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The Definite Guide to Form 72 Us Court Of Appeals Dc Circuit Cadc Uscourts

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all persons.having business before the honorable the.united states court of appeals for the.district of columbia circus.or admonished to draw near and give.their attention for the court is now.skipping.god save the united states and.dishonorable courts.case number 20-5143 being raped michael.t.flynn miss fallow for the petitioners.michael k.sling mr wall for the u.s department of.justice.ms wilkinson for the honorable mfg.sullivan.thank you this is chief judge srinivasan.before we begin with argument this.morning i note on behalf of the court.that our colleague judge stephen.williams passed away last friday.in his 34th year of service on our court.please join the court in observing a.moment of silence.in honor and remembrance of judge.williams.thank you we'll now proceed with.argument in today's case.to be conducted as follows each council.will give an opening statement.to be followed by questioning by the.judges in order of seniority.and then a second round of questioning.for any judge who has a follow-up.question.we'll follow the same process for each.of the three council presenting.arguments today.and will then end with a brief rebuttal.and closing time for mr flynn's council.and counsel for the united states ms.powell.we're ready to hear from you please.proceed.thank you chief judge and may it please.the court general flynn.is a defendant without a prosecutor in.litigation now without any controversy.between the actual parties to the case.instead of promptly granting dismissal.as required on this.facts as a matter of law judge sullivan.denied two defense motions opposing any.amicus at all.appointed mr gleason to usurp the job of.the prosecutor.raised a sword of perjury and contempt.charges over flynn's head.and impermissibly sallied forth to write.the wrongs he perceives.but as judge posner noted in united's in.inroad united states.the job of the united states attorney is.otherwise occupied.in adding these unconstitutional burdens.of process.to punish michael flynn judge sullivan.discarded any semblance of the unbiased.impartial adjudicator.this court extolled in al nashiri the.2019.chapter of the that case saga as the.cornerstone of any system of justice.worth the label.four rulings are required to conclude.this novel article three.excess judge sullivan's petition for.rehearing must be flatly denied.with clear ligand-like language the.judge has no injury and no standing to.seek relief.in this court of those of this court's.rulings.second because judge sullivan has so.invested himself in his own prosecution.of general flynn.al-nashiri mandates his disqualification.for the near.now glaring appearance of bias to.millions of citizens third.cheney synonym smith and bond require.mandamus issue to vacate the.unconstitutional appointment of mr.gleason for intrusion into the sole.article two functions of the executive.branch.and fourth mandamus issue to compel the.district court to grant the dismissal as.a matter of law.only the department of justice can.decide the public interest and myriad.factors inherent in pursuing a.prosecution.this is not an ordinary motion on which.there can be factual development or.debate.this is a rule 48 a case dispositive.motion as to which the executive branch.has sole discretion and determinative.authority.the government has dropped the case and.every 48a decision in the country.requires this motion be granted.uh thank you miss powell i'll be in the.questioning.and can i ask you the following question.and assume.with me that i'm focused primarily on.your request.to require the district court to grant.the 48a motion.and just put aside for one moment the.other forms of relief that you're.requesting.i'm focused on the one that the panel.decided the case on which is the.requiring the district court to grant.the motion for dismissal under rule 48a.and you agree that you're entitled to.mandamus as to that form of relief.only if there's no other adequate means.to attain the relief.uh yes your honor and there is no other.adequate means to.attain the relief because of the uh.usurpation of power and intrusion in the.article two branch by the process he.suggested.and the fact that there's no discretion.involved in the district court on the.district court's part in.addressing a 48 a motion.are you aware of any other case in which.mandamus has been granted to compel a.district court.to decide a pending motion in a.particular way.either by granting or denying it before.the district court itself.has decided whether it's going to grant.or deny the motion.well now that we have focker services.which of course you know as you wrote it.that with the law is clear that this.motion has to be granted.every 48 a motion in the history of the.country has ultimately.been granted he could have had a hearing.he has had ample time that he could have.had a.counsel appear in front of him but.there's nothing.i'm not even i'm not even focused if i.can just tell you for one second.i'm not even focused on real 48a motions.as such and i take your point about.focker and in fact.for purposes of this question i'll.assume and it's just for purposes of.this question i'll assume.that everything you've said about the.fawker decision all along.is correct and i'll assume further that.the on bank court agrees.with even though it was a.panel decision but.i'm focused on the prong of mandamus.that.deals with other adequate means and.whatever you might think about.the clarity of faulker that's going to.be true of all kinds of decisions that.are on the books.and i'm not even focused exclusively on.48a motions i'm asking just for any kind.of motion.any kind of motion pending before a.district court are you aware of any.situation.in which a district court has been.compelled under mandamus.to grant or deny the motion before the.district court itself has decided.whether to grant a denied emotion.no sir because i don't know of any other.case where a district court has set.about the process.that this district court did that went.outside the boundaries of article 3.from its very inception from the minute.he requested.amicus which is not provided for in the.in the rules of the court at.all in a criminal court case.if the district court had a grant the.motion.then that would be adequate alternate.means would it not.well no sir because the process here is.the problem.the process is what violates both.article 3 and article 2..or denied the motion months ago three.months ago to be precise.but instead we've had the.unconstitutional burden that cheney.talks about.being imposed on us by the process he.created that he has an absolutely no.authority to create.all he is entitled to do even if he'd.done it timely would be to review this.motion on its face.and grant it there is no precedent.whatsoever for denying it.thank you miss powell i'll let my.colleagues answer questions and follow.up in the follow-up round with anything.more i appreciate your answers thanks.anderson.no questions thanks.thank you judge rogers.i'll follow up briefly.do you understand.to the extent you rely on.given the chief judge's assumptions.and the panel opinion was.father not a case.where mandamus was granted after.the district court had ruled.yes mandamus was granted in focker after.the district court had ruled on the.deferred prosecution agreement and.because we have soccer now.we know that judge sullivan has to grant.this motion.and because he went through the guard.rails of any.bridge of article 3 construction.whatsoever.he has to be reigned back in and at a.very minimum.mandamus must be issued to vacate the.appointment of.mr gleason as an omega and there are no.circumstances now under which judge.sullivan.can continue on this case because his.bias demands his disqualification.just the very appearance of bias is.enough to demand his disqualification.and here we have a long history of.decisions made on the basis of.extrajudicial contact.and the blistering op-ed in the.washington post that led him to choose.the amicus he appointed.he he even waived the requirement of.local council for him he's added.additional perjury and contempt charges.over general flynn's head.the perjury is now teed up for.additional punishment at the.recommendation of the amicus.judge sullivan failed to follow this.court's mandamus itself for 15 days and.then took the unprecedented step.of seeking re-hearing by filing his own.petition for re-hearing in this court.when he has absolutely no standing to do.so.taking on the mantle of an active.litigant.has to disqualify him from proceeding.any further in this case.if all the things that happened before.were not already sufficient.now in will the supreme court stated.that it had never approved the use of a.writ.to review an interlocutory procedural.order in a criminal case which did not.have the effect of.a dismissal it acknowledged.that it wasn't saying mandamus could.never be used.but it noted that mandamus had been in.votes.successfully where the action of the.trial court.totally deprived the government of its.right to initiate a prosecution.or where the court overreached its.judicial power to deny.the government the right or fruit.of a valid conviction neither of these.situations apply here.so why is it appropriate to use mandamus.to review the procedural steps the.district court.took in connection with consideration of.the government's motion.your honor the usurpation of power does.apply here.that's exactly what judge sullivan did.when he appointed mr gleason.in the stead of the government as soon.as the government moved to dismiss.the prosecution there's no authority.whatsoever for a judge to pile on.and add on his own prosecutor against a.criminal defendant.the fact that this is a rule 48a motion.as opposed to the bill of particulars.issue and will.makes all the difference in the world.because only the government.can decide when to stop a prosecution.and that's the authority he is intruding.on he's not entitled to ask any.questions about that whatsoever when.more than a mere conclusory statement.has been made.and in this case we have a 100 page.motion to dismiss supported by stunning.exculpatory evidence that was suppressed.for three years or more this is an.extraordinary case.the process he's created is beyond the.pale.as judge ginsberg would say in synonym.smith.and if if nothing other than synonym.smith requires that it be.ended in mandamus issue thank you thank.you miss paul i want to make sure that.judge rogers has no further questions.before.proceeding thank you.judge needles just a quick question you.argue that.uh judge sullivan uh has no standing.to pro to file an on bank petition.does that make any difference if we've.unbanked this case suicide.that is on our own well according to the.court's order.it it considered his petition for that.doesn't.of course we considered his petition we.consider all petitions but.i don't see anything in the order that.says we granted it or denied it.if we well my question though is.my question though is if we in fact.unbank the case.suicide then does it really make any.difference whether.judge sullivan is a party or outstanding.it does in terms of the disqualification.issue your honor.asking you about our ability to hear the.case on banks.the court can always take a case to.esponte thank you.thank you i have no further questions.thank you judge garland oh yes thank you.um so imagine the supreme court has.decided an.issue that is in the district court.squarely.and the with without any doubts.completely on force.on all fours and the.person who moves for summary judgment.based on that.case says i don't have to wait you have.to decide this before you decide.whether or not it applies and if you.don't decide in advance of the motion.i'm going to.mandamasu why isn't that the same as.this.well first of all i assume you agree.that even if the supreme court had.decided an.issue in the distance now in the.district court directly on point.that would not be enough to mandamus the.judge before the judge decides.you agree with me no it would not in.your honor because it wouldn't be a 48a.situation that involved the core powers.of the executive branch well like there.was a separation of powers case about.the core powers of the executive branch.and the.supreme court had decided that the.executive branch.has this power the plaintiffs were.claiming that it doesn't.um the judge has uh not made up his mind.yet.wouldn't you agree that that still the.district court has to make the decision.before you can appeal or before you can.seek mandamus or before you can do.anything else.well he's effectively made a decision.here he denied.two motions opposing any amicus at all.and denied our requests.the motion to dismiss be granted before.he even appointed mr gleason.and then started the whole process that.intrudes into the article ii executive.power.that he simply cannot do do you disagree.do you disagree with judge rao's.statement that the district court.currently presiding over the case has.yet to decide the government's motion.yes i do i do at this point disagree.with that because i went back and and.looked at the record again.and realized we had filed our request.for him.to grant that and oppose the amicus.twice.before he even appointed mr gleason.that's on the amica's question what.about the dismissal of the.case question we end that in that motion.around dock at 200 i think we requested.again.the dismissal be granted i see so the.panel just got that wrong.well it was my failure to point out to.the panel that that motion had.previously been granted but we corrected.that in our opposition to his petition.for re-hearing.the thing that's so different from the.summary judgment context or anything.like that.is it's a criminal case in which the.defendant all the constitutional rights.are supposed to benefit.the defendant we have lots of cases.don't we where we have.reversed a district court for clear or.plain.error in a criminal case and yet.there was no ability of that defendant.to do anything other than.appeal the conviction they could not.mandamus the court.imagine that the supreme court had.decided.a fourth amendment case and clearly.applicable to that particular defendant.in that defendant's favor and then the.district court ruled the other way.the defendant would still have to appeal.even though the defendant's liberty was.restricted and a conviction stood.isn't that right that's a normal way.criminal cases go isn't it.that's the normal way criminal cases go.when they're dealing with solely legal.issues and the government hasn't walked.in and said i quit.when the government is the only entity.that can pursue a prosecution.so it's not just the question of the.clarity.of the law at the time.no it's not just a question of the.clarity of the law at the time it's a.function.of the sole authority of the executive.branch being the one to prosecute all.the discretion is vested in.it to weigh all the factors that go into.dropping a prosecution.and the court can't continue a.prosecution on its own which is.essentially what judge sullivan has.tried to do here and has done very.effectively for three months.so if all that the district court had.done was ask.mr flynn and the government to brief and.orally argue the scope of rule 48 and.any separation of power arguments.and permitted amicus but did not appoint.amicus.you would not have the argument was that.is that right.uh no i i think we still would i think.that's far more.procedure and process and is allowed by.precedent.on any 48a motion in the history of the.country.okay thank you very much.thank you judge griffith uh.thank you miss powell as i see it the.question.before us is not whether the district.court must grant.the 48a motion the question is whether.the district court may appoint an.amethyst.and hold a hearing for deciding that.motion.now in your view what is it in rule.48a itself or uh in our cases.that prevents the district court from.conducting.a hearing before deciding the motion.well the supreme court and and this.court has said that.the court has no substantial role.whatsoever.in ruling on a 48 a motion the leave of.court provision is not a license for him.to investigate.behind the stated reasons the government.has for dismissing.what what is what is the role of the.lead of court.language then from your comments today.you make it sound as if it's ministerial.it almost is ministerial what is.what is almost is ministerial mean is it.ministerial or not.yes or no it's.pretty ministerial well that's not.that's not.this power that's not helpful it's not.ministerial you know it's not the case.law is a statement.so it's not ministerial so that means.that the judge has to do some thinking.about it right.the judge just is not simply a rubber.stamp.um i mean the language of the the rule.itself and the history of the rule shows.the judge is not a rubber stamp so.aren't you just arguing about.what the judge must do to educate.himself or herself.to be able to rule on the motion and i.think.i take it your point is that the rule.itself.forbids the uh conducting of a hearing.before the motion.is that is that your position no sir.it's the constitution and the supreme.court's decision in rinaldi and this.course.that prevents any hearing before the.motion it prevents any inquiry behind.the government's stated reasons.for the motion it prevents any.substitution of judge sullivan's opinion.of what happened what type of government.what i.what type of hearing is permissible this.call he could.he could have called the parties in and.say does the government move to dismiss.and the government says yes and he could.have said well is this brady material.and they he.they could have said yes or no or or.giglio like he pushed them a bit on the.stevens case.but to have any evidence any contrary.testimony to ask the.quote plausible questions he had that.he's mentioned in his briefs that he.wants to ask.none of that is permissible whatsoever.because rinaldi makes it clear that the.leave of court provision is only.to protect the defendant from being.harassed by the government.so the only discretion he has is whether.to make sure it is with prejudice.as judge sullivan himself did in his.decision in the pitts case.the government wanted to dismiss it.without prejudice and he said no it has.to be with prejudice.and that's what he did in the stephens.case too on just a two-page motion to.dismiss.filed by the government miss power.you've.you've uh stated in or an argument today.that you believe that you have a very.strong case.before the district court on rule 48 a.right.yes yeah yeah you have a strong kid in.that case why.why mandate this why not simply appeal.um if if judge sullivan does not.grant the motion to dismiss underground.for the a why not.why not simply appeal that to us.because the process he has started and.intends to pursue violates the article.ii.powers of the executive branch and bond.entitles general flynn.to stand on those constitutional.principles of separation of powers and.allege the harm that also occurs to him.by the.violation of his constitutional rights.and his ex.i think it was in ray peru or ex parte.peru said.to a prompt termination of these.proceedings.instead of a trial upon a trial of the.government's decision to dismiss.which he has no discretion or authority.to acquire inquire behind.whatsoever every case in this country.that has ever addressed a rule 48 a.motion has required to be granted.everyone and.and you don't think that's what will.happen on this one.we don't know we don't know do we have.the fact is we don't know joe sullivan.hasn't moved yet.opposed is unconstitutional we know that.the process he's proposed tramples all.over.the executive branch's independent.authority.to do it as well as it's what went into.its decision making.nothing about what he has done since he.got the motion to dismiss.it has been done in any other case we.could find.not one single step of the procedure and.to add on someone to prosecute the.defendant.as mr gleason wants to do when.i i don't understand i don't understand.your statement.i mean the the appointment of amicus.before a court to argue uh a view that's.not going to be.presented by the parties that's that's.common.not in not having reported criminal.cases your honor there's no rule.provision for it.it violates hollingsworth versus perry.he can't just go out on his own.and do this and it steps all over the.article ii executive branch authority.okay there's nothing fair about aligning.people against.a defendant in a criminal case as if.there weren't enough already.thank you miss powell thank you thank.you.judge malette um yes good morning miss.powell.um just a few questions for you.um where uh in the district court.did you raise the separation of power.arguments.it was a motion we filed in opposition.amica started because of an email sent.to chambers by the robbins russell firm.on behalf of the self-described.watergate prosecutors.in which they copied me evidencing their.intent to.seek that and so you say your opposition.to that amicus filing.which was before the appointment of mr.gleason.and before the briefing schedule was.issued and this whole process for.hearing was that was your opposition.to orders that the district court issued.later.yes and we were quite here okay you you.you have okay just to be clear so your.answer is.yeah i think it's a round dog for a.number the court even did it yeah no i.know.that's your opposition to the watergate.prosecutors but there was no policing.no appointment yet as mr gleason correct.no he did not enter that order.follow the petition for mandamus but he.said he was.and after the district court issued that.order appointing mr gleason.where's your objection raising the.separation of powers concerns or any.concerns where's your objection.well the separation of powers objection.was already on file.no with a different amicus where is.because the argument here has not.mentioned once the brief about the.watergate prosecutors it's all about mr.gleason's appointment to.take over the prosecution to inquire.uh and scrutinize the government's mr.gleason to be clear as arguing for this.to scrutinize the governmental motives.um where is your opposition.to the appointment of mr gleason from.the district court.our original opposition i believe before.he was on stock at number.201 and 203. okay so.you've never heard of anything sorry.this works.this works a lot better if you'll just.let me get my questions because.sometimes i just need a quick yes or no.so i'm just clarifying you didn't do any.up you made no.proposition no objection to the.appointment of mr gleason you're just.referring back to arguments you've made.to the watergate amicus.swedesponte enter moving for amicus in.the case.and in his minute order on may 19.setting out this whole briefing schedule.in amicus the district court said the.following schedule should govern the.proceedings subject to a motion for.reconsideration.did you ever file a motion for.reconsideration no your honor we had.already filed the condition for rid of.mandamus because that's what.exists that's the remedy for an easy.patient of power.okay i don't i thought the mandamus was.filed.after that our duckett shows 521 and.this order was issued 519..we found the main thing on i think.there's a mistake in the order of the.docket entry.that's when judge sullivan was asked to.respond to it but it was.all about necessary consideration okay.no.that's the purpose of mandamus yeah okay.sure.um uh you mentioned.that uh in your response to one of my.colleagues.that the district court could have.brought the government and all the.attorneys in obviously for hearing and.could have pushed them a bit.i think with your phraseology as in the.stephen's case.can you elaborate on how much pushing.the district court is allowed to do.uh not very much he cannot inquire into.the deliberation.what pushing in the stephen's case was.okay tell me exactly what pushing was.okay.uh he asked the government if the.material that had been.withheld from senator stevens was brady.material.and they kind of they were a little.wishy-washy on that.and then they admitted it was it was.giglio.and that was the virtual extent of it.okay in this case um a large.portion of the government's explanation.for its motion dismisses.the discovery of uh new material that.would qualify as grading material.correct.that's correct okay um uh.another question is you've mentioned.that courts cannot appoint.an amicus to argue against