To see whether he would defer. Were no rule 48, the government could stop pursuing the case and send a letter to the court and that would be done and that would be effective in ending, even though there was a plea that was accepted. Mr wall i think so because there would no longer be any article three between parties and authority beyond rule 48 for the District Court to keep it alive. That seems to me at least as important or more important on the criminal side where you are not just talking about an adversarial contest between private parties, youre talking about a contest between a private that is in and a branch of government private citizen and a branch of government. The district is not explaining how it can keep alive a controversy that is not over the executives objection. If the rule 48 has been granted, then what is the purpose of allowing unnecessary proceedings to play inside that . If the court thinks there are no harms to the executives. I think this has been clarifying, because our on page 620role where we refer to rule 28 is a requirement of judicial lien which gives the court a role in dismissal. They are still following guidelines to exercise their responsibility with statements the role ofcutor guarding against of there is a discussion of the role as i took courts rule the is particularly robust where there is not a plea that has been accepted and evidence specifically talks about an imposition of a sentence which is a matter of discretion for a trial judge. To the extent that there is a balance between executive authority and Judicial Authority and the Judicial Authority becomes more ominous speak hich to to probe your conditions on these facts. Mr. Wall sorry. Judge pillard go ahead. Saysall even at 622 it surely the executive has ace has to supply a reason. Judge weber says the court cannot deny the motion because his conception of the Public Interest differs from that of the prosecutor. I dont know how to square that up with the petition that makes clear that the District Court is going to conduct an independent inquiry into whether it steel it satisfied even if the Court Disagrees with what the panel did i think sending it back to the District Court, it would be helpful to provide some guidance for the District Court on the fairly limited role for the District Court. Downourt was aware it came it relied on the statements it integrated separations of powers cases from the Supreme Court. Armstrong, d. O. E. , wade. Judge pillard none of which involved get through the call and get through this one. Page 622 the on requirement of judicial improve will entitles the judge to obtain and evaluate the prosecutor thank you. Thank you. Judge wilkins . Why isnt it a proper interpretation of rule 38 a and rule 48 b in judge milletts hypothetical. If the district judge observes what he finds to be a bribe courtroom and the side said she does not want to be a party to it, why cant the judge denied the 48 a motion . The judge cannot force the government to continue with the prosecution, but then the defendant just moves to dismiss because of impermissible to slay impermissible delay under 48b and the judge grants that motion. Why is that not an appropriate way for that to play out . Points, three quick judge wilkins. There is no mechanism in rule 48 as your question recognizes to force the executive to proceed which is strong evidence that is not the focus of the rule. There are other ways to expose and respond to executive misconduct, legislative oversight, impeachment, elections. You may disagree with me on the hypothetical, i think it goes to whether you have the considered position of the parties. Even if you think it is not the sort of thing it is the sort of thing that rule 48 covers, it is how far we are from that in this case. Even if you thought that a crime committed in front of the District Court by the prosecutor would be the sort of thing that would allow the court to throw the governments motives all that underscores is how far we are away from a case like that. Allegation armstrong of unconstitutionality, there is no allegation of unlawful conduct. There is a question about whether there is an improper influence as the court stated in the amicus. That seems like clearly the sort of thing that should be taken nothing further. Mr. Wall thank you. Judge rowrao thank you, chief judge. The extraordinary rendering dairy is unwarranted when a district judge has yet to decide a pending motion. By appointing amicus, scheduling a hearing, and receiving the District Court is doing what District Courts do a preparing to rule on a motion. The judge has not passed any questions on the government or anyone else. No factfinding has been requested and briefing by the parties is not finished. Once that process is complete and the judge studies the papers there may be little left to discuss at the hearing. Andpartys speculation fears about what the district might do are not a basis for mandamus. All agree that this court has never granted mandamus before giving a District Court opportunity to rule. The condition for mandamus should be denied because there were alternative means of relief. Three reasons support this commonsense conclusion. The District Court could very well grant the motion to dismiss, which is the outcome the petitioner desires. As the panel appeared to recognize, there is no a reparable harm to petitioner from permitting the District Court to receive rethink and argument on a pending motion. What can the government, which did not petition for mandamus show for irreparable harm , . Their argument comes down to speculation on what might happen, but speculation cannot be the rationale for