[00:00:01] Speaker 00:
Case number 20-5143, Dean Ray Michael T. Flynn.

[00:00:06] Speaker 00:
Ms.

[00:00:06] Speaker 00:
Powell for the petitioner, Michael T. Flynn.

[00:00:09] Speaker 00:
Mr. Wall for the U.S.

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Department of Justice.

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Ms.

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Wilkinson for the respondent, the Honorable Emmett G. Sullivan.

[00:00:18] Speaker 06:
Good morning, counsel.

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We'll hear first from Ms.

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Powell.

[00:00:23] Speaker 05:
Good morning.

[00:00:24] Speaker 05:
May it please the court, this is Sidney Powell for petitioner, Michael Flynn.

[00:00:28] Speaker 05:
We are here now to stop further impermissible intrusion into the sole power of the executive branch under the Take Care Clause to decide to dismiss a case and what circumstances warrant that dismissal.

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The government here provided an extensive and thoroughly documented motion to dismiss this prosecution, weighing as it should all the factors that go into that, including the provision of extraordinary exculpatory evidence

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that came to light through an independent review by Mr. Jensen, who not only had 10 years' experience as an FBI agent, but 10 years as a federal prosecutor before Attorney General Barr tasked him to review this case.

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It cannot go on any longer.

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This is the quintessential case for mandamus because we have both issues of judicial usurpation of executive prerogatives and a clear abuse of discretion.

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The judge has no authority to do anything further in the case.

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There's no case or controversy any longer.

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The parties have decided the government has quit and he also has no authority to go into the reasons behind the executive's determination to dismiss the case.

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It's over.

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This is Judge Wilkins.

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Good morning.

[00:01:52] Speaker 05:
Good morning.

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I have a question about the role of the district court.

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You essentially argue that the district court has no role.

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But in Rinaldi, where the Supreme Court was reviewing the denial of a Rule 48 motion made by the government, the court did what it called a, quote, independent evaluation of the unusual circumstances disclosed by the record.

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So the Supreme Court believed that it had a role to perform an independent evaluation.

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So doesn't the district court here have that same role?

[00:02:36] Speaker 05:
Not in the circumstances of this case.

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The authorities are that given the fact the presumption of regularity applies to everything the attorney general has done, and there is no clear evidence whatsoever to go behind that,

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given the documentation, reasoning, and briefing that has been provided.

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There is nothing further for the court to do.

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There's no indication.

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There's no clear evidence.

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There's no actual factor or reason to go behind the government's determination.

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I don't see how that works because the court also said in Rinaldi that it would not presume bad faith by the government.

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So the court did

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It gave the government the benefit of the presumption of regularity, but it yet and still performed an independent evaluation.

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Only to the extent the court said it was not clearly contrary to the manifest public interest.

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There was no further proceeding of any significance, certainly no amicus appointed.

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Certainly no factual background investigation in Rinaldi.

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It was simply a review of the Petite policy and its application to the facts of Rinaldi.

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And in Fokker's services, this court issued the mandamus, of course, to proceed to make sure the deferred prosecution agreement was entered.

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And in doing so, it said the leave of court authority gives no power to the district court to deny a prosecutor's rule 48A motion to dismiss charges

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based on disagreement with the prosecutor's exercise of charging authority.

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Let's suppose the district court had issued a minute order saying that it intends to do an independent evaluation of the record and will issue an opinion on the government's 48A motion in due course.

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Is that error?

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I think that is error.

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I mean, he can look at it on the face of the documents that have been filed, but I don't think in Rinaldi that they went farther than the government's statements of what it was doing and why it was doing it.

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Only the executive can weigh the willingness of the government to prosecute, and there would be no remedy.

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I mean, the court can't make the government prosecute this case.

[00:05:08] Speaker 03:
Well, in Thompson,

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Another Supreme Court case that was cited by at least the government in their briefing, and I can't remember if he cited it in yours also, the Supreme Court was reviewing a denial of a Rule 48A motion by the government, and it said that it performed, quote, an independent examination of the record, close quote.

[00:05:36] Speaker 03:
And that was despite the Solicitor General's suggestion that the court just simply dismiss the case.

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Do you disagree that that's what the court said that it did in Thompson?

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No, but I think all that means is reviewing the documents that the government provided and the existing status of the record before it.

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Not investigating new possibilities or assuming the role of the prosecutor to see about adding on perjury or contempt charges.

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He simply doesn't have the authority to do that.

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And without a case in controversy, he's without jurisdiction to do anything further.

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I mean, if we were here... Well, your mandamus petition is you are... The rulings under review are the failure of the court, the district court, to grant the motion.

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So you believe that just him not granting the motion

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is sufficient grounds in and of itself to justify mandamus.

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Right?

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Well, in Fokker the court also said that the court's withholding of approval would amount to a substantial and unwarranted intrusion on the executive branch's fundamental prerogatives and the judiciary's lack of competence to review the prosecution's initiation and dismissal of charges according to weight equally applies to the DPA decision.

[00:07:01] Speaker 05:
So either way,

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So you believe that Fokker, a case that was not even a Rule 48A case, undermines what the Supreme Court did in Rinaldi and Thompson when the Supreme Court itself performed an independent evaluation of the record, when there was no argument there that there was any bad faith by the government or that the presumption of regularity didn't apply?

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Do you think that Fokker...

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said that the Supreme Court got it wrong in Rinaldi and Thompson?

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No, I'm saying that the independent review of the record consists of just that, a review of the record.

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And the record in this case is extremely well documented of prosecutorial misconduct and the suppression of Brady evidence that warrants dismissal under any circumstance, aside from the fact we had motions to withdraw pending that were very well documented.

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I mean, this record contains enormous evidence now of government misconduct and the suppression of Brady evidence.

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It's just that the judge can't... He doesn't have the authority to point an amicus under the Smith case that Justice Ginsburg just wrote the unanimous decision for.

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He can't go out and create new issues.

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Of course, he can look at the materials before him, and we welcome him doing that.

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But to go ahead and grant the motion because there's no other alternative, not a single case in the country

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has ever affirmed the denial of a motion to dismiss under 48A.

[00:08:38] Speaker 03:
Then it seems like you've got a pretty good argument that you have an alternative avenue of review.

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If he denies the motion, then you can come back here on appeal and you can cite all those precedents to our court and we can decide that issue at that time.

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But he doesn't have the authority now to go beyond the record and do anything except that.

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We would simply be delaying the inevitable and going through an ordinate process in the process of doing that.

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I mean, we just got dumped on a 72-page brief that we have to answer by Wednesday with 500 pages of exhibits.

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Everybody else in this case is being paid by the government except my client's defense team.

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The toll it takes on a defendant to go through this is absolutely enormous.

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And it's not justified by this case.

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This is the most impressive motion to dismiss I've ever seen in decades of practice, and the most well-documented.

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And in fact, in Judge Leon, I think it was a two-page motion to dismiss, pursuant to which he dismissed three defendants for the government after guilty pleas just a couple of years ago.

