. There is no longer a case or controversy for the District Court to adjudicate. Re 48 a and even the in richards case, a 30yearold case from a Territorial Court in the virgin islands, in which the government just made a mere statement in the interest of justice, and the court said we need more sunlight on the reason for that. Judge pillard you try to distinguish richards on the ground that there was only an includes ore interest inclusory interest. But they have supportive affidavits, potential witnesses that would have testified. The court was entitled to read the briefs, consider the argument, before granting leave. Do you think that was wrongly decided, that case . Ms. Powell given the particular circumstances of that case and a key witness who recanted, if i profilein a extremely in a highprofile case 30 years ago. There has been substantial judge pillard do you disagree with richards on its own terms in that case . Distinction youre trying to draw the appointment of amicus . Mandamus was inappropriate because the court could listen to argument and look at the motion and supporting affidavits and consider . You dont have any quibble with that . Ms. Powell as of 20 years ago . No. As of now . Yes. Judge pillard so the law as it currently stands, you think they should have granted mandamus in richards. Ms. Powell if richards were now, then yes. Because thereat is a 100 page motion to dismiss here with 80 pages of exculpatory evidence that was that theced, the fact brady evidence was suppressed alone is sufficient to vacate the guilty plea. We have other motions on file of multiple reasons why the plea is not valid. 48abottom line is the motion leaves no discretion in the District Court even more than in ex parte u. S. The court said the discretion to issue a bond or bench warrant is not the discretion to deny it. Judge pillard we do not know whether this judge was going to exercise that discretion. We would assume given the president we and you have read the precedent we and you have read that he would. Ms. Powell we know the process established violates judge pillard so it is the process you are objecting to. Of powell the process ruling on appointing the amicus would have to be vacated at a minimum and then be remanded to a different district judge because all of his actions that now amount to the eager greed just appearance of bias that prohibited him the degree just appearance of bias. Egregious appearance of bias. Judge pillard gleason was not appointed. Invited to argue one side in an adversary system. An adversary system is so we get the lot right. It is the core of any judges job that strong arguments can be made on both side. Your argument is that we cannot hear both sides of the law. That is your position. No powell there is provision for amicus and a criminal case in the federal District Court, and certainly not to take the position of the government when it has decided to drop the case. When the government signs off, the case is over. The article three branch cannot make another branch prosecuted case. Judge pillard i think your position is correct me if i am wrong the extent of rule every other application of a leave of court requirement is unconstitutional under separation of powers. Is that a fair way to put your position . Ms. Powell yes. Judge pillard ok. Ms. Powell no further questions. Chief judge srinivasan thank you. Wilkins. Morning. Kins good suppose in the future, in a different administration, you that was filedon and the prosecution said it is because of this exculpatory evidence that we are moving to dismiss, and a Catholic University law professor asks to be appointed amicus because a group of nuns and bishops happened to witness the prosecutor taking a briefcase full of cash from the defendant a the case, and they made videotape using their smartphones of the transaction and presented that to him along with sworn declarations, and so he wants to find an to file an amicus brief in attached that amicus. Is that improper . Ms. Powell that would certainly be improper behavior by the prosecutor and worthy of prosecution itself by the department of justice. Wilkins in other words, amicus . Fessor has ms. Powell i believe it would be if the government had already filed a motion and decided through appropriate channels to drop the case. That has to go all the way up to the attorney general and solicitor general, i believe. Whatever the considerations that go into that belong to the department of justice, not the article three judiciary. Districtkins so the judge says i am not going to appoint amicus because the defendant has objected. I am going to hold a hearing and ask those witnesses to come to the hearing and bring their video footage of this alleged bribe. The district judge, because it is an unopposed 48a motion, cannot hold that hearing . Ms. Powell he cannot go behind the prosecutors decisions to dismiss a case, and he certainly cannot on the facts of this case. I mean, one of the reasons judge wilkins i asked you about my hypothetical. Would it be improper for the district judge to hold a hearing under the facts