an intrusive mandate. Thepurposes of recusal, judge is not a party. Deciding whether to hear a case is solely on the power of this court. What we did as counsel was to suggest something this court can do on its own and did. Our suggestion is consistent with the Supreme Courts definitive statement in lester pacific giving litigants and counsel the ability to request the review that remains with this court. Thank you, your honor. I am happy to enter questions answer questions. I have a couple questions. In your view, is there anything a district judge can do an advance of ruling on a motion in terms of setting out the grounds on which a district judge wants to hear further that will result in an entitlement and mandamus . I think it would be very difficult in a vacuum to say if they could do anything. Case the judge has ordered briefing and is determining what the issues are. I can see the government objecting and there is no reason to believe this would ever happen. If you are asking me a hypothetical. If the attorney general was thinkd to appear i would that would be something the government would object to, would move to quash, and the District Court might even say, you are right, im not going to do that. That is the problem with all the arguments from the government. Its not only that they can say no when asked to these questions that they fear are going to be asked, but the judge could accept their answer that this is privilege, this is part of the deliberative process and move on. Its not clear when they explained that judge srinivasan if we take out and play the casesstay within that involve the normal giveandtake between counsel for the government and the court even in the scope of the hearing itself you think there is nothing that the court could ask of counsel that would entitle the government a mandamus at that time . Your view is even in this hearing itself the government always has a remedy because it can decline to answer and then if that then that can be appealed . Mrs. Wilkinson yes. Judge srinivasan what do you do with the acting solicitor generals explanation of cheney . The proposition that that was effectively was what was at issue in cheney and the supreme different typea of understanding in indicating that no it is not always enough that somebody can show up and declined to answer a public particular question when mandamus Cheney Wasson different for two reasons. There was an order from the court ordering broad discovery and ordering the governor to turn over documents and the governor did exert executive privilege before the case and gave the District Court judged a chance to reconsider his ruling. None of that has happened here. If there is any questions that the government thinks are improper judge srinivasan in cheney everything in one sense was that the regime they were viewing was one that was that the government could show up and declined to answer specific questions. Mrs. Wilkinson the reason that is not relevant here is the government has answered many questions already. The government hasnt taken that clear specific and full assertion of executive privilege. I think the government misspoke when they said they shouldnt were not going to answer the 70 duringief by the amicus the dependency of these briefings. They have filed a response in the lower court to the amicus brief and they have asserted in that response any have not asserted any executive ripley veg or that they cant turn over certain kinds of information. Notfacts of this case are similar to cheney, the government has had that opportunity, has responded, and has not claimed any privilege or irreparable harm when they answered the questions or responded to the motions. Judge srinivasan thank you, miss wilkinson. Judge henderson . No questions. . Judge rogers judge rogers your reading is after you side that you side with the judge that the Supreme Court would not have ruled as it did . I thought some of the language in cheney was very broad. Mrs. Wilkinson i believe you are right, judge rogers. The language was broad but as it because theit was government asserted the privilege generally and the court said it should not have to go through each response or discovery request and make those assertions because that is self on the specifics would reveal some executive privilege and they should not have to do that. That was a different case than here where the government has chosen to respond and started with a motion to dismiss campaign and an application an explanation of the facts and a law. You have heard the arguments today as well as in thepleading in terms of and theand the burden signaling that the District Court has given in terms of what it intends to pursue. It is not framed in terms of trying to understand the governments decisions, although it could be framed that way if we apply the normal presumption that the District Court will act in accordance with the law. Answered situationnot see a with a process an appropriate issuance of mandamus. You think that the Supreme Court application of cheney is sufficiently limited . Mrs. Wilkinson with regard to this case, i do. Perhaps i did not make it clear that of course the court would start with a narrow scope of any argument or hearing on a rule 48 a motion in these circumstances. The government has i believe miss red or over interpreted the pleadings in this case where the legal issues are being raised. Nowhere has a trial judge said he is going to collect evidence or require affidavit. He pointed out where some of these issues are, but there is nothing that suggests he will do anything other than have a hearing where the lawyers argue the motion. There can be followup