a defendant's.interest in a case in which the.government has.decided with the defendant correct i do.so there's.just too much right once the.government's agreed with it.at the district court level the rules.have no provision.for the appointment of amicus and a.criminal okay never really their rule.against it.no but by the virtue of the fact there.is a civil rule in the district court.and there's not one in the criminal.court.rule that says they can appoint amiki in.criminal cases to argue against.the interest of the criminal defendant.when the government has aligned with it.i'm the supreme court and appellate.courts routinely appoint.miki for their variable and the supreme.court saying that they can do that.and including as you're talking about in.a criminal case to align against a.criminal department or is there is a.rule saying they can or can't.i do not know okay but they have not.supreme court done.court appoints amiki whenever it wants.to.right okay just try and clarify that one.last uh.one last quick question for you um.uh you talked about the rule the role of.a court in.the 48a and the one thing it can do is.obviously prevent harassment.of a defendant if this had been a motion.to dismiss without prejudice or.something the district court could have.insisted that it be with prejudice or at.least examine that question with the.just with the government.correct that's ronaldi and judge.sullivan's decision.i think he agreed with judge i think it.was judge griffith this is not a purely.ministerial.process um can corps use 48a.uh to protect their own processes to.ensure that prosecutors are not.abusing and manipulating the court.process.know your honor it cannot 48 is not for.that purpose.okay all right thank you i'm finished.thank you judge pillar.good my name is powell good morning.um one decision.that seems i think it's the only.decision that i've been able to find.that deals with the question of whether.mandamus is appropriate before a.district judge.has even had an opportunity to rule.under rule 48 motion is the.is the third circuit's decision in ray.richards.uh judge rebecca becker's opinion and.there the third circuit denied mandamus.because the trial court had uh.not even had a hearing on the on the.world 48 a.motion we we haven't decided this issue.in our circuit but richard suggests.that there is no clear and indisputable.right against.briefing and arguments on.oval 48a motion.well it's already been three.i'm sorry your honor go ahead right you.are opposing.the briefing adversary briefing and.argument.on the motion that's why you thought.mandate am i right.yeah well yes that's because there is no.adversary.because the parties have consented.general flynn and the government.have agreed to the motion to dismiss.there's no longer a case or controversy.for the.district court to adjudicate and 48 a.and even the in ray richards case which.is a 20-year-old case out of the third.circuit from a territorial court in the.virgin islands.in which the government just made a mere.statement of.of uh it's in the interest of justice.and the court said we need a little more.sunlight on the reasons for that.right and richard you do just try to.distinguish.richards uh on the ground that there was.only a conclusory interest in.and uh a footnote three of their panel.briefing but but in richards the.prosecution's.joint motion to smith had supporting.affidavits from potential witnesses.saying they wouldn't testify the court.there was entitled to.to read the briefs listen to argument.consider contrary arguments before.granting leave.do you disagree with that do you think.that was wrongly divided that case.given the particular circumstances of.that case.and a witness a key witness who recanted.if i recall in a sexual misconduct case.it was extremely high profile.now 20 years ago there's been a.substantial development in the law.do you disagree with me with richard.miss powell do you disagree with.richard's on its own terms.in that case is the only distinction.that you're trying to draw.the appointment of amicus that that.there.it was premature the third circuit hell.was premature.mandamus was inappropriate because the.court could.listen to argument and look at.the motion and the supporting affidavits.and consider whether to grant leave.you don't have any trouble with that do.you as of 20 years ago.no as of now yes.so that so under the law as it currently.stands.you think that they should have granted.mandamus and richard.and now if richards were now.then yes.because there is a 100 page motion to.dismiss here with 80 pages of.exculpatory evidence that wasn't.produced the defendant.the fact that brady evidence was.suppressed alone.is sufficient to vacate the guilty plea.uh we also have other motions on file.with multiple reasons why the plea.is not valid and the bottom line is that.this 48a.motion is at least no discretion in the.district court even more than the next.party u.s.the court said that the discretion to uh.grant or issue a bond or a bench warrant.is not the discretion to deny it but but.we don't know.whether this district judge was going to.exercise his discretion to grant or deny.this motion we would assume given the.precedent that we've read and that.you've read.that he would grant it that would be the.assumption.right we know that the process he has.established.violations so it's the process it's the.process that you're objecting to because.we don't have a merits ruling right.well you have process that you're.appointing the amicus that would have to.be vacated at a minimum.and then it would have to be remanded to.a different.district judge because of all of his.actions that now amount to.the egregious appearance of bias that.prohibit him.so judge sullivan showed bias by.appointing.an amicus but gleason wasn't being.chosen as the judge.he was invited to argue one side and an.adversary.system an adversary system.is so that we get the law right it's the.core of any judge's job to assess cases.in view of the strongest arguments that.can be made on.both sides and your position is.no he can't hear both sides on the law.he has to drop the case like a hot.potato without adversary briefing.argument that's your position there is.no provision for a makers in a criminal.case in the federal district court.and certainly not to take the position.of the government when it is decided to.drop the case.when the government signs off the case.is over the.article iii branch cannot make the.branch prosecute a k.so i think that your position is correct.me if i'm wrong.that to the extent that rule 48a.requires.leave of court where anything other than.the defendant's.interest in a with prejudice dismissal.is at stake that every other application.of the leave of court.uh requirement is unconstitutional under.separation of power.is that one is that a fair way for your.position yes okay.no further questions it is a very.limited thank you.thank you for you judge wilkins.yes good morning ms powell.i have a hypothetical so suppose in the.future in a different administration.you had a 48 a motion that was filed.and that was unopposed and the.prosecution said.you know it's because of this.exculpatory evidence.that we're moving to dismiss and a.catholic university law professor asks.to be appointed amicus because.a group of nuns and bishops um.happened to witness the prosecutor.taking a briefcase full of cash uh from.the defendant in the case and they made.a videotape using their smartphones.of the transaction and they presented.that.to him along with sworn declarations.and so he wants to file an amicus brief.and attach.that evidence is that improper.well that would certainly be improper.behavior by the prosecutor and.worthy of prosecution itself by the.department of justice.his appointment of amicus that universe.that professor as amicus.improper i believe it would be if the.government had already filed a 48-a.motion.and had decided through its appropriate.channels.to drop the case that's a decision that.has to go all the way up to the attorney.general and the solicitor general i.believe.for a 48-a motion to be filed and.whatever the considerations that were.that go into that.are belong to the department of justice.not the article 3.judiciary although it could certainly.make a criminal referral.and should so if the district judge said.okay i'm not going to appoint amicus.because the defendant has objected to.that.but i want to hold a hearing and.i'm going to ask that those witnesses.come to the hearing and bring their.video footage of this alleged bribe.the district judge because it's an.unopposed.48a motion cannot hold that hearing.he cannot go behind the prosecutor's.decisions.to dismiss a case.and he certainly can't on the facts of.this case i mean one of the reasons i'm.asking you about my hypothetical.that would be improper for the district.judge.to hold a hearing under the facts of my.hypothetical.i believe under the facts of your.hypothetical what the district judge.would have to do is refer the matter to.the department of justice for.prosecution.all right i have no further questions.thank you.thank you judge rao.thank you um good morning miss powell um.so i guess one of the the questions that.that my colleagues seem to be focusing.on i want to.maybe just hear from you again um on.this is.you know what is the um what is.the the most that a district court judge.can do.when considering leave of court under.rule.48 it seems that you think he can hold.a hearing is there anything else that he.can do.well according to all the existing.authority.it's described his role as extremely.limited.virtually no role.it's not there's there's just not much.he can do in the face of the.government's decision.not to prosecute a case because the law.is clear that it's up to them.to weigh all the myriad factors that go.into deciding whether something should.be prosecuted including the allocation.of existing resources i mean it can be.something as.simple as uh in fact in one of the cases.just the fact they didn't agree with the.sentence was grounds enough to.grant the mandamus i think that was the.ham case the on bonk says circuit case.so it's up to the prosecutor to weigh.all the factors that go into deciding.whether a case should continue or be.prosecuted at all.and once it makes that decision the.article 3 branch is simply to protect.the defendant from being harassed.further.um and okay so um.to what extent would reassignment if if.the court were not to grant.uh rid of mandamus um to what extent.would reassignment to a different judge.cure the problems that you've identified.well that would certainly.cure the the bias and recusal this slash.disqualification problem.and it would also vacate the appointment.of the amicus according to this court's.decision and now nashiri because.of the fact that the decision had been.made by a judge who was disqualified and.that would have to be.dropped or it should probably be made.clear though that the amigas appointment.has to be vacated because that's the.severe article ii intrusion.and also tramples on the defendant's.rights to not have.the world piling on against him when the.government's decided to drop the case.that would go a long way toward solving.the problem.okay thank you no further questions.thank you miss powell i just have one.question for you on.as a follow-up um suppose again that.we're.dealing only with the 48a question.and the issue is whether mandamus should.be granted to require the district judge.to grant the 48a motion and.suppose also just for purposes of.argument that i agree with everything.you have said about what focker means.if the district judge says if the.district judge receives the 48a motion.filed by the government requesting.dismissal and the district judge says.i want to schedule a hearing for two.weeks i just want to make sure i.understand the government's reasons for.requesting a dismissal.at that point is it would you be.entitled to.mandamus release because the district.judge has scheduled a hearing for the.stated purpose of understanding the.government's reasons for requesting a.dismissal.no sir okay thank you.judge henderson yes i'd like to just ask.you a rhetorical question are you.familiar with.i believe it was ezra pound who said.some circumstantial.evidence is so strong as when you find a.fish in the milk.do you think that applies to this case.i think it might your honor thank you.that's all i have.thank you nope judge rogers.no questions thank you judge tatel.no questions thank you judge garland.uh yes uh thank you uh morning again ms.powell.um one thing i want to do is clarify a.record point.um i had asked you whether.the district court had actually decided.against.general flynn's motion to dismiss.and you said that the panel had been an.error not the.panel's fault but your own and that you.found that the.discord did decide against i'm i have.the.docket sheet in front of me i don't see.a ruling.um i assume the motion you're talking.about.is your docket number 202.but i don't see any uh denial of that.motion can you.help me with where that is he did not.enter as a docket entry for denying that.it was let's see.and what's missing as document entry.number 201.we made a seals filing objecting to the.process a step or discussed in the email.that was sent to chambers by the.watergate prosecutors.and then at um.docket 204 we filed a motion to strike.an opposition of notice of intent to.file motion for leave to follow amicus.brief.on the record with some modifications to.alleviate the problem that was in the.field filing.and then he denied and it was in that.motion that we also requested.that the motion to dismiss be granted.well he denied both of those the sealed.and the.204 the next morning.so you're saying that the 204 included a.motion to dismiss uh his ruling on 204.says he uh denied the motion to strike.in opposition to notice of intent.to file motion for leave to file amicus.204 included a request at the end of the.motion.that he grant the government's motion to.dismiss.he denied this motion as moot.because he had denied the.additional amicus isn't that right is.there some is there some.are there some words where he said i.denied the motion to dismiss.i just don't find that no no i'm sorry.no there's not a separate order in which.he denies the motion to the smith.no sir all right do you have a quick.question.i'm a smoker was less than clear if i.implied that i apologize.i might have misheard so in which case i.would apologize.um on the bias question so that this the.panel.majority found that the district court's.conduct did not indicate a clear.inability to.decide this case fairly um.you want us to reverse the district.court.the panel's finding unbiased at that.point or is your claim only arises out.of.the filing of the petition for.re-hearing on both.the bias claim uh it goes.our request now goes back uh and.includes.the comments that the district judge.made at.sentencing or what was supposed to have.been the sentencing.that indicate bias but also carries.forward more.into the facts that the panel did not.consider that was what they focused on.the statements that were made.in the course of the litigation which as.we know are usually.excused but in this case there's been a.lot more since.then and that includes receiving the.email from the watergate prosecutors and.agreeing to appoint the amicus that.their suggestion.is an inexorable determination to go.forward with these intrusive proceedings.including denying our emotions objecting.to any amicus and.raising the separation of powers issue.okay.hold for just one minute i'm not clear.are you saying that you didn't argue.these points to the panel.and therefore they didn't consider it or.that these.events occurred after the panel.concluded that there was not.uh the kind of bias that would.disqualify a judge which.which isn't i think it may be a little.bit of both.um the panel definitely considered these.statements made at sentencing.it's unclear to what extent they.considered.any other factor because the way the.opinion reads.did you argue the other factors.i don't believe we actually even had.time to argue the disqualification.issue itself in the original panel.hearing.but the point now is definitely that.sullivan.judge sullivan failed to follow this.court's mandamus for 15 days.and then filed his own unprecedented.manna rehearing petition that.reveals he's so invested in this.litigation that there are no.circumstances under which he can.dispel the appearance of bias from that.he inserted himself as if he were a.party.thank you appreciate the quote answers.thank you thank you.thank you judge griffith yeah mr todd i.just have.a question or two throughout the.argument this morning.uh you've been stressing that uh uh rule.48a has.its primary purpose the protection of.defendants against.uh vexatious uh prosecutions.and um and i can understand your.emphasis uh uh.on that um but that's not the sole.purpose of 48a right and we know.something about the history of it.and the history of 48 days i understand.it but i'm asking you to correct me if.i'm wrong.is that it was also uh created by the.supreme court to examine cases.of favoritism for politically powerful.descendants and that seems to be.uh right in the wheelhouse of what uh.what is going on here.is that not one of the purposes of 48a.uh not according to the supreme court it.certainly never.addressed that and rinaldi makes clear.that 48 a is.to protect the defendant from harassment.and there's no other there's no there's.no question that's one of the purposes.of it.but that's not the sole purpose of it.isn't it.i as best i can tell from the law right.now your honor that's the.sole purpose that has been given any.definition whatsoever by any of the.cases because.in the in the history in the hist in the.history that we have we have a.record of the history the creation of 4d.a day and i i thought that uh.i i thought that one of the purposes was.to allow.a district court judge to uh examine.favoritism for politically powerful.descendants.well i think you just disagree with that.history.well i mean the the history is whatever.the history is.but the courts have not interpreted it.that way.because as judge posner noted in in ray.united states there's no 48 a motion.that's.that's been denied court.of course rejected that reasoning or.they just haven't addressed it.to my knowledge it has not been.addressed so that that's different than.rejecting it right.yes okay thank you very much.thank you judge malette yeah just a.couple questions just to follow up on.judge garland's.question about your document.204 filing the opposition to the.watergate.um amicus.and you had a proposed order that went.with that motion.commonplace and the proposed order.doesn't mention granting the.government's motion to dismiss was it.uh no because there was an order.attached to the government's motion that.i'm just asking about your brief i'm.just talking about arguments you made so.and then um of course there was one.attached to the government's motion to.business.um you just don't even ask for that on.the proposal or that relief in your.proposed order.and the document itself only talks about.the water brief and talk and.specifically says they want to file an.uninvited amicus brief.on page two is that correct.i believe that's correct okay and then.i've had a question following up on.judge wilkins hypothetical about the.um uh.nuns or i guess the nuns and priests.that witnessed the bribery.um could the district court in a case.like that where the government.said its motion dismisses based on brady.evidence.and then there's information called the.court's attention that it may have been.based on.bribery can the district court when it.calls the parties in to discuss the.world 48a motion.does it have a right to press the.district the government to see if it was.lied to.i think the recourse for the district.court and then i don't want to hear.about referring someone for prosecution.i'm asking you a yes or no question can.the district court.ask the government.referencing this information that's come.to its attention.whether it was lied to whether the court.was lied to.in a filing made with the district court.yeah so you may ask yes.all right that's all my questions thank.you.thank you judge pellard ms powell.um on the question whether rule 48a.protects anything other than a.defendant's.interest against harassment and just.probing further on judge griffith's.question about.about whether it's actually open what.rule 48.a protects including for example the.abuse.of prosecutorial power to favor.defendants that the government wants to.protect the supreme court of linaldi.and i think the clearest place is.footnote 15.um fights amma down and cites cowan and.really leaves.open the question whether rule 48a.sweeps more broadly and whether a court.can deny a consented to a motion to the.smith.if it thought the motion was prompted by.considerations.clearly contrary to the public interest.and there.it's crystal clear that the court needs.other than the defendant's protection.against harassment.so so you may be right that there's not.a case.allowing a court to deny rule 48 a.motion based on these other public.interest concerns but it isn't a.clear and indisputable right.against such inquiry is there in light.of.brinaldi and in light of amma down.in the references to callum there's not.a clear and indisputable right against.application of rule 48a.in a circumstance in which the motion to.vacate a plea was prompted by.improper considerations bribery whatever.well there's a clear and indisputable.right to the 48a.when the government decides to drop the.prosecution.because that's the only outcome that can.arise from that.now whether that's really your.constitutional separation of powers.argument rather than an interpretation.of the intention of group 48a.it is the 48-day it's step and it's.history.right rule for data and its history for.under your view.may indeed invite that kind of.superintendent by a district court but.it's your view that if it does.unconstitutional exactly that right.yeah thank you for the question thank.you.judge wilkins yes just following.up on my earlier hypothetical just so.that we're clear.if in that situation the district judge.said i want to have a hearing on the 48a.motion which is unopposed.i want to have the nuns and priests.testify and view their.videotape showing this alleged handing.over of cash from the defendant to the.prosecutor.you would say that the judge has no.authority.under rule 48a to hold a hearing and.proceed in that fashion.i would say he does not have that.authority under rule 48a that he would.need to refer.it for prosecution by the department of.justice.and you based that on walker.walker separation of powers rinaldi.every 48a case that's ever been decided.okay thank you thank you.judge rao no further questions.thank you thank you for your argument ms.powell will give you.a bit of time for rebuttal we'll now.hear.from the acting scholaster general on.behalf of the united states.mr wall good morning your honor and may.please the court.in our constitutional system a defendant.may not be convicted of an ordinary.crime without the concurrence of all.three branches.when the executive branch no longer.wishes to prosecute and the defendant.agrees.the criminal case should be at an end.that is why focker says at least seven.times that the decision whether to.dismiss charges is a core.executive duty that is not suited to.judicial review.under articles two and three and focker.the government's unopposed rule 48.motion must be granted.if we're clearly right about that then.there's no adequate alternative to.mandamus.the district judge's re-hearing brief.makes clear what will happen next.ambidon's public interest standard.remains good law he says.and assessing whether the motion serves.quote legitimate prosecutorial interests.in quote.requires a quote developed factual.record in quote based on.investigations into quote the facts and.circumstances end quote.of the dismissal the district court thus.plans to conduct an intrusive inquiry.into the executive's dismissal decision.which will result in every one of the.harms detailed in focker.regardless of whether the court.eventually grants the motion.the district judge says this court.should ignore those harms.but the government is a party that filed.a brief at the court's invitation.urging mandamus under cobell and.exxonmobil it's the fact and substance.of that filing that matter.not its caption even apart from the.government under cases like bond.general flynn can invoke the separation.of powers harms in defense of his