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And of course, in the United States, the government dismissed, and Judge Posner wrote that decision explaining how the

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The special prosecutor's position had to be vacated and the motion to dismiss had to be granted on mandamus.

[00:10:10] Speaker 06:
Let me ask you.

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This is Judge Henderson.

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If Judge Sullivan had just kept this motion waiting and languishing, it'd be one thing.

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He has set a hearing for mid-July for all we know by the end of July, he will have granted the motion.

[00:10:28] Speaker 05:
But he doesn't have the authority to conduct that hearing, Your Honor.

[00:10:32] Speaker 05:
He has appointed this amicus to go far beyond the scope of his authority as a member of the judicial branch into the prerogatives of the Department of Justice.

[00:10:43] Speaker 06:
I realize that, but you also know that the courts have said he's not merely a rubber stamp either, so there's nothing wrong with him holding a hearing as far as

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I know.

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I don't know of any authority that says he can't hold a hearing before he takes action.

[00:11:01] Speaker 05:
Well, the only authority that their best case is in Ray Richards, in which the Third Circuit, on a motion to dismiss a sexual misconduct claim against someone in the Virgin Islands in a territorial court, said, we've got to have a little sunlight on the reasons here, because the only reason given was in the interest of justice.

[00:11:23] Speaker 05:
And certainly that's not sufficient.

[00:11:26] Speaker 05:
But even that case, it was actually altered by the court's decision in, or discussed by the court's decision in HSBC Bank, the case out of Mr. Gleason's court that reversed his overreaching authority on reviewing a 48A dismissal.

[00:11:48] Speaker 05:
And that HSBC case describes Richards as requiring

[00:11:52] Speaker 05:
a forty-eight a dismissal because the district court's authority severely cabinet at the review to clearly contrary to the public interest meaning the prosecutor acting in bad faith such as bribery factlessness animus to the victim or his own self-interest things like that and there is none of that here if judge Sullivan had denied the motion to dismiss on this record we would be entitled to mandamus right now to drag this out another six months

[00:12:22] Speaker 05:
I mean, it won't just be a hearing on July 16th.

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It'll go beyond that.

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I think it's clear from the amicus position now that they want to take General Flynn to sentencing as soon as possible and impose upon him the maximum possible sentence.

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And to make us go through that process when the ultimate result has to be the grant of the motion to dismiss, the government's just wasting resources out the wazoo pursuing this.

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And the toll it's taking on the defendant is certainly irreparable harm.

[00:12:54] Speaker 03:
I'd like to ask you, go ahead.

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Let me ask one last question and ask, why couldn't we hold this in abeyance?

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And let's see what happens on July 16th.

[00:13:07] Speaker 05:
Because the damage continues to accrue by the day because he has no case or controversy before him and no jurisdiction.

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because he doesn't have the authority to go do what he's trying to do or have done.

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He didn't even have the authority to appoint amicus under Justice Ginsburg's decision.

[00:13:25] Speaker 03:
I don't understand that argument.

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I mean, suppose in a run-of-the-mill criminal case, well, it's not run-of-the-mill because the government has evidence from a drone camera that was positioned to look through

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upstairs of bedroom windows into the defendant's home and the defendant moves to suppress.

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And the amici, including, you know, the Cato Institute and other organizations seek to participate as friends of the court in support of that motion to dismiss.

[00:14:02] Speaker 03:
You're saying that a district court wouldn't have authority to grant those motions?

[00:14:08] Speaker 05:
No, I'm saying that he doesn't have authority to appoint an amicus to do the job that the government would have done if the government chose to continue the prosecution.

[00:14:19] Speaker 03:
So the court can appoint an amicus on the motion, but the court can't do it on its own motion?

[00:14:28] Speaker 05:
No, I'm saying that the court cannot substitute its role

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for that of the government.

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It can't take the place of the Attorney General or appoint someone to take the place of the Attorney General.

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That's precisely what Judge Posner rejected in NRA United States.

[00:14:46] Speaker 03:
He can't go outside his lane to appoint somebody to do the job that... The order appointing Amicus appointed him to present arguments in opposition to the government's motion to dismiss.

[00:15:02] Speaker 03:
That's all that it says in that paragraph.

[00:15:08] Speaker 03:
So how is that violating Article 2 to appoint someone to present arguments in opposition?

[00:15:21] Speaker 05:
Because the government had already made the decision to stop, and the government is the only entity that can make that decision.

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The Department of Justice is the only entity that can decide whether to pursue this prosecution.

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The judge has no way of doing that on his own through amicus or a special prosecutor or anything else.

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The government has quit and it's time to leave the field.

[00:15:47] Speaker 03:
Go ahead.

[00:15:48] Speaker 01:
Oh, what about, this is Jess Rao, what about appointing amicus for the contempt charges?

[00:15:57] Speaker 01:
I mean, the Supreme Court in the Young case said that the court can appoint a private party to prosecute contempt charges.

[00:16:05] Speaker 01:
I mean, do your arguments with respect to the appointment of the amicus apply also to the contempt charges?

[00:16:12] Speaker 05:
Yes, as Ira Meakey pointed out, and we did also in our brief, contempt doesn't lie for perjury in these circumstances.

[00:16:22] Speaker 05:
There are 500 people in the national database of registry of exonerations who would otherwise be susceptible to perjury prosecutions because they entered guilty pleas, but they were actually innocent.

[00:16:36] Speaker 01:
But Ms.

[00:16:36] Speaker 01:
Palbeck goes to the merits about whether

[00:16:39] Speaker 01:
contempt could actually be found.

[00:16:41] Speaker 01:
But what about the appointment of the amicus to look into contempt charges?

[00:16:48] Speaker 05:
There's no basis to do that either.

[00:16:49] Speaker 05:
He doesn't have the authority to prosecute anyone for contempt.

[00:16:53] Speaker 05:
That's not the judge's place to add on charges.

[00:16:56] Speaker 05:
That is solely within the prerogatives of the Department of Justice.

[00:17:00] Speaker 01:
Is that inconsistent with the Supreme Court decision in Young?

[00:17:08] Speaker 05:
I don't see that inconsistency.

[00:17:16] Speaker 01:
Well, in Young, the court says that the district court can appoint a private party to prosecute content charges.

[00:17:26] Speaker 05:
Well, in the circumstances of this case, contempt cannot lie by virtue of him having moved to withdraw his guilty plea.

[00:17:36] Speaker 01:
Let me ask you one other question about the contempt charges.

[00:17:39] Speaker 01:
I mean, if we decide that reassignment here is not appropriate, would we have any grounds for reaching the contempt question?

[00:17:49] Speaker 01:
I don't believe Mr. Flynn's petition for rid of mandamus asked for mandamus on the contempt question itself.

[00:17:56] Speaker 01:
Is there any grounds we would have for being able to reach that question?

[00:18:01] Speaker 05:
Well, simply the fact that the judge doesn't have the authority to do it and there's no continuing case or controversy.