questions on the motion and he will decide the motion. That process that occurs all the time in a District Court would not invade the separation of powers or usurp the power of the executive branch. There is no signaling to them that there are going to meet these onerous or invasive questions. Judge rogers thank you. Judge srinivasan thank you. L . Dge tate judge tatel your argument is that mandamus is premature because the judge has simply scheduled a hearing and has not yet acted on a motion to dismiss, that is your argument . Mrs. Wilkinson yes, your honor. Judge tatel lets assume that you are right that under rule 48 a there is some substantive rule at the District Court. Does the judge actually have discretion to deny a rule 48 motion . Is that included. Can he deny it . Even if he has a substantial rule does that include the discretion to deny a rule 48 motion . If it doesnt i dont understand what the purpose of the hearing will be. Mrs. Wilkinson i think there is very limited to limited discretion to turn or deny that motion. There is in the case law , judges like the one millett or another judge used about bribery of the prosecutor. Itself the court recognizes there is an assumption of regularity presumption of irregularity. Youreatel lets say right there is some discretion to deny the motion, then what happens . Mrs. Wilkinson in this case it is different from when a prosecution is initiated if it were denied, there is no role for the executive branch any further because sentencing is the only thing that is left. Flynne government and mr. Could take the position they are going to mandamus after that, that is what i believe they think would be their next step. Thehat did not happen defendant would go on to sentencing and then there would be an appeal by either one or both of the parties. Ge rogers judge tatel how would that appeal come out . Mrs. Wilkinson if i am reading the tea leaves properly this Court Appears to, and the fokker decision suggests, there is limited discretion for a judge to turn down or deny that motion to dismiss. Judge tatel i asked you a question. If in the end either the District Court on rule 48 is giving no discretion or if fearse this court later rule 48 as leaving the District Court no discretion, what is the purpose of going through all this . Mrs. Wilkinson two. That doesnt mean it is clear and indisputable now and that mandamus is appropriate now . You are trying to what would this court do. Itself of the judge participating with leave of court, which is receiving the briefings so we understand the scope of the governments motion and the law, and allowing lawyers to argue it and make a petition even if the answer is predictable, is not an error and certainly not the basis for a mandamus for this reviewing court to come in and direct him to what you are suggesting in the hypothetical is inevitable. Judge tatel thank you. I have no further questions. Judge srinivasan judge garland . Garland if i read what happened in the District Court all of it did was order and an oralease argument to be held. Focusesn focuses brief inas done in the this court. The panel says, before this court the District Court plans to question the government bought motion, inquire about the governments motion of representation, limited the full circumstances surrounding the proposed dismissal and the presumption of irregularity is overcome. What happened in the District Court, are you [indiscernible] do you know what the District Court plans to be doing . What is your answer to these statements in the panels decision . Mrs. Wilkinson we are not forecasting anything and that starts with what we said in the conclusion of our brief on page 18. All the District Court has done is insure adversarial briefings and an opportunity to ask questions about a pending motion. That is all the court has planned to do and all the court plans to do. When this whole process started the briefing was not completed, it still not completed. The government will have a chance to lay out all of these thats so there is no basis suggests the court has specific questions it will answer. I think counsel referred to something talking about what the law says. It does not say that these are the questions that judge sullivan plans to answer. Weour initial briefing pointed out that when the government signed the motion to dismiss it was only the acting u. S. Attorney, there were no declarations or affidavits. That there needs to be some and that there is not going to be any requirement. The parties are speculating, and even said they suspect it will become a circus. There is no basis for that. There is nothing in anything the to suggestone anything will follow the law or listen to the arguments of the parties asking followup questions, and rule on the motion to dismiss. Opposing counsel suggest there is a contemplation that you intend to get underlying documents about other charging decisions, why that government theater did not make other charging decisions, maybe you will call in the attorney general and ask what is the real reason you did this. Are these interestings they are notn contemplated. I believe the reasons the parties are suggesting that is hisuse mr. Gleason in pleading suggested there might be a basis for that. When he filed his pleading he said he is not requesting any factfinding. Notjudge surely has entertained any of those issues. Even mr. Gleason said that wont be required. There is nowhere anywhere in the record that suggests that would be anything judge sullivan intends to do at a hearing. Thank you. Nd judge srinivasan judge griffith . are you telling us those questions wont be asked at the hearing. He say