of my hypothetical . Ms. Powell i believe what the district judge would have to do is refer the matter to the department of justice for prosecution. Judge wilkins i have no further questions. Thank you. Chief judge srinivasan thank you. Judge rao. Judge rao good morning. That myhe questions colleagues seem to be focusing on, and i maybe want to hear from you again on this, is what most that a District Court judge can do when considering leave of court under rule 48 . It seems you think he can hold a hearing. Is there anything else he can do . Ms. Powell according to all the existing authorities, it has described his role as extremely role. D, virtually no dore is just not much he can in the face of the governments decision not to prosecute a case because the law is clear that it is up to them to wailed a myriad factors to decide whether into two way all the myriad myriad factorshe that decide whether it will be prosecuted. They did not agree with the sentence, in one case, was grounds enough to grant a mandamus. I believe that was the hamm case. So it is up to the prosecutor to that gol the factors into deciding whether a case should be prosecuted. Once they make that decision, the article three branch is simply protecting the defendant from being harassed further. To what extent would reassignment if the court were not to grant this writ of mandamus, to what extent would reassignment to a different judge cure the problems you have identified . Ms. Powell it would certainly cure the bias and recusal disqualification problem, and it would also vacate the appointment of the amicus according to this courts because of the fact that the decision had been made by a judge that was disqualified. It should probably be made clear that the amicus appointment has to be vacated because that is a severe article to intrusion article two intrusion, and violates the defendants rights to not have the world pile up against him when the government decides to drop the case. That would go a long way toward solving the problem. Judge rao thank you you. No further questions. Chief judge srinivasan thank you. Ms. Powell, i have one question for you is a followup. Suppose again that we are dealing only with the 48a question and the issue is whether mandamus should be required to grant the district judge to grant the 408a motion. Withse also that i agree everything you have said about focker. If the district judge receives the 40 a motion, and the district judge says i want to schedule a hearing, to make sure i understand the governments reasons for dismissal, at that point, would you be entitled to mandamus relief because the has scheduled a hearing . Ms. Powell no, sir. Chief judge srinivasan judge henderson. Believe ezraon i pound said it some circumstantial evidence is so strong as when you find a fish in the milk. Do you think that applies to this case . [laughter] i think it might, your honor. Judge henderson that is all i have. Chief judge srinivasan judge rogers. Judge rogers no question. Chief judge srinivasan judge tatel. Judge garland. I want to clarify record 20. Whether the District Court had actually decided against general flynns motion to dismiss, and you said the panel had been at error, not the andls fault but your own, found the District Court to decide against. I had the docket sheet in front of me. I do not see a ruling i assume the motion you are talking about is your docket number 202. And i do not see any denial of that motion. Could you help me with where that is . Ms. Powell he did not enter a docket entry for denying that. And whatts see is missing is docket entry 201. We made a sealed filing objecting to the process discussed in the emails sent to chambers by the watergate dockettors, and then at 204, we filed a motion to strike and opposition of notice of intent to file leave for amicus brief on record. And then he denied and it was in that motion that we also requested that the motion to dismiss be granted. Well, he denied both of those, the sealed and the 204, the next morning. You are saying that 204 included a motion to dismiss his ruling. 204 says he denied a motion to strike in opposition to notice of intent to file a motion for amicus. Ms. Powell 204 includes a request at the end of the motion that he grant the governments notion motion to dismiss. Judge henderson he denied this judge garland he denied this as moot because he denied the initial amicus. Is that right . Are there some words where he says i denied the motion to dismiss . Ms. Powell no, there is no separate order in which he denies the motion to dismiss. No, sir. I misspoke or was less than clear if i implied that. Judge garland i might have misheard. On the bias question. District Panel Majority found that a District Courts conduct did not indicate a clear inability to decide this case. Is your claim that the panel finding was biased at that point or is your claim only the bacc hus claim . Ms. Powell it goes back and includes those comments that the district judge made at the sentencing, or what was supposed to have been the sentencing, in this case, bias, but also