[00:18:10] Speaker 03:
Can I ask a question about the continuing case or controversy point?

[00:18:15] Speaker 03:
In Thompson, the 1980 Supreme Court case that I referred to earlier that was cited in the briefs,

[00:18:24] Speaker 03:
The Supreme Court, the Solicitor General suggested to the Supreme Court that the case be dismissed under Rule 48A and the Supreme Court did not itself dismiss the case and the Supreme Court did not declare that there was no longer a case for controversy.

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Instead, the Supreme Court remanded the case to the Court of Appeals for

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reconsideration in light of the government's present position.

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So in that case, the Supreme Court did not treat the fact that the government had filed a Rule 48A motion as ending the case so that there was no longer a case or controversy.

[00:19:13] Speaker 03:
Don't you agree?

[00:19:15] Speaker 05:
Well, if I recall that case correctly, it was a mandamus for a mandamus.

[00:19:21] Speaker 05:
And what the Supreme Court decided was that the appellate court needed to address an additional issue.

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That is not our situation.

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With the fact that not a single court in the country has ever refused to affirm a 48A motion, there's no basis to proceed with this case.

[00:19:44] Speaker 05:
The government is the only entity, the Department of Justice is the only entity under Article 2, Section 3 that can prosecute the case.

[00:19:52] Speaker 05:
And they have decided not to do this for a number of reasons, not the least of which is the appalling suppression of exculpatory evidence that's gone on for as long as three years, the fact that the FBI agents literally made up statements to put in a 302, the fact that agent or Mr. Priestap had a discussion with Andrew McCabe

[00:20:13] Speaker 05:
about while we're trying to get the defendant to lie and what is our goal here, and came back the next day reconsidering the fact that they had decided not to show him the evidence that they had like they do with everybody else.

[00:20:27] Speaker 05:
The fact they decided not to even give him a 1001 mention, not even a warning, of course.

[00:20:34] Speaker 05:
No warning, but not even to mention 1001.

[00:20:37] Speaker 05:
They sent agents over there according to Mr. Comey's testimony.

[00:20:41] Speaker 05:
just just told me a couple agents were going to drop by with that okay and he said of course sure he works with them all the time.

[00:20:47] Speaker 05:
I mean this is an appalling injustice.

[00:20:50] Speaker 05:
It's a travesty of justice that this man has been dragged through this for three years on a case that was absolutely concocted by FBI agents with some help from the Department of Justice and evidence falsified and everything else.

[00:21:06] Speaker 05:
The government has

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has provided extraordinary documentation.

[00:21:14] Speaker 05:
And the only thing left to do is for the judge to order the dismissal of this case.

[00:21:19] Speaker 03:
The delay... The judge can't do an independent evaluation of the record before entering that dismissal?

[00:21:27] Speaker 05:
No, he can look at the record.

[00:21:29] Speaker 05:
He can look at the record, but the only thing to do as a result of that is to order this dismissal because of the presumption of regularity that attaches

[00:21:38] Speaker 05:
and the fact there's no clear evidence of anything else.

[00:21:41] Speaker 05:
He can't make up these things he calls reasonable, plausible questions that don't even relate to the motion to dismiss and proceed to drag this out forever.

[00:21:53] Speaker 05:
It's just not, I mean, it's contradictory to Fokker Services, it's contradictory to Rinaldi, it's contradictory to the NRA United States and the Fourth Circuit in Smith and the Fifth Circuit in Ham.

[00:22:07] Speaker 03:
Where in the orders under review did the district court say anything about reasonable plausible questions?

[00:22:17] Speaker 05:
It's in their brief.

[00:22:21] Speaker 03:
That's not the order under review though.

[00:22:23] Speaker 03:
The order under review is, from your perspective, is him not granting the motion.

[00:22:34] Speaker 03:
That not granting the motion

[00:22:36] Speaker 03:
itself is grounds for mandamus.

[00:22:40] Speaker 05:
And appointing the amicus to do anything.

[00:22:45] Speaker 03:
So we have to find both of those things to be improper to justify amicus?

[00:22:52] Speaker 03:
Is that your position or is one of them, any one of them by itself grounds for mandamus?

[00:23:02] Speaker 05:
I think either one by itself is grounds for mandamus.

[00:23:06] Speaker 05:
They're independent grounds for mandamus.

[00:23:10] Speaker 06:
Ms.

[00:23:10] Speaker 06:
Powell, let me ask you something about this appointment of amicus.

[00:23:14] Speaker 06:
In FOCR services, we ourselves appointed amicus.

[00:23:18] Speaker 06:
Now, if Judge Sullivan had not appointed amicus, would you be telling us that we couldn't appoint amicus?

[00:23:26] Speaker 05:
No, ma'am.

[00:23:27] Speaker 05:
You can appoint amicus to weigh in on any issue the Court of Appeals wants an amicus to weigh in on as long as it's an issue within the case and the Court of Appeals didn't create it.

[00:23:38] Speaker 05:
What Judge Sullivan has done here is created his own issues that he wants to investigate that aren't related to the motion to dismiss or even the case before him in any way.

[00:23:49] Speaker 05:
He wants to add on charges that he can't.

[00:23:52] Speaker 06:
But in FOCR services, we appointed

[00:23:55] Speaker 06:
someone to defend Judge Leon's order.

[00:24:04] Speaker 05:
Well, that's what Ms.

[00:24:05] Speaker 05:
Wilkinson is doing here before this Court.

[00:24:07] Speaker 05:
She's the analogous piece of that proposition, not Mr. Gleason.

[00:24:16] Speaker 06:
That's true, and you have no problem with her, obviously.

[00:24:20] Speaker 05:
No, obviously she's entitled to be here on behalf of the judge.

[00:24:25] Speaker 05:
Appellate courts often allow amicus participation, but the district court doesn't in criminal cases.

[00:24:32] Speaker 05:
There's not even a provision in the rule for that.

[00:24:34] Speaker 05:
In fact, if you go try to file a brief as an amicus in the district court, you can't do it properly.

[00:24:40] Speaker 05:
All the docket entries had to be corrected.

[00:24:43] Speaker 05:
There's no provisions from MECUS in criminal cases.

[00:24:46] Speaker 03:
So I asked you earlier if an MECUS could file a motion in support, a brief in support of a motion to suppress.

[00:24:57] Speaker 03:
What's your answer?

[00:24:58] Speaker 03:
Is there authority for that, yes or no?

[00:25:02] Speaker 05:
I would think there is authority for that.

[00:25:05] Speaker 03:
Based on what?

[00:25:05] Speaker 05:
In support of a motion that another party has filed.

[00:25:08] Speaker 05:
If the judge wants to allow it, it would require a leave of court, I would think.

[00:25:12] Speaker 03:
Based on what rule?

[00:25:14] Speaker 05:
I don't think there's a rule for it, but I do believe that, for instance, there have been Amiki and other cases in the district court level, but it's been in support of a position of one of the parties, not in support of a judge trying to gen up additional charges himself.