you dont want to forecast the hearings, maybe you should. Are you telling us those lines of inquiry will not be pursued . Judge griffith mrs. Wilkinson i cant tell you exactly what wont be pursued because the briefing is not completed and judge sullivan has not decided all of the questions he may or may not ask even during the oral argument that could address the question that he has. When the issue was raised about the acting u. S. Attorney signing the pleading by itself, the government answered saying that was signed off by the entire department of justice and that answers the question. The court may disagree but there is no need to pursue that but there the government has explained and answered that question. If all of these pleadings are available to the court, the other filings are made and there is no reason to believe the court wont ask anything but what is narrowly prescribed which is listening to the arguments and asking followup questions. Judge griffith do you have a aew on the scope of rule 48 and what is meant by leave of court . We have had some discussion on whether it is limited to protecting defendants from vexatious prosecution. Designedws that it is to allow and one of its purposes is to allow a District Court that to probe a dismissal he or she suspects might involve i started with the history of the rule which is clear there was much debate about this and much of it was focused not on protecting the dependent from the publicrotecting interest when there might be rewarding or dismissing a prosecution. As the courts have developed along there has been very little. Where they have everyone has said a primary reason for the substantial major reason for the rule is because of protecting the defendant, but no one has said that is the only purpose of a rule 48 a motion when the two parties agree. I think the courts have left that open. What wouldith happen if we were at the late stage of this if this hadappen taken place at an earlier stage of the prosecution . And rule 48 there has been an internal error. Hello . Riffith hello . Hello . Whats up . I think ive been cut off. I think i was two. Judges, the conference seems to be up and running. Are we still in conference . Things are proceeding . Judge griffin, please we have just lost mrs. Wilkinson, we will try to reconnect. [no audio] judge, miss wilkinson is back on the line. Mrs. Wilkinson i am so sorry, i dont know how i got disconnected. Im not sure it is your fault at all. If you were earlier in a and a judge denied a motion to dismiss what would happen then . Mrs. Wilkinson are we assuming it is the same basis they thought they were going to pursue charges and decided they couldnt or shouldnt . Judge griffith yes. I am wondering how it would be inappropriate for the Judicial Branch to compel the executive branch to proceed with prosecution. Judge griffith it would be mrs. Wilkinson you cant compel them to bring the prosecution. You can inquire about the havens because you might an interest in the integrity of the court. Is thestandard for 48a same and the circumstances are different because you now in the post plea days have involved the court you are bringing the power of the court, integrity of the court judge griffith could you respond to conditions that judge sullivan for appointing judge gleason in light of the fact that right before the was staked out of a public condition on the matter. Appointingson in any amicus the court is looking for the opposite viewpoint from what any two parties agree on. The fact that mr. Gleason announced he had a position that was adverse to the government and to the defendant makes sense that he would be one of the candidates, he is being appointed not to be neutral but to flesh out the legal arguments on the others of the case. Is aest analogy i know famous professor who has pursued maranda issues for almost his entire career, he asked the Supreme Court to be the amicus and argued against the government and the court listened and ruled against his position. Nobody thought it was inappropriate for him, even though it was publicly known that his positions were adverse to the government. Judge griffith thank you. Judge srinivasan thank you. Ge millett can you hear me . On the mandamus standard, we could decide that if we were to against a petition we could decide that there were alternative remedies or there was no clear and indisputable right. I wonder if you have review on which is the narrower round . Is there an alternative remedy, what is it . You think the narrower grounding is to say there is no clear and indisputable right at this point . Mrs. Wilkinson its a real contest, but i believe the narrower ground is the alternative for relief below because the judge has not ruled. The easiest remedy would be for the judge to grant the motion to dismiss and there would be nothing even for review and court. That seems to be the narrowest and most commonsensical basis to deny the petition because the court has not made its decision yet. Judge pillard the alternative remedy there is, if the judge grants the rule 38 a motion, the government would not if the judge were to deny the motion or postpone the motion is there an alternative remedy . Not sureinson i am postponing changes that but once the decision is made if somehow he denied the motion than the parties could appeal. Judge pillard right away. Appeal in fokker in the from a denial of the district in the derogatory appeal for afterhave to wait sentencing, i understand these are hypothetical issues. Im trying to get a sense of what you are envisioning in terms of alternatives. Me ms to what is the right that is being remedied . In order to think that