Transcripts For CSPAN3 DC Circuit Oral Argument In Michael Flynn Perjury Dismissal Case 20240712

Court of appeals heard oral argument Via Teleconference on whether they should order the trial judge of the d. C. District to dismiss the justice departments perjury case against michael flynn. Well show you that oral argument next. Michael t. Flynn, the honorable emmett g. Sullivan. Good morning, counsel. Well here first from ms. Powell. Good morning. This is Sidney Powell for petitioner michael flynn. Were here now to stop further intrusion into the sole power of the executive branch under the take care clause to decide to dismiss a case and what circumstances warrant that dismissal. The government here provided an extensive and thoroughly documented motion to dismiss this prosecution weighing as it should all of the factors that go into that, include the provision of evidence that came to light through an independent review by mr. Jensen who not only had ten Years Experience as an fbi agent, but ten years as a federal prosecutor before attorney general barr tasked him to review this case. It cannot go on any longer. This is the quintessential case because we have both issues of judicial of prerogatives and a clear abuse. Theres no case or controversy any longer. The government has quit, and he also has no authority to go into the reasons behind the executives determination to dismiss the case. Its over this is judge wilkins. Good morning. Good morning. I have a question about the role of the District Court. You essential argue that the District Court has no role. But when the Supreme Court was reviewing a denial of a rule 48 motion made by the government, the court did an independent evaluation. The Supreme Court believed it had a role to form an independent evaluation. So doesnt the District Court here have that same role . Not in the circumstances of this case. The authorities are that given the fact, the presumption of regularity applies to everything the attorney general has done and there is no clear evidence whatsoever to go behind that, given the documentation, reasoning and briefing that has been provided, there is nothing further for the court to do. Theres no indication, theres no clear evidence, theres no actual factor or reason to go behind the governments determination of i dont see how that works because the court also said that it would not presume bad faith by the government. So the court gave the government the benefit of the presumption of regularity, but it still performed an independent evaluation. Only to the extent the court said it was not clearly to the contrary to manifest Public Interest. There was no further proceeding of any significance, certainly no amicus appointed, no background investigation. It was an interview of the policy and its application to the facts of renaldi. And the court issued that. And it said it gives no power to the District Court to deny a prosecutors role to dismiss charges based on disagreement with the prosecutors lets suppose the District Court has issued a minute order saying that it intends to do an independent evaluation of the record and will issue an opinion on the governments 48a motion in due course. Is that error . I think that is error. He can look at it on the face of the documents that have been filed, but i dont think in renaldi than it went farther. Only the executive can wave the willingness of the government to prosecute and there would be no remedy. The court cant make the government prosecute this case. Well, in thompson, another Supreme Court case that was cited by at least the government in their briefing. I cant remember if you cited it in yours also, the Supreme Court was reviewing the denial of a rule 48a motion by the government and it said it performed, quote, an independent examination of the record, closed quote. And that was despite the generals suggestion that they dismisses the case. Do you agree that thats what the court said it did in thompson. Buno, but i think that means reviewing the documents that the government provided and the record before it, not investigating new possibilities or assuming the role of the prosecutor to see about adding on perjury or contempt charges. He doesnt have the authority to do that. And without a case in controversy, hes without jurisdiction to do anything further. If we were here your petition you are the the rulings under review are the failure of the court to grant the motion. So you believe that just him not granting the motion is sufficient grounds in and of itself to justify mandamus. And the judiciarys lack of competence to review the prosecutions initiation of charges equally applies to the dpa decision. Either way you believe that a case that was not even a rule 48a case undermines what the Supreme Court did when the court itself performed an independent investigation of the record when there was no argument there, that there was any bad faith by the government or that the presumption of regularity didnt apply youre saying the Supreme Court got it wrong in those cases. No, im saying that the independent review of the record consists of just that, a review of the record. And the record in this case is extremely well documented of prosecutorial misconduct. Aside for the fact we had motions to withdraw pending that were very well documented this. Record contains enormous evidence of government misconduct and suppression of brady evidence. The judge doesnt have the authority to appoint an amicus that Justice Ginsburg wrote the unanimous decision for, he cant create new issues. He can look at the materials before him and we welcome him doing that. But to go ahead and grant the motion because theres no other alternative, not a single case in the country has ever affirmed the denial of a motion to dismiss under 48a. It seems like you have a good argument of an alternative of review. If he denies the motion you can come back here on appeal and you can cite all of those precedents to our court and we can decide that issue at that time. He doesnt have the authority now to go beyond the record and do anything except that. We would be deplaying tlaying t inevitable. We just got dumped on a 72page brief that we have to answer by wednesday with 500 pages of exhibits. Everybody else in this case is being paid by the government, except my clients defense team. The toll it takes on a defendant to go through this is absolutely enormous and its not justified by this case. This is most impressive motion to defense ive ever seen in decades of practice and the most welldocumented. In fact, in judge leon, i think it was a twopage motion to dismiss pursuant to which he dismissed three defendants for the government after guilty pleas just a couple of years ago. And, of course, the government dismissed and the judge wrote that decision explaining how the position had to be vacated. This is judge henderson. If judge sullivan had just kept this motion waiting, it would be one thing. Hes set a hearing for midjuly. By the end of july, he will have granted the motion. He doesnt have the authority to conduct that hearing, your honor. Hes appointed this amicus to go beyond the scope of his authority as a member of the Judicial Branch into the prerogatives of the department of justice. I realize that. But you also know the courts have said hes not merely a rubber stamp either. Theres nothing wrong with him holding a hearing as far as i know. I dont know of any authority that says he cant hold a hearing before he takes action. The only authority that their best case is richards in which the Third Circuit on a motion to dismiss a Sexual Misconduct claim against someone in the Virgin Islands in a Territorial Court said we have to have a little sunlight on the reasons here because the only reason given was in the interest of justice. And certainly thats not sufficient. But even that case, it was actually altered by the courts decision or discussed by the courts decision in hsbc bank, the case out of mr. Gleasons court that reversed his overreaching authority on reviewing of 48a dismissal and that case describes richards as requiring a dismissal because the authority severely cabined the reason clearly contrary to the Public Interest. The prosecutor acting in bad faith, things like that, and theres none of that here. If judge sullivan had denied the motion to dismiss on this record, we would be entitled to mandamus right now. To drag this out another six months, it wont be a hearing on july 16th. It will go beyond that. I think its clear from the amicus position now that they want to take general flynn to sentencing as soon as possible and impose upon him the maximum sentence. And to make us go through that process when the ultimate result has to be the grant of the motion to dismiss, the governments just wasting resources pursuing this and the toll its taking on the defendant is certainly irreparable harm. I would like to ask you go ahead. Why couldnt we hold this and lets see what happens on july 16th . Because the damage continues to accrue by the day, he has no jurisdiction because he doesnt have the authority to go do what hes trying to do or has done. He didnt even have the authority to appointment the amicus under judges decision. I dont understand that. The government has evidence from a drone camera that was positioned to look through upstairs bedroom windows and to the defendants home and the defendant moves to suppress and including the Cato Institute and other organizations seek to participate as friends of the court in support of that motion to dismiss. Youre saying that the direct court wouldnt have authority to grant those motions . No. Im saying that he doesnt have authority to appoint an amicus to do the job that the government would have done if the