own.individual liberty and of course courts.routinely consider third-party interest.in assessing equitable relief.so it would be passing strange if this.court could not consider the harms to.the government.a party that expressly supported.mandamus.in the end the criminal charge against.petitioner must be dismissed.the only question is how much further a.harmful and unnecessary process.will be allowed to play out the answer.in our constitutional scheme should be.no further thank you.thank you mr wall can i ask you the.following question so.in your opening you focused on the brief.that was filed.by uh judge sullivan at the mandana.stage before our court.if you take out of the field of vision.that brief.then would you still say that based on.what you know.mandatus needs to be granted and there's.no.adequate alternative means for relief.with respect to the dismissal of the 48a.motion.i would chief judge trenavasan because.in some sense i think the panel briefs.were more concerning than the rehearing.petition.because in the panel briefs judge.sullivan explicit that he wanted quote.affidavits and declarations.uh on both rule 48 and contempt.and so it was just the panel bridge.sorry.but that's that's still post mandate.postman name is petition.i i meant to include that so maybe that.wasn't clear i'm saying if you take out.of the field division.what judge sullivan's briefing has said.before discord.either at the panel stage or at the on.bank stage.would you still say that we know enough.such that.mandamus should be granted on the theory.that there's still no other.adequate alternative i would your honor.i want to.answer the question i don't want to fake.the premise too much but i do think.the very purpose of ordering the court.to respond to the to the mandamus.petition was to understand the basis for.the court's actions.so i'm not sure how this court could.discount the district court's.explanation for what it wants to do.but even if he looked only at what had.gone on in front of the district court.i do think we'd be here saying the same.thing because we'd be implicating the.separation of powers.in the same way the district court has.set up a process to probe into.the government's motives for exercising.its prosecutorial discretion.we think it's clear both under focker.and the constitutional backdrop on which.faka relied.but that's precisely what a district.court may not do in adjudicating a rule.48 a motion.and uh in fact itself the district judge.held a bunch of proceedings before the.denial of the deferred prosecution.agreement.and would you say that in factor itself.those subsequent proceedings should have.never happened and.if a mandated petition had been filed.and they named it should have been.entered because the district judge had.telegraphed.the kinds of questions he was concerned.with.i think so i i want to separate and talk.about the proceedings that went on.before the court granted mandemus.and the proceedings and went on after i.i i maybe i misunderstand faulker i.i did not think that there were very.substantial remand proceedings that went.on in focker after the grant of mandamus.i mean before the grant of mandamus i'm.saying that before.the petition for mandates mandamus was.even filed.which was before the deferred.prosecution agreement was.rejected the district judge scheduled a.number of proceedings.uh to ask about the proposed deferred.prosecution agreement.is it your view that in fact or if a.mandated petition had been filed.when those proceedings were announced.before the district judge entered a.ruling.on whether he's going to accept the.deferred prosecution agreement that.mandamus should have been granted.because the district judge.had telegraphed where he was going i i.yes i'll i think it'd be a harder case.it'd be a little would be more like.richards because you wouldn't have.binding circuit precedent but.all of the reasoning of soccer chief.judge trenivasan suggests that it would.have been.impermissible that the decision to.dismiss pending criminal charges is.within the can of prosecutorial.discretion and the district court can't.probe that whether or not it's made a.final decision this case is easier.because now that we have focker on the.books if a district court tomorrow.said well look maybe i am required to to.approve the dpa.under focker but i still want to have a.hearing to cast.light on what i think may have been.improper conduct by.a united states attorney i would i would.be very surprised if that were not.mandatable in this circuit now in light.of in light of factories so i'll grant.it last question along these lines uh.thank you.last question along these lines which is.if the government had filed the exact.same 48 ambition that is filed.and the district judge had said thanks.for the submission.i want to make sure i understand the.government's reasons.further i'll schedule a hearing in x.number of weeks.would there be grants for mandamus on.the theory that there's nothing for the.district judge to do other than grant.the dismissal.well i'm not certain about that uh your.honor if the district court said.i just want to understand the the.reasons in your motion there's.ambiguity i'm not under i don't.understand why it is you want to dismiss.i i'm not saying that man damas would.lie for that but.that isn't what the district is doing.here obviously.this is meant to probe the executive's.reasons and that's exactly what focker.takes off the table.thank you mr wall judge henderson.yes um let me put a correction on the.record.so i don't get any aftermath my clerks.have.informed me that it was henry david.thoreau.who made the remark about circumstantial.evidence mr wahl.we asked you to be prepared to address.the effect of any of 455 a.and 455 b5 little i.um are you waiting to do that in.response to questions have you.waived it uh what's your position you.know i'm happy to address it now.uh judge henderson i i in the.government's view as you know.that judge sullivan is not a party under.the rules entitled to file the petition.we would say the same thing under 455 i.don't see a reason to differentiate the.rules from the statute.so i don't think there's a b5 i problem.though for those who think that judge.sullivan is entitled to file under the.rules.i don't understand why it isn't also a.statutory problem because of course 455d.says that if you're a party at any stage.of the proceedings and that i think.would include the maintainment.proceeding.but but we are are urging that though.i'm not sure.what uh judge sullivan's council will.say about that.i do think it's harder question on 455a.as you know.we did not agree with general flynn.before the panel that disqualification.was.warranted even though what had happened.in the district court to that.point was was fairly irregular.i do think we're in a bit of a different.posture now because the district court.has.filed a petition that is not permitted.under the rules which suggests.as as powell said a level of investment.in the proceedings that.is problematic and has gone further than.the district court did in the panel.briefing.to decide the legal standard and has now.definitively said that and this is pages.14 to 16 of the petition.that focker has nothing to say about the.separation of powers considerations on.these facts that's page 14.and that amid down remains good law.that's page 16.and that the district court can.undertake its own independent.examination of the public interest.that's footnote 3..and and so i think now the district.court has pre-judged.part of what i understood the.proceedings below to be designed to.accomplish.so i i do think that we we have.reluctantly come to the view that that.there is now.at least a question about uh appearance.of of impartiality.all right thank you thank you.judge rogers.well i suppose mr walter.is is your position.at the filing.by the district court.in urging that.mandamus was in effect impermissible.at this stage that.that is.the bias.that would require.reassignment.no judge rogers i'm not saying that it.actually suggests that the district.court is biased i want to be clear about.that we're not saying we think there's.an actual partiality.problem but i do think that parents.oh but no we do think that there is an.appearance problem from having filed a.petition that as we read the rules is.not.permitted and the substance of that.petition as i said.which goes i think an awfully long way.if it doesn't cross the finish line.towards saying.what rule 48 what the legal standard is.i think that brief essentially says that.the district court does not think focker.sheds light on this.it says it says nothing about the.separation of powers considerations on.these facts.and that amidon is good law and it's.going to conduct a public interest.examination.and and so i i think the district court.has decided what the legal standard.would be.and if the court is going to deny.mandamus i would hope that it would.provide some guidance to the district.court.on what we see as its limited role under.the constitution and.focker now i understand the argument.about.the amendments to really but certainly.the supreme court.in part indicated the.situation that the district court may.find itself.in i i didn't see any suggestion that.that would create an appearance of.partiality.problem.no judge rogers i i don't think that.somebody can can.uh create a refusal problem for a judge.by filing a mandamus petition.and rule 21 as you say solves that.problem by.allowing the court of appeals to invite.the.district court to respond almost by way.of an amicus it specifically doesn't.list the district court as a party.i think the problem here is that because.the district court has reached out.despite those rules.and filed the petition without being.invited to do so by the court.it at least raises a question about.whether the district court.is invested in in what should be its.official authority.to a point where uh we have an.appearance problem after all i mean.we've only been able to identify one.on both petition filed by a district.judge ever and that was a situation.where.the district court's personal reputation.was really at issue because of comments.that the district judge had made yeah.this is very different this is just.about the scope of the district judge's.official.authority it isn't the sort of thing.that you would normally think would.trigger an onboard petition.well i just understand the scope of your.petition here.because the supreme court cases folks.do not appear to have adopted that.and by saying.there are questions he wants to ask.as the chief judge framed it in order to.understand the government's.notion that that alone.is sufficient in other words.originally all i was going to ask you.about was.you know why should court consider harm.to the government.uh to the executive branch when it never.filed for man davis and it never filed.any sort of intellectual.appeal just as in cobell and it simply.uh waited until it was invited.to comment uh and then i thought well.even assuming.uh the court should consider the.injuries to the executives.at this point why why.aren't the injuries too speculative or.are you adopting mrs tells on.uh mr flynn's argument about.it's the process itself.that signals extraordinary action.by the appellate court reassigning the.case.to another district court judge is.appropriate here.so three quick points judge rogers again.i'm just responding to a question that.the.court has put to me about 455a we do.think that we're in uncharted waters we.think it raises a question but if the.court disagrees with us on that.we think it is important if the case.goes back that this court provides some.guidance to the district court on.its role under rule 48a and that it take.off the table some of this factual.inquiry.that the district court seems to want to.engage in my second point is i just want.to be clear on my answer earlier.to the chief judge there's a difference.between trying to understand the motion.and the kinds of questions that the.district court raised in its panel.briefs.why we didn't charge with respect to the.turkey statements.why we have handled related prosecutions.the way that we have.why certain attorneys sign the brief and.others that's a probing behind.the motion it's not an attempt to.understand the motion and so my third.point judge rogers is.there's nothing speculative about the.injury to the separation of powers from.that no matter how we ultimately answer.those questions in the district court.and no matter how it ultimately disposes.of the motion.probing the executive branch in that way.is what weight and focker quoting weed.says is constitutionally impermissible.those aren't speculative injuries.those are certain injuries from the.process itself.well i have a dozen questions but chief.judge i'll let my colleague.speak thank you.dutch tatl yes good morning i have two.uh two questions the first.is i'd like to ask you the same question.that.srinivasan asked miss powell which is.uh are you aware of any case ball in.which a court of appeals has issued a.rid of nandanis.to prevent a disreport from conducting a.hearing of any kind.i believe that there may have been some.of the writ of prohibition cases like.that judge tato i'd have to go back and.and look and we'd have to supplementally.brief it i think the closest case i.could give you is cheney.where the district court ordered a.discovery plan it was just a process for.setting up discovery.no documents had changed hands and.obviously the.this court in the divided panel said.they were adequate alternative.to mandemus because the executive had.asserted.executive privilege and the supreme.court disagreed and said the harm was to.requiring the executive to engage in.that process.in the first instance and i think the.same is true here and.granted that's discovery rather than a.hearing on emotion but i think the.reasoning is.is parallel that it where the.where it's the hearing itself that.implicates the separation of powers just.like there is the assertion of privilege.i don't think we have to wait for the.process to play itself out the process.is itself part of the constitutional.harm.right but from a mandamus point of view.where the relief has to be cleared and.disputable there is no.case where a at least you have i mean i.don't know what those prohibition cases.are you're mentioning but.setting those aside there isn't one.where mandamus was granted before the.district court actually held the hearing.that you know right no judge tato but.i would say what i said earlier about.which is if a district court tomorrow.said it wanted to have a hearing like.that on a dpa.i would think that would be mandatable.in this circuit under soccer.yes okay my second question has to do.with the.uh which is related in your brief.um you argue that it and i'm quoting.here.is a usurpation of judicial power.to double to second guess.the government's justification and then.you also argue.quote the executive is entitled to.confidentiality.in its decision-making process but don't.courts.regularly scrutinize the executive state.of justifications like take for example.batson hearing where the court will.review the government's proffered.justification.or in department of commerce versus new.york the census case.where the question was whether they.could have a the district court should.have a hearing.to consider external evidence of pretext.um isn't that.this case the court said in in the.department of commerce.a court is ordinarily limited to.evaluating the agency's contemporaneous.explanation in light of the.content enlightened existing records.because.we have recognized a narrow exception to.that general rule.on a strong showing of bad faith and.isn't that what this case is about.isn't the district judge here simply.looking into whether there's been such a.strong showing.so two points judge title the first is.that's not just our view that's quoting.focker which says.courts may not quote second guess the.executive.exercise of discretion over the.dismissal of criminal charges end quote.and the second thing is no of course you.are right.that there are plenty of circumstances.as this court well knows where courts.can scrutinize whether the executive is.complied with some.statutory or regulatory duty what makes.this different.as focker explains is that the.constitution.vests this kind of discretion the.discretion.over bringing and maintaining and.dismissing criminal charges.in the executive and so as a separation.of powers matter.these kinds of decisions are taken off.the table for judicial review that.factor says not adapted to judicial.review.under our constitutional structure but.of course that's not true of.any number of other legal questions that.aren't the exercise of.such a core executive duty.uh i have no further questions thank you.thank you judge garland uh yes good.morning mr wall.um i want to just follow up on a.question that.judge tadel asked general.flynn's attorney earlier on so in your.brief you argue that there's an article.free standing problem a party standing.problem.um lack of solicitor general.authorization for.this unbox if it were true.and i ask you to assume that i'm correct.about this that.the court granted suicipante.do you think that the court does not.have the authority on its own.to re-hear a panel's decision.no judge garland those problems wouldn't.be.posed the question would be then only.whether it was an appropriate use of the.court suicipate authority under cases.like.sunning smith to go uh on bronch in a.circumstance like this.after the filing of a petition that was.defective including constitutionally.defective but.we have not argued we did not argue in.our brief as you saw that the.court would lack the power to do that.that case is nothing.it's not about onboard is it you're.talking about the supreme court's recent.decision.yes it's not about on bank but it is in.part about a court's uh.use of its authority suisponte uh to.redirect the case in particular.if the court as a whole is wondering.whether the free judge panel correctly.decided.that there's any circumstance in which.it can't on its own decide to rehear.that matter.or are we stuck in every mandemous case.with whatever three judge panel happens.to decide a case.no judge garland sorry if i wasn't clear.you have the power to go.on bonk the the defects with the.petition don't.affect that power the only question.would be whether that's an appropriate.use of the court's authority and.obviously that would be left to the.court.we haven't looked for responses i'm.sorry to interrupt.we've the chief has been very.personalized about the amount of time.he's given us.um already you mean the government has.already given its reasons for dismissing.this case correct.you know that is as the panel says the.motion.explained the government explains that.in light of newly discovered evidence of.misconduct.the prosecution can no longer prove.beyond the reasonable doubt that any.false statements were material.right but that's the government's reason.correct that was one of the three.reasons.judge garland oh i'll take all three of.the reasons so.you've stated three reasons and i assume.you believe that those are true.correct yes.what more is there for you to say if uh.well let me put another way let me begin.was it that optional did you not even.have to say that much.in your motion to dismiss i don't think.that we did and we often.don't but under the circumstances here.we went further than we thought we were.obligated to and by the way judge.garland just to drive that point home.we the attorney general of course sees.this in a context of non-public.information from other investigations.like.i'm not in any way questioning anything.underlying i'm just.asking this was the reason given and you.gave this reason.yes i just wanted to make clear that it.may be possible that the attorney.general had before him.information that he was not able to.share with the court and so what we put.in front of the court.were the reasons that we could but it.may not be the whole picture available.to the executive branch.oh if the judge asks you what your.reason is.and you state this as the reason during.the hearing.are you saying that's not the end of it.there would be no problem with you.saying that would there be no not at all.it's just we gave three reasons.one of them was that the interests of.justice were no longer served in the.attorney general's judgment by the.prosecution.the attorney general made that decision.or that judgment.on the basis of lots of information some.of it is public and fleshed out in the.motion.some of it is not all right so if you.stood by this reason.when judge sullivan conducts the oral.hearing.there would be no problem in doing that.with their from your point of view no.separation of powers problem at this.point given what you've already stated.to say that right.if all we had to do was show up and.stand on our motion no we've already.said that to the to the district court.yeah and if the district court goes.further at that point you could seek.mandamus again.but at this point the district court has.not actually gone further.i mean there's a briefing on bank about.what might happen but.the district court has not ordered you.to do anything other than.show up and brief the matter right with.all respect judge garland i think i.don't agree with that.the after judge gleason wrote his op-ed.calling for a factual inquiry he was.immediately appointed.as amicus as part of a process that the.district court has now explained to this.court was.meant to probe our motives so to say.that this is just an anodyne proceeding.on the meaning of rule 48 and all we.will have to do is stand on our emotion.i understand that but you can refuse to.answer any further.and if you're pressed further at that.point.you can again move for mandanis.but there's the possibility that after.all this briefing the district judge.will see the light in your view.and that will be the end of the matter.you know unless there's extraneous.outside information that someone other.than the government presents.so that there's no probing of the.government's subjective motives.judge carl and again i go back to cheney.and focker with all respect i just think.that.uh under under values the harms to a.co-equal branch from compelling us to.respond to.improper questions and accusations by.the court appointed amicus about the.reasons.understanding i think prosecutorial.there actually was a um.order of discovery and there isn't no.order yet here.isn't that right in fact it was the most.wide-ranging discovery that the supreme.court had ever seen.and said something along those lines.there hasn't been a discovery order yet.is that correct no there hasn't been a.discovery order per se but there has.been an order setting up a process.to make us defend the exec the exercise.of a core executive duty and i think it.i think to to be fair i think it doesn't.take seriously the harms to a co-equal.branch from a situation like that.where we are called in to have you know.questions and accusations thrown our way.that we've got to respond to that's.exactly what focker says.every day when i was an assistant u.s.attorney accusations were thrown my way.by by the defense council this is part.of the.job of being a prosecutor i don't.understand how.merely being the subject of accusations.from the other side.or even from the judge who often.questioned what the government was doing.if each of those was a separation of.powers case we would have a large number.of mandamus cases in this.in the circuit judge garland in the vast.majority of those circumstances there's.new separation of powers questioned at.play.in the dpa context i think it would be.fairly remarkable if the district court.said tomorrow that even if it had to.approve a dpa.it was going to have a hearing so it.could air out a bunch of allegations.about whether.the prosecutors had cut a sweetheart.deal with the corporate defendants as.part of a dpa.that seems to me exactly the harm that.focker is discussing in part 2a.and again i just think it doesn't take.the harm to a coequal branch seriously.to say.well that's not really harm until the.motion is granted or denied.because those are not the only harms.that the separation of power is meant to.guard against.it's meant to guard against oversight.and scrutiny.of this core executive discretion right.i have the argument and i've overstayed.my welcome thank you.thank you judge griffith yeah good.morning.mr wall and thank you um uh.i'm i'm struggling with uh the meaning.of the phrase and rule for the eaa.leave of court and and what that what.that means.um