once the 48a is denied or postpone that there would be some appeal, one has to think there is a right against envisionsure unless we [indiscernible] mrs. Wilkinson i am sure you will let me know if i am not addressing your question. The first point is the postponement, i believe this court in another case gave the participants multiple chances to act and when they ordered saidmus the agency specifically they were refusing to act. Here i dont know that a delay of some sort would be warranted, a mandamus would be warranted for that. This matter could have been over on july 16 if the judge had been able to have this hearing. Assume you go forward with the hearing, they could appeal and there could be sentencing that could all happen very quickly and there could be a direct appeal if the parties think a mandamus is appropriate at least there is an order from the court. Thatwill be able to remedy because the remedy would be they would be asking for would be to reverse his decision which is when you look at the law of mandamus in the circuit that is 99 of the cases already decision by the court that the parties disagree with and the court comes in and says either the decision was appropriate or it should be reversed. Judge didard if the not work to deny rule 48a or postpone it, or just to say if the judge said i want an , notpth actual hearing just an argument but indepth hearing with new factfinding questiond be an open as to whether there is a clear and individual right against that that could be remedied somehow or whether that i am gargling. That would present a separate mandamus question . Mrs. Wilkinson yes because you have the two prongs. Judge pillard here the reason you said the alternative remedy is the narrowest is because the clear and indisputable right that is missing is the right to the release that the judge ruled. You just dont have to go further than that. You dont have to inquire to deny a rule 48 motion or anything else, you just have to say the judge gets to rule on it as long as its the same argument. Mrs. Wilkinson yes, the understanding that judge will follow the law. There is no reason that this judge that has over 25 years of experience would do anything with follow the law. Anything but follow the law. Judge pillard thank you, that is helpful. Judge srinivasan we will go back to judge millet. I have been off for about five minutes. Can i ask you something someone else has asked you can say we have already discussed that and i will read the transcript. I think the judge was talking ut this, but is and on july 16 there will be an evidentiary hearing to address the grounds that couldition that not be mandamus . Mrs. Wilkinson i dont think it would be mandamus because i dont think it is clear and on thattable indisputable is inappropriate and forbidden by the law. Or one ofk at fokker wheresullivans cases looking at end asking questions of the government was never held by the court to be inappropriate. Judge millet this will be an evidentiary area hearing to grounds for the governments decision. I think a fair inference is that somebody from the government will have to put in evidence on the basis of the decisionmaking decisionmaking. Do you think the District Court can do that . Where the District Court can elect to rule before filing mandamus . Mrs. Wilkinson depends on what we mean by evidentiary hearing. Judge millet thats all we know from the order. An evidentiary hearing to examine the grounds of the governments hearing. Mrs. Wilkinson i think the government should attend the hearing and if theres anything inappropriate about the hearing they should refuse to prevent witnesses of that is what they are being asked for. If they are supposed to put evidence that they think somehow contingent is on their article two power judge millet thats what cheney said the government had to do. Mrs. Wilkinson i dont think that is what cheney told on the government has to do. Cheney said if it is purely part of the executive privilege and you object and should not have to make those distinctions you should claim that privilege and that is it and the court should stop and the court did not stop. The Court Ordered discovery. Here the government never took that position. They never said we dont have to answer any questions, they chose to make a 17 page explanation and respond to the amicus brief and they have not made any of the arguments below. That is why, technically, i am not sure i understand why it may not matter to some people technically that they did not file a petition for mandamus. It is indicative of what their position was at the time, whether this was protected article two power being usurped by the court. Judge millet in this case all that we know is that on july 16 there is a hearing and how long after that it would take a District Court to rule. Lets imagine its a different the same procedure will stage after plea presentencing the government we have toays dismiss because dna evidence and it completely exonerates the defendant. The defendant is incarcerated at the time. Pretrial. Pending sentencing. Complete exoneration according to the government. Can the District Court take six or seven weeks to have a hearing and then a month to issue a decision, keeping a defendant under the custody of the United States when the United States says we are done, we dont want to have this person in custody . Mrs. Wilkinson yes, that happens all the time of the District Court. Judge millet if we dont want to prosecute them . Let them go, we are done. We are not prosecuting. The government said mrs. Wilkinson with dna evidence there are examples where the District Court has a hearing. Most courtseks, would