[00:25:35] Speaker 03:
Well, just with respect to the Rule 48A motion,

[00:25:40] Speaker 03:
It's your contention that if for some reason Mr. Flynn opposed the government's motion, it would be okay for an amicus to enter an appearance to file briefs in support of Mr. Flynn, right?

[00:26:04] Speaker 05:
Well, at least there would still be a case in controversy before the court, and it would be up to the district court whether to allow leave to do that.

[00:26:12] Speaker 05:
I don't see a provision in the rules for it, but generally speaking, district courts I've known kind of do what they want to do within bounds of reason.

[00:26:20] Speaker 03:
So there's authority for it so long as there's a case or controversy?

[00:26:26] Speaker 03:
I'm just trying to understand your legal reasoning here.

[00:26:30] Speaker 05:
The legal reasoning is that he essentially appointed Mr. Gleason as a special prosecutor, that he doesn't have the authority to do.

[00:26:38] Speaker 05:
If he'd asked Mr. Gleason, for example, to weigh in on a side that existed in the case, that might be permissible.

[00:26:49] Speaker 05:
I would probably still argue against it, but I wouldn't have sought to rid a mandamus on it, I don't think.

[00:26:56] Speaker 05:
But to bring in

[00:26:59] Speaker 01:
Isn't your argument also that it's impermissible to have amicus-free in criminal cases under the rules of the court?

[00:27:10] Speaker 05:
Yes, that is one of our arguments here because there is no rule providing for it.

[00:27:17] Speaker 05:
But like I said, I've certainly seen it done in other districts' courts as long as it's on the side of one of the parties that seeks to continue the litigation.

[00:27:25] Speaker 05:
just not on behalf of the judge as an independent prosecutor himself.

[00:27:33] Speaker 06:
All right.

[00:27:33] Speaker 06:
Are there any more questions?

[00:27:36] Speaker 06:
Okay.

[00:27:37] Speaker 06:
Ms.

[00:27:38] Speaker 06:
Powell, we'll give you a couple minutes in reply.

[00:27:40] Speaker 06:
Next is Mr. Wall.

[00:27:44] Speaker 02:
Thank you, Your Honor.

[00:27:46] Speaker 02:
It may please the Court, Chuck Wall for the United States.

[00:27:49] Speaker 02:
I'd like to, uh, I hope I'll have the opportunity to address a number of the questions that the court has asked, uh, petitioners council.

[00:27:55] Speaker 02:
But I want to start with two points, one on the merits, uh, to you, Judge Wilkins and one on harms to you, Judge Henderson.

[00:28:03] Speaker 02:
And I think by the way, that's the right order to take them.

[00:28:06] Speaker 02:
In recent mandamus cases like Fokker and like Bloom and fall, the emoluments clause case, the court looked at the merits, asked whether there was a clear and indisputable right on the merits.

[00:28:16] Speaker 02:
and then turn to the mandamus factors and the harms.

[00:28:19] Speaker 02:
I think that makes particular sense here because if we're clearly right about Focker that it doesn't leave an oversight power in the courts or a substantial role with respect to unopposed Rule 48 motions, then I think it's easier to see Judge Henderson why it's so harmful to continue to allow this process to play itself out in the district court.

[00:28:40] Speaker 02:
Taking the merits first, Judge Wilkins,

[00:28:43] Speaker 02:
Rinaldi was a case in which the court assumed, I think it's clearest in footnote 15, it assumed the broader standard and then said, you know, even that standard can't be satisfied.

[00:28:53] Speaker 02:
So the trial court has abused its discretion in denying a motion, a motion, by the way, that came after judgment in that case, not just after a plea or a trial, but after judgment.

[00:29:04] Speaker 02:
And Thompson, of course, was just a case in which we wanted to pull the prosecution and the Supreme court.

[00:29:09] Speaker 02:
And we asked the court to GBR.

[00:29:11] Speaker 02:
And even there, after an affirmance in the Court of Appeals, it's sent it back to the district court to allow us to do that.

[00:29:17] Speaker 02:
But I completely grant, Judge Wilkins, neither one of those cases resolves the substantive standard for Rule 48.

[00:29:23] Speaker 02:
They resolve that Rule 48 applies contra respondent assertion all the way on direct review.

[00:29:30] Speaker 02:
There's no magical line at the plea.

[00:29:32] Speaker 02:
But they don't resolve the substantive standard.

[00:29:34] Speaker 02:
The case that does that and the case that we rely on for mandamus here is this court's decision in Fokker.

[00:29:40] Speaker 02:
That's the decision that resolves the substantive standard for the denial of the Rule 48 motion.

[00:29:46] Speaker 03:
How does it resolve that when the case was not an appeal of a Rule 48A motion?

[00:29:54] Speaker 02:
Because what Chief Judge Srinivasan did in discussing the DPA was he explained how DPAs and Rule 48 motions are analogous and he separated off approval of a plea agreement under Rule 11.

[00:30:07] Speaker 02:
And that analogy was central to the court's reasoning, right, in order for the court to say that district court erred in a way that justified mandamus.

[00:30:17] Speaker 02:
He said the error is so clear because look at our, look at what has to be the rule under rule 48.

[00:30:23] Speaker 02:
And then that has to be the rule for DPAs as well.

[00:30:27] Speaker 02:
So I understand parts 2A and 2B of the opinion in Fokker to be central to the judgment and to what it goes on to do when it applies that standard later in

[00:30:37] Speaker 02:
in the opinion.

[00:30:38] Speaker 02:
And I think the language of Fokker when it goes through that discussion leaves no doubt.

[00:30:42] Speaker 02:
It says dismissing charges, not just commencing, but dismissing.

[00:30:45] Speaker 02:
Is it squarely within the can of prosecutorial discretion?

[00:30:49] Speaker 02:
It says there's no oversight power in the courts, no involvement by the judiciary, and it says no substantial rule for courts.

[00:30:57] Speaker 02:
And if we're right about what Fokker says with respect to Rule 48, then to turn to my point to you, Judge Anderson, then it's really a question of,

[00:31:06] Speaker 02:
what are the point of further proceedings if the district court is required by circuit case law to grant the rule forty eight motion and i do believe that the talker stands for the proposition that that that that the district court can't perform an independent evaluation of the record i think it doesn't the following since judge wilkins i understand Parker to mean that if tomorrow faced with the kind of tolling agreement that was an issue in soccer district course

[00:31:36] Speaker 02:
I'm going to set up a process for deciding whether to grant this agreement.

[00:31:42] Speaker 02:
I'll hear from both sides.

[00:31:43] Speaker 02:
There are a number of factual questions I'm going to have to resolve about whether you're going too easy on particular descendants.

[00:31:48] Speaker 02:
And the district court did all of that.

[00:31:51] Speaker 02:
I understand that to be, yes, a straightforward violation of Focker.

[00:31:55] Speaker 02:
And again, it's not just the sort of idea that there will be some briefs and a hearing, Judge Henderson.