carried forward more into the fact that the panel did not into the facts the panel did not consider. Those were focused on statements made during the course of litigation, which are usually excused, but in this case there have been more since then, and that includes receiving the email from the watergate prosecutors and agreeing to appoint the amicus at their the inexorable determination to go forward with these intrusive proceedings, including denying our emotions objecting to any amicus praising the separation of our emotions objecting to any images raising the separation of powers issue. Are you saying these events occurred after the panel concluded there was not the kind of bias that would disqualify a judge . Ms. Powell it may be both. The panel definitely considered the statements made at sentencing. It is unclear to what extent they considered any other factor because of the way the opinion reads. Judge garland did you argue the other factors . I do not believe we had time to argue the disqualification issue itself in the original panel hearing, but the point now is definitely that judge sullivan failed to follow this Court Mandamus for 1 days for 15 days into the n filed his own unprecedented petition, which shows he was so investigated in this litigation so invested in this litigation that there was no way could dispel the appearance of bias. Chief judge srinivasan thank you. Ms. Powell, i have a question. Throughout the argument this morning, we have been stressing that rule 408a has its primary purpose for protection of defendants against vexatious prosecutions. I can understand your emphasis on that. But that is not the sole purpose of 48a. We know something about the history of it. It,history, as i understood was that it was also created by the Supreme Court to examine cases of favoritism for politically powerful defendants. Quite inseems to be the wheelhouse of what is going on here. Was that not one of the purposes of 408a . Ms. Powell not according to the Supreme Court. It certainly never addressed that. Rinaldi makes your that 408a is to protect the defendant from harassment. Judge griffith there is no question that is one purpose. But that is not the sole purpose. Ms. Powell as best i can tell from the law, that is the sole purpose that has been given any definition whatsoever by any of the cases. Judge griffith in the history we have a record of the history of the creation of 408a and i thought that one of the a districts to allow powerfulge to examine defendants. Do you disagree with that history . Mean, the well, i history is whatever the history is, but the courts have not interpreted it that way. As judge pozen are noted as that hasner noted, been denied. Have courtsth rejected that reasoning, or had they just not addressed it . Ms. Powell it has not been addressed. Judge griffith that is different than rejecting it . Ms. Powell yes. Chief judge srinivasan judge millett. Judge millett just a followup on judge garlands question about your document to a for filing, your opposition to the watergate amicus. You had a proposed order that went with that motion. The proposed order does not mention the governments motion to dismiss, does it . Ms. Powell no because there was an order attached to the governments motion judge millett i am asking about your brief. You do not even ask for that in your proposed order. The document only talks about the watergate brief and specifically says they want to file an uninvited amicus brief on page two, correct . Ms. Powell i believe that is correct. Adge millett i also had question following up on judge aboutss hypothetical the nuns and priests that witnessed bribery. Could the District Court, and a case like that, where the government said its motion dismiss is based on brady evidence and there is evidence it may be based on bribery, can the government, when it calls into discuss the motion, is there a right to press the government to see if it was lied to . I think the recourse for the District Court judge millett i do not want to hear about referring someone for prosecution. Can the District Court asked the government, referencing this information, whether it was lied to, whether the court was lied to, and a filing in the District Court in a filing in the District Court . Ms. Powell yes. Chief judge srinivasan thank you. Judge pillard. Judge pillard on the question does anything8a other than protects the defendants interests against harassment, and just probing further on the question of whether it is actually open what example,ects, for prosecute two real prosecutorial power favoring defendants the government wants to protect. Thatnk it is clear footnote 15 really leaves open the question of whether 48a fits more broadly. A motionourt can deny to dismiss if it was prompted by considerations clearly contrary to the Public Interest. So it is something other than the defendants protection against harassment. You may be right that there is 48athe case to deny a motion, but it is not a clear and indisputable right against such inquiry. There is not a clear and indisputable right against the 