like to schedule that as soon as possible they may ask for briefings, but the course does not the court does not release. Judge millet if you have someone come i understand mr. Flynn is not incarcerated, but he is still under restrictions. If the government says someone should be at liberty, we should not be prosecuting them, dont you think the district should go as fast as possible if it is going to have even just briefing and arguments in this circumstance as a matter of a liberty interest of the defendant . I cant imagine keeping someone incarcerated for a few more months when the government says they are totally exonerated and we dont want to prosecute them. Mrs. Wilkinson the court should go as fast as possible and here there is no suggestion there was any delay. Judge millet is this as fast as possible, seven weeks until the hearing the decision . The District Courts go much faster even with amicus briefings, we see it all the time. Mrs. Wilkinson the courts go much longer in District Court. Judge millet thats what im asking. They may do it and it may not be right, im asking whether its right. Thinkilkinson i dont the custodial restrictions compare to incarceration. The examples are judge pillard he is not under live judge millet he is not under liberty. Understand he has been released under his own recognizance. He is still not at liberty. Of the District Courts right to hold hearings and take its time and examine things will apply in every case. Mrs. Wilkinson that has never been a basis for irreparable harm. Aeres no case that says when a motion is pending and a defendant is under our or and has been a level to travel overseas that somehow that is irreparable harm. Judge millet floodgates to other people who are unhappy with the District Court not ruling on a motion and thinking that they know what the answer should be on that the answer is clear from the case law or the precedent and moving from mandamus when they think they are in that position. It is broader than this particular rule 48a issue. A district judge has a right of thosete on behalf standards generally, is that making him a party to the state . Freewheelinghim a amicus, what precisely is that judges interest in this . Any than there would be in any case where the panel issued an opinion where a district judge may disagree with the court of appeals analysis. He does not have a right to litigate, this court made him a respondent. What that means for mandamus is not totally clear, but the Court Ordered him to respond and participate in the process, he did not volunteer. Judge rao that process is that the panel level, what is the interest in seeking rehearing by a district judge . Judgesot deciding have an article three power to decide cases and controversies. Judge doingdistrict in this context . It is not surprising that it is so unusual that there are virtually no cases in which a district judge has appeared i think the government found only one case and rehearing was denied. What exactly is indicated here . Maybe you can help me understand that. Are cases where District Courts have moved toward surge. At the Supreme Court they have fever been granted or denied and the judge has not been seen as a participant or reassigned it is not a vindication of any right. Now, the respondent is asking for all 10 judges to reconsider and review and make its decision again on what the law should be at the circuit. You will make that decision. He does not have an interest. Consistentuggestion with western pacific. Which has been clear for 70 years that that does not mean that the judge or anyone else is a litigant or a party. If you can make a suggestion to the court for something they can do themselves which you can do yourself by voting to accept this petition, then all he is interested in is at the 10 of you decide if it is appropriate or not. Fileher judges simply suggesting we reconsider cases. We disagree with the District Courts ruling. In cases where the circuit has not made them a respondent, i doubt that would be appropriate. This is a very unique situation where the court was ordered to defend its judgment. Which was a process, not a decision, it was ordered to explain why it was doing what it was doing. One of the things we have not talked about that much is [indiscernible] the government here had submitted a significant amount of information about regular about wanting to dismiss the prosecution. Does thedering, how government not meet the standard for regularity . It seems a has to be some overcoming of the production regularity for the District Path to continue on the that has been contemplated. I dont think that is correct. The presumption of regularity applies. In the absence of the contrary, the courts presume the prosecutors have discharged their duties. That is not to say it cannot be tested. If so, there would be a rule of regularity. It may be that when the briefing is completed, there is no real question about that and the court does not even ask about that. The hearing is completed and the decision is issued. There is not a path that suggests the court is somehow saying it can and will overcome the presumption of regularity. Think what you are classifying is just a hearing. It doesnt really match up with what is filed before this court. Is scrutinye there that goes well beyond just a for the motion to dismiss. That is my error. There is no basis to believe that there is any specific questions contemplated yet. Decision, your panel it said your questions would reveal french discussions. It is not clear that is true. If that happens or it happened based on the briefing. Ok, i am could say, not going to pursue those questions