[00:32:01] Speaker 02:
The harm is that

[00:32:03] Speaker 02:
As the respondent explains, both in the opening brief and page two of the reply, the point of this is to investigate, they say, the prosecutorial decisions and prosecutorial motives.

[00:32:13] Speaker 02:
Those are respondent's words.

[00:32:15] Speaker 03:
The order itself says that, which is under review, says that amicus is appointed to present arguments in opposition to the government's motion to dismiss.

[00:32:29] Speaker 03:
That's the order under review.

[00:32:31] Speaker 03:
It doesn't say anything about fact development or anything else.

[00:32:41] Speaker 02:
So with all respect, Judge Wilkins, two points.

[00:32:43] Speaker 02:
First, we're not here on appeal from an order.

[00:32:46] Speaker 02:
We are here, as you know, on mandamus.

[00:32:48] Speaker 02:
And mandamus is an extraordinary writ that directs the district court to do something.

[00:32:52] Speaker 02:
It's not necessarily a review of an order.

[00:32:54] Speaker 02:
And here, we're asking that the district court be directed to grant the Rule 48 motion.

[00:32:58] Speaker 02:
But second,

[00:32:59] Speaker 02:
Beyond the order, the reason for entering the order as respondents, priests in this court have explained.

[00:33:04] Speaker 02:
So we now know what's going to go on below.

[00:33:06] Speaker 02:
Respondent wants to inquire into what they say are prosecutorial decisions and prosecutorial motives because the district court is concerned that there was improper influence here.

[00:33:16] Speaker 02:
And indeed both the district court and the court appointed amicus as on the one hand suggested and with respect to the amicus flat out alleged that there was misconduct on the part of the attorney general and even the president of the United States.

[00:33:28] Speaker 02:
That's going to mean that when you're in the district court's view, you're going to have to come in and answer those questions and defend against them.

[00:33:35] Speaker 02:
And that's all of the systemic costs that this court laid out in Part 2A of Fokker.

[00:33:41] Speaker 02:
So in order to have this sort of anodyne proceeding that some of these questions are assuming, this court would have to issue mandamus.

[00:33:48] Speaker 02:
You have to take off the table evidentiary proceedings and the like.

[00:33:52] Speaker 02:
You have to take off the table contempt.

[00:33:54] Speaker 02:
You'd have to say just the Rule 48 motion, you address that dispatch and then you could come back to this court.

[00:33:59] Speaker 02:
But at that point, if that's the proceeding, there's no reason not to.

[00:34:03] Speaker 03:
The district court doesn't even have the authority to appoint amicus to advise it on whether it should issue an order to show cause for contempt?

[00:34:16] Speaker 02:
Judge Wilkins, we, unlike the petitioner, we have not argued

[00:34:19] Speaker 02:
that district court generally lacks the power to appoint amici, I think, either under the rules or more likely under their inherent authority.

[00:34:27] Speaker 02:
But what we have said is that the particular amicus here is improper for all the same reasons that appointing amici and going through an elaborate process would be improper in the DPA context under Fokker.

[00:34:40] Speaker 02:
And if that's true, then a for sure is got to be true for the Rule 48 context, which was the basis for Fokker's reasoning with respect to DPAs.

[00:34:49] Speaker 02:
So we're not saying that, you know, the district courts don't have the power to do this generally.

[00:34:55] Speaker 02:
What we're saying is that here there are problems with this particular appointment of the amicus.

[00:35:02] Speaker 02:
And just to get back to your question, Judge Peterson, I think once we know that those are the harms, there's no reason not to take that final step because we know the harms that are going to play out.

[00:35:13] Speaker 02:
This has already become, and I think is only becoming more of,

[00:35:16] Speaker 02:
a public spectacle, particularly in light of the amicus filing in the district court two days ago.

[00:35:22] Speaker 02:
And I really, it threatens to harm not just the integrity of the executive and its prosecutorial discretion and its deliberative processes, but I think, frankly, it threatens to do harm to the judiciary as well.

[00:35:33] Speaker 01:
Mr. Wall, if I could just ask you, I mean, the court has, you know, our court has repeatedly declined to grant mandates when the government addresses abstract

[00:35:45] Speaker 01:
separation of powers violations, such as in al-Mashiri.

[00:35:48] Speaker 01:
So I'm just wondering if you can be more specific and more particular about what the concrete separation of powers violation is here.

[00:35:58] Speaker 01:
I mean, Rule 48 does allow leave of court, right?

[00:36:02] Speaker 01:
So is the problem, like, what precisely is the problem here?

[00:36:07] Speaker 01:
What precisely is the infringement on the Article II power?

[00:36:11] Speaker 02:
I think, Judge Rao, that the separation of powers harms here.

[00:36:15] Speaker 02:
You're right.

[00:36:15] Speaker 02:
They can be very subtle and very abstract in a lot of cases.

[00:36:19] Speaker 02:
I think they are as stark and as concrete here as they come, because here we know from what's transpired below and from the briefs in this court that what the district court is contemplating is a sort of intrusive, fact-intensive inquiry into what they say are a host of factual questions.

[00:36:38] Speaker 02:
Why did particular prosecutors not sign the brief?

[00:36:41] Speaker 02:
Why did the attorney general make this decision?

[00:36:43] Speaker 02:
Was he right on these various grounds?

[00:36:45] Speaker 02:
What about the uncharged conduct with respect to the Turkey statements?

[00:36:49] Speaker 02:
We're going to have to brief and apparently put on evidence in defense of all of that so that the district court can then reach a decision when circuit law compels him to grant the motion.

[00:37:01] Speaker 02:
And I think that it is an intrusive process and it is going to harm the executive.

[00:37:05] Speaker 02:
And we can't ignore that it is playing out in a politicized environment that I think is made worse

[00:37:11] Speaker 02:
by the kind of honestly, the sort of 70 page almost polemic that the court appointed amicus file, which alleges that the president and the attorney general have engaged in engraved misconduct.

[00:37:22] Speaker 02:
So when you're looking at those kinds of allegations, you're forcing us to defend against them all in a context where this court's case law says that's exactly what courts shouldn't be doing.

[00:37:32] Speaker 02:
It says, quote, no substantial role, end quote.

[00:37:35] Speaker 02:
It's hard for me to see how much clear it is.

[00:37:39] Speaker 03:
But all of the 48A opinions from every court has said that the court has some role in that the role involves making sure that there's not something that's being done clearly contrary to the public interest.

[00:37:58] Speaker 03:
So then there must be some case where

[00:38:06] Speaker 03:
or some set of circumstances where, as unfortunate as the clash of the two branches of government might be, where Rule 48A does some work.

[00:38:19] Speaker 03:
Isn't that right?

[00:38:21] Speaker 02:
Judge Wilkins, I think it is right in the following sense.

[00:38:23] Speaker 02:
48A does work in cases where it's an opposed motion.

[00:38:27] Speaker 02:
And even where it's an unopposed motion, we don't dispute that the court can ascertain that it's got the considered decisions of the parties.