government chose to continue the prosecution. Can appoint a motion, but the cou court cant do it on its own motion . No, im saying the court cannot substitute its role for that of the government. I cant take the place of the attorney general or appoint someone to take the place of the attorney general. Thats precisely what the judge rejected. He cant go outside of his lane to appoint somebody to do the job the order appointing the amicus appointed him to present arguments in opposition to the governments motion to dismiss. Thats all that it says in that paragraph. How is that violating article ii, to appoint someone to present arguments in opposition . Because the government had already made the decision to stop and the government is the only entity that can make that decision. The department of justice is the only entity who can decide whether to pursue this prosecution. The judge has no way of doing that on his own through amicus or special prosecutor or anything else. The government has quit and its time to leave the field. Go ahead. What about appointing amicus for the contempt charges . The Supreme Court in the young case says that the court can appoint a private party to prosecute contempt charges. Your argument with respect to the appointment of the amicus apply also to the contempt charges . Yes, as ours pointed out and our brief, contempt doesnt lie for perjury in these circumstances. There are 500 people in the National Database of registry of exonerations who would otherwise be susceptible to perjury prosecutions because they entered guilty pleas but they were actually innocent. To the merits of whether contempt could actually be found, what about the appointment of the amicus to look into contempt charges . Theres no basis to do that either. He doesnt have authority to prosecute anybody for contempt. Thats solely within the prerogatives of the department of justice. With the Supreme Court decision in young i dont see that inconsistency. In young, the court said that the District Court can appoint a private party to prosecute the charges. In the circumstances of this case, contempt cannot lie by virtue of him having moved to withdraw his guilty plea. Let me ask you one other question about the contempt charges. If we decide that reassignment here is not appropriate, would we have any grounds for reaching the contempt question . I dont believe mr. Flynns petition is on the contempt question itself. Is there any grounds we would have for being able to reach that question . Simply the fact that the judge doesnt have the authority to do it and theres no continuing case or controversy. Can i ask a question about the continuing case or controversy point. In thompson, 1980 Supreme Court case that i referred to earlier that was cited in the briefs, the Supreme Court the solicitor general suggested to the Supreme Court that the case be dismissed under rule 48a and the Supreme Court did not itself dismiss the case and the Supreme Court did not declare there was no longer a case or controversy. The Supreme Court remanded the case to the court of appeals for reconsideration in light of the governments present position. So in that case the Supreme Court did not treat the fact that the government had filed a rule 48a motion as ending the case so that there was no longer a case for controversy, dont you agree . If i recall that case correctly, it was a mandamus for a mandamus and the court needed to address an additional issue. Thats not our situation. With the fact that not a single court in the country has ever refused to affirm a 48a motion, theres no basis to proceed with this case. The government is the only entity the department of justice is the only entity under article ii section 3 that can prosecute a case and they have decided not to do this for a number of reasons, the fact that the fbi agents made up statements to put in a 302, the fact that there was a discussion with Andrew Mccabe about trying to get the defendant to lie and what is our goal here . And came back the next day reconsidering the fact that they had decided not to show him the evidence they had, like they do with everybody else. The fact they decided not to give him a 1,001 mention, not even a mention, of course, not even to mention one thousand one. They sent agents over there, according to mr. Comeys testimony, just told him a couple of agents was going to drop by and he said, of course, sure he works with them all the time. Its a travesty of justice that this man has been dragged through that this man has been dragged through this for three years on a case that was absolutely concocted by fbi agents with help from the department of justice. And evidence falsified and everything else. The the government hgovernment extraordinary documentation, and the only thing left to do is for the judge to order the dismissal of this case. The delay cant do an independent evaluation on the record before entering that dismissal. No, he could look at the record. He could look at the record and but the only thing to do as a result of that is to order this dismissal because of the presumption of regularity that attaches and the fact theres no clear evidence of anything else. He cant make up these things he calls reasonable, plausible questions that dont even relate to the motion to dismiss and proceed to drag this out forever. Its just not i mean, its contradictory to the services, its contradictory to the United States and the Fourth Circuit and smith and the fifth circuit and hamm. Where in the orders under review did the District Court say anything about reasonable, plausible questions . Its in their brief. Thats not the order under review though. The order under review is, from your perspective, is him not granting the motion, not granting the motion itself is grounds for mandamus. And appointing the amicus to do anything. But yes. So, we have to find most of those things to be improper to justify amicus . Is that your position . Or is one of them, any one of them by itself, grounds for mandamus . I think either one by itself is grounds for mandamus. Theyre independent grounds for mandamus. Let me ask you something about this with amicus. In folker services, we ourselves appointed amicus. If judge sullivan had not appointed amicus, would you be telling us that we couldnt appoint amicus . No, maam. You can appoint amicus to weigh in on any issue the court of appeals wants amicus to weigh in on as long as its an issue within the case and the court of appeals didnt create it. What judge sullivan did here is created his own issues that he wants to investigate that arent related to the motion to dismiss or even the case before him in any way. But in folker services, we appointed someone to defend judge leons order. Well, thats what ms. Wilkinson is doing here before this court. Shes the analogous piece of that proposition, not not mr. Gleason. Thats true. You have no problem with her, obviously. No, obviously, shes entitled to be here on behalf of the judge. Appellate courts often allow amicus participation. But the District Court doesnt in criminal cases. Theres not even a provision in the rule for that. In fact if you go try to file a brief as amicus in the District Court you cant do it properly. All the docket entries have to be corrected. Theres no provisions for amicus in criminal cases. So, i asked you earlier if an amicus could file a motion in support of a brief in support of a motion to suppress . Whats your answer . Is there authority for that, yes or no . I would think theres authority for that. Based on what . The motion that another party has filed, if the judge wants to allow it. Based on what rule . I dont think theres a rule for it, but i do believe that, for instance, there have been other cases but its been in support of one of the parties, not in support of the judge trying to gin up additional charges himself. Well, just with respect to the rule 48a motion, its your contention that if for some reason mr. Flynn opposed the governments motion, it would be okay for an amicus to enter an appearance to file briefs in support of mr. Flynn, right . Well, at least there would still be a case and controversy before the court and it would be up to the District Court whether to allow leave to do that. I dont see a provision in the rules for it. But generally speaking, District Courts kind of do what they want to do within bounds of reason. So, theres authority for it as long as theres a case or controversy. Is that im just trying to understand your legal reasoning here. The legal reasoning is that he essentially appointed mr. Gleason as a special prosecutor, that he doesnt have the authority to do. If hed asked mr. Gleason, for example, to weigh in on a side that existed in the case, that might be permissible. I would probably still argue against it, but i wouldnt have saw the writ of mandamus on it, i dont think. But to bring in isnt your argument also that its impermissible to have amicus briefs in criminal cases under the rules of the court . Yes. That is one of our arguments here because there is no rule providing for it. But like i said, ive certainly seen it done in other districts courts as long as its on the side of one of the parties that seeks to continue the litigation, just not on behalf of the judge as an independent prosecutor himself. All right. Are there anymore questions . Okay. Well give you a couple of minutes in reply. Next is mr. Wall. Thank you, your honor. May it please the court, jeff wall of the United States. I hope i have an opportunity to address questions if asked. I want to start with two points, one on the merits to you judge wilkinson. I think thats the right order to take them. In recent cases, the court looked at the merits, asked whether there was a clear and