uh ms powell for general flynn has.a very narrow view uh of of.what it means she said i think it's you.know almost ministerial and.maybe i'm misquoting this problem i.don't need to do that what what is.what is the government's view of what.that phrase.leave of court means and let me put it.to you this way is it.is it is it appropriate in the.government's view for for a district.court judge to have a hearing.before ruling on rule 48a.i think it depends on the as i was.trying to say earlier to judgement of.austin.what the hearing is is designed to do.okay so i mean there's not a categorical.prohibition.on having a hearing right no i'm not.saying that once one of these things is.filed the district court just has to you.know stamp it and.and send it out the door the district.question that becomes what what's going.to happen at the hearing is that right.i think but kind of if i could just go.back to your first question um.i i think rule 48a has a role to play.with respect to opposed motions we know.that.with unopposed motions we know the focus.is the harassment to the defendant i.would say that.also the district court can make sure.that it's got the authoritative position.of the executive branch which it might.not if you have a prosecutor that's.been bribed or gone rogue it can make.sure the defendant's been counseled.and is not agreeing to a harassing.motion to dismiss.against the defendant's interests but i.think that beyond that.which i'll grant is a fairly narrow.conception of the rule that's what.focker says.i don't think that there's a substantive.uh role for the court to play that's.what the seventh circuit said in the.united states.it's even what the third circuit said in.richards it said no substantive.authority.you can ask for the reasons.what if the court is concerned about uh.favoritism being uh displayed to a.politically powerful defendant is that a.proper reason.to have a hearing no that that is.a concern that is not the the the domain.of rule 48.that has what's your what's your.authority for that.so that's i i would say anyway united.states i'd say richards i'd say focker.that it doesn't matter what the.the district court may believe that the.government has a bad motive.and that bad motive could be all sorts.of things favoritism or something else.but everybody agrees that the united.states can't be made to bring a.prosecution.even if it should even if it's motive.for not convincing one is irregular or.impermissible and the same is exactly.true of dismissing or maintaining a.prosecution there are checks on that.plenty of checks on them.in our political what if what would be.an appropriate hearing.for judge sullivan to call on these.facts.in this case what what are the outer.limits of what.what he could do that that the.government would think is appropriate.oh i don't think that there is one on.the facts of this case.you have a well-counseled defendant you.have the no hearing no hearing at all.i'm sorry so you're saying on the fact.of his case no hearing at all would be.appropriate.well if he needs to understand the.motion but.as a substantive matter to try to get.behind the motion.for some motive or another i don't know.okay so what do you what do you mean if.he needs to understand this.i'm trying to get at what what you think.would be.an appropriate hearing for judge.sullivan.to call in this case what would that.hearing.look like on these facts i don't think.there is an appropriate hearing that.could be had judge griffith.i think in other cases you can imagine.where a district court was just trying.to understand.the law but here judge sullivan's briefs.make clear that he understands the law.he thinks it's a different uh standard.from what i read thought could have.but he wants a hearing to probe our.motives no sort of hearing like that is.going to be permissible okay.thank you very much thank you.judge mullett yes um good morning mr.wall.um so the question central i.thought um ms powell had said and i'd.just like you to clarify.does the filing of a 48 a motion by the.government have to get approved by the.solicitor general and or attorney.general.uh i don't know about the i think it is.rare that they go all the way up to the.attorney general uh.the sourcer general is typically not.involved the attorney general was.involved here.sure no i got that okay so it's not.something that routinely happens.um and i want to make sure.i'm trying to figure out what the my.judge griff is here what that leave of.court.uh is meant to cover and to help.understand what it.doesn't allow it helps to understand.what it does allow for me at least and.so.um i think you may have said this would.be okay but i just want to confirm i had.asked.miss powell uh referring judge wilkins.to the judgment hypothetical about.um information coming in from.about a lot of nuns who have seen money.pass have.a suitcase of money passed from a.defendant to a usa.and so would it do you agree that it.would be appropriate for the district.court.under rule 48a to.have a hearing and ask the government.what was the real reason for your.decision you said in your motion.i think it's hypothetical with brady.violations.um evidence has come to my attention.maybe it's wrong.of a bribery but here's the video.can the district court push and ask that.question.what's the real motive here was it a.bribe or was it brady.i don't think uh but in a sort of.evidence-your-hearing way.no the court can call it not what i said.what i said is have the attorneys come.in for a hearing.and it's evidentiary only in the sense.that here's the video.i've shared it with you council both.both council you know what video i'm.talking about.maybe he even plays it again in court.and says what is your real reason.judgment i don't think that's.appropriate here's how i think that.should be handled under rule 48a.i think the judge can call in the u.s.attorney and say do you really want to.answer but i might so the district court.cannot ask.whether it was lied to by the government.in a filing made with it.not under rule 48a it can certainly ask.for purposes of sanctioning an attorney.before it continues.can it do that after it doesn't dismiss.the case or does it need to do it while.the case is still sending.no i i think it could do it before or.after as a matter of sanctioning an.attorney.under i said before not i don't know if.i'm just telling me i have no idea can.you.issue sanctions or hold a government.attorney.in contempt after the case of business.or do you have to do that before it's.business i i don't know the answer.judgment i would think that the answer.is can continue to supervise officers of.the court.even after training the 48-day motion.okay so it's clearly not settled.whether the district court then oh i it.may be i just i.mean okay well i couldn't figure out.either but that.that you'll have more experience than me.that probably but again i just want to.say the basis for that is not rule 48a.the basis for that would be.um the question is you have a motion to.dismiss.and at least ms powell's argument is.grant it and go home.and as the district court looks at that.motion and says.i fear i've lied to you in that motion.your position is the district court.nonetheless has to grant that motion in.which it feels.it was lied to and maybe it's a.violation of court rules that very.document.it nevertheless has to grant it and.can't inquire.about whether it was lied to that's the.government's position.before yeah exercise prosecutorial.discretion is not.substantively reviewable in that way.rule 48a when it says leave of court.and did you know the supreme court has.left open the question of whether.there's.any other public interest besides.harassment.of the defendant and to which a court.can look through and your position is.protecting the integrity of the court.in the very process in front of it.is not i'm not talking about any general.public interest i'm talking about this.very narrow.interest of protecting the integrity of.the court in the court process that's.not allowed.i'm saying that's the domain of.sanctions and contempt it's not relevant.okay that there is is it your position.that there is no.such interest inquiry.of the kind you're outlining yes no such.enquiry is appropriate on the rule 48.so it's just limited to defendant.harassment it is defendant harassment.and ensuring that the parties have.reached.council authoritative positions but when.they no longer want to proceed.and that's a council you know considered.choice by both parties.yes the court cannot keep the criminal.prosecution alive article two and.article three do not permit that.and then um did the united states.raise an objection to the appointment of.um.mr gleason that's when you're the court.appointed amicus.in the district court no may i explain.why.did you make i'm just uh just i'll give.you i'm going to get you a couple.questions because maybe you'll explain.them together because i'm getting.nudged by the chief judge here and did.you object to.the briefing order the schedule that the.district court laid out.what you said subject to the motion for.reconsideration you didn't do that.either.no not other than the arguments we made.in our motion of dismiss.right got bad okay and then um and i'll.go ahead and answer that and i.very cheap question about them i have.one more quick procedural question but.i don't want to cut you off on your full.answer to those two which are i.think maybe very briefly that the court.didn't provide notice that it was going.to appoint an amicus and when it did it.immediately after.the publication of judge gleason's op-ed.it seemed to us a considered decision.and it did not seem worth moving for.reconsideration and we were not aware of.any requirement to ask for.reconsideration of a.suicide decision especially a considered.one so.no we we did not go in and tell the.district court that uh that it should.not have done that.okay and then one last thing there's.been some talk about.refusal and the judge's.conservative bias or interest.self-interest in the case.is man in the government's view just.generically is mandators.appropriate to raise recusal issues if.the district court judge has if the.parties haven't first asked the district.court judge to refuse.i think that would be an odd requirement.where part of what gives rise.to the potential appearance of.impartiality is the conduct in the.mandamus proceeding proceedings.i think the mandamus petitioned itself.even before.there was any filing by um.uh judge flynn um already asked for.disqualification of the judge so i'm.asking.are you aware of any case that has.granted that mandate on mandamus has.granted recusal without someone first.asking the district court to accuse.i'm i'm no i'm not aware that a court.has ever been faced with a situation.like this one i mean this is an.unprecedented ongoing petition.all right thank you.thank you judge pillar.good morning from the general wall.morning.i think i think we all agree we owe huge.difference.to the united states government and.there's not a judge in the city that.questions that.and i think it's clear that courts go.virtually complete difference to the.government under rule 48a.and i appreciate that it was general.flynn and not the united states they.initiated the mandamus petition and that.general flynn alone sought recusal of.the district judge at least at the.at the panel stage but.you know the integrity and independence.of the court.is also applied here.you know the separation of powers is.protecting article 3 courts also.and in this case.the district judge.was also skeptical in as you know in the.plea colloquy accepting the plea in the.first place.and in fact flynn would have been.sentenced long ago.but for judge sullivan's skepticism and.saying if you don't want to.if you don't want to do this right now.take more time talk to your counsel i.have a room for you.but then the district judge at your.urging at the government's urging.accepted the plea is factually supported.by the government's evidence.government urged he didn't dream up this.order he didn't dream up the plea of.guilty.and the government demonstrably said we.can meet our burden of proof beyond.reasonable doubt he looked at that.he scrutinized that.and now you're interesting that the.district court contradict an order that.he previously granted.he previously got on board and you're.saying.actually never mind.rule 48 requires leave of course he has.to participate.the rule calls on him to play a role and.i'm just.what self-respecting article 3 district.judge would simply.jump and enter an order without doing.what he could do.to understand both sides.to understand both sides he wasn't.appointing gleason to be the judge he.was putting gleeson to make the.strongest arguments.and he understood and trusted that the.government would make its strongest.arguments and he would therefore in the.adversary system have the strongest.understanding of what was before him.and i appreciate i've listened carefully.i appreciate that.your argument today has focused almost.entirely.on the prospect of a factual inquiry.that i think you said the district judge.seems to want to engage in.but all that was scheduled was briefing.an argument on the law.right he was briefing an argument he.never he never said.factual development necessary yes.gleason asked for it but there's no.order of discovery here.so if it's just lawyers arguments about.the existing record.just lawyers arguments about the.existing.record what is.the intrusion on general.clear flynn's disputable right.it's a two-point such pillar and they're.really critical.the first is you are certainly right.that the.government no longer wants to prosecute.and that's true.for any case in which you've got rule 48.and you know for a small subset of them.you actually have.a plea we're not asking the district.court to contradict anything that it's.done earlier as focker says.the rule 48 motion like approving a dpa.says it involves no formal judicial.action and the court never exercises its.coercive power.so accepting a plea is different from.simply allowing the executive to.let a case go as a constitutional matter.and to take the second part of your your.question.you're right that the district court.below never entered an order per se and.said they'll be fact development he just.appointed an amicus that had called for.it and has now.filed briefs asking for it but he has.said that to this court both in his.grace to the panel and even more.explicitly at various points.in his rehearing petition now an.argument below i think the district.court.council backed away from that and said.he just wants to have.a hearing and ask some questions and the.dissent accordingly believed that.discovery and evidence and this kind of.factual probing wasn't at issue if the.court really thinks that's not.at issue then i think that should be.among the limits.that it should place on the district.court when the case goes back.if all we're doing is arguing about rule.48 it's hard for me to see them what.we're going to do below because the.district court has explained.what its legal view is there's no basis.for looking behind what we've done.on the face of the motion itself so then.i'd say.it's even clearer that we ought to get.mandamus because.there's no reason to have any.unnecessary proceeding if it's not meant.to probe behind what we've said.and if what we've said satisfies the as.you agree is a very deferential standard.it's hard for me to see what the point.of these further proceedings is.at all then i think the panel was.clearly correct to enter mandamus.doesn't it cut exactly the other way.that.i mean that that you you haven't even.asked the district court to rule yet the.district court hasn't ruled.i think that's just the basic.differential between this case and.every other case except for richardson.yeah i guess.one follow-up you said you're not asking.the district court.to contradict himself but you are asking.him.to accept and if you weren't asking him.to do anything you wouldn't be here to.maintain a sentence.right you need a judge to to sign off.on the rule 48a and.right i mean there's right now there's a.plea in place.he could call a sentencing hearing.tomorrow presumably.that's right just follow so two points.one in the motion of dismiss.quoting focker and a number of the.supreme court's cases we we.laid out the fact that we thought we.were entitled to have the motion.dismissed granted rather than accepting.that argument the district court has.convened this entire proceeding.invited the public to participate and.raise the specter of contempt.but in moving forward with it we're not.asking the district court to contradict.itself it found before that there was a.factual basis for the plea.we're not asking the district court to.say anything different we are only.asking the district court to say.the attorney general has now made a.policy judgment that is no longer in the.interest of the united states to.prosecute.whether or not the government could move.forward and there's an adequate factual.basis.and i am bound to that decision because.that decision is vested in him under the.constitution.there's no inconsistency between those.two things and that's why the court says.in soccer.that signing off on a dpa or allowing.the court to dismiss.a prosecution is not like accepting a.plea under rule 11..it doesn't invoke the court's coercive.power it doesn't involve formal judicial.action.adopting or imposing anything it just.agrees to let a case go.exactly it's just.really striking and remarkable what is.the government.worried about if none of the inquiry.that you're highlighting has even been.scheduled.he wanted an argument anyway i'm i.think that i understand the oh the only.last question i have for you is do you.agree.with ms powell that it's not.the reading of rule 48 a that.imposes the severe limitation on the.court.being able to deliberate but the.separation of powers.overlay because the the history of the.rule seems to be that.that there actually was quite a robust.contemplation that.judges would scrutinize whether there.was for example political favoritism.and is it also your view that that.doesn't matter if that's the right way.to read the rule because.the separation of powers would render.that unconstitutional.i think that overstates the history.there are some members of the drafting.committee that mentioned favoritism as a.concern.but they didn't put any mechanism in the.rule for allowing the court to.superintend prosecutions in that way so.i'm not sure the history is.as clear on this is just leave a court.yeah.in light of constitutional principles.and and avoidance.and just to go to your your other.question very quickly you know.when you say look what are the real.harms i think that's cheney all over.again it's what are the harms you can.assert executive privilege.what are the harms if you want to show.up and you want to have these questions.you don't have to answer them you can.stand on your motion and if the district.court is frustrated.he can hold you in contempt he can grant.he can deny the motion what's the big.deal.and i think just as in cheney that.understates the harm to the separation.of powers.i would say the same is true here it's.hard for me to read focker and think.that's not among the harms that focker.is talking about to the executive branch.okay mr wall just the very last.shouldn't the district court be able to.hear and consider.in light of the strongest arguments and.i'm not talking about facts.whatever's in the record now period.assume that that is.all that there is but shouldn't the.district court be able to hear and.consider.in light of the strongest arguments on.both sides.why the government believes the evidence.is now.doesn't support going forward your view.that he should.that he should not be able that rule 48a.does not authorize.him to have a lawyer's talking kind of.hearing.to guide him in exercising the leave of.court authority.we haven't said that a district court.doesn't have the power to appoint amiki.in criminal cases generally.the problem with the appointment here is.that like.everything else the court is doing is.designed to entrench.on executive power so if a court.tomorrow said look i'm not sure whether.i'm going to approve this gpa.i think maybe it's too lenient on the.corporate defendants i want the best.arguments from both sides about whether.i should approve this or whether it's.too lenient.and so i'm going to appoint amicus i.think focker squarely forecloses that it.says.there's no substantial role for the.courts and whatever the district he.doesn't say that though if he just said.i.want to understand i'm sorry i'm.interrupting it's my feeling of urgency.because i know the chief wants me to.move on.but but if he just wants to understand.what the government's position is.and he thinks the adversary system is.the way to get there and he's going to.appoint the devil's advocate on one side.and have the government argue strongly.on the other.that you don't have any objections to.that judge pillar just to be clear.that's.not what this is the difference i.understand that.we have a difference of opinion on that.but what we've been asked to mend damage.and so we have to draw a line.that's right but the district court told.you in its brief if you look at the.rehearing petition pages 14 to 16 and.703.it says it wants to see whether the.public interest is served and it's what.it says is.quote legitimate prosecutorial interests.this is not a lack of understanding on.the part of the district court the.briefs of.the district are very good the district.court fully understands the united.states position.what it wants to inquire into is whether.that position is in its view.quote legitimate and that is exactly.what articles two and three do not allow.thank you thank you judge wilkins.yes good morning uh general wall.so in your view.bocker forecloses any.factual development at a rule 48a.hearing yes.beyond ensuring that you have the.authoritative positions of the parties.yes you can make sure the defendant is.counseled you can make sure that.the prosecutor hasn't gone low or been.bribed but outside of that.yes so if.in my hypothetical.there is a videotape of the.u.s attorney.taking a suitcase full of cash.and the judge wants to.have a hearing on that because that same.us attorney.signed the motion you would say that.that hearing is appropriate or not.appropriate.under rule 48a i would say the hearing.to make sure.that the executive branch actually wants.to dismiss.is not a problem but if the u.s attorney.shows up and says i want to dismiss.we'll deal separately with whether the.ausa committed bribery.no the.excuse me sir my hypothetical is that.the us.attorney is the one in the videotape.taking.a bribe and the judge makes that factual.finding.that the person standing in front of him.the u.s attorney.is the person in the videotape.again that's the toughest case at the at.the margin i'll give you but my answer's.still the same the court can ask the ag.or the deputy attorney general whether.they really want to dismiss.if the answer from the executive branch.is yes then whether.some individual in the executive branch.has committed a crime is not the domain.of rule 48a.the executive branch could prosecute and.the court could sanction or.have contempt under separate authorities.but it would not be a basis for denying.the rule 48a motion.it would be a separate criminal.proceeding involving the corrupt united.states attorney.in in that is based on focker.and the constitutional backdrop on which.focker relied.if the attorney general said in your.hypothetical yes.i want to dismiss i have lots of good.reasons i will separately look into.whether.the united states attorney took a bribe.i think the court would be required to.grant the motion and dismiss the.prosecution it couldn't.keep it alive so suppose there's a.hypothetical again hypothetical.situation 10 years from now different.administrations.where the attorney general is in the.videotape.by the nuns taking the bribes.no authority under 48a to dismiss that.case.no riots are still the same and the.political and public remedies for that.are are uh i think sort of so obvious.that it wouldn't need to be the domain.of rule 48a.and i don't think anybody has.contemplated that that rule 48a.is meant to aim at that sort of public.corruption.well so so the case would still get.dismissed as to that defendant who.bribed the attorney general.the attorney general might be able to be.prosecuted or impeached but.but the defendant would still get off.scot-free as a result of committing a.bribe.maybe it takes away 48-a