48aanytion of rule circumstance when the motion to vacate was clearly prompted e it was against the Public Interest. Ms. Powell there is when the government tries to drop decides to drop the prosecution. Is a pillard that separation of powers argument rather than an interpretation of the rule. The rule itself. View, couldder your invite that kind of superintendence by a District Court, but it is unconstitutional . That right . Ms. Powell yes. Chief judge srinivasan chief judge srinivasan judge wilkins. Judge wilkins following up on my earlier hypothetical just so that we are clear. In that situation, the district judge said i want to have a hearing on the 48a motion that is unopposed, and i want to have the nuns and about thestify and judge handing over money, he would say they have no authority to proceed in that fashion . Ms. Powell he would need to refer it for prosecution by the department of justice. Judge wilkins you base that on focker . Ms. Powell focker, separation of powers, rinaldi, every 48a case ever decided. Chief judge srinivasan judge row. Judge rao. No further questions. Chief judge srinivasan now, the acting solicitor general, mr. Wall. System,r constitutional a defendant may not be convicted of an ordinary crime without the concurrence of all three branches. When an executive branch no longer wishes to prosecute, the case should be at an end. That is why focker said that the decision whether to dismiss charges is a core executive duty. Under articles two and three in focker, the governments unopposed rule 48a motion must be granted. If we are clearly right about that, than there is no adequate alternative to mandamus. The hearing makes clear what will happen next. The Public Interest standard remains and assessing whether the motion serves legitimate prosecutorial interests referral to factual records in the investigation into facts and circumstances of the dismissal. Courts plans to conduct an inquiry into the decision regardless of whether the court eventually grants the motion. The district judge says the court should ignore those arms, but the government is a party urging mandamus. It is the fact and substance of that filing that matters, not its caption. Like bond, general flynn can invoke separation of powers in defense of his own individual liberty. And of course, the Court Considers thirdparty interest, so it would be passing strange if the court cannot consider the interests of the government, a party that supported mandamus. The petition must be dismissed. The only question is how much farther this harmful end necessary process will be allowed to play out . And a necessary process will be allowed to play out . Opening, you focused on the brief that was filed by judge sullivan at the mandamus stage before our court. The admission out of that brief, would you still say that mandamus needs to be granted and there is no adequate alternative for relief, with respect to the dismissal 48a of the 48a motion . Briefsink the panel warmer concerning than the petition. Explicit that was he wanted affidavits and declarations for both rule 48 and contempt. But that is still posed mandamus post mandamus. I am saying, if you take out of the field of vision, what judge sullivans briefing said before this court, would you still say that we know enough such that mandamus should be granted on the theory that there are still no other adequate alternatives . Mr. Wall i would. Take the premise too much, but the purpose of the court responding to the mandamus petition was to understate the basis for the court understand the basis for the courtsactions. Even if you look at only what had gone on in front of the District Court, i think we would be here saying the same thing. The District Court has set up a process to probe into the governments motives for exercising its prosecutorial discretion. We think it is clear both from focker and from the constitutional backdrop of focker that the District Court could not adjudicate the rule 48a motion. Chief judge srinivasan the court held a bunch of proceedings before the denial of the different prosecution. Would you say that in focker itself, those proceedings should have never happened, and mandamus should have been entered because the district judge had telegraphed the kinds of questions he was concerned with . Mr. Wall i want to separate the proceedings that went on before the damas and the receding the proceedings the proceedings that went on before mandamus and the proceedings after. Remandere no abstention proceedings that went on in focker before. Chief judge srinivasan i am saying that before the pin to for the petition mandamus was even filed, before the agreement was rejected, the judge scheduled a number of proceedings to ask about the proposed deferred prosecution agreement. Is it your view that in focker, if the petition had been filed when those proceedings were announced, before the judge entered a ruling, the mandamus should have been granted because the district judge had telegraphed where he was going . Mr. Wall yes. It would be a harder case. It would be more like richards, but all