[00:38:34] Speaker 02:
You don't have a prosecutor who's been bribed or a defendant who hasn't been counseled about the dismissal.

[00:38:39] Speaker 02:
But we do say that for unopposed motions to dismiss, relatively small set of applications under 48A, that where the parties agree and they are both making considered decisions, yes, the court is required to grant in light of the constitutional concerns that this court discussed in Fokker.

[00:38:57] Speaker 02:
And the second thing I'd say, Judge Wilkins, just to drive this home is,

[00:39:00] Speaker 02:
I understand respondent to accept that everything I just said is right in the pre-plea situation.

[00:39:06] Speaker 02:
They agree that if the defendant hadn't pleaded, and this was just an ongoing prosecution, we could pull this back.

[00:39:12] Speaker 02:
There'd be nothing a court could do about it, couldn't force us to go to trial.

[00:39:16] Speaker 02:
And a court, even if it were upset about our motives, couldn't perform any oversight.

[00:39:20] Speaker 02:
It would need to grant the motion.

[00:39:22] Speaker 02:
And so the move that they make, and it's the key to the merits at page 19 of the reply is to say, okay, but Fokker is just for the pre-plea situation.

[00:39:30] Speaker 02:
It doesn't apply once the court has accepted the plea.

[00:39:34] Speaker 02:
And I think that's got to be wrong for no fewer than four reasons.

[00:39:37] Speaker 02:
First, once we know that it's not the concern of the rule in most of the cases, which are the pre-plea cases, then we know it's not really what the rule cares about.

[00:39:45] Speaker 02:
Second, the constitutional concerns are exactly the same after the plea.

[00:39:48] Speaker 02:
We no longer want to proceed as the executive, and there's no longer a controversy between parties.

[00:39:53] Speaker 02:
Third, we know, as you said from Rinaldi, the US can dismiss even after judgment, even after trial, let alone after a plea.

[00:39:59] Speaker 02:
So there's no magical plea line.

[00:40:01] Speaker 02:
And fourth, Fokker rejected exactly this distinction.

[00:40:05] Speaker 02:
It said accepting the plea agreement, to be sure, is a judicial act.

[00:40:08] Speaker 02:
That calls on the court's authority.

[00:40:10] Speaker 02:
But just dismissing, that it said doesn't.

[00:40:13] Speaker 02:
That's just letting a case go in deference to the executive's exercise of prosecutorial discretion.

[00:40:19] Speaker 02:
And once you know that that plea line, there's nothing magical about that in terms of Rule 48 or the Constitution, then I think their case and the merits collapses.

[00:40:27] Speaker 02:
And then we're just back to Judge Henderson's question about the harms and why Grant Mandamus, why Grant Mandamus now.

[00:40:34] Speaker 03:
Well, Tucker made clear that there are different considerations at different stages of a criminal case.

[00:40:42] Speaker 03:
to the extent that you, even if we credit that Focker is binding on Rule 48A, in here we have two different district judges that as a part of their obligations under Rule 11 made factual findings as to materiality and the basis for plea, etc.

[00:41:07] Speaker 03:
And so the government's motion doesn't just implicate

[00:41:11] Speaker 03:
the government's position, it implicates those rulings that two district court judges have made.

[00:41:20] Speaker 03:
So the case isn't in the same posture as it would be prior to a plea agreement in that respect.

[00:41:32] Speaker 02:
I absolutely agree with part of that, Judge Wilkins.

[00:41:35] Speaker 02:
It is certainly true that there are different concerns at different stages.

[00:41:40] Speaker 02:
And Fokker says, accepting the plea agreement does call on the court's authority because it has to ascertain whether there's a factual basis for the plea.

[00:41:47] Speaker 02:
But it contrasts that with dismissal.

[00:41:50] Speaker 02:
And take a case like, and so the part I disagree with is that once you've crossed that plea line and a defendant has pleaded, that suddenly everything that follows invokes the court's authority in some way that changes the calculus, because Fokker says that's not true.

[00:42:05] Speaker 02:
And the best example, I think, is in the United States in the Seventh Circuit.

[00:42:09] Speaker 02:
The district court, there wasn't just a plea, there was a sentence.

[00:42:14] Speaker 02:
And in light of the sentence, the government wanted to dismiss some of the charges because it no longer wanted to proceed with them.

[00:42:22] Speaker 02:
And the district court was upset about that.

[00:42:25] Speaker 02:
It wouldn't allow the government to dismiss.

[00:42:26] Speaker 02:
And the Seventh Circuit said, look, it doesn't matter.

[00:42:29] Speaker 02:
Even if the government's trying to get around the district court sentencing authority, it's the master of its own case.

[00:42:35] Speaker 02:
It gets to decide when to bring or when to dismiss charges.

[00:42:38] Speaker 02:
So I agree that of rule 11 acceptance of a plea agreement, if that's what we're before the court, that's different.

[00:42:45] Speaker 02:
But this, and Fokker's language is crystal clear about this, it says accepting DPAs and dismissing on a rule 48, it says, quote, are not formal judicial action imposing or adopting, end quote, terms on defendants or parties.

[00:42:59] Speaker 02:
They're not the court formally signing off on anything.

[00:43:03] Speaker 02:
When Judge Sullivan grants this rule 48 motion, as he's required to,

[00:43:07] Speaker 02:
He's not taking back anything he's done before.

[00:43:09] Speaker 02:
He's not expressing any opinion on the government's case.

[00:43:11] Speaker 02:
He's not saying he agrees or disagrees.

[00:43:13] Speaker 02:
He's just acknowledging a co-equal branches exercise of its poor executive power.

[00:43:19] Speaker 03:
I have a question about your position, the United States position about its representations in support of a Rule 48A.

[00:43:35] Speaker 03:
Is it your position that the government does not have to state all of its reasons in support of dismissing the case, only those that it chooses to share with the court?

[00:43:56] Speaker 02:
It is, Judge Wilkins, but I don't think anything turns on that here and that you need to agree with me on that.

[00:44:02] Speaker 02:
I think we could have come in and just moved to dismiss without providing an explanation to district court.

[00:44:06] Speaker 02:
We do that at times and district courts routinely grant them no appellate courts ever reversed in a situation like that.

[00:44:13] Speaker 02:
But here we did.

[00:44:14] Speaker 02:
We went beyond what we thought we were obligated to do under the circumstances.

[00:44:17] Speaker 02:
We provided a robust explanation to the district court and we think whatever Rule 48 might require as a procedural matter, we've more than cleared that hurdle.

[00:44:27] Speaker 02:
As Ms.

[00:44:28] Speaker 02:
Powell said, I mean, I think this is one of the most

[00:44:31] Speaker 02:
robust rule 48 motions you'll find.

[00:44:35] Speaker 03:
So, I guess, understand my concern.

[00:44:41] Speaker 03:
Suppose you have a case where a federal law enforcement officer is pleaded guilty to a criminal civil rights violation for using excessive force and then the government

[00:44:57] Speaker 03:
says that they've uncovered some Brady evidence and are moving to dismiss under 48A after the guilty plea.