works maybe if.i could come out a different way judge.wilkins.in the vast majority of cases where what.we're talking about is not commencing.charges.i take it everyone even the district.court agrees that there's no rule for.courts to play under rule 48a.even if they think that the executive.has failed to prosecute for some.improper reason.like bribery like favoritism like.corruption.everyone agrees that the executive can't.be made.to prosecute the case no matter how.impermissible its motive for declining.to do so.and all we're saying is that as a as a.rule-based matter.the same rule applies to rule 48a if we.have brought the charge focker says.dismissing is the same as bringing as a.constitutional matter.it's bad conduct to be sure it should be.punished to be sure.there are other remedies for it but they.don't concern rule 48a.well 48 a motion could be made after.sentencing so you're saying.if the attorney general is bribed by the.defendant after the sentence because the.defendant didn't like the sentence that.he got.the court would still have to vacate the.conviction.based on 48a even with a videotape.evidence of a bribe to the attorney.general.as focker says there is no substantial.role for courts to perform that sort of.judicial scrutiny and oversight.the executive branch's conduct of.prosecutions is governed.but it is governed by the legislative.branch and the public through means like.legislative oversight.impeachment and the rest it is not.governed by courts on the rule 48a.that's right.okay thank you that's all i have.thank you judge rao thank you.um so um so mr wall.um i guess my first question to you is.um.in light of the defense um accompanying.the panel.opinion which rested in significant.measure.on the failure of the government to file.a separate mandate expedition.and then the subsequent grant of.rehearing on bank.why has the government not filed a.separate mandate.petition at this point so.i think judge ralph i understand the.arguments about sort of the timing on.the harms.i don't really understand the argument.that the court can't look at the harms.or that we needed to file.a separate petition we're a party.we filed a brief for the united states.we articulated at length our harms and.in the conclusion we urged.mandamus i take the line between cases.like cobell and exxonmobil to be.whether we have filed and sought the.relevant release not.how we capture into the breeze nothing.here would have been different if we had.filed exactly the same brief.but we had said it's a brief for the.united states and a mandamus petition.and we haven't been able to find any.case from any court.where an apparently supported an.appellant or a respondent supported a.petitioner.and the court didn't look at the.arguments that that party was making.in support of the relief so i i may.agree with you as to that argument but.but at this point it seems that at least.some members of the court do not.so i i i understand that there may be.disagreement over that but i.i just think that it would to have come.in now.and to have filed a late breaking.mandatory.mandamus petition that would have been.word for word what we had already put in.front of the court.is exactly what i understand cobell and.exxonmobil to say.isn't necessary and i think it would.have been.distracting it arguably would have been.dilatory in the same eyes of the members.who think that we should have filed.earlier and again even if you thought.that there was some problem with our.raising those harms as a party as a.respondent supporting petitioner.which we do routinely in the courts of.appeals indeed there's a supreme court.rule expressly designed to allow this.i still think gerald flynn can raise the.harms under cases like bond.because after all it's not an abstract.separation of powers we're talking about.it's meant to protect.individual liberty he has his own.article three injury.hence he can raise the separation of.powers violation and even more generally.with respect to equitable relief courts.look all the time at the interests of.third parties in deciding whether to.grant or deny equitable relief.so it's hard for me to understand how.the court if it can do that.can't in granting mandamus look at the.harms to a party.that actually filed and requested.mandamus i think it would come down then.to saying.we didn't caption our brief a particular.way and i don't understand anything in.the rules.or uh common sense to recommend that.approach okay um so.no one here seems to be suggesting that.the district court.can deny the rule 48 motion on the facts.here.and um we accept her argument you know.that probing the reasons behind the.executive.decision about whether to prosecute.infringes on article 2.um you know and that harm is is pretty.clearly established by focker in other.cases.um it seems that that in our cases.you've talked about cheney when the.court has found.a harm to the executive branch or found.a separation of powers violation.that an appeal is not considered an.adequate meaning to protecting the.executive power and and i think that.is also what the 1998 field case stands.for involving the independent council.and cobalt and i'm wondering if you are.aware of.any cases in which we found the.separation of power violation or a harm.to the executive power and then not.granted mandamus.because we've waited for the executive.branch to appeal.i am not aware of any case judge rao.where.the resolution of emotion was compelled.by clear law.and the conduct of hearing the motion.would violate articles two and three.or any other constitutional principle.but mandamus was denied the closest.example of course is the.seventh circuit where uh the seventh.circuit granted.mandemos um so no i'm not aware of of.of anything like that i understand that.there's some skepticism on the court.about doing it at this stage we do think.that cheney and other cases make clear.focker among them that an appeal is not.going to be an adequate.remedy for the government because of the.harms it faces.from the process but if the court.disagrees with that.i think at least what it would need to.do are to place on it the limits that.the panel dissent.thought were implicit in the proceeding.and that the courts.can says have indicated i think it would.need to indicate to the district court.that it needs to take a harder look at.rule 48.and focker because its role is a limited.one.i think it needs to take off the table.the sort of fact development.the district court is trying to hold.open um.not withstanding the panel dissent and i.think it would the district court would.need to make a quick decision.uh so that we could come back to uh to.the mandamus panel.in a timely way thank you.thank you um mr all just one question.one quick question.the seventh circuit case that's cnra.united states case.uh yes sir and and that one the.rule 48 motion a rule 48a motion excuse.me was.denied by the time mandamus was granted.is that right.yes that's right okay thank you.judge henderson yes i just have a quick.question mr wall.um when the trial judge uh.appointed amicus he also asked that.amicus to.opine on whether.flynn had committed perjury or contempt.and you referred to it as the specter of.uh contempt but aren't there two ways to.look at it in other words.it protects the article 3 interest.because if a trial judge thinks he's.been hoodwinked.or dealt with on.excuse me dishonestly he can hold.whoever is responsible for it in.contempt on the other hand.it could also indicate.that judge flynn is thinking i'm sorry.judge sullivan is thinking.well i may have to dismiss the charges.but i'm not through with him yet.you have a position on that.judge henderson i will say although it's.not our goose being cooked on the.contempt piece of it i do.i find it maybe the most troubling part.of the case.because as the national association of.criminal defense lawyers explained in.their.brief in the district court it is not an.uncommon occurrence for a descendant to.plead guilty.because he thinks that's the best deal.he can get and then to later decide that.he wants to withdraw his plea.and maintain his innocence that is a.fairly common proceeding in it in a.district court.as far as the folks in the criminal.division are aware of the department of.justice no.no district judge has ever raised the.specter of contempt for that.it's happened in front of this district.court before i'm not aware he's ever.raised the specter of contempt for any.other.defendant and the reason is that the.supreme court's cases are clear.that that may be perjury but it's not.contempt and even the court appointed.amicus hasn't tried to make an argument.that that it is.under cases like hudgens and michael and.so.it's i i think that raising that.creates a real question about why now.and why this.uh defendant again it's not a harm to.the separation of power so it's not.something we focused on in our brief.but i my own i do judge henderson think.it's.fairly troubling and in terms of your.dichotomy more the latter than the.the former it seems more a sword over.the defendant's head.than the sort of thing that a district.that this district court is is.is legally entitled to do i don't i'm.not even sure how it's arguable.under cases like hudgins and michael no.one has tried to make the.the case the district court has never.even addressed that in its briefs to.this court.thank you thank you judge rogers okay.thank you judge tatl um.i just have a quick uh more or less.summary type of question.um could you just tell us what's your.very.very best argument your very best story.given there are so few rule 48 cases.what is your very best argument that.it's.clear and indisputable that the district.court has no substantial rule 48a.rule under the circumstances of a case.like this.where one the government seeks to drop a.prosecution.after the district court accepted a plea.of guilty.and number two the district court has.not acted.on your motion to dismiss.what's your best argument it's clear and.disputable under.those two circumstances together.so i fear this is not going to persuade.you judge title but i'm reading from.focker i ask the question because.always open to persuasion decisions to.dismiss.pending criminal charges lie squarely.within the can of prosecutorial.discretion.to that end the supreme court has.declined to construe rule 48a's leave of.court requirement.to confirm any substantial role for.courts in the determination whether to.dismiss charges right.and jordan soccer went on by the way.judge taylor to distinguish.rule 48 from something like rule 11..so i think it specifically rejects.right but that case involved neither of.two circumstances present here.well two things one i i think i granted.earlier i meant to.that it would have been a harder case.though i think it should have come out.the same way if there'd been no hearing.there.once it's on the books i don't.understand what difference the hearing.can make.because that's part of the process.that's foreclosed.as we know by the constitutional.backdrop.and since that just leaves the.distinction between the pre-plea.and the post-plea situation but i.understand focker to reject that.rule 48 does not like rule 11 set up.different standards.for stages of the of the proceeding and.of course the constitutional principles.that led falker to interpret the rule in.the way that it did.are the same because you need the.adversity and you have to respect the.prosecutorial discretion.throughout the case there's nothing.magical about the plea it doesn't enter.a judgment of.of conviction even and there's still.many things that go on in front of the.district court there would be many.things that went on here if this rule 48.motion were denied.before we got to a final judgment so the.text of the rule doesn't distinguish the.cases don't distinguish.the constitutional principles are the.same so.once we know that rule 48 is not meant.to do this for the pre-plea situation.i don't see how the court could say that.as a rule-based matter.it's meant to do it for the post-police.situation.i have no further questions thank you.thank you.thank you judge garland yes thank you.hello again general wall.so um you were asked about um.how often we grant uh.a mandamus and separation of powers.cases.and he sort of amended the question by.saying what.really matters here was the process and.in answering judge.table's question you said the real.problem here is just the hearing itself.so i'm trying to draw figure out how we.draw a line.between this kind of separation of.powers claim.leading to mandamus and the many other.ones that we have in the district court.not leaning to mandamus unless.we're going to have a flood so.there are a lot of separation of powers.cases that.challenge actions of various.administrations under the separation of.powers.and in fact the argument in the.appropriations clause case that we just.heard on bach.our last hambach was that the alleged.was.that the allegedly unauthorized spending.by the executive if permitted to go.forward.would constitute a violation of.separation of powers so here's my.hypothetical assuming they're standing.and assuming that that claim is.indisputable.would it be appropriate for a plaintiff.to petition this court to mandaeam as a.district judge to rule in its favor.and not wait for the district court to.ever rule.in a case between private parties judge.garland i'm not sure that it would i.would.limit it in three ways that i think.cabin.uh your of concern.or the congress as a whole.in other words the congress claims in my.hypothetical.the congress claims that uh.the executive branch in disregard of the.appropriations clause.is spending money and in fact imagine.that the executive branch just says we.don't care about the appropriation.clause we're going to spend it anyway.does why is that kind of separation of.powers claim.remedial while the having to go to a.hearing claim that you have here.is non-remedial i'm only looking at that.adequate alternatives ground right and.so if we've assumed away all the.threshold questions like standing and.and all the rest yes just to preserve.our.our objections on those grounds i.understand i'm trying to decide the.other case today.right i i guess i'd say a few things one.the constitutional principles have got.to be.crystal clear and here they are under.focker you got to.have the clear and indisputable right.not just be correct on the merits as you.know.all right i'm giving you the.hypothetical the constitution says.appropriations are made by the congress.and the executive says i don't care i'm.going to spend the money anyway.it's inevitable that there's a violation.i'm not saying that's the circumstance.we're in i'm just.asking you if it's in this or imagine.now the supreme court is also held in.another case.that the executive can't which hardly.seems necessary.the executive can't spend money without.appropriations from the congress.does that not even have to be heard by.the district judge.no so i'd say two other things judge.garland first.there it's not the district court.imposing the injury it's an inner branch.attitude.but man the root of vandamus is about.confining a district court within the.bounds of its lawful authority.so this is much more squarely within.there and of course here you have the.executive branch.in the case raising raising the harms.from what the district court is is doing.in your hypothetical you can pay back.money of course.but here you can't undo the scrutiny.from.the district court's process that it is.set up which usurps.uh our exercise of prosecutorial.discretion there's no way.to do that and looking at the.alternative remedies paying back money.where it's been spent on various.laborers to do things.is not a realistic answer to that.question.the claim of the in the hypothetical i'm.raising is that the money is being.spent and that is or is about to be.spent.and that will constitute an irreparable.injury.to the congressional branch and the.money can't be obtained because.in any practical way because it's being.spent on.goods and services that can't be given.back by anyone.so i don't why is.you're going to a hearing you meaning.the executive branch.more important or more irremedial.than congress's authority to determine.spending so i assume that's a situation.though where a party is coming in.and asking for an injunction against the.spending of the money.but mandamus as you know is a writ.directed to the district court because.the district court is opposing there.it's an executive injury so.yes you'd have to run the equitable.factors on likelihood of success on the.merits and.and equitable interest and all the rest.but i don't think it's a problem for the.court.in terms of if it were to grant mandamus.here.why not mandamus in every other case.because.here what you have is you've got clear.circuit law.and you've got a district court that's.put in place a process.which where the harms really can't be.remedied uh uh.later let me just adjust the.hypothetical one more time.what i'm asking is whether the judge can.be mandators.to make a ruling so imagine the district.court says.somebody applies for a preliminary.injunction and the court says all right.well i'll hear it.we're gonna have a big hearing i don't.care what the supreme court said about.this i want to have a big hearing.um and i'll you know i want a bunch of.facts.and the congress's argument is every day.separation of powers is being violated.so the mandate.would be directed against the district.court to make a decision it has not yet.made.which is what you're asking the district.court to do.what asking us to do here order the.district court to make a decision that.has not yet made.i don't think so judge garland i think.the difference between a case like that.one and a case like this one or chaney.is that the separation of powers doesn't.itself require federal courts.to stop injuries imposed by the.executive you've got to satisfy whatever.the legal requirements for an injunction.and all the rest.it does as cheney says prohibit federal.courts from injuring the executive in.particular ways.that is the traditional function of a.rid of mandamus or at least one of them.so i think that's the difference between.your hypothetical.in this case cheney in this case can be.on one side of the line.without sweeping in all of the kinds of.cases that you're concerned about.okay thanks very much appreciate the.answer.thank you judge griffith yeah general.wall i just have.uh one quick question i think um uh.you're right to trade us to the.separation of power is concerned.here and that's critical uh but help me.understand.how is it a breach of the separation of.powers.for the government to be asked questions.but why can't it be the case that at.this hearing if an inappropriate line of.inquiry is.followed the government objects it.opposes an objection it doesn't.answer and then that gets appealed and.we follow the normal course isn't that.how we normally.deal with uh with with with claims that.separation of powers or.are being uh are being are being.violated by.uh by asking questions that are.inappropriate.so judge griffith that was exactly the.court's reasoning.of this court's reasoning in cheney look.all the executive needs to do is assert.the privilege.and then we can deal with the harms from.if the district court requires you to.turn over something that you say is.privileged.but what's the harm this court said in.simply requiring the assertion of the.privilege.and the supreme court said that was.insufficiently respectful of the harms.to the executive branch.and i'd say the same thing here and.focker supports this.there is a harm that i think this court.should not undervalue.to making the executive come in and.respond to the kinds of accusations.that this court appointed amicus has put.in a 70 page brief that by now the court.has read.and simply you know i think it under it.diminishes.the interest of a co-equal branch to say.well what's the harm in being called to.account like that what's the harm in.having to answer all of those.if you don't want to put on evidence you.can decline if he wants to hold you in.contempt.he can that entire proceeding which i.think threatens to be a spectacle in.front of the district court.frankly is what articles two and three.are meant to place off limit.once the executive wants to dismiss and.the defendant agrees.there's no controversy left between the.parties and the courts injecting itself.in a way that as i say.creates real harms to the executives.thank you thank you judge molette.yeah i'm just following up on that.question from judge griffith.in other criminal cases um and.cheney was in a criminal case uh in.other criminal cases.when there's been a uh question to.dismiss or not.and court says i'm thinking of united.states versus armstrong um.crack cocaine and whether there was.racial bias in the prosecution.and when the district court inspected.the government's objection on discovery.that the government didn't want to do it.just said no we're not we're.we cannot comply go ahead and enter.judgment against us and will appeal.um and when i try to understand your.harms here.sometimes in the briefs it sounds like.you want mandamus against mr gleason.and his arguments but at these points at.this point.we don't know what the district court.would ask we don't know what the.district court would.insist upon even if the district court.asked something you say.we're not going to answer because of.privilege or separation of powers.you can just do that there's nothing.that compels you.as in cheney to start turning over.documents.um but you'll either get you can just.say we refuse to comply.um and if the government does i won't.say commonly but not uncommonly.um it says fine rule against us and.we'll take our appeal.why isn't that there's nothing here that.requires you to disclose.you don't have to respond to every.argument made by mr gleason government.doesn't respond.to every argument an opposing amethyst.their party makes.so you say what you said already we.stand on our filing.we will say no more and if the court.thinks that's the basis to rule again so.far against us we'll take our appeal.does that not would that process not.protect you.against any separation of power's injury.armstrong i don't think it would.judgment two points one.as you know armstrong is an exception of.the normal rules justified by the equal.protection clause and even that.exception is a very tightly cabined one.it sets up a very high hurdle and only.where you've got clear evidence of an.unconstitutional motive.you don't have anything like that you're.talking about the process for the.government to avoid injury i'm not.talking about the constitutional issues.there versus here.i'm talking about the process for the.government to avoid injuries if you get.a question you don't.you ignore arguments you feel like you.don't have to answer you just say we.refuse to answer.they're not relevant they're not legally.relevant we will not address them.right so that was going to be my.information right and you just said that.to the disregard.but my first point was just that probing.the executive in the way that armstrong.allows is a very narrow exception.required by the ultimate supreme court.holding again i'm talking about the.process by which the government.responded.right right that was in the government's.position in the lower court in armstrong.um and um uh the process will use there.and it could be used here and avoid any.harm.no one makes you right you know it's the.worst would happen i suppose.for an attorney in contempt you get an.immediate appeal of that too but that.wasn't even no one's even mentioned that.so that would completely protect you.against.disclosing anything that you don't think.you should have to disclose.but i guess what i've been trying to say.is that.i think the process itself is harmful.and if a district court said tomorrow.i want you to justify this dpa and if.you don't want to explain to me why.you've entered into it or why you've.taken a sweetheart deal.then you know you can stand there as the.amika says various things and i create a.record on your.silence and i take that to be the sort.of harm.that soccer says is not permissible.because you're extending.the uh the uh the criminal process.you're exposing or asking the executive.to expose its deliberative process.you're threatening to reveal sensitive.information because actually wait wait.wait no one's threatening to reveal.you can you've got complete control over.that and so asking the government to.reveal something that.the government considers to be.privileged.and maybe the district court's wrong