any further. Questioningd the could subject the prosecutors outside inquiry. I understand that. The government has not taken the decision. But again, if the government believes the questions by the rpurt somehow invade or usu their power, that is all they need to say. There is a very limited role that the trial judge is mandating the preceding. I would like to know why rule 35 suddenly allows him without any. Nvitation from us 35. Nt think it is rule you invoked rule 35. The way you required him to respond was i dont think trying to make him a party, but in terms of interpreting that term and that process in light of western pacific, the whole purpose of the world was to allow anyone who is involved to make that request. It is this courts decision you have your own authority to do so. It is the power of the court, not the power of the litigant or the participant. Me,ink you may be asking does that make him look like he has a vested interest or inappropriate interest in the outcome . I do not think that is true. Agree he is not a party. I agree with you. The rule. Voked that is all i want to know. You have answered my question. I am done. Thank you. Judge rogers . I wonder if you want briefly to what dress the reassignment and the invocation of section 455. Thank you. As the panel found, there was no basis to reassign this case. Therefore the only change since that Panel Decision was the filing of the request and the pleadings themselves, which talk about the law. Lawaining your views on the in a District Court, in the same proceeding you were in before, does not seem to show any basis or impropriety. It is the same process. It is the same proceeding. It is not the same as the underlying criminal proceeding, but the same is proceeding with the judge making the same arguments he did to the original panel of three. Reassignno reason to the case to another judge. You will follow whatever this fullcourt says he should do. You heard the acting toicitor general argue that deny the petition, it should include in its opinion instructions to the District Court. I gather from your arguments that someake it aspects of the record have not appreciated, and secondly, that the concerns expressed are largely hypothetical or speculative. Other than the delay that is seeking a mandate. Thetrying to understand acting solicitor generals position is very strong in terms on the process contemplated by the District Court. The earlier answers have said there are pierce to be some over contemplatedat is were this to go forward before the District Court. Then that even if the court does not need to instruct the District Court to follow the law as we see it, that no further instruction is required. In other words, its been a question from the beginning about, what does it mean . Is it a courtesy . Decided it has no case or does not want to proceed with the case. That is the end of the matter. That is where we are. Then there are the other hypotheticals that have been posed this morning, which go beyond anything i am aware of in the record here. Hat is a lot of issues i am curious about, what instructions do you think will be appropriate, if any, and why the concerns expressed by the acting solicitor general and should flynns attorney not be a concern to the court or that the court need not address them. Petition. Eny the judge rogers. I think those are two questions. They are not necessary for the District Court, but that is in part because there has been expensive briefing in this case. Underlying what is not finished in the District Court. Quite a bit here that has been instructive about the scope of leave of court. I dont see a need for instructions from this court on what that means. And i certainly do not see any reason to think that there is going to be this invasive questioning. Theres nothing in the record to suggest any question that judge sullivan intends to ask, but certainly theres been no request for evidence, there is been no request for declarations or affidavits or witnesses, or any of the things that are weaved into some of the to go beyonddings the narrow scope of a legal hearing on a motion to dismiss. Speculating about hypothetical questions that could be asked certainly is a basis, but theres also a cure below. If for some reason that occurred, where the government does not have to answer those questions and can to the court why it is an appropriate. For all those reasons, i dont think it is necessary. Thank you. Thank you. I have no questions. Thank you. I have no further questions, thank you. Judge griffith . What would be permissible questioning under rule 48a and article 2 . Generally, especially with regard to this case, i think it would be following up on the briefing that the parties have submitted. Say there might be a lot of questioning. It depends on how the government and the parties address those issues. If you start with where we were a couple of weeks ago before the brief, there was speculation about request for evidence and factfinding. When we waited, we can to the point where they are not requesting any factfinding. I think the general scope would be narrow, but it may be an even or a smaller list of questions when all of the briefing is finished. Are you saying factfinding would be categorically inappropriate . No, but without some basis for it, yes. I cant predict there will not be any basis. We certainly have not seen that thus far. Again, i cannot tell you what is going to happen, what the government is going to say. But it does not seem like theres any basis for that right now. Thank you very much. Thank you. Two questions. In your brief, you said these separation powers concerns should be