indisputable right on the merit and then turned to the mandamus factors and the harms. I think that makes particular sense here because if were clearly right about foklker, i think its easier to see judge henderson, why its so harmful to continue to allow this process to play itself out in the District Court. Taking the merits first, judge wilkins, renalde assumed the broader standard and then said even that standard cant be satisfied so the trial court had abused its discretion in denying motion, a motion that came after judgment in that case, not just after plea or trial but after judgment. Thompson, of course is just the case in which we wanted to pull the prosecution of the Supreme Court. Even after there in the affirment in the court of appeals, it sent us back to the court of appeals to do that. Neither of those cases resolves the substantive standard for rule 48. Theres no magical line thats a plea, but they dont resolve the substantive standard. The case that does that and the case we rely on is this courts decision in fokker. Thats the rule 48 motion. What the judge did is explained how dpa and rule 48 rules are analogous. That analogy was central to the courts reasoning. In order for the court to say the District Court aired in a way that justified mandamus, he said the air is so clear because look at what has to be the rule under rule 48 and then that has to be the rule for dpas as well. So, i understand parts 2a and 2b of the opinion in fokker to be central to the judgment in what it goes on to do in the opinion. I think the language when it goes through that discussion leaves no doubt. It says dismissing charges, but dismissi dismissing squarely within prosecutorial discretion. Theres no oversight power in the courts, no involvement by the judiciary and no substantial rule for courts. If were right about what fokker says with respect to rule 48, my point to you, judge henderson, then its a point of what are the further readings if required by circuit case law to grant the rule 48 motion. You believe that fokker stands for the proposition that the District Court cant perform independent evaluation of the record . I think it does in the following sense. I understand it to mean that if tomorrow based on the tolling agreement that was an issue im going to set up a process for deciding whether to grant this agreement. Ill hear from both sides. There are a number of factual questions im going to have to resolve about whether hes going too easy on particular defendants. And the district did all of that. I understand that to be as a straightforward violation of fokker. And again its not just the sort of idea that there will be briefs and hearings judge henderson. The harm is both explained both in the opening brief and page two of the reply. The point of this is to investigate, they say, the prosecutorial decisions, the prosecutorial motives. Those are respondents words. The order itself says that which is under review says that amicus is appointed to present arguments in opposition to the governments motion to dismiss. Thats the order under review. It doesnt say anything about, you know, fact development or anything else. So, with all respect, judge wilkins, two points. First, were not here on appeal from an order. We are here, as you know, on mandamus. And mandamus was an extraordinary writ that directs the court to do something. Its not necessarily review of an order. Here were asking that the District Court be directed to grant the rule 48 motion. But second, beyond the order, the reason for entering the order as respondents briefed in this court have explained, we now know whats going on below, respondent wants to inquire into what they say are prosecutorial decisions and motives because of the district was concerned there was improper influence here and if the Court Appointed amicus have on the one hand suggested with respect to the amicus flat out alleged there was misconduct on the part of the attorney general and even the president of the United States. Thats going to mean that we are in the District Courts view going to have to come in and answer those questions and defend against them. And thats all of the systemic cost that this court laid nought part 2a of fokker. So, in order to have the proceeding that some of these questions are assuming, this court would have to issue mandamus. You would have to take off the table evidentiary proceedings and the like. You have to take off the table contempt. You would have to say just the rule 48 motion. You address that dispatch and then you could come back to this court. But at that point, thats the proceeding. The District Court doesnt even have the authority to appoint amicus to advise it on whether it should issue an order to show cause for contempt . Judge wilkins, we, unlike the petitioner in, we have not argued that District Court generally lacks the power to appoint amicee under the rules or their authority. What we have said is that the particular amicus here is improper all the same reasons that appointing amicee and going through process could be inappropriate under fokker. Its got to be true for the rule 48 context which is the basis to dpas. Were not saying the District Courts dont have the power to do this generally. What were saying is that here there are problems with this particular appointment of the amicus. And just to get back to your question, congressman, i think once we know that those harms, theres no reason not to take that final step because we know the harms that are going to play out. This has already become and i think is only becoming more of a public spectacle particularly in light of the amicus filing in the District Court two days ago. If it threatens to harm not just the integrity of the sbek tif and its deliberative processes, but it threatens to do harm to the judiciary as well. If i could just ask you, our court has repeatedly declined to grant mandamus on the government address as abstract separation of powers violation. So, im just wondering if you can be more specific and more particular about what the concrete separation of powers violation is here. Rule 48 does allow leave of court, right . So, is the problem what precisely is the problem here . What precisely is the infringement on the article 2 power . I think, judge rao that the separation of powers here youre right, they can be very subtle and abstract in a lot of cases. I think they are stark and as concrete here as they come because her we know from whats transpired below and from the briefs in this court that what the District Court is contemplating is an intrusive factintensive inquiry into what they say are a host of factual questions. Why did particular prosecutors not sign the brief . Why did the attorney general ask these questions . What was he right on the grounds . What about the uncharged conduct with respect to turkey statements . Were going to have to brief and put on evidence in defense of all of that so that the District Court can then reach a decision when circuit law compels him to grant the motion. And i think it is an intrusive process and it is going to harm the executive and you cant ignore it is playing out in the politicized environment that is made worst by the courtappointed amicus files which alleging the president and the attorney general have engaged in grave misconduct. So, when youre looking at those kinds of allegations, youre forcing us to defend against them all in a contest where this courts case law says thats exactly what courts shouldnt be doing. It says, quote, no substantial role, end quote, its hard for me to see but all of the 48a opinions from every court has said that the court has some role in that the role involves making sure that theres not something thats being done clearly contrary to the Public Interest. So, then there must be some case where or some set of circumstances where as unfortunate as the clash of the two branches of government might be, where rule 48a does some work. Isnt that right . Judge wilkins, i think it is right in the follow sense it. Works in cases where its opposed motion. Even when its unopposed motion, we cant dispute that the court ascertains that its got considered decisions of the parties. You dont have the prosecutor bribed or defendant counseled about the dismissal. What we do say for unopposed, relatively small set of applications, where the parties agree and they are both making considered decisions. Yes, the court is required to grant in light of the constitutional concerns the court discussed in fokker. The second thing ill say is i understand respondent to accept everything i said is right in the preplea situation. They agree if the defendant hasnt pleaded and this were an ongoing prosecution, we could pull this back, there would be nothing the court could do about it, couldnt force us to go to trial and the court couldnt grant oversight, they would need to grant the motion. So, the move they would make would be say okay, fokker is for the preplea situation. It doesnt apply once the court has accepted the plea. I think thats got to be wrong for no fewer than four reasons. First, once we know its not the rule, then we know its not really what the rule cares about. Second, the constitutional concerns are exactly the same after the plea. We no longer want to plea the executive and theres no controversy between parties. Third, we know the u. S. Can dismiss even after judgment, efb after trial, let alone after plea. Theres no magical plea line. And fourth fokker reekt jed exactly this extension. It said that calls on the Courts Authority, but dismissing, that doesnt. Thats just letting a case go in deference to the executives exercise to discretion. Once you know that plea line, theres nothing magical about that in terms of rule 