as.rain but the district court.thinks it's an open question that's.been damageable every time that question.a question like that is asked.in a district court across this country.that's an advantage as well.when they know judgment when a district.court in this circuit.begins to probe in that way with respect.to a dpa.or a rule 48 motion it is mandated under.factor and the reason.and i i i may not persuade you but.the reason is that the harm from.usurping a constitutionally vested power.in another branch.is not undone we'll just be clear asking.questions as would you survive it just.to be clear your position.is no one's forcing you to answer you.have control over your answer or.non-answer.you're asking the question is.the constitutional violation just to be.clear just understand your position.yes that's not a price or cost that's.imposed by rule 48a.okay and then um i want to ask again.because.just to be clear it's a little surprised.about your response about lying to the.court so let me make things.absolutely crystal clear you have a.crate and this is a hypothetical case.capital h.criminal case this report has said it's.a standard order on brady disclosures.government says we've complied we've.turned it over.this record again before charles always.want to make sure.you've done everything under brady.you've given them everything you have.you've asked everyone.who would know or have information.you've checked every file don't say yes.yes there's nothing else we've done an.open file process in this case we've.given the defendant everything.third time just record confirms right.before trial you have done.everything brady requires everything has.been disclosed absolutely your honor.it's now the first day of trial.in the presence of the court the.defendant hands the defense attorney who.enhances the prosecutor a briefcase.filled to overflowing with 20 bills.falling out of the scene.it's handed to the prosecutor who is the.u.s attorney.and the attorney general sitting right.there next to her.and the government upon receipt of that.briefcase.submits to the district order rule 48.motion.to dismiss and it's 10 pages long.it has affidavits and it says there was.a brady violation.in this case so in the presence of the.district court.money has exchanged hands previous.representations about brady.are now being undermined and your.position as i understood it from your.prior answer to me.is that the district court has no choice.but to grant that motion to dismiss.and that would be true even if it is.unclear.whether the district court could.prosecute criminal contempt.contempt in the court's presence after a.case is dismissed.yes but if i may explain my answer the.court can.impose sanctions and pursue the brady.violation.it may be even be able to pursue the.bribery.has to finish the bribe and make it.effective has to.fully the court's reputation by closing.the deal.between the two parties what is your.clear.authority for that because focker says.on page 743.to be sure a district court judge is not.obliged to accept a proposed decree even.on its face.and even after government explanation.appears to make a mockery of judicial.power.so you can't port to point to so.what's your clear and undisputable.authority.that rule 43a compels dismissal even.if it's unclear even if it would there's.a risk that it will strip the court of.the criminal contempt and sanctions.power once the case is dismissed.so three things uh judge mullet the.first is.i take everyone to agree that that is.the situation in the pre-plea situation.i take it even judge sullivan agrees.with that.so the only question is whether the.police somehow triggers a different.regime and under rule 48 we don't think.it does.it's all bad conduct to be sure to be.clear i don't agree that that would be.true.pretty plea if a bribe was executed in.the.presence of the court but go ahead well.i i didn't understand.anyone to to to dispute that but.second but what i do actually rely on.focker first when the court's talking.about the mockery of justice.it's talking about the consent decree.context where you are invoking judicial.power and an ongoing judicial role.obviously you couldn't involve the court.in that kind of a mockery.but in any event here it has to be a.fighter.433 does allow involving the court in a.mockery.it has to be a following that on its.face makes a mockery here one of the.attorney general's reasons was the.policy.i hypothetically i'm not talking i'm.asking only for an answer to a.hypothetical question that did not on.its face make a mockery of justice.my hypothetical i am not is a.hypothetical i am not for a minute.suggesting that's what's going on in.this place to be absolutely clear.no the motion and i didn't understand.the motion you're hypothetical on its.face to be a mockery.the question was what the government's.actual motive was.that might underlie what it was saying.was a brave violation the motion on its.face seemed fine it seemed like the kind.of thing that could be granted.in lots of other cases where there was.no evidence of a bribe without any.question at all.routinely granted i i took it just to be.that the judge has a question about what.the real process.real motives are of the prosecutor who's.otherwise filed a motion that's bad.i will represent the hypothetical the.district court does not wish to be privy.and party to closing the deal.well i'm sorry ranting the motion.yes if the motion just comes in and says.look we think there's a brady violation.we want to dismiss.but the court thinks maybe that's not.the motive there was bribery you've got.that.though it's not it's clear as rain.what's going on.three representations about brady i'm.just trying to be i don't i'm trying to.get.make sure and maybe it's just your.position sometimes the government has to.take our positions but.um there's nothing ambiguous it's in the.presidential support.and the court wants to protect the.integrity of the court.and not grant the motion then and the.government's position as i take it and.you can just confirm yes.is that rule 43 does not allow the.district court.to not participate in that activity it's.really to.preserve the integrity of the judicial.process no i think if you're asking.about the consent decree context it may.be difficult i don't know i am asking.about.the hypothetical identity which is a.criminal prosecution i'm sorry.when you said rule 43 i know rule 48.i'm so sorry rule 48 i do apologize yes.we'll 40 a day.no i don't think it leaves that role to.the court and again if i could just make.one point.everyone agrees that is true if that.exact same bad conduct went on.at any other earlier stage of the.criminal proceeding and maybe the court.doesn't agree.but i think i think that's been fairly.well accepted throughout the litigation.that.you can't force the uh the.executive to bring a prosecution or to.keep one alive pre-plea.and all we're saying is nothing changes.in the police circumstance there are.lots of outlets for it.and there's it's not that the court is.powerless but it still has to.it still has to let the prosecution go.if that's the considered authoritative.position of the executive branch yes.all right thank you thank you judge.pillar.hi uh mr all right.on the lines of the same line of inquiry.what the what the government is asking.of the court and how the court is.implicated if there were.no rule 48a.at all um.which is sort of i gather how you're.reading the rule to apply here.and there were a plea entered before a.district judge.and the government decided that it.didn't want to pursue that prosecution.what do you envision would happen.so it's not judgmental that we think.there's no role under rule 48 or that.i'm reading it out.it has work to do for opposed motions.and even for all opposed motions.to protect the defendant in cases of.harassment and of course to make sure.you've got something in a case like in a.case like this if there's no rule 48a.the government wants to walk away is.there a conviction is there not a.conviction.is there a private settlement between.the government and the defendant.what if then the district judge.scheduled sentencing.i mean because i'm trying to i think i'm.trying to probe my impulse that.the judicial integrity is at stake here.together with your impulse that.executive integrity has taken.and and.the extent to which you recognize that.there is any.judicial integrity of state care and i'm.just i'm literally i don't under i don't.know.and i'm so i'm trying to understand what.role you think if any of the court plays.i think in the absence of rule 48a the.plaintiff could dismiss its case here.that's the prosecution as in any other.context.rule 48a does set up a hurdle to that it.does require leave of court.it's just a hurdle that has to be.understood as a relatively low one.in light of the constitutional backdrop.and i don't want to say that it doesn't.involve judicial integrity in any sense.but not in the relevant.sense because we're not asking judge.sullivan in granting this motion.there's nothing he could follow a.simultaneous opinion saying he doesn't.agree.he thinks there's a factual basis he you.know uh.you know he he's not signaling at all.and indeed.a district court might strongly see that.the prosecution should be let go.so there's nothing about deferring to.the executive's judgment.that means the courts independently.agree with that judgment.exactly but you haven't even waited to.see whether he.would defer uh but anyway that's.that that was helpful so if there were.no rule 48.the government could just stop pursuing.the case and.send a letter to the court and and that.would be done.in in your view that would be effective.and ending.even though there was a plea that was.accepted i think so because there'd no.longer be any article 3 controversy.between the parties and there wouldn't.be any authority.beyond rule 48 for the district 42 to.keep it alive and that seems to be.at least as important maybe more.important on the criminal side.where you're not just talking about an.adversarial contest between private.parties.you're talking about an advertarial.contest between a private citizen and a.branch of government.and what the district court has never.explained is how.it could keep alive a controversy.not over the executive's objection which.means that if the rule 48 motion has to.be granted at the end of the day.then the real question is what is the.purpose of allowing unnecessary.proceedings to play themselves out.and the only way to think is the course.i think there are no harms to the.executives.yes and i think it's this has been.clarifying here because i think i.you know our court has been there to be.a role.um under amadon for example.on page 620 where uh.we refer to rule 28a's requirement of.judicial leave.which gives the court a role in.dismissals.and there it's just following indictment.you know in the exercise.its responsibility the court will not be.content with american quizory statement.by the prosecutor.require a statement of reasons um the.role of.guarding against abuse or prosecutorial.discretion so there's a.there's a discussion of the role of the.court and as i took.judge tatl's questions of you to.also focus on.it feels like the court's role is.particularly.robust where there is a plea.that has been accepted and amadan.specifically talks about.the imposition of of the sentence which.is a matter for discretion of the trial.judge.and so to the extent that there is a.balance between.executive authority and judicial.authority the judicial authority becomes.more prominent when there's a.conviction of guilt um you know none of.which is.to speak ultimately to the merits of.this four day a day but just to.as i said to probe your position that.there is.no role on these facts.at the court sorry.go ahead but even amma down at 622.says well sure the executive's got to.supply a reason.but it the judge leventhal says but the.court can't deny the rule 48 motion.because.its conception of the public interest.differs from that of the prosecutor.i don't know how to square that up with.footnote 3 of the rehearing petition.which makes clear that the district.court is going to conduct an independent.inquiry into whether.in its view we've satisfied the public.interest.so even if the court disagrees with what.the panel did.i still think in sending it back to the.district court as i said earlier.it would be helpful to provide the.district court some guidance on.what i take to be the fairly limited.role for the district.in this in this context because of.course the court was aware of amma down.in focker it relied on the statements in.amidon that rejected judicial oversight.and it cited all of the intervening.separation of powers cases from the.supreme court i mean it's not a blank.slate.you have armstrong dle weight heckler d.chaney so i understand none of what's.involved.man i want to make sure we have a chance.to get get through the follow-up yeah.yeah right and on page 622.just just to circle back of amadon the.requirement of judicial approval.entitles the judge to obtain and.evaluate.the prosecutor's reasons close quote.thank you.thank you judge wilkins.yes one question um why isn't it.a proper interpretation of rule 48a.and in rule 48b.in judge millett's hypothetical if the.district judge.observes what he finds to be a bribe.occur.in in her courtroom.and the decides that.she does not want to be a party to it.why can't the judge deny the 48-a motion.and yes the judge can't force the.government to continue with the.prosecution.but then the defendant just needs to.dismiss because of impermissible delay.um under 48b.and the judge grants that motion.why isn't that an appropriate way for.that to play out so three quick points.uh judge wilkins the first is that.there's no mechanism.in rule 48 as your question recognizes.to force the executive to proceed.which i think is strong evidence if.that's not the purpose of the rule.second.there are other ways to expose and.respond to the executive misconduct that.you were talking about.legislative oversight impeachment.elections all the rest.and the third is i just think you don't.have to you may disagree with me on this.hypothetical.i think it goes to whether you have the.considered position of the parties.but even if you think that it's not the.sort of thing.that that or it is the sort of thing.that rule 48.on a cover it does highlight i think how.far we are from that in this case.even if you thought that maybe a crime.committed in front of the district court.by the prosecutor.would be the sort of thing that would.allow the pros the court to probe.the government's motives all that.underscores is how far we are.away from a case like that there's no.armstrong allegation here of.unconstitutionality.there's no allegation of unlawful.conduct of the kind that you're.talking about there's a question about.whether.there's been improper political.influence as the court appointed amicus.has said.but that's not the sort of thing that.the hypo gets at that seems like clearly.the sort of thing.that should be taken care of through.political channels.nothing further thank you judge rao.no further questions thank you thank you.thank you general wall we'll give you a.bit of time for rebuttal as well.we'll now hear from mr wilkinson.thank you chief chud srinivasan and may.i please the court.the extraordinary remedy of mandamus is.unwarranted.when a district judge has yet to decide.a pending motion.by appointing amicus scheduling a.hearing and receiving legal briefing.from the parties.the district court is doing what.district courts do preparing to rule on.a motion.the judge has not asked any questions of.the government or anyone else.no fact-finding 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.the party's speculation and fears about.what the district court might do.are not a proper basis for mandamus.indeed all agree that this court has.never granted mandamus before giving a.district court.an opportunity to rule the petition for.mandema should be denied for the simple.reason that petitioner has adequate.alternative means of relief.three reasons support this common sense.conclusion.first the district court could very well.grant the motion to dismiss which is the.outcome.petitioner desires second as the panel.appeared to recognize there's no.irreparable harm to petitioner from.permitting the district court to receive.briefing.and argument on a pending motion.nor can the government which did not.petition for mandamus show irreparable.harm.the government's entire argument comes.down to speculation about what might.happen.but speculation cannot be the rationale.for such an intrusive mandate.from a reviewing court.finally for purposes of recusal judge.sullivan is not a party.deciding whether to hear a case on bonk.is solely within the power of this court.what we did as council was to suggest.something this court can do on its own.and did our suggestion is consistent.with the supreme court's definitive.statement in western pacific.giving litigants and council the ability.to request on bank review.but the power remains with this court.thank you your honor and a happy day and.answer questions thank you.ms wilkinson i have a couple questions.first in your view.is there anything that a district judge.could do.in advance of ruling on a motion in.terms of setting out.the grounds on which the district judge.wants to hear further.that would result in an entitlement to.mandanis.i think it would be very difficult your.honor in a vacuum to say he could do.anything.because as in this case the judge has.just ordered briefing and is determining.what the issues are.but i could see the government objecting.for example and i.there's no reason to believe this would.ever happen but if you're asking me a.hypothetical.for example if the attorney general was.ordered to appear.i i would think that would would be.something the government would object to.would move to quash and the district.court might easily say.you're right i'm not going to do that.and that's the problem with all the.arguments you've heard from the.government it's not only that.they can say no when asked these.questions that they fear are going to be.asked.but the judge could accept their no.could accept their answer that this is.privilege this is part of the.deliberative process.and move on it's not clear that when.they explain that.the court would continue if we take out.of play.the harm that includes from asking a.particular official to appear.and we just stay within the count of.cases that involved the normal give and.take between council for the government.and the court even in the scope of the.hearing itself.you think there's nothing that the court.could.ask of counsel that would.entitle the government to mandamus at.that time.your view is that even in the school of.hearing itself.the government always has a remedy.because it can decline to answer.and then um if that occasion's.a ruling against the government then.that can be appealed.yes and and then what do you do with.with uh the i think solicitor general's.explanation of cheney.the the proposition that well that was.effectively what was at issue.in cheney and the.supreme court set down a different type.of understanding.and indicating that no it's not always.enough.that somebody can show up and decline to.answer a particular question sometimes.the mandate this is warranted.even to keep a district from going down.that road.cheney was different for two reasons one.there was an actual order from the court.ordering broad discovery and ordering.the government to turn over the.documents and there the government did.assert executive privilege before the.case and gave the.district court judge the chance to.reconsider his ruling.so that none of that has happened here.if there's any questions that.the government thinks are improper again.they cannot.in some sense was the the.the regime that the supreme court was.reviewing was one in which.the ostensible fail-safe was that the.government could show up and decline to.answer specific questions.the reason that's not relevant here your.honor is the government has answered.many questions already.the government hasn't taken that um.clear specific and.full assertion of executive privilege i.think the government misspoke when they.said that they shouldn't have to answer.or they're not going to answer.the 70-page brief by the amicus.during the dependency of these.proceedings they have filed.a response in the lower court to.the amicus brief and they haven't.asserted in that response.any executive privilege any deliberative.process privilege or.that they can't turn over certain kinds.of information so they haven't.these the facts of this case are not.similar to cheney the government's had.that opportunity and.has responded and has not claimed any.privilege or any harmful any irreparable.harm.when they've actually answered the.questions or responded to the motion or.the pleadings.okay thank you miss welcome judge.anderson.no questions thank you judge rogers.so your reading of cheney.is that absence the elements you just.recited with the chief judge.that the court would not have the.supreme court would not have ruled that.as it did.in other words i thought some of the.language in cheney was very broad.i believe you're right judge rogers that.the the language.was broad but as it was applied and.it was because the government asserted.the privilege generally.and the court said it should not have to.go through each response or each.discovery request.and make those assertions because that.itself on the specifics.would reveal some executive privilege.and they shouldn't have to do that.and that was a very different case than.here where the government has chosen to.respond.and started with a motion to dismiss.that contained an application.of an explanation of the facts and the.law.yes um but you've heard the argument.today.as well as in the pleadings for the.inbank court.in terms of the process.and more or less the burden.and the signaling as it were that the.district court has given.in terms of what it intends.to pursue and it's not framed in terms.of trying to understand the government's.decision although it could be framed.that way.if we apply the normal presumption that.the district court will.act in accordance with the law so.where you answered the chief judge by.saying you.couldn't see a situation with a process.itself before the district court has.ruled.would give rise to an appropriate.issuance of mandamus.um.you think that this if you think that.the supreme court application of chaney.is sufficiently limited.with regard to this case i do your honor.and perhaps i didn't make it clear.that of course the court would follow.the law which starts with a very narrow.scope.of of any argument or hearing uh on a.rule 48 a motion in these circumstances.so.the government has i believe misread or.over interpreted the pleadings in this.case where the legal issues are being.raised.nowhere has the trial judge said that.he's going to.collect evidence or require affidavits.he pointed out where some of these.issues are.but there's nothing that suggests he's.going to do either.anything other than have a hearing where.the lawyers argue the motion.there can be follow-up questions by him.on the motion and he'll decide the.motion.there's that process which occurs.all the time in a district court would.not invade the separation of powers.would not usurp the power of.of uh the executive branch and there's.no.signaling to them that there are going.to be these onerous or invasive.questions.thank you thank you judge haidle.um this welcomes you.your argument your argument is that.mandanis is premature.because the judge has simply scheduled a.hearing.and hasn't yet acted on the motion to.dismiss not your argument.yes your honor my question is this.let's assume you're right that under.rule.48a there is some.substantive role for the district court.does the judge actually have discretion.to deny.rule 48 emotion is that included.in his can he deny it in other words if.he.even if he has a substantial role does.that role.include the discretion to deny the rule.48 anymore should because if it doesn't.then i don't understand what the purpose.of the hearing is going to be.i think there's very limited discretion.to turn or to deny that motion but there.is.in the case law examples.like the one i believe that uh i don't.remember who first started the judgment.or judge.pillard used about bribery of the.prosecutor.and in focker itself the court.recognized there's a presumption of.regularity but that could be overcome.and that could be a basis to deny the.motion.we'll