of the reasoning focker reasoning of focker would suggest it would be inadmissible that it is within the ken of prosecutorial discretion. This is easy, because now we have on the books focker, if a District Court said tomorrow maybe i am required to approve the dpa under focker, but i would still like to hold a hearing on women have been improper hearing on what may thatbeen improper conduct, chief judge srinivasan the last question on these lines. Filed,government has 48a and the judge says, thank you for the submission, i want to understand the governments reasons further, i will schedule a hearing. Will there be grounds for mandamus other for nothing other than the decision for hearing . Mr. Wall i want the court to understand that the reasons i do not understand why it is you want to dismiss. Ot saying mandamus would that, but this is not what the District Court is doing. This is meant to probe the executives reasons and that is exactly what focker takes off the table. Chief judge srinivasan judge henderson. Judge henderson let me put a correction on the aftermath. It was henry david thorough who made the remark about henry oreau who made the remark about circumstance. Reparedyou to be p to address 48abfi. What is your position . Mr. Wall i am happy to address it now, judge henderson. Thatovernments view is judge sullivan is not a party. We would say the same thing under 455. I would not see a reason to differentiate the rules from the statute. So i do not think there is a b five i item. I do not understand why it is also not a statutory problem, because 55d says that if youre any party in any stage of the proceeding. We are not sure what judge sullivans counsel will say about that. 455a a harder question on we did not 455a. We did not agree with general flynn on the panel, even though what happened in the District Court was irregular. We are in a different posture now because the District Court has filed a petition that is not permitted under the rules, which aggests, as ms. Powell says, level of investment in the proceedings that is problematic and has gone further than the District Court did in the Panel Briefing to decide the Legal Standard. Nothing to say about the separation of powers considerations on these facts. That is page 16. The District Court can undertake its own independent examination in the Public Interest. I think now the District Court has prejudged part of what i understood the proceedings below to be designed to accomplish. I do think we have come to the view that there is now a question about the appearance of impartiality. Thank you. Chief judge srinivasan judge rogers. I suppose is byr position that the filing in urgingct court amandamus was impermissible at this stage, that woulds the bias reassignment . Mr. Wall no, judge rogers. I am not saying that it actually suggests the court is biased. I want to be clear we are not saying there is an actual , but we doproblem think there is an appearance aoblem for having filed petition that, as we read the rules, is not permitted. And the substance of this position the substance of the petition goes an awful long way to same with the Legal Standard of rule 48a. It says nothing about the separation of powers considerations. Going to conduct a Public Interest examination. I think the court has decided what the Legal Standard would be, and if the court is going to deny man damas, i think it would provide guidance to the District Court. I understand the argument about the amendments. Indicatede court has the situation that the district i did notlf in see any suggestion that that would create an appearance of partiality problem. Mr. Wall no, judge rogers. I do not think that somebody can create a recusal problem by dams position a mandamus position. By way of an amicus, is specifically does not list the District Court is a party. The problem is that because the District Court has reached out despite those rules and filed a petition without being invited to do so by the court, it at least raises a question about whether the District Court is invested in what should be its official authority to appoint we have an appearance problem. Oneave only identified petition filed by district judge judge by a district ever, and that is where the person of the judge was at issue. This is different. It is just about the scope of the judges official authority. Judge rogers i want to understand the scope of your position here. The Supreme Court cases do not appear to have that. Are by saying there questions he wants to ask, is the chief judge framed it, in order to understand the governments motion, that that alone is sufficient . In other words, originally, i was going to ask you about why should the court consider harm to the government . Antoinette never filed for mandamus and never filed for any sort of appeal, and simply then to comment. I thought, even assuming the court should consider, at this is it not too speculative . Flynnsou adopting mr. Argument about it is the process , the extraordinary by another District Court judge . I am justagain, responding to a question that the court has