48 or the constitution. And i think their case and the merits collapses and theyre just back to judge hendersons question about the harms and why grant mandamus. Why grant mandamus now . Well fokker made clear that there are different considerations at different stage of a criminal case to the extent that you, even if we credit that fokker is binding on rule 48a in here we have two different district judges that poofrt their obligations made factual findings as to the basis for plea, et cetera. And so the governments motion doesnt just implicate the governments position. It implicates those rulings that two District Court judges so the case isnt the same as it would be prior to the plea agreement in that respect. I certainly agree with that. It is true there are different pleas at different stages and fokker says accepting the plea agreement calls on the Court Authority because it has to ascertain whether theres factual basis with the plea. But it contrasts that with dismissal. The part i disagree with is once you cross that plea line, a defendant has pleaded, that suddenly everything that follows invokes the Courts Authority in some way that changes the calculus because fokker says thats not true. And the best example i think is in United States in the 7th circuit. The District Court, more than just a plea. There was a sentence. And in light of the sentence, the government wanted to dismiss some of the charges because it no longer wanted to proceed with them. And the District Court is upset about that, it wouldnt allow the government to dismiss. The 7th circuit said it doesnt matter even if its trying to get around the sentencing authority, its the master of its own case. It gets to decide when to bring or when to dismiss charges. I agree that rule 11 acceptance of plea agreement, if thats what were doing for the court, thats different. But this in fokkers language is Crystal Clear about this. It says accepting dpas are not formal judicial action imposing or adopting terms on defendants or parties. Theyre not the court formally signing of on anything. When judge sullivan grants this motion as hes required to, hes not taking back anything hes done before. Hes not expressing any opinion on the governments case. Hes not saying he agrees or disagrees. Hes just acknowledging a coequal branchs exercise of its core executive power. I have a question about your position, the United States position, about its representations in support of a rule 48 motion. Is it your position that the government does not have to state all of its reasons in support of dismissing the case, only those that it chooses to share with the court . It is judge wilkins. I think we could have come in and just moved to dismiss without providing an explanation. In District Court we do that at times and District Courts routinely grant them. No Appellate Court is ever reversed in a situation like that. Here we did. We went beyond what we were obligated to do under the circumstances. We provided rebust explanation to the District Court and we think whatever rule 48 might require as a procedural matter weve more than cleared that hurdle. I think this is one of the most robust rule 48 motions you will find. So, i guess, understand my concern, suppose you have a case where a federal Law Enforcement officer has pleaded guilty to a criminal civil rights violation for using excess tif forive for then the government says theyve uncovered some brady evidence and are moving to dismiss under 48a after the guilty plea. But part of the reasoning of the authorities was that as to why they didnt believe they would be able to prove this case beyond a reasonable doubt was that the defendant is black im sorry, the victim is black. The defendant, Law Enforcement officer, is white. And they did not believe that the jury would believe the black victim over the white officer without corroborating evidence. And thats unfortunate but thats the reality. So, that was one of their reasons for dismissing. But i thought that wouldnt play well so they didnt say that in the motion. They just said that the exculpatory evidence was the reason they were dismissing. Is that proper . So, two points, judge wilkins. One is legal and one is practical. The legal one is that theres an easy way to deal with that here given the mandamus posture. I think fokker is clear that the government, as long as it provides reason at all and its not unconstitutional reason, can dismiss. So, yes, i think the motion there should be granted. But the easy way to deal with that in the mandamus posture is to say even if you think theres room for a researchlike rule or we think theres a its its not clear and indispus able im sorry. I couldnt hear about ten seconds of that. Could you repeat what you said. Me too. Sure, im sorry, judge wilkins. If you thought that it wasnt clear under fokker whether the court could allow that type of explanation, you could try to leave that open and just say look, whatever that might be on the merit, its clear and indisputable that wherever the bar is, the government met it here through its explanation. And the practical thing id say is i certainly hope that the government has never filed a motion like that. And im not aware of it. But even then, yes, i think the court should have to grant it because the government no longer wants to proceed. But what you would see is you would see other defendants walking in, attaching that motion and bringing armstrong saying the government is making raciallybased decisions in its decisions. And it sounds like they have pretty good grounds for that. I think there are remedies for that other than needs to contort rule 48 to get into what the executives motives. If theres remedies for it, there cant be a remedy for it unless you know that its happening. And if the government doesnt have to disclose all of its reasons, then you never know that its happening, right . But thats always and if the District Court isnt allowed to ask whether there were any other reasons, you would never know that its happening, right . But that would be equally true in a case like fokker, judge wilkins. The District Court could always say, look, i think the u. S. Attorney has cut a sweetheart deal with corporate defendants here. So, i want to get some briefing and i want some argument and hearing on whether there was improper influence brought to bear on this. And the point of fokker is that it isnt to the courts to police whether the executive has pure motives. The remedies for those occur in political and public arenas. Retaliati retaliation from the other branches, dismissal of corrupt officials, even impeachment if it comes to it. But rule 48, folker says, is not the mechanism for policing the kind of forums youre worried about. And if the court do the sort of thing youre talking about, then i think fokker has to be a dead letter either with respect to rule 48 or a dpa. A court concerned about the executives could always inquiry, and i understand that inquiry to be exactly when fokker shuts off. So, are you suggesting i mean, normally the standard is that there is a presumption of regularity. What about the case in which a District Court feels that that presumption is overcome on the face of the material presented by the government . So, two points, judge rao. First, i dont think that presumption is relevant here. And put it to you this way, if the District Court thought that the government had a bad motive for declining to bring the prosecution, i think everyone agrees the u. S. Couldnt force the court to bring case. As fokker says theres no oversight rule for the courts. When it refers to the presumption of regularity, its not saying theres some exception to the rule its laying down in that situation. If you look at that passage of the opinion, all its doing is listing that as another reason for adopting its rule. Even with respect to constitutional claims, courts are very loathe to second guess the constitutional unconstitutional motive. It gives that as a reason for reading rule 48 its way. Its not some exception to the reading of the word. Even if it were, we would be mandamus. You have to have clear evidence of an unconstitutional mow vtivo rebut. Theres nothing here that remotely approaches clear evidence of unconstitutional motive. Thats what you need to rebut the resumption even if it were relevant. Irregularity in your view would only be an impenetrable motive . There are not other types of irregularities . Thats right because its only an unconstitutional motive that would allow the court to step in. You need an constitutional limit leek a racially based constitution. If the District Court thought a u. S. Attorney were favoring his friend, that would be terrible conduct. There are political remedies for that. But there are judicial remedies under rule 48. If the considered decision of the executive branch whatever its motives is that he no longer wishes to proceed, it doesnt have to bring a case. Whatever the motives, theres no longer an article three case or controversy. Even if the prosecutor was dismissing the case because it did not believe that a white Police Officer should have to answer for using Excessive Force on a black defendant and they say that in their pleading under rule 48a, the District Court still has to grant the motion. Judge wilkins, i dont think the court can force the executive to keep that case alive in the absence of case or controversy. As i tried to say earlier, it may well be a basis for dismissing other prosecutions. Even if you disagree with me, the reason your hypothetical has force is because its unconstitutional motive. You have to qualify for armstrong. You can bracket that question off if you think fokker isnt as categorical as i do because theres nothing like that