play that out for you then let's.assume you're right that there is.some discretion to deny the motion then.what happens.in this case it is different from when a.prosecution.is initiated if it were denied.there's no role for the executive branch.any further because.sentencing is the only thing that's left.now the government and.and mr flynn could take the position.that they're going to mandamus after.that that's obviously.what i believe would they think would be.their next step but if that didn't.happen.the defendant would go on to sentencing.and then there would be an appeal i.assume by.by either one or both of the parties.and how would that appeal come out what.would be the result of that.well if i'm reading the tea leaves.properly your honor.depending on who the panel is this.court appears to and the focker decision.suggests that there's very limited.discretion for a judge to turn down.or deny that motion to dismiss but there.could be i asked your question that i.did.which is if in the end either because.the district court reads rule 48 as.giving him no discretion.or if because this court later.views rule 48 is leading the district.court.no discretion what's the purpose of.going through all of this.well too when your honor first of all.that doesn't mean it's clear and.indisputable now.and that mandamus is appropriate now.because you're talking about what would.this court do.but the process itself of the judge.participating in with leave of court.which is receiving the briefing so he.understands the scope of the.government's motion and the law.and allowing lawyers to argue it and.make a decision.is not even if the answer is predictable.is not an error and it's certainly not.the basis for a mandamus for this.reviewing court to come in and direct.him.to what you're suggesting in the.hypothetical is inevitable.thank you i have no further questions.thank you judge garland yes um.so as i read what happened in the.district court.all that the judge did was order.responsive briefs and.and um a moral argument to be held.but the panel decision focuses.uh and and the your opposing counsel.focus on what was done in the briefs.um in this court.and the panel says before this court the.district court explains that he plans to.question the bona fides of the.government's motion.inquire about the government's motions.and representations.illuminate the full circumstances.surrounding the proposed.dismissal and whether the presumption of.regularity for prosecutorial decisions.is overcome.the unusual facts of this case.is this different than what happened in.the district court.are you.forecasting what the district court.plans to be doing.what is your answer to these statements.in the panel's decision.we are not forecasting anything your.honor and that starts with what we said.in the conclusion of our brief.on page 18 all the district court has.done.is ensure adversarial briefing and an.opportunity to ask questions about a.pending motion.that's all the court has planned to do.that's all the court.plans to do and the briefing when this.whole process started the briefing.wasn't.completed it's still not completed the.government is going to have a chance as.well as.mr flynn to file sir replies and lay out.all of these issues if appropriate.so there's no there's no basis in the.pleadings for on bonk.to suggest that the court has specific.questions it's going to answer i think.council referred to foot note 3 which is.really talking about what the law says.it doesn't say.of course that these are the questions.that judge sullivan plans.to answer and in our initial briefing.we pointed out that when the government.signed.a motion to dismiss it was only the.acting.u.s attorney there were no declarations.there were no affidavits.we did not say that therefore there.needs to be some and there's going to be.any requirement.again the parties are speculating.and i think even said this might turn.into they suspect it'll become a circus.there's absolutely no basis for that.there's nothing in anything that the.court has done.below or has done in its pleadings to.suggest it will do anything that follow.then follow the law and listen to the.arguments of the parties.ask any follow-up questions and rule on.the motion to dismiss.is there i mean the opposing counsel.suggests.both opposing counsel suggests there's a.contemplation that you.intend to get underlying documents about.other charging decisions why the.government.theater did not make other charging.decisions.maybe you'll call in the attorney.general and ask.what's the real reason that you did this.are these things contemplated or not.they are not contemplating your honor i.believe that the reason.the parties are suggesting that is.because judge gleason.excuse me mr gleason in his pleading.suggested there might be a basis for.that but when he filed his pleading he.said he's not requesting any.fact-finding so judge sullivan surely.has not entertained any of those issues.and even mr gleason in his pleading has.said that won't be required.so there's nowhere again anywhere in the.record that suggests that that would be.anything that judge sullivan intends to.do at a hearing.thank you thank you judge griffith.yes uh thank you uh ms wilkinson are you.then telling us that such.questions won't be asked at the hearing.you you said you don't want to forecast.the hearing maybe you should forecast.the hearing a little bit.and are you telling us that that those.lines of inquiry.will not be pursued.judge grantham i can't tell you exactly.what.won't be pursued again because the.briefing is not completed and.judge sullivan hasn't decided all of the.questions he may or may not ask and even.during the oral argument.that could address a question that he.has and there may be no questions.i'll give you one example when the issue.was raised about the.acting u.s attorney signing the pleading.by itself the government answered in one.of its pleadings saying.well that was signed off by the entire.department of justice that answers that.question.the court may disagree other people may.disagree but.there's no need to pursue that because.the government answered that that.explained that and answered that.question.so i see no basis if all of these.pleadings are available to the court the.other.uh filings are made there's no reason to.believe the court won't ask anything but.what's narrowly prescribed in this.hearing which is listening to the.arguments.and asking any follow-up questions to.those arguments.do you have a view on uh the scope of.uh rule 48a what is meant by.leave of course we've had a some.discussion today about whether it's.limited uh to protecting uh defendants.from.uh vexatious uh prosecution.um and uh other views that it.it is designed to allow one of its.purposes.is to allow a district court judge um.to probe a dismissal that uh.he or she suspects might involve some.favoritism do you have a view on that.matter.well i start like you did with the.history of the rule which is quite clear.there was much debate about this and.most of it was focused.not on protecting the defendant from.harassment i think that was already.accepted.but it was on uh protecting the public.interest when there might be favoritism.rewarding or dismissing a prosecution.and.as the courts have gone along and.developed a law here there's been very.little but where they have everyone has.said.the primary reason or the substantial.major reason for the rule is because of.protecting the defendant but no one has.said what i think we heard today that.that's the only purpose.of a rule 48a motion when the two.parties agree.so i think the courts have left that.open amy down.commented on that and suggested that.what what would happen if.um we're at a late stage of this.prosecution obviously but what would.happen.if if this had taken place in an earlier.stage.of the prosecution before sentencing and.so forth um.uh and and and and uh rule 48a i'm sorry.there's been an internal error you will.be disconnected now.goodbye.hello hello hello.hello hello hey what's.up i think i've been cut out.i think i was too.yeah i can the conference seems to be.up and running.okay.and are we still in conference and.things are proceeding okay judge griffin.please we have just lost ms wilkinson.she just dropped.we're going to try to reconnect right.now okay.thank you.okay judge griffith i'm so sorry i don't.know how i got disconnected i apologize.no that's i'm not certain it was your.fault at all uh my.my question was if if we were earlier in.a.proceeding and um a judge denied.a motion to dismiss what would happen.then.are we assuming you're under that uh.it's the same basis that they thought.they were.going to pursue charges and decided they.couldn't because.or shouldn't uh yes.i guess i'm just wondering how um.wouldn't it be inappropriate for the uh.judicial branch to compel the executive.branch to proceed.with prosecution.yes it would be much more difficult.obviously you can't compel them to bring.the prosecution i think you could.inquire about the reasons because you.still.may have a public interest in the.integrity of the court but it isn't.the standard for 48 a is the same but.the totality of the circumstances one.would consider are different.because you now in the post-plea.phase have involved the court and as.other judges have.referred to you're bringing the power of.the court the integrity.of the court and.could you respond to the uh criticism of.judge sullivan.for appointing judge gleason in light of.the fact.that uh right before the appointment he.had.staked out a public position on the.matter.how do you respond to that criticism in.appointing any amicus.the court is looking for the opposite.viewpoint from what the two parties.agree on yeah and looking for full.adversarial briefings so the fact that.mr gleason announced.that he had a position that was adverse.to the government.and to the defendant makes sense that he.would be one of the candidates because.he is being appointed not to be neutral.but.to flesh out those legal arguments on.the other side.of the case so one wouldn't uh you know.the best analogy i know is uh.professor paul casell who's quite famous.and has you know.pursued miranda issues for almost his.entire career asked the supreme court.to be the amicus and argued against the.government and the court listened and.ruled against.mr cassell's position and no one thought.it was inappropriate.for him even though it was publicly.known.that his positions were adverse to the.government.okay thank you.thank you appears we may have lost judge.mullet.momentarily judge keller.hi can you hear me yes stretch pillars.thank you um so on the mandemus standard.we could decide that if we were to rule.um against the petition we could decide.that there were alternative remedies or.that there was no clear and indisputable.right and i wonder if you have a view on.which is the narrower.ground if is there an alternative remedy.if so what is it.um or do you think the narrower.ground is to say that there's no clear.and industrial right.at this point to pretty much the.proceeding.it's a real contest but i believe the.narrower ground.is the alternative relief below because.the judge has not yet ruled.so the easiest remedy would be for the.judge to grant the motion to dismiss.and there would be nothing even for a.reviewing court.to do so that seems to me to be the.narrowest and the most.commonsensical uh basis to deny the.petition because the court has not made.its decision yet.and so there the alternative remedy just.to be clear is.if the judge grants the rule 48a motion.is the district judge gave the.government what it wanted and that.general fund what.he wanted what if the judge were to deny.the motion or postpone the motion is.there an alternative remedy.i'm not sure postponing changes that but.once the decision is made if somehow he.denied the motion then the parties could.appeal.right away i mean i thought we said in.poker anyway there wasn't an.interlocutory appeal.um from a denial of a deferred.prosecution agreement would there be an.interlocutory appeal or would you say.they would.mandate this then or would he have to.wait for after sentencing i mean i.realize these are hypothetical issues.because they're not before us.but i'm just trying to get a sense of.what you're envisioning in terms of.alternative remedies and let me just lay.it out it it seems to me that.that really the flip side of or or.wedded to the point about whether.there's an alternative remedy.is what is the right that's being.remedied and so in order to think.that once the 48 a.is denied or at least postponed that.there would be some repeal.then one has to think that there's a.right against.that postponement you see what i'm.saying from i'm i'm not sure that.unless we envision now right denial.which.seems sort of specifically a very likely.of course what the alternative remedy.would be.and whether one can decide that without.deciding and what the right is.i'm sure you'll let me know if i'm not.addressing your question but if.the first point is the postponement.i believe this court in in ray aiken at.least gave.the participants there was an agency.multiple chances to act and.when they ordered mandamus or ordered.the writ.the agency had said specifically they.were refusing to act and therefore that.was considered by the court and.action here i don't i don't know that a.you know delay of some sort uh.would be warranted a mandate must be.warranted for that i mean this matter.could have been over on july 16th.ironically.if the judge had been able to have his.hearing but.assume you go forward with the hearing.they could appeal there could be.sentencing that could all happen very.quickly and there could be a direct.appeal if the.parties think that a mandamus is.appropriate at least there is an order.from the court.so they would then be able to remedy.that because the remedy would be.they would be asking for would be to.reverse his.his decision which is when you look at.the law of mandamus in this circuit.that's 99.of the cases are there's a decision by.the court.that the parties disagree with and then.this court comes in and says.either that decision was appropriate or.it should be reversed.right and if the judge didn't were to.deny the rule 48a or postpone it in some.further or let's say.just to make it complicated given.today's argument.is the judge would say i want an.in-depth actual.uh hearing not just an argument by the.letters but in-depth hearing with new.fact-finding.that would be a different that would be.an open question whether there's a clear.and individual right.against that that could be remedied.um somehow or whether that i'm sorry i'm.garbling.um that would present a separate.mandamus question.yes because you have the two prongs not.just um.the alternative relief but the clear and.indisputable.right okay right and i both know that.here the reason that you say the.alternative remedies is the narrowest.is because the clear and indisputable.right that is missing.is the right to the release before the.judge rule.yeah and you just don't have to go.further than that you don't have to.inquire whether there's fact finding how.broad the judge's.authority is to deny a rule 48.8a motion or anything else you just have.to say.that the judge gets to rule and as long.as it's a simple.argument and.yes premised upon the understanding the.judge will follow the law and there's no.reason to believe that this.judge who has over 25 years of.experience on the district court would.do anything but follow the law.great thank you helpful thank you your.question.thank you go back to just pill yeah i'm.sorry we'll go back to judging the way.um yes sorry okay i apologize i've been.off for about five minutes so if i ask.you something that someone else has.already asked.you have full liberty just to say we.already discussed that and i will read.the transcript.um so i think judge pillard was.talking about this but again i missed.the beginning um if this district order.if it disregards order said and on july.16th.there will be an evidentiary hearing.to address the grounds for the.government's position.for the government's filing is your.position that that.could not be mandatory.i don't think it would be man famous.because i don't think it's clear and.indisputable that that's inappropriate.and that's um forbidden by the law if.you look at.focker uh or you look at cena which is.judge sullivan's own case where.i'm sorry no go ahead.where looking at and asking questions of.the government.was never held by the court to be.inappropriate it was the actual.questions of the government this is will.be an evidentiary hearing.um to examine the real grounds for the.government's.decision i think a fair inference from.that is that somebody from the.government is going to be.have to put in evidence on the basis for.their decision making do you think a.district court can do that.and the government still has to go.through the open hearing and wait for.the district court to rule.before it can file mandates it depends.on what you mean by an evidence you're.hearing when you're still talking about.the government i'm telling you that's.all we know from the order.evidentiary hearing to examine the.genuine grounds for the government's.decision i think the government should.attend the hearing and if there's.anything inappropriate if that's all we.know.if there's anything inappropriate about.the hearing they shouldn't they should.refuse to present witnesses if that's.what they're being asked for.if they're supposed to put evidence that.they think.somehow impinges upon their article two.of power okay that's what cheney said.they don't have to do.well i don't think well i don't think.that is what cheney.told them they don't have to do cheney.said if you think it is.purely part of the executive privilege.and you object and shouldn't have to.even make those distinctions.then you should claim that privilege and.that's it and the court.then should stop and the court did not.stop the court still ordered discovery.here the government never took that.position the government never said.we absolutely don't have to answer any.questions we don't have to make any.explanation in fact.they chose to make a 17-page explanation.they chose to respond.uh to the amicus brief and they haven't.made any of those arguments below that's.why.technically i'm not sure i understand.why it may not matter to some people.technically that they didn't.file a petition for mandamus but it is.indicative of what their position was at.the time whether this was such.protected article 2 power that was being.usurped by the court they didn't say.that to the court at the time.can i i'm sorry just something an.interesting time here.um uh in this case.all that's going to be held all that we.know from.on july 16 is a hearing and who knows.how long after that it would take a.district court.to rule let's imagine it's a different.case.where at the same.procedural stage after plea.pre-sentencing.the government comes up and says.there's a filing that says oh we have to.dismiss.because we dna evidence just came in.but um i was and it completely.exonerates.the defendant this needs to be dismissed.and this defendant is incarcerated.at the time um pre-trial or i'm sorry.pending sentencing postponed pending.sentencing defense incarcerated.dna complete exoneration according to.the government.can the district court take six 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're done we don't want to have this in.person in custody we don't want to.prosecute them.yes your honor that happens all the time.in the district court i mean that.happens.when the government comes in you don't.want to prosecute them we'll let the you.know let him go we're done.we're not prosecuting and the government.has said in my hypothetical the person.is innocent.your honor with dna evidence like that.there are examples where the district.court has a hearing now the exact weeks.obviously most courts would like to.schedule that as soon as possible they.may ask for briefing.but that it the court doesn't release.the.but doesn't it seem like if you have.someone.like i understand that mr flynn is not.incarcerated but he's still under.custodial restrictions.um and if if someone.the government says someone should be at.liberty we should not be prosecuting.them.don't you think the district court.should go as fast as possible.if it's going to have even just briefing.and an argument in this circumstance as.a matter of the liberty interest of.defendants i can't imagine keeping.someone incarcerated.for a few more months when the.government says they're totally.exonerated we don't want to prosecute.them.well of course everyone shouldn't they.the court should go as fast as possible.and here there's no suggestion that.there was any delay.is this as fast as possible seven weeks.just to the hearing not even the.decision.yes to order the breeders records go.much much faster even with amicus.briefings we see it all the time.why shouldn't it go much much longer.your honor and district court.i understand but that's one thing that's.why i ask him they may do it i may not.be right i'm asking whether it's right.well i don't think the custodial.restrictions here are any.in any way compare comparative to.incarceration.the examples are mr flynn had some under.our constitution he's not under liberty.i understand he's on you know been.released on his recognizance and the.district court has been.very um understanding of him but he's.still not.at liberty and and the principle here of.the district court's right to.hold hearings and take you know take its.time and.examine things getting around to decide.it's going to apply in.in every case but that's never been a.basis for irreparable harm your honor.there's no case that says.that when a a 48-a.motion is pending and a defendant is.under ror.and has been allowed to travel overseas.even by the court.but somehow that's an irreparable heart.rate.so what my my hypothetical is someone.who's incarcerated.completely this court has had that this.court has had that in al mashiri and.that.defendants were were detained they were.incarcerated and there were separation.of powers issues raised and the.government.there they are completely their.innocence the evidences exonerate them.we no longer wish to prosecute them.that's not concern no yes there's all.kinds of other times yes other issues.that come up in.criminal prosecutions i'm talking about.this circumstance well there's no clear.and indisputable rule that the court has.to rule within a week or within 10 days.and it may depend on the particular.facts but here.mr flynn has as much freedom as any.defendant.in the united states says when they've.pled guilty to a crime.and the government now comes and says.they no longer want to prosecute.there's briefing and a hearing that's it.all right my time is thank you.judge wilkins yes good morning miss.wilkinson.good morning what is your.position as to the.range of public interest factors.that a district judge can properly.consider.uh in whether to grant or deny.a motion under rule 48a.i'll answer your question honor but it's.easier to say what they're not of course.the court cannot second guess.the prosecutorial decision made by the.government.so the public interest factors have not.been fully explored by courts.but they have given examples of.misconduct by the prosecutor like.bribery or even failure to.appear at the hearing and other courts.have talked about.the integrity of the judicial branch and.the public interest in the integrity of.the system so it would be fact specific.but it certainly doesn't include second.guessing the prosecutorial decisions.all right uh thank you i don't have any.further questions.thank you jess rao um thank you.um mrs wilson um.maybe you can help me to understand.what precisely the district judge's.interest is in pursuing.uh rehearing at this stage i mean so we.have a situation where the executive.branch wishes to drop the prosecution.um because it has confessed a number of.errors in the process and so.we have the interest of the executive.branch and controlling prosecutions.which i think you admit is a.well-established part of the article 2.power.and then you know so the separation of.powers between the executive and the.courts in this case.relates also not just in some abstract.way to individual liberty but.really directly to the liberty interests.of an individual.criminal defendant namely general flynn.um so so where we have here an unopposed.motion to dismiss.what interest does the district judge.have.um in continuing to scrutinize the.dismissal.of a prosecution