put to me about 455a. We do think it rules in uncharted waters. Dishink that it raise as a raises a question it raises a question. We think that it take off the table some of this factual inquiry that the District Court seems to want to engage in. I just want to be clear my answer to the chief judge. There is a difference between trying to understand emotion and the kinds of the question District Courts reason. Why did we not charge with respect to the statements, why have we handled related prosecution the way we have . That is a probing behind the motion. It is not an attempt to understand the motion. My third point is there is nothing speculative about the injury to separation of powers from that. No matter how we answer these questions in the District Court and how we dispose of the motion, probing the executive isnch in that way constitutionally impermissible. Those are not speculative injuries, those are certain injuries from the process itself. Chief judge, i will let my colleagues speak. Chief judge srinivasan thank you. Judge tatel. I have two questions. I would like to ask you the same question that Joe Srivastava and asked ms. Powell. All of any case in which a court of appeals has prevented a writ of mandamus to prevent a District Court from conducting a hearing . Chief judge srinivasan i believe mr. Wall i believe. I would have to look. The closest i could give you is cheney. No documents had changed hands. Obviously, this court says there were adequate determinants to most s to maintain two mandamus. I think the same is true here. Ishink the reasoning terrible. Hearing that parationes the se of powers . I do not think we have to wait for the process to play itself out. The process itself is part of the constitutional harm. Where is no case excuse me, i do not know what those prohibition cases are your mentioning, but setting those aside, there is not one where mandamus is granted before the District Court actually held a hearing that you know of . No, but i will say what i said earlier. If a District Court tomorrow said it wanted to have a hearing like that, i think that would be mandamusable. In your brief, you ite that, and im quoting power it is abuse of power to secondguess the governments justification. You also argue the government is entitled to confidentiality in this decisionmaking process, but dont courts regularly scrutinize state justification . Take for example where the court will review the governments profit justification. Four the department of justice versus new york or consider the department of justice of commerce versus new york. Isnt that this case . The court said the department of commerce, the court is ordinarily limited to the contemporary in this the contemporaneous explanation, except recognizing narrow exceptions to the general rule on a strong showing of bad faith. Is and what this case is about . Isnt that what this case is about . Mr. Wall two points. That is not just our view. Focker, which says courts may not exercise discretion over the dismissal of criminal charges. And the second, no, you are right that there are courtstances where the can scrutinize whether the executive has complied with some duty. What makes it different is that itself thisn is vested inetion the executive. These kinds of decisions are taken off the table for judicial review under our constitutional structure. Of course, that is not true of any number of other legal , other than the exercise of such a core executive duty. Chief judge srinivasan thank you. Judge garland. Judge garland yes, good morning. I want to followup up on a question that judge tate l asked. You argue that there is an article three problem, a standing problem, a lack of others station authorization. If it were true that the cou rt granted, do you think the court does not have the authority on its own to rehear a panels decision . The question would then be only if it was an appropriate use responding to banque like this. We have not argued and i think you saw that the court had the power to do that. Judge garland that case is not about en banc is it . Chief judge srinivasan it is not new mr. Wall it is not. Judge garland so if the court as a whole is wondering whether the threejudge panel correctly decided that there is any kind decide, for are we stuck with whatever any threejudge panel happens to decide . Mr. Wall you have the power to go en banc. The only question would be whether that is an appropriate use of the courts authority. Im sorry to interrupt. The chief has been prissy about the men of time. The amount of time. The panel says the government explains the right that in light of newly discovered evidence of misconduct, the government can no longer prove beyond reasonable doubt . That is one reason, right . I will take all three of the reasons. I assume you believe the reasons are true, correct . Mr. Wall yes. Judge garland what more is there for you to say . Was that optional . Did you not even have to say that much in the motion to dismiss . Mr. Wall i do not think we did and we often do not, but under the circumstances we went further than