here. And i dont think you can leverage that, judge wilkins, to say if we can inquire what does leap of court mean . What work, if all, does leap of court do . It does opposed motions to dismiss and the work it does for the far smaller set of unopposed motio motions in a situation like this is allows the court to make sure its the considered decision of the executive and its the considered decision of the defendant, that the defendant hasnt been poorly counseled. Imagine a defendant agrees to dismissal without prejudice even when the government has brought charges and dismissing them on either charge. I think the District Court is warranted in asking the defendant are you sure about this because it seems like the government keeps yanking the chain. Why isnt it the case that if the court makes a considered but racist decision that it just dont want to have a white officer stand trial for Excessive Force on a black victim that the District Court can deny the motion and then the political chips can fall where they may and perhaps under pressure from the public or congress or whatever the District Court may not be able, itself, to force the government to prosecute the case. But maybe through the operation of the legislative branch or other pressures from the public and the media a new prosecutor is appointed and the case proceeds. Why isnt that exactly what leave of court should operate to do . Judge wilkins, your question i think recognizes the answer which is as you say theres no power to make the executive move forward to trial which i think goes to show why this isnt the concern of rule 48. But if the government cant make the case go away and the case is in limbo, then while its in limbo, pressure could be brought to bear on the government to reconsider its decision, right . Let me say two more things, judge wilkins. First, i think as judge kavanaugh explained in achen, the remedy for that kind of protection violation is to dismiss other case. Its not to compel the government to move forward with this prosecution. Second, even if you disagree with the reasoning of achen, even if you have clear evidence of an unconstitutional motive, i think you could bracket off that case. As a constitutional matter. We dont have anything like that here. Just to square the circle, you cant leverage that back, i think, to saying that even if you could inquire in some piece because the face of the motion dispo disposed. That would eat the rule. I think aiken is right that there are other remedies to the equal rights violation. Its not meant to be taken care of under rule 48. But you dont have to agree with me on that because no one is arguing that on the face of motion to dismiss that the government filed theres any unconstitutionality, theres any evidence that we violated equal protection laws. Thank you. Mr. Wall, let me ask you what would be the harm in going ahead and mandating the granting of the motion to dismiss . The harm is, to me anyway, regular order. And mandamus is a drastic remedy. You know that. We all know that. Nobodys been able to find a case in which mandamus has issued where the District Court has not acted in the sense of a ruling, an order, something that we can review. Now, this district judge has taken two actions. Hes appointed an amicus and he set a hearing. Now, unless you agree with ms. Powell that the setting of a hearing is something is a point that leaves the appointment of the amicus. And granted he may have chosen an intemperate amicus, but that doesnt mean that he is going to deny this motion. And considering the drastic remedy that mandamus is, considering theres no precedent that allows us to rule without an order, i dont see and considering that theres a hearing then set for july 16th, i dont see why we dont observe regular order and allow him to rule. For all we know, he will say this amicus brief is over the top, the dismissal motion is granted. So, judge henderson, a few points. Yes, its an extraordinary writ. We would say this is an extraordinary case. I think were well past regular order. I agree with that. I agree its an extraordinary case. I think at a minimum at a minimum in order to have the sort of regular order you were talking about, the court should still issue a more limited form of mandamus that takes off the table these evidentiary motives. Well have to defend against that. In their brief they say affidavits. If all were talking about is the meaning of fokker and the rule 48 and the courts going to decide that at the hearing with dispatch, we can come right back to the circuit. But i think at a minimum you need that in order to get the sort of regular order youre talking about. But then i would say judge henderson, and the reason i think you should go a step further, is its just not true even as limited just to deny a rule 48 motion, its still not the case that the parties havent suffered harms. Its obvious to the prosecution and the contempt and also the court takes it away. But the harms to the government are really what im focused on. You have, as you say, a potentially and temporary amicus. You have all these allegations being lobbied at the executive branch. Wither going to have to answer them in a public forum in a politicized environment. Thats the sort of thing when fokker says you shouldnt be doing. It invades our deliberative process. It chills Law Enforcement. It sets up conflict between the branches. I agree we dont know thats going to happen. We have judge sullivan who is an old hand. Hes an excellent trial judge, and he may say to himself at least, you know, i asked for advise and im ignoring it and im granting the motion to dismiss. Shouldnt he be allowed to do that . I think, judge henderson, and the government respects judge hill as you say, an experienced judge on the District Court, i think because we are past regular order, we have crossed into mandamus threshold. If we had gone about this a different way, i might agree with you that order ought to be maintained. But because weve reached a point where you have the District Court in its brief raising questions about prosecutorial motions, the Court Appointed amicus in that brief, the court is contemplating that well defend ourselves and layout exactly why weve done what weve done, all this playing out against the backdrop of these incredible harmful allegations. And i just i think if it isnt already, it is threatening to become and will become the sort of public spectacle that i think mandamus is warranted to fore close at this point. And, judge henderson, i wish we werent here, but we are. Fokker is clear about granted the rule 48 motion. So, there isnt its why we have these unnecessary proceedings when they are really going to do damage to the executive branch at this point given the way theyve set up and the environment theyre playing out in. But the government didnt file petition for writ mandamus. Mr. Flynn did. There was uncertainty in the District Court about what the District Court was going to do. And on the same day the District Court set the briefing said yul before we had made any final decision, general flynn filed his mandamus decision. And at that point we had to decide whether to support it or file a petition that risks slowing this down. We obviously decided to support the mandamus decision. I think obviously it would be artificial to cap off the separation of powers here just because we didnt file our own petition when theyre presented in stark relief. And certainly if that were important to the court it should at least give us the opportunity to file some short mandamus e approximate tigs that could be con stol dated with general flynns because we are saying there are serious, indeed grave, stark separation of powers playing themselves out. These are not the abstract things that sometimes present themselves in these article 2 and article 3 cases. Youre talking about regular order and then youre saying that, well, we didnt file mandamus petition. But if thats important, then give us leave here after argument, to file one being thats far from regular order here. And youre arguing that, you know, if youre not inclined to grant the principle relief by the people who filed the motion, then grant some form of limited mandamus relief. And youre making that argument even though you dont have a mandamus petition before us. I mean, none of that is regular order, counsel. Judge wilkins, ill grant very little about this case is regular order at this point. I dont think that our not filing a mandamus petition can be taken legally relevant in any way. We are a respondent supporting petitioner. We make the full range of arguments and our legal arguments are considered by the courts as i think they should be here. And my only point to judge henderson was to get us back to regular order, you need at least mandamus that would take off the table the evidentiary proceedings and questions and contempt. Even if you just narrowed it to the legal question of the meaning of rule 48 which would mean that the vast bulk of the Court Appointed amicus brief is no longer relevant to the hearing, even then you should take the step of granting mandamus. And the case i would point you to are fokker and United States themselves. Those are questions of the First Impression that the court and the 7th circuit said the constitutional principles are clear were going to get mandamus. Here we have not just the constitutional concerns of article 2 and 3. You have the decision in fokker itself. You know, fokker i keep coming back to in fokker, we knew what the District Court did. We dont here. Oh. I agree, and i think its possible then that if you would come up as an earlier stage in fokker, this court wouldnt have granted mandamus. But once it grants mandamus and fokker and