what is the district.judge.seeking to vindicate on re-hearing and.um with the inquiries that you know have.been represented will be made.below the re-hearing your honor is.meant to protect the process which and.the mandamus standard.because under the panel's decision.although.written to be fact-specific could open.the floodgates to other people who are.unhappy with a district court not ruling.on emotion.thinking that they know what the answer.should be that the answer is clear from.the case law and the precedent.and moving to mandamus a district court.whenever they think they're in that.position.so it's broader than just this.particular rule 48a.issue because a district judge.has a right to litigate on behalf of.legal standards generally does that make.him a party to this case.does it make him a freewheeling advocate.and what.precisely is the judge's interest.in this any more than there would be in.any case where the panel.issues an opinion where a district judge.may disagree.with the court of appeals legal analysis.he doesn't have a right to litigate or.is not a part of your honor this court.made him a respondent what that means.for purpose of mandamus i don't think is.totally clear but the court.ordered him to respond and participate.in the process he didn't.volunteer that process straight out of.the panel level so what is.what is the interest in seeking.re-hearing.by a district judge i mean what is i.mean he's not deciding i mean.judges have an article three power to.decide cases and controversies.well there's what exactly is the.district just doing in this context i.mean i think it's not.surprising that it's so unusual that.there are virtually no cases.in which a district judge has appeared.in this posture i think.the government found only one case and.rehearing was denied.so so what what exactly is being.vindicated here i mean maybe you can can.help me understand that.well first there are cases you're under.where uh district courts have moved for.cert at the supreme court and review.there and either been granted or denied.and the court.the parties i mean the judge has not.been seen as a participant nor.uh you know reassigned uh when the case.went back to the district court.but there's not a vindication of any.right.the panel made its decision with three.able judges and now.the respondent is asking for all ten.judges in this court to reconsider.and to review and make its decision.again on what the law should be in this.circuit.it's the same posture he was in with in.front of three judges.most respectfully we're just now arguing.in front of 10 judges.and you all will make that decision but.he doesn't have a.interest he is we made a suggestion like.i said.consistent with western pacific which.has been clear for.70 years that that doesn't mean that.the judge or anyone else is a litigant.or a.a party is that if you can make a.suggestion to the court for something.they can do themselves which you can do.yourself.and in essence did by voting to accept.this petition.and all he's interested in is that the.ten of you decide.whether mandamus is appropriate or not.so can district judges in other cases.not mandate cases simply.file briefs suggesting that we.reconsider cases.where we disagree with with the district.court's ruling below.in cases where the circuit has not made.them a.respondent i doubt that would be.appropriate.but this is a very unique situation.where the court was ordered to defend.its judgment below.which was a process not a decision it.was ordered to say.explain why it was doing what it was.doing.okay one of the things we haven't talked.about that much.is the presumption of regularity here.and so um you know the government.here has you know submitted a fairly.significant amount of information.about the irregular behavior and its.reason.for wanting to dismiss this prosecution.so i guess i'm wondering um.you know how does the government's.motion here not meet the standards.for regularity because it seems that.there has to be.some overcoming of the presumption of.regularity for the district judge to.to continue on the path that has been.contemplated i don't think that's.correct your honor.the path contemplated is just a hearing.with argument from lawyers.and the presumption of regularity.applies and in the absence of clear.evidence to the contrary.the courts presume that the prosecutors.have properly discharged their official.duties that's from flocker.that doesn't say that it can't be tested.whether there was a presumption of.regularity.because if so then there would be a rule.of regularity not a presumption of.regularity.it may be that again when the briefing.is completed.there's no real question about that and.the court doesn't even ask about that.the hearing is.completed and the decision is issued so.there's not a path.that's suggesting that the court is.somehow saying.it can and will overcome the presumption.of re.regularity i think what you're now.classifying is just.a hearing and that's what you've.repeatedly said here oral argument.doesn't really match up with what.was filed in the briefs um before this.court both at the panel level and on the.hearing and it seems like there is.some much greater scrutiny that is.contemplated that goes well beyond.you know just adhering to to evaluate.um to evaluate the motion to dismiss.well your honor if i or if we suggested.in our.meetings specifically what the questions.would be then that's.my error there is no basis to believe.that there's any specific even questions.that are contemplated yet.and i think in in your panel decision.you said the questions would likely.reveal.internal deliberative process and other.executive branch discussions.it's not clear that that's true but.again if that happens.or if it had happened based on the.briefing the government can make that.point to the court and the court could.say okay i'm not gonna.i'm not going to pursue those questions.any further and you also said that.the questioning could threaten to chill.law enforcement by subjecting the.prosecutor's motives and decision-making.to outside inquiry.and i understand that so far the.government hasn't taken that position.when actually confronted with the issues.when they responded.to mr gleason's brief but again.if the government believes that.questions by the court.somehow invade or usurp their power.that's all they need to say and it.shouldn't be presumed that the court.will.overrule that or make a record and say.i'm going to rule against you.the court may be persuaded that the.government has every right to give that.answer and move on.let me just ask you one final question.um yes my.over my tongue but um so if.you know if we were to to not provide.the relief here i mean would we be.setting out a rule.that we that this court can never issue.a writ of mandamus.absent a district court's ruling on a.dispositive.motion is that the rule that would have.to come out of this.no i mean is that the rule that you're.advocating because that rule seems to me.inconsistent with cheney and cobell.and the sealed case no i don't think.that's the rule and i don't think.i think in ray raykin makes that clear.there can be.lack of action that's tantamount to an.action.so i don't think however this court.fashioned uh.its decision it would have to say that.in no circumstances.can there be mandamus uh when there's a.hearing scheduled.uh well it says that there was an.adequate means.because you know the government could.always appeal.um isn't that suggesting that that's you.know a categorical rule.well again there's a presumption that.the district court will do its job and.follow the law so yes i think.generally there would be little or no.basis for mandamus for a.district court judge who's scheduling a.hearing but as judge srinivasan asked me.could there be something that happened.uh even in the order for that hearing.that suggested.totally improper conduct outside the.clear you know law of the circuit there.could be and of course that could be a.basis for mandamus.but the presumption here in front of.this court is that district courts do.their job.and follow the law thank you thank you.josh henderson any follow-up question.i do have one question and that is.the trial judge was ordered not to.defend any action by the three-judge.panel.he was directed to file a response.addressing.the motion to dismiss and that was.at our invitation rule 21 makes clear.there's a very limited role.for the trial judge in a mandamus.proceeding.i'd like to know why rule 35.suddenly allows him without any.invitation from us.to petition for rehearing and bank.i don't think it is rule 35 yarn my.understanding in.in reading western pacific is that man.were you.on bonk excuse me that was the procedure.your petition followed.was rule 35 you invoked rule 35.yes your honor but i think it depends on.how you interpret the word party i don't.think he's a party for the.having a vested interest in the outcome.as you said the way you required him to.respond was i don't think.trying to make him a party but in terms.of.interpreting that term in that process.in light of western pacific.the whole purpose of the rule was to.allow anyone.who's involved to make that request it's.this court's decision and you have your.own authority to do so it's a power of.the court.it's not a power of the litigant or the.participant.and i i think you may be asking me you.know does that make him look like he has.a vested.interest or an inappropriate interest in.the outcome.and i do not think that's true because.it's it's.he we're making i agree with you miss.wilkinson he's not a party.i agree with you but you're the one who.invoked a rule.limited to a party so that's that's all.i want to know.and now you've answered my question so.i'm done.thank you judge rogers.i wonder if you want briefly to.address the reassignment issue and.the indication of section 455.you judge rogers as the panel found.there was no basis to reassign this.case um from judge sullivan.and therefore the only change since that.panel decision.was the filing of the request for ombank.and the pleadings themselves which talk.about.the law so explaining your views on the.law.of the district court again in the same.proceeding the same mandamus proceeding.that you were in before.does not seem to show any basis of bias.or appearance of impropriety.it's the same process it's the same.proceeding it's not the same as the.underlying criminal proceeding.but it's the same mandamus proceeding.with the judge making the same arguments.he did to the original.a panel of three and so there's there's.no reason to.uh reassign the case to another judge.you will follow whatever this panel says.or whatever this full court says he.should do.well you heard the acting solicitor.general.argue that even where the inbank court.uh to deny the petition it should.uh include in its opinions instructions.to the district.court i gather from your argument.that you take it that.a some aspects of the record have not.been fully.um appreciated and and.secondly that.the concerns expressed are largely.hypothetical or speculative um.other than the delay that's involved as.a result of the.seeking of mandate.the process was proceeding whether as.fast as possible i'm not going to get.into but.i'm trying to understand the acting.solicitor general's position.is is very strong in terms of.his emphasis on not only the trading.concerns.but on the process contemplated by.the district court um.if you care to respond to that some of.it.in your earlier answers i realized has.said that.there appears to be some over-reading.of what's contemplated.were this to go forward before the.district court.is it your view then that.uh 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.there's been a question from the.beginning about what does leave of court.need.and is it simply a courtesy um.the prosecutor has decided it has no.case or it.does not want to proceed with the case.and that's the end of the matter.and we're just here to let you know.judge that's where we are.um then there are the other.hypotheticals.that have been posed this morning which.go beyond.anything i'm aware of in the record.here so that's a lot of issues.in one statement but i'm just.curious about what instructions you.think would be appropriate if any.and why the concerns expressed by the.acting solicitor general and general.flynn's attorney.should not be of concern to the court or.that the court need not.address them were it to deny um.the petition for mandamus.judge rogers i'll answer i think those.are two questions i'll start with the.first one of whether.any instructions are necessary for the.district court.they are not but i think in part that's.because there's been.expansive briefing in this case.underlying which has not finished as you.point out in the district court.but quite a bit here that has been.instructive.about the scope of rule 48a and leave of.court.so i don't see any need for.instructions from this court on what.that means and i certainly don't see.any reason to think that there's going.to be this invasive questioning there is.nothing in the record.as i stated earlier to suggest any.question.that judge sullivan intends to ask but.certainly.there's been no request for evidence.there's been no request for declarations.or affidavits.or witnesses or any of the things that.were.kind of weaved into some of the parties.pleadings to suggest that the gov.that the judge was somehow going to go.beyond a narrow scope of a.a legal hearing on a motion to dismiss.so speculating about hypothetical.questions that could answer.be be asked certainly basis for mandamus.but there's also a cure below.if for some reason that occurred where.the government doesn't have to answer.those questions and can explain to the.court why it's inappropriate so.for all those reasons i don't think any.instructions are necessary.thank you thank you judge tatl.i have no question thank you judge.garland.no further questions thank you thank you.judge griffith.yeah uh just to follow up on that ms.wilkinson what what would be.permissible questioning under rule 48a.and article 2..generally your honor especially with.regard to this case i think it would be.following up on the briefing.that the parties have submitted and.because there's still sir replies to.come.and there's argument i can't say that.there.might be a lot of questions it depends.on how the government and the parties.address those issues if you just start.with where we were a couple weeks ago.before mr gleason filed his brief.there was speculation oh there's going.to be a request for evidence.and fact finding and then when we waited.or.you know we came to the point where mr.gleason filed his brief he said he's not.requesting any fact-finding.so i think it's uh i think the general.scope would be narrow.but it may be even.an even thinner read um or.a smaller list of questions when all of.the briefing is finished.and that's just so part but you agree.are you saying fact-finding would be.categorically.inappropriate no but i don't.without without some basis for it yes i.can't predict that there won't be any.basis it's.certainly we haven't seen that thus far.but you know again i can't tell you.what's going to happen what the.government is going to say or.mr flynn's going to say in this reply.but it doesn't seem like there's any.basis for that right now.okay thank you very much thank you judge.malet.yes thank you um two questions.um i think you said in your brief that.these.uh separation of powers concerns on.behalf of the government shouldn't be.considered because they didn't file a.mandate in this petition but i don't.understand why.they can't be raised by a criminal.defendant in a case because.to the extent you know a district court.is uh.charged with or the concern is the.district court is.violating the separation of powers by.intruding on.the prosecutorial judgments if the.criminal defendant's acts as being gored.you know my hypothetical.it would be the guy who's been.exonerated by dna continuing to sit.in a prison cell for weeks if not months.and separate powers protects the liberty.of individuals i don't understand why.it matters if it does whether the.government does not file a mandators.petition in this case for purposes of.the separation of powers arguments.i think that raises two points your.honor first uh.the incarcerated defendant in your.hypothetical could claim he's suffering.irreparable harm himself and not have to.rely on the government's.irreparable harm or basis for.irreparable harm but i think bond.does give an argument to say that.another party can raise the government's.uh.you know irreparable harms the.difference here is whether that's true.or not.not raising the governments right.they're great they're saying look the.constitution divides power to protect.individual liberty.including mine and if a district court.is.in a you know hypothetical case blowing.past those lines.and it has consequences on that.dependent in that case.and the defendant gets to argue about it.it's not that they're making the.government's argument instead they're.making a liberty argument about.separation of powers.i don't understand i didn't understand.and maybe i'm incorrect.that that was mr flynn's position that.his liberty was a separation of powers.or constitutional argument he was saying.it was irreparable harm under rule 48.and under mandamus.but i don't i didn't understand that his.custody his status as criminal dependent.has been.prolonged he's not as free as you and i.are to come and go.well he's pretty darn close he's been.able to do everything he wants to do.so what if if i'm if i have governmental.constraints with my liberty for one day.that makes me different that's true and.in terms of the length of this 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're making.that this is not happening quickly.enough and i would like the process to.go more quickly.mr flynn now says through council that.has been dragging on forever.but he had a basis to go back to the.court and say i want this decided more.quickly.and that would have been the easiest way.to speed up the time frame if he thought.it was inappropriate.but he didn't do that he didn't choose.to do that despite.the court's specific request or.or willingness to accept a motion to.reconsider.everything that he had done when he uh.when he issued his order.uh around may 20th okay thank you i'm.afraid my china said.thank you thank you judge pillar.i have no questions thank you judge.wilkins.no questions thank you judge rao.no further questions thank you.thank you miss wilkinson well now we're.here.we'll now hear a rebuttal from miss.powell and.general wall in light of the lateness of.the hour let's hear two minutes of.rebuttal but that time will be.uninterrupted.ms powell here thank you your honor.thank you.this is a criminal case in which a man's.liberty and.entire life has been consumed by four.years of litigation.that the executive has now determined.within its sole discretion.should never have been brought against.him he has been under the scourge.and of this criminal process now for.almost four years mr gleason has no.valid role here whatsoever it's the.process.itself at since may 7th that has been.part of the abuse.that general flynn has suffered these.are completely unprecedented proceedings.and the reason they are.is because they should never have.happened mandamus.doesn't need to have an order to seek.review of it.its very purpose and existence is to.correct.a usurpation of power or the district.judge.exceeding his authority which he did the.very minute he appointed mr gleason.to step into this case in the role of a.prosecutor.essentially when the executive branch in.its sole discretion.decided this case should never have been.brought to begin with.so he's been through this for almost.four years now.cost him millions of dollars had to sell.his house because of it.been called a traitor and treasonous for.absolutely no reason.and not any of this should have happened.so it is imperative that this court.restore the rule of law.and issue the writ of mandamus to compel.the judge.to grant the motion to dismiss and to.disqualify judge sullivan because the.very thought the very fact that he.thinks.he has an interest that he can petition.for rehearing to this court on.is sufficient evidence of appearance of.bias.that mandates his disqualification under.this court's decision in al nashiri.the appointment of the amicus has to be.vacated and the order.must be dismissed immediately as a.matter of law on the face of the motion.itself.to borrow from the second circuit.decision in hsbc.put simply the court's role is not as a.super prosecutor.to second guess a core function of the.executive branch.but as a mutual arbiter of law he's lost.that neutrality.if if not sooner than at least by the.time he filed a petition for rehearing.for in which he has no standing and.which has required.additional thousand hours of defense.work to deal with.thank you.please please finish i was just going to.say we asked that the petition for.rehearing be flatly denied with clear.ligand-like language and the order.of dismissal entered in standard or by.this court itself as it has the.authority to do.thank you miss powell general law.thank you your honor to be honest i feel.a bit rubber doped.the district court appointed an amicus.who had urged an intensely factual.inquiry.in its panel briefs the district judge.raised a host of specific factual.questions.and noted the government had not put in.affidavits and declarations.even the rehearing petition calls for a.developed factual record.before the panel council backed away.from factual development.today council steps back even further.and suggests there's not much the court.can ask.and we can decline to answer castle.seems to be defending the process on the.ground that it might be meaningless.i think that tepid defense gives away.the gain either the process is exactly.what we have all.understandably feared in which case.mandamus is warranted.or the process could not possibly call.into question the reasons on the face of.the motion to dismiss.in which case mandamus is warranted in.the event this court disagrees.yes we think it should provide clear.guidance for further proceedings in.three ways.first it should reiterate that the.constitution and factor leave a very.limited role for the district court.which does not mean an independent.non-deferential public interest analysis.second we think the court should as the.panel dissent did.make clear that the parties are not.required to engage in discovery or put.on evidence.third and finally the court should.require a quick decision so that the.defendant and government may.if necessary return to this court for.relief.but to be clear none of this should be.necessary.when faulker says that dismissing.charges is an executive decision and.that there is no.substantial role for courts it's.impossible to square that with an.invitation to the public to participate.the appointment of a hostile amicus to.oppose the government's motion.a full full brief schedule and hearing.all backed by the threat of contempt.and all in the face of a judgment by the.attorney general of the united states.that a prosecution here is no longer in.the interests of justice.yes this is an extraordinary writ but.the district court has teed up an.extraordinary conflict with the.separation of powers.the united states respectfully submits.that the rich should issue.thank you thank you general law.and thank you to all council for your.arguments this morning and this.afternoon.we will take the case under submission.this honorable court is not adjourned.until wednesday december 9th at 9 30 am.all participants are now in interactive.talk mode.we're sorry your conference is ending.now please hang up.you.

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How is Brett Kavanaugh actually qualified to be on the DC Circuit Court of Appeals let alone the Supreme Court?

The angry testimony including lies of Kavanaugh made the American Bar Association change its approval rating to disapproval and request a full, complete and extended FBI investigation. The accusatory, dissembling testimony led to over 2,400 law professors, including all the law professors at Yale, and all Kavanaugh's former law professors, and all the law professors at Harvard signed a group letter delivered to the Senate that said Kavanaugh does not display the temperament to be a judge on any court. A second letter signed by nearly one thousand female law professors included the statement tha Continue Reading

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