[00:45:12] Speaker 03:
But part of the reasoning of the authorities was that as to why they didn't believe they'd be able to prove this case beyond a reasonable doubt was that the defendant is black

[00:45:27] Speaker 03:
I'm sorry, the victim is black, the defendant law enforcement officer is white, and they did not believe that the jury would believe the black victim over the white officer without corroborating evidence.

[00:45:46] Speaker 03:
And that's unfortunate, but that's the reality.

[00:45:50] Speaker 03:
And so that was one of their reasons for dismissing.

[00:45:56] Speaker 03:
But they thought that

[00:45:57] Speaker 03:
that wouldn't play well, so they didn't say that in the motion.

[00:46:02] Speaker 03:
They just said that the exculpatory evidence was the reason they're dismissing.

[00:46:07] Speaker 03:
Is that proper?

[00:46:10] Speaker 02:
So two points, Judge Wilkins.

[00:46:11] Speaker 02:
One is legal and one is practical.

[00:46:14] Speaker 02:
The legal one is that there's an easy way to deal with that here, given the mandamus posture.

[00:46:19] Speaker 02:
I think Fokker is clear that the government, as long as it

[00:46:23] Speaker 02:
provides no reason or any reason at all can, can, and it's not an unconstitutional reason, can dismiss.

[00:46:29] Speaker 02:
So yes, I think that that motion there should be granted, but the easy way to deal with that in the mandamus posture is to say, look, even if you think that there's room for some kind of a, a Richard's like rule, or we think there's a, it's, it's not clear and indisputable.

[00:46:47] Speaker 03:
I'm sorry.

[00:46:49] Speaker 03:
I, um,

[00:46:51] Speaker 03:
I couldn't hear about 10 seconds of that.

[00:46:53] Speaker 03:
Could you repeat whatever you said?

[00:46:55] Speaker 02:
Neither did I. Sure.

[00:46:58] Speaker 02:
I'm sorry, Judge Wilkins.

[00:46:59] Speaker 02:
If you thought that it wasn't clear under Focker whether the court could allow that type of explanation, you could try to leave that open and just say, look, whatever that might be on the merits, it's clear and indisputable that wherever the bar is, the government met it here through its full explanation.

[00:47:20] Speaker 02:
And the practical thing I'd say is, I certainly hope that the government hasn't ever filed a motion like that, and I'm not aware of it.

[00:47:27] Speaker 02:
But even then, yes, I think the court should have to grant it, because the government, whatever its motive, no longer wants to proceed.

[00:47:34] Speaker 02:
But what you would see is you'd see other descendants walking in, attaching that motion, and bringing Armstrong claims, saying the government is making racially-based decisions in its prosecutions.

[00:47:45] Speaker 02:
And based on your hypo, it sounds like they'd have pretty good grounds for that.

[00:47:50] Speaker 02:
I think there are remedies for this other than needing to contort Rule 48 to get into what the executive's motives are.

[00:47:58] Speaker 03:
If there's remedies for it, there can't be a remedy for it unless you know that it's happening.

[00:48:06] Speaker 03:
And if the government doesn't have to disclose all of its reasons, then you never know that it's happening, right?

[00:48:14] Speaker 03:
But that's always if the district court isn't allowed to ask whether there were any other reasons, you'd never know that it's happening, right?

[00:48:24] Speaker 02:
But that would be equally true in a case like Fokker, Judge Wilkins.

[00:48:27] Speaker 02:
I mean, the district court could always say, look, I think that the U.S.

[00:48:31] Speaker 02:
attorney has cut a sweetheart deal with corporate descendants here.

[00:48:35] Speaker 02:
And so I want to get some briefing and I want some argument and hearing on whether there was improper influence brought to bear on this.

[00:48:43] Speaker 02:
And the point of Fokker is that it isn't to the courts to police whether the executive has pure or impure motives.

[00:48:52] Speaker 02:
The remedies for those occur in political and public arenas, retaliation from the other branches, dismissal of corrupt executive officials, even, you know, impeachment if it comes to it.

[00:49:04] Speaker 02:
But rule 48, Fokker says, is not the mechanism for policing the kind of harms that you're worried about.

[00:49:11] Speaker 02:
And if a court could do the sort of thing you're talking about, then I think Fokker has to be a dead letter.

[00:49:18] Speaker 02:
Because either with respect to Rule 48 or a DPA, a court concerned about the executive's motives could always inquire, and I understand that inquiry to be exactly what Fokker shuts off.

[00:49:31] Speaker 01:
So Mr. Wall, are you suggesting, I mean, normally the standard is that there is a presumption of regularity.

[00:49:39] Speaker 01:
What about the case in which a district court feels that that presumption is overcome on the face of the material presented by the government?

[00:49:51] Speaker 02:
So two points, Judge Rao.

[00:49:55] Speaker 02:
First, I don't think that presumption is relevant here.

[00:49:58] Speaker 02:
And I put it to you this way.

[00:50:00] Speaker 02:
If the district court thought that the government had a bad faith motive for declining to bring a prosecution, I take it everyone agrees that the court couldn't force the US to bring the case.

[00:50:11] Speaker 02:
And the same is true for maintaining a prosecution.

[00:50:14] Speaker 02:
As Fokker says, there's no oversight role for the courts.

[00:50:17] Speaker 02:
And when it refers, this is the key thing, Judge Rao, when it refers to the presumption of regularity, it's not saying there's some exception to the rule it's laying down in that situation.

[00:50:26] Speaker 02:
If you look at that passage of the opinion,

[00:50:29] Speaker 02:
all it's doing is listing that as another reason for adopting its rule, which is that even with respect to constitutional claims, the courts are very low to second guess in the absence of clear evidence of a constitutional, unconstitutional motive.

[00:50:42] Speaker 02:
And so it gives that as a reason for reading Rule 48 its way.

[00:50:46] Speaker 02:
It's not adopting some exception to its reading of the rule, but even if it were, we'd still be entitled to mandamus.

[00:50:53] Speaker 02:
Because Armstrong is completely clear, Judge Rao, that you have to have clear evidence of an unconstitutional motive to rebut the presumption.

[00:51:00] Speaker 02:
And they can argue back and forth about whether they think the attorney general is right about this or about that.

[00:51:05] Speaker 02:
But there's nothing here that remotely approaches clear evidence of an unconstitutional motive.

[00:51:10] Speaker 02:
That's what you need to rebut the presumption, even if it were relevant.

[00:51:14] Speaker 01:
So irregularity, in your view, would only be an impermissible motive?

[00:51:20] Speaker 01:
There are not other types of irregularities?

[00:51:24] Speaker 02:
That's right, because it's only an unconstitutional motive that would allow the court to step in, that you need an independent constitutional limit, like a racially-based prosecution.

[00:51:34] Speaker 02:
So yes, if a district court fought that a U.S.

[00:51:36] Speaker 02:
attorney were favoring his friend, that would be terrible conduct.