explains why its doing it and reads rule 48 and it says a dozen different times that theres prosecutorial discretion, courts cant scrutinize, theres no oversight, its not just impugning the decision of the District Court there, its impeding everything the District Court was doing that led up to it because courts, it said, have no substantial law. They have, quote, no oversight power, end quote. I dont want you to know that from fokker. I take the point that this is not briefs and hearing. Thats not what this is right now. Thats not how this is b shaping up in the District Court. Even if we were somehow to limit it to the more normal type proceeding without the stuff that the respondent wants to get into, thats enclosed by fokker. I understand why it might not have been enough, but it seems to me now it indisputably is. Im concerned about your fallback position that we could grant some kind of partial relief. I mean, what does that require the court to articulate actually far more legal standards about what precisely is on and off the table . That seems to be a lot of law to be making in the mandamus posture. And sheissuing mandamus in full. Im just wondering what if you really think that this partial mandamus would actually be more minimalist than a clean writ of mandamus . No, judge rao. Let me be very clear about this. The writ of mandamus is warranted here. It is clear and undisputable that the rule 48 motion has to be granted under rule 48. And if youre right about that, theres no reason to let these harmful proceedings play themselves out in the District Court. So, we completely agree that the cleanest way to resolve the case under fokker is to grant the writ. I was just explaining to judge henderson that if the court has these concerns about granting the writ, it seems a little bit unfair to the petitioner in and the government to say you should observe regular order because nothing about these proceedings threatens to be regular. To put them back in a regular track, you have to grant some kind of mandamus. But i completely agree with you that that does require you to say, look, fokker is clear that it doesnt have evidence and it does require you to address intent piece. The cleaner way to do it is just say fokker is clear that the court has to grant the rule 48 motion. So, you know, given the harms to the defendant and the government, the rich issue. And i will grant judge henderson that its an extraordinary writ and we do not ask for it in ordinary cases and ordinary dispute it wouldnt be appropriate here. But this is a separation of powers case. If you take a case where you think about discovery bringing the branches into possible conflict when the court grants mandamus, this is two steps behind that it seems to me. You have conflict between the branches where the court wants to inquire into why we did this. I understand that to be exactly what was said in fokker courts may not do. I dont think its harm to see what the harms are going to be the government over the next couple of months if we and the defendant are put through that process if at the end of the day the District Court is granted by law to grant our motion. Well, lets drop the phrase regular order and lets talk about one of the requirements i dont think ive heard anybody mention, and that is the adequate remedy of law. Thats what im talking about as far as regular order. You granted assuming you have an indisputable right, and that, to me, seems pretty clear. You still have to say why there is no adequate remedy involved. And im not going to repeat myself, but why is there none if on july 16th, judge sullivan grants the motion to dismiss . So, ill take one more stab, judge henderson. I think its this. Even if, you know, a month or two from now the court grants our rule 48 motion, in the meantime youll have a proceeding thats forcing us to explain ourself, to do it apparently affidavits, some kind of evidentiary process in the District Court. I dont know whether and the District Court is very careful in its briefs not to say exactly what it envisions. But the District Court has left itself open for not just documents of that kind but witnesses and all the rest. And that is going to intrude. All the harm in part 2a fokker, its going to intrude on our deliberative process. And i think the court has to take account of the fact that both respondents briefs and the Court Appointed amicus, theyre impeding the motives of the attorney general of the United States and its going to pull the judiciary into a fight that should play out in a public political arena. And i think those are real harms to the executive branch even if at the end of having been put through that whole process and what i think threatens to be a spectacle in the District Court, the District Court ultimately grants the rule 48 motion. And if were right, as you started, that fokker says District Courts shouldnt be doing these things, its hard to imagine a case where a District Court would do something foreclosed by fokker that would be more harmful than what were facing on the circumstances here. If ever the court were going to say a District Court needs to grant the rule 48 motion, thats what fokker clearly and indisputably requires, it seems like this would be the classic case. All right. Are there anymore questions . No. If not, then well hear from ms. Wilkinson. Thank you, mr. Wall. Thank you, judge henderson. And may it please the court, the petition asks the court to grant really an extraordinary remedy for mandamus. To prevent this District Court from even considering or questioning a pending motion. This court should deny that for three reasons. First, the governments motion, as this court has already pointed out, is still pending and it may very well be granted. Alternative relief is available. Second, the law does not clearly and indisputably fore close the District Courts consideration of the districts function. And third it would be inappropriate to grant mandamus in open questions where the government is raising novel arguments that were not raised below. As this court has said, it is essential for those questions to be raised to maintain the regular order. No one disputes the court cannot second guess simply because it disagrees with it. But that is not the issue before the court. The issue here is whether a federal District Court judge set an expedited meeting schedule to appoint amicus on a motion that requires leave of court. The answer is and must be yes. Yes, judge rao . But in a case where both the government and the defendant agree with the motion to dismiss, isnt the appointment of amicus creating an article 3 case or controversy where there isnt one . No, your honor. There is a case and controversy here for several reasons. One, as you know, the government and the defendant are asking for the motion to be dismissed with prejudice. By definition, there cannot be a ruling to dismiss those charges with prejudice if the court doesnt have jurisdiction. And the parties want that, of course, because they dont want another prosecutor to come back and look at these charges and bring those charges against mr. Flynn. So, everyone in this case agrees that this motion if it should be granted should be granted with prejudice so the charges are ended. Well, what happens though in a case maybe another way to ask this. If the District Court were to determine that the motion should be denied, then what happens . Then we go on to sentencing mr. Flynn even though the executive is no longer pressing its prosecution . Theres no reason at this point to fear that the District Court is going to deny the governments motion to dismiss. But if, for some reason, the facts or the answers to the questions at the hearing gave some basis for that, im sure the parties, including the government this time and mr. Flynn, would file another motion or another writ for mandamus. The court said and denied the first motion for the writ because they said the government hadnt had the chance to act. And in fact they gave years to the Government Agency to make that decision. And only when the agency announced it would not rule did this court issue a writ of mandamus. Here we are not in any situation similar to that. As judge henderson has said, the court only set a Briefing Schedule and has a hearing for july 16th. The order to the amicus is only presenting arguments and opposition and theres no suggestion that the court is going to call witnesses or do anything of the parade of horribles that the government and petitioner in was laying out for you. All this court is doing is getting advice. And what standard is an article 3 judge supposed to apply in this context . In order to assess the motion to dismiss, rule 48 just says there must be leave of court. But whats the standard that the District Court judge must apply . Well, the governing law here was cited by fokker. And there has fokker reiterated, i think, we have to look at whether that presumption of regularity or there was a clear violation of the Public Interest for the court to seriously consider whether it can deny the motion to dismiss. So, there is a presumption, as you mentioned earlier. And the question is is there any basis to overcome that presumption . And that would deny the courts inquiry after e are receiving the briefing and questions of the government and the parties. Isnt i mean, the public isnt is not a standard thats mentioned in the rule. And, i mean, in our constitutional system of government, isnt the public sbn interest, with respect to one that goes forward, isnt that committed frmly under article 2 to the executive branch and to the politically accountable executive branch, not to an article 3 court . Generally, yes, your honor. But in renalde the Supreme Court held out that