considered, because they didnt file the petition. But i dont understand why they cant be raised by a defendant in the case. To the extent a District Court is charged, the concern is violating separation of powers by intruding on judgments. Separation of powers protect the liberties of individuals. I dont understand why it matters in this petition in this case. That raises two points, your honor, first, the incarcerated defendant could claim he is suffering irreparable harm himself and not have to rely on reparable harms or basis for irreparable harm. But it does give an argument to say another party can raise a governments the governments irreparable harm. The difference here is whether that is true or not. They are saying the constitution divides power to protect individual liberty, including mine. Court hasict consequences on that defendant in that case, then the defendant asked argue about it. I didnt understand that that was mr. Flynns position. He was saying it was irreparable harm under rule 48a. I didnt understand that. Criminalatus as defendant has been prolonged. He is pretty close. He has been able to do everything he wants to do. In terms of the length of process, mr. Flynn could have gone down and asked for reconsideration, could have asked for expediting the briefing, expediting the hearing, parties do that all the time at the District Court. No one did that here. No one made the argument you are making that this is not happening quickly enough and i would let the process to go more quickly. He had a now says basis to go back to the court and say, i want this decided more quickly. That would have been the easiest way to speed of the timeframe if you thought it was an appropriate, but he did not choose to do that despite the request orcific willingness to accept a motion to reconsider everything that he had done. When he issued his order around may 20. Thank you. Thank you. I have no questions. No questions. I have no further questions. Thank you. Your honor . We will now hear rebuttals from miss powell and general wall. We will hear two minutes of rebuttal. That time will be uninterrupted. Ms. Powell . This is a criminal case. Which demands liberty and entire life consumed by four years of litigation that the executive has now determined within its sole discretion should never have been bought against him. He has been under the scourge this criminal process now for almost four years. Mr. Gleason has no valid role here whatsoever. It is the process itself that has been part of the abuse that general flynn has suffered. These are completely unprecedented proceedings. The reason they are is because they should never have happened. They dont need in order to seek review of its very purpose and existence is to correct usurpation of power or the district judge exceeding his authority. Which he did the very minute to appoint which he did the very minute he appointed mr. Gleason and the when therosecutor executive branch decided this case should never have been fought to begin with. He has been through this for almost four years now, cost him millions of dollars, had to sell his house because of it, has been called a traitor entries and as for no reason, and not any of this should have happened. For no reason,us and not any of this should have happened. Who should compel the jump to grant a motion to dismiss and disqualify george sullivan, because the very thought, the very fact he thinks he has an interest that he can petition for rehearing is sufficient evidence of appearance of bias that mandates his this qualification under this courts decision. Has to betment vacated, and the order must be dismissed immediately on the face of the motion itself. Role is not as a super prosecutor to secondguess a core function of the executive branch, but as a mutual arbiter of law. He has lost that neutrality. If not sooner, at least by the time he filed the petition for rehearing. Which has no standing and has required an additional 1000 hours of work to do with. Thank you. Please, finish. We ask the petition for rehearing bflat lee denied with clear language be flatly language asclear the court has the authority to do. Thank you. General wall . Thank you, your honor. Urged anict court inquiry. Noted the panel the government had not put in an affidavit. Even the rehearing petition calls for a factual record. Council backed away from factual development. Today, counsel steps that even further and suggests there is not much the court can do. Defense,hat type of either the process is exactly what we understand, or the process cannot possibly in the event this Court Disagrees, we think it should provide clear guidance for further proceedings in three ways. It should reiterate the have a limited role for the District Court, which does not mean an independent nondifferential Public Interest analysis. Should makecourt clear the parties are not required to engage in discovery or evidence. The courts are required to have a good decision. To be clear a quick decision. To be clear, none of this should be necessary. Role of no substantial the court. All backed by the threat of , a prosecution here is no longer in the interest of justice. Has an actionourt generic conflict with separation of powers. Thank you. Thank you to all counsel for your arguments this morning and this afternoon. We will take the case under submission. Court is nowble adjourned. Participants announcer Vice President , mike pence, will be in arizona today to accept the states endorsement of president trumps reelection. We will have live coverage hosted by the campaign at 2 00 p. M. Eastern here on cspan. 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