we thought we were obligated to. To drive that point home, the attorney general sees this in the context of Public Information from other cases judge garland i am not questioning anything underlying. I am just asking that this was the reason given. Mr. Wall yes. But it may be possible that the attorney general had Important Information that he was not able to share with the court. What we put before the court were the reasons that we could, but it might not be all the Information Available to the executive branch. Judge garland if the judge asks you what your reason is and you state this is the reason during the hearing, are you saying that is not the end of it . There would be no problem with you saying that. Mr. Wall not at all. It is just we gave three reasons. One of them was that the interests of justice were no longer served by the prosecution. The attorney general made that judgment on the basis of lots of information. Some of it is public and some is not. Judge garland if you stood by this reason when judge sullivan conducts the oral hearing, there would be no problem doing that, whether . Would there . If all we had to do was show up and stand on our motion, no. We already said that to the District Court. Judge garland and if the District Court goes further, at that point you could seek mandamus again, but the court has not actually gone further. There is a brief en banc about what might happen, but the court has not ordered you to do anything other than show up. Mr. Wall with all respect, i do not agree with that. Judge gleason wrote his oped calling for a factual inquiry. He was immediately appointed as an amicus as part of a process the District Court has explained it was meant to probe our motives. Odyney this is just an an proceeding judge garland i understand that. But you can refuse to answer further. If you are pressed further, at that point, you can move for mandamus. There is the possibility that after the briefing the district judge will see the light and that will be the end of the matter. Without extraneous outside information that someone other than the government presents, so there is no probing of the governments motive. Mr. Wall with all respect, i just think that undervalues the harms to a coequal branch, compelling us to respond to improper questions and accusations by the Court Appointed in amicus. Amicus. Judge garland there actually was in order of discovery an order of discovery. There is no order yet here. Is that right . In fact, it was the most wideranging discovery the court had ever seen, it said. There has not been discovery yet. Mr. Wall there has been no discovery order, but there has been an order setting up a process to make us defend the executive, the exercise of a core executive duty. It does notbe fair, take seriously the harms to a coequal branch in a situation like this, where we are called in to have questions and accusations thrown our way that we have to respond to. That is exactly what focker says. Lets sayand accusations were thrown my way, as an assistant district attorney. This is part of the job of being a prosecutor. I dont understand how merely being the subject of accusations from the other side, or even from the judge who often questions with the government is doing. If either of those were a separation of powers case, we would have a large number of mandamus cases in the circuit. Mr. Wall in the vast majority of those circumstances, there is no separation of powers question at play. Dpa, they said even if they had to approve it, there was going to be a hearing about whether the prosecutors had cut a sweetheart deal. That seems to me exactly the harm. Not take the harm to a coequal branch seriously to say it could be denied, because that is not the only harm it is meant to guard against. It is meant to guard against harm and scrutiny of this core executive discretion. Judge garland i have overstayed my welcome. Thank you. Chief judge srinivasan judge griffith. Judge griffith good morning. I am struggling with the meaning we the court. Ms. Powell, for general flynn, has a very narrow view of what it means. It is almost ministerial. Maybe im misquoting. What is the governments view of what that phrase means . And let me put it to you this way. It is is it appropriate in the governments view to have a trict court judge mr. Wall it depends on what the hearing is designed to do. Note griffith but there is a categorical prohibition on having a hearing . Mr. Wall i do not know. I am not saying that one of these things is filed and the just record just has to stand it. The question becomes what is going to happen at the hearing, is that right . Mr. Wall i think rule 48 a has a role to play, we know that. With unopposed motions, i would say that also the District Court can make sure that it has the authoritative position of the executive ranch, which it might not. Defendants sure the are tackled in the agreement against the motion to dismiss. I think beyond that, which are grant is a fairly narrow conception of the rule, i dont think there is a substantive role for the court to play, that is