standard. I think in footnote 15 where they said they arent ruling. Theyre allowing the dismiss of discretion. But they said we have not decided whether you could consider a rule 48 in light of the Public Interest. And in fact the defense led by Justice Franklin said he thought it was clearly independent basis to review a rule 48 motion. But in any event that law is not clear here. Theres no clear and indisputable standard for this court to issue a writ of mandamus based on the fact that the standard is unclear as to how you determine leave of court and any kind of abuse of discretion. What we do know is that in this court, both provided for a review by the court of the governments motion and allowed for questioning. When you decided the case in fokker, judge leon questioned the parties, including the government, in open court on several occasions and he had conferences. When fokker has decided no one stated in that opinion you cannot ask questions, you cannot have a hearing. And in fact the government never took judge leon up on a mandamus. Theres no situation the government argues that fokker necessarily rebukes that approach by the District Court. Whats your response to that . Thats not what fokker says. What fokker says is that the District Court judge abused his discretion when he denied the motion which was the speedy trial motion necessary for the deferred prosecution agreement when he stated that he disagreed with the governments prosecutorial decisions. That, indeed, is an improper basis to deny motion to dismiss. And that was the circumscribed ruling of fokker. Fokker does not deal with rule 48, as youve talked about. But it certainly doesnt say you cant have consideration or scrutiny. In fact it says just the opposite. Throughout the opinion, they talked about scrutiny and about it being circumscribed. But they dont say the court has no right to ask questions. And here all the squluj judge i is receiving briefing and having a hearing. And the parties, the petitioner in and the government even object to that below. They have no alternative yes, your honor . How does the presumption of . How did the assumption in regularity then apply in a situation like this . Before asking questions, the District Court has to overcome . The no your honor. The court could not determine if discussion the government about its motion. Judge will kansas pointed out when you have and include all the facts, because they only wanted to present certain facts, the court by definition would have to inquire to determine if that was assumption was overcome. The court was clear that there is a presumption. It is a long hill to overcome. There is nothing in fokker that says you cannot question the government. The government answers these questions all the time. If you look at reality, then chief judge king of the Southern District floridas court, call the prosecutors in and ask questions. The Supreme Court in reality the not question. When a party filed a motion, and a judge us questions. Thats all that is happening here. There is more here. There is an appointment to oppose the motion. That i dont believe is an everyday occurrence. Youre absolutely right your honor. Because normally parties are opposed. But in this unusual circumstance or both parties disagree agree, everyone appointed amicus to present arguments at least sometime has passed, that the mucous filed that brief, and did not ask for any witnesses, did not request any fact finding. To go to judge hendersons point about the regular order. If the court does not step into the fray and allows the District Court to do its job, it very well be that they can reach both sides after the questions and grant from motions to dismiss. I mean the government decided to drop a prosecution, what is the standard they are arguing . Who are they arguing on behalf of . They are arguing on behalf of the adversary position just like this court does often, when the Supreme Court does. One of the most famous cases is where the government was not going to challenge the miranda standard. And the Court Appointed an amicus air to argue because the government chose not to take that position. So what is, you are saying there is some kind of judicial right or power here, that they are representing . No i think as mr. Roth stated theres an inherent valor, and it occurs at the District Court level not frequently for when they needed vice more briefing on an issue. Here its more important. You need adversarial briefing. The government and mr. Flynn are aligned i know but in a criminal case, that is the adversarial practice. The government a criminal defendant. What does it mean to have an adversary when the government and the defendant agree . Is it the authority of the court . Its representing the authority of the court, to understand the opposing arguments. Just like your honor, you have the government and the petition are aligned. The District Court was brought in to argue the other side. It doesnt mean the District Court thinks its motion under rule 48 should be denied. All we are doing coming forward is arguing the other side. And all the District Court was doing, was pointing an amicus to say whats the scope of the authority . If so what is the standard as you just asked me. The standard is not clear, so what are the outlines, what are the cases in what do they say about the quartz authority to ask questions, and to make that decision. Its not an adversary, youre saying it is to provide understand about the law to the sister court. I think its an adversary in the sense that he was directed to take positions opposing the governments motion to dismiss. The government and the petition would see the amethyst as an adversary. Its important because the court does not have to listen, the court is an experienced judge. He could ignore the amethyst, you could take the points into consideration and ask these questions and make his ruling. But he wanted to hear yes judge . Sorry i just dont think you recognize even the week is understanding of article two and myth that the executive power includes control over prosecution. I think he has to articulate here what is the counter veiling article three issue. For instance in the nixon case right, there was a calm flick between article two and three, and the article three power that the court articulated was this your court essential function in protecting individual liberty any criminal file. But here im wondering if you could articulate what is the power bearing article three power at stake. In a case where the government and the defendant agree on a motion we. Fokker laid that out by saying the court has allowed to question the presumption of regularity. Of the decision even when the defendant and the government agree. Im a down says the right thing the same thing. Even in nixon they made clear even though you are dividing the sovereign powers between three branches, the separate powers are not intended to operate with absolute a o q,ercising its x hd l the court actual this. ] the cgandae government agree makes no sense when every panel as considered whether the court below abused his discretion when they denied a motion to dismiss. Perhaps in a leave of court doesnt happen in a rubber stamp, its the words are also a tarik and fit into legal court, the ability for court to keep sentencing a person where the executive branch wants to drop the prosecution. Every cases said its a circumscribed review a limited inquiry, that a court could do under that standard. It doesnt say no review. It and say no questions. The governments position is somehow the court asking the government questions about the motion it filed that somehow thats something. It went on in fokker, and one on an emmet down it went on in reality. Leave court means nothing, it answers the questions. It gave the court the information, this is the reason why this case, all these issues should have been brought up with the district report. If the government didnt like the process of the briefing, whether petitioner didnt they should have raised it with judge sullivan. That they went around the District Court and come to you. The government says was respect to the case of controversy, an article two prerogatives and how rule 40 is supposed to work. They say theyre moving to dismiss. Because they dont want to prosecute this white defendant. To grant the motion to dismiss. And that the remedy for that sort of unconstitutional bias with the defendants in other cases, filing some sort of armstrong motion. Or i guess some actions by other branches, after the dismissal. Whats your response to that point of view . A real 48 a . I wont surprise the court that i strongly disagree with that. The case law that is already well known by this court, starting with reality and the cases around the country, give examples of how oh court could remove like bribery. All of those cases provide that could be an example of prosecutor was bribed, and likely if that was true theyre not gonna put that in the leading in motion to dismiss, that could cause a court this concern and could be the basis. If the government was acting in a racist way, or the court was able to uncover them through questioning, id be a basis to dismiss. The next question is what could the court do . It would depend on the posture of the case. If it was an early decision in the case, and the defendant hadnt pled guilty, and theres more limited options. As you said there still public pressure is the defendant pled guilty, the more difficult question as fokker says once you have a guilty plea, the question is that if the Police Officer had pled guilty, and the government disagrees with the dismissal on the court denies it, could the Court Sentence that defendant . I dont know the answer that question. Theres certainly a basis for the judge to deny the motion to dismiss on those grounds. Thank you. The District Court, is not acting as a prosecutor your honor. Nor has he made up his mind about the pending issues. Hes considering the governments motion, and receiving briefing from all the parties. After hearing the arguments judge sullivan will do what he has called on to do on a daily basis. You will decide the motion. With such a combined inquiry there is no clear and indisputable justification for this court to enter the fray now and stop a Federal District judge to carry out his article three responsibilities thank you. All right any more questions . All right madam clerk. Either council has any time left. Miss row onto takes two minutes . Your honor first there were no valid rule a living see mainly the first judge who took it should have recused already. He recused a few days later for the same reasons that wouldve existed when he recused seven days later he should have recused immediately. And the government knew that information but general flynn didnt. The second guilty plea was not a full call like he ended by asking repeated questions saying that he had many questions including about how this is material how ap did the government investigations. All is that refuted completely about the extraordinary expo but story evidence that mr. Jansen disclosed thats been hidden from the defendant for three years. Thats a makes this case different from every other case when it happened that stephens not judge sullivan had no problem dismissing the case at all. He didnt choir by the governments two page motion to dismiss. They simply produce the evidence and dismissed the case. Why are we making a special exception for general flynn is beyond my capacity to understand a lot when every case in the country as a firmed a grant of a motion to dismiss and not deny one in any way shape or form. Every other case in the country has affirmed the grant of a motion to dismiss. Or has that the case has to be dismissed. They dont have any ability to go question behind the governments perspective on what and why they made the decision. It clearly doesnt exist here. Or clear evidence, not plausible questions not im using not imagining but clear evidence of some serious wrongdoing that indicates bad face on the part of the government. Theyll make clear that the leave of Court Provisions was included to protect the defendant from prosecutorial harassment. There is neither a case or controversy here any longer the government in the defendant have agreed that the case must be dismissed the government will not carry on the prosecution they cannot be forced to buy an article three court. Thats outside of violence. So the motion should be granted on all counts. All right thank you miss powell. Mr. Wall wound you take two minutes. Judge anderson can you hear me . Yes. Thank you. Just a couple of very brief points. I didnt hear the respondent address what i said when was the central point, once they can seeded fokker to not allow the court to go further and examine the plea plea situation. Once we know that its a rule 48 in the constitutional matter, theres no way to force the government in that situation. They dont have an argument is its a matter of reading the role or constitutional concerns that to distinguish the situation. Snow what it is meant for i think fokker is clear about that. Theres a motion thats too early in time as i tried to say earlier, i think judge understand there are real harms theyre gonna come from the consequences theyre gonna ask. They want to talk about the uncharted conduct. Not just why we want to maintain this prosecution, why we havent brought separate charges against this defendant. Everyone responded said the prosecution is off the table but they want to ask about conduct and related prosecutions they want to ask why certain prosecutors sign certain briefs whether they agree with their position or didnt. They want to ask questions on the reasons that they gave when its policy judgment when its no longer wanted. And if the court thinks about the manner in which we are going to have to answer those questions in District Court, what were gonna have to say whether its a factual or a legal matter in terms of our own deliberate processes. I think its fairly clear why fokker said courts are not supposed to go down this road. And i take the point at the end of the line that its only partially left the station. I think thats why fokker said the train is never supposed to leave in the first place to respect the judiciary and spite of these concerns like the one judge row is raising. If we know what has to happen at the end of the day, and with all respect the District Court should be directed to do it now, rather than have some unnecessary and harmful further proceedings. Mr. Roy let me ask you something, i take your brief but i dont think you mention that this morning. That is the benefit of self correction those bad faith, it occurred in the original prosecution. And we allow article two, to self correct . Absolutely judge anderson. I think it goes to judge will cans was asking earlier, even if we could legally come in and not give any reasons to the motion, we did give reasons the attorney general came to rationales. Or three independent rationales. Although they challenge to them on legal bases, then said a word about the portion of the motion for where the attorney general says looking at the circumstances surrounding the interview general flynn in the way it went on, and the way it wasnt communicated with others at the white house. That he concluded it was no longer in the interest of justice to proceed with the prosecution. The reason they dont say a word about it because no one disputes that that is the kind of judgment that is at the core of article to power its difficult to imagine a more core article to judgment. Yes judge anderson, when you put that forward in the motion, or that we were required to or not, absolutely i think that at that point, the District Court is required to present the rule 48 motion. All right thank you. My colleague do you have any questions . No. No. All right. All right counselors, your cases been submitted. And if you willr7÷ adjourn cou. It is adjourned till wednesday december 9th at 9 30 am. Earlier today when british Prime Minister Boris Johnson spoke to members in the house of commons, he commented on the american that was killed in a terror attack in a town in southern england. Thank you mister speaker. The last few days have been very difficult for our town. I want to offer my deepest condolences to the family of those who died in the dreadful attack in arbery gardens saturday evening. It is impossible to imagine what they are going through. My thoughts are also with all those that have been affected by this terrible attack. I would like to thank the police for their swift and Effective Response and for the incredible bravery shown by officers. Well the Prime Minister ensure that it receives everything needs and our town is properly supported . We have a strong and diverse community. We can and we will get through this together. Prime minister. Yes indeed mister speaker. I think the honorable member for his question and for the way he expressed it. I think the whole house shares his feelings of support for the police, for their bravery and running towards danger. And also the members of the public who themselves it was a really extraordinary moment. It was also who was an appalling tragedy. We will make sure that obviously there is a case that we proceed with. I will make two comments. First of all, if there are any lessons that we need to learn about the way that we handle things in the future. Then we will of course learn those lessons and act in this parliament and by this government. But secondly, as i said yesterday to the house. I think it is common view we will not let this kind of attack, this kind of senseless murder distract us. Or in any way allow us to be intimidated or to change our way of life. First ladies, influence an image. On American History tv. Examines the private lives and public roles of the nations first ladies. Through interviews with top historians. Tonight, we look at caroline harrison, and i dont mckinley. In 1889, Carolyn Harrison was the first sitting first lady to deliver a speech. I dont mckinley was a supporter of woman suffrage. Watch first ladies, influence and image tonight at 8 pm eastern. On American History tv. On cspan three. I think the problem is that there is a finite number of resources to be spent to advance a whole lot of areas of our justice system. You are throwing money away thats the first thing, but the more important thing is that by channeling enforcement efforts in inappropriate targets for the purpose in some cases of harassing people, which i think is often what we are dealing with, and also for channeling resources and spending time, trying to give a special deal to other people. Not only wasting money, youre totally undermining public trust in the system. Youre creating a situation. We are on the way it is something far worse than watergate. Where you had a problem of public mistrust. Because its becoming transparent that many things are being done. Essentially for reasons that are completely unrelated to the merits of the case. The House Judiciary Committee heard from current and justice officials and Deputy Robert mueller. You could watch that tonight at 9 pm eastern on cspan. You also watch anytime online at cspan. Org. Or listen on the free cspan radio app. Commander of air combat command discuss the future of the u. S. Air force during a virtual conversation with the Mitchell Institute for aerospace studies. This is an hour. Good afternoon, warm welcome