[00:51:40] Speaker 02:
There are political remedies for that, but there are judicial remedies under Rule 48.

[00:51:44] Speaker 02:
If the considered decision of the executive branch, whatever its motive, is that it no longer wishes to proceed,

[00:51:51] Speaker 02:
it doesn't have to bring the case.

[00:51:53] Speaker 02:
And by the way, whatever its motives, there's no longer an article three case of controversy.

[00:51:58] Speaker 03:
So even if the prosecutor was dismissing the case because it did not believe that a white police officer should have to answer for using excessive force on a black defendant,

[00:52:20] Speaker 03:
And they say that in their pleading, um, under rule 48a, the district court still has to grant the motion.

[00:52:30] Speaker 02:
Judge Wilkins, I don't think that the court can force the executives to keep that case alive in the absence of the case or controversy.

[00:52:36] Speaker 02:
As I tried to say earlier, it may well be a basis for dismissing other prosecutions.

[00:52:41] Speaker 02:
But even if you disagree with me on that, the reason your, your hypothetical has forced is because it's an unconstitutional motive.

[00:52:48] Speaker 02:
it's the kind of thing that could qualify for Armstrong.

[00:52:51] Speaker 02:
And you can bracket that question off if you think that Fokker isn't as categorical as I do, because there's nothing like that here.

[00:52:59] Speaker 02:
And I don't think you can leverage that, Judge Wilkins, to say, well, if we can inquire on what we've done.

[00:53:03] Speaker 03:
What does leave of court mean then?

[00:53:07] Speaker 03:
What work at all does leave of court do then?

[00:53:12] Speaker 02:
Well, it does work, of course, with respect to opposed motions to dismiss and the work that it does for the

[00:53:17] Speaker 02:
far smaller set of unopposed motions in a situation like this is it allows the court to make sure that it's the considered decision of the executive.

[00:53:26] Speaker 02:
You don't have a prosecutor has been bribed and it's the considered position of the defendant.

[00:53:30] Speaker 02:
The defendant hasn't been poorly counseled.

[00:53:32] Speaker 02:
Imagine a situation where a defendant agrees to a dismissal without prejudice, even when the government has repeatedly been bringing charges and then dismissing them on eve of trial.

[00:53:41] Speaker 02:
I think certainly a district court is warranted and asking the defendant, are you sure about this?

[00:53:45] Speaker 02:
because it sure seems like the government keeps yanking your chain.

[00:53:49] Speaker 03:
So why isn't it the case that if the government makes a considered but racist decision that it just does not want to have a white officer stand trial for excessive force on a black victim that the district court can deny the motion and then the political chips can fall where they may

[00:54:14] Speaker 03:
and perhaps under pressure from the public or Congress or whatever, the district court may not be able itself to force the government to prosecute the case, but maybe through the operation of the legislative branch or other pressures from the public and the media, a new prosecutor is appointed and the case proceeds.

[00:54:40] Speaker 03:
Why isn't that exactly what leave of court should operate to do?

[00:54:48] Speaker 02:
So, Judge Wilkins, your question, I think, recognizes the answer, which is, as you say, there's no power to make the executive move forward to trial, which I think goes to show why this isn't the concern of Rule 48.

[00:55:01] Speaker 03:
But if the government can't make the case go away and the case is in limbo,

[00:55:10] Speaker 03:
then while it's in limbo, pressure could be brought to bear on the government to reconsider its decision, right?

[00:55:18] Speaker 02:
Let me say two more things, Judge Wilkins.

[00:55:20] Speaker 02:
First, I think as Judge Kavanaugh explained in Aiken, the remedy for that kind of an equal protection violation is to dismiss other cases.

[00:55:28] Speaker 02:
It's not to compel the government to move forward with this prosecution.

[00:55:32] Speaker 02:
Second, even if you disagree with the reasoning of Aiken,

[00:55:36] Speaker 02:
If you had that kind of a case where the prosecutor put forward on its face in the motion, evidence, clear evidence under Armstrong of an unconstitutional motive, I think you could bracket off that case as a constitutional matter.

[00:55:51] Speaker 02:
We don't have anything like that here.

[00:55:53] Speaker 02:
And just to square the circle, you can't leverage that back, I think, to saying that even if you could inquire in some Armstrong type case because the face of the motion disclosed a possible constitutional violation,

[00:56:06] Speaker 02:
that then you can inquire in every case.

[00:56:08] Speaker 02:
That then would just eat the rule.

[00:56:10] Speaker 02:
So I think Aiken is right that there are other remedies for the equal protection violation.

[00:56:15] Speaker 02:
It's not meant to be taken care of under Rule 48, but you don't have to agree with me on that because here no one I think is arguing, not even respondent, that on the face of the motion to dismiss that the government filed, there's any unconstitutionality.

[00:56:30] Speaker 02:
There's any evidence that we violated the equal protection clause or anything like that.

[00:56:37] Speaker 03:
Thank you.

[00:56:38] Speaker 06:
Mr. Wall, let me ask you throughout a question probably 30 minutes ago, what would be the harm in going ahead and mandating the granting of the motion to dismiss?

[00:56:54] Speaker 06:
The harm is, to me anyway, regular order.

[00:56:59] Speaker 06:
And mandamus is a drastic remedy.

[00:57:03] Speaker 06:
You know that.

[00:57:04] Speaker 06:
We all know that.

[00:57:06] Speaker 06:
Nobody's been able to find a case in which mandamus has issued where the district court has not acted in the sense of a ruling, an order, something that we can review.

[00:57:24] Speaker 06:
Now this district judge has taken two actions.

[00:57:28] Speaker 06:
He's appointed an amicus and he set a hearing.

[00:57:31] Speaker 06:
Now unless you agree with

[00:57:34] Speaker 06:
with Ms.

[00:57:36] Speaker 06:
Powell that the setting of a hearing is something that's ultra-various.

[00:57:42] Speaker 06:
That leaves the appointment of the amicus.

[00:57:46] Speaker 06:
And granted, he may have chosen an intemperate amicus, but that doesn't mean that he is going to deny this motion.

[00:57:58] Speaker 06:
And considering the drastic remedy that mandamus is,

[00:58:03] Speaker 06:
considering there's no precedent that allows us to move without an order, I don't see, and considering that there's a hearing been set for July 16th, I don't see why we don't observe regular order and allow him to rule.

[00:58:25] Speaker 06:
For all we know, he will say this amicus brief is over the top

[00:58:31] Speaker 06:
The dismissal motion is granted.

[00:58:33] Speaker 02:
So, Judge Henderson, a few points.

[00:58:38] Speaker 02:
Yes, it's an extraordinary writ.

[00:58:40] Speaker 02:
We would say this is an extraordinary case.

[00:58:42] Speaker 02:
I think we're well past regular order.

[00:58:45] Speaker 06:
I agree with that.

[00:58:46] Speaker 06:
I agree it's an extraordinary case.

[00:58:49] Speaker 02:
And I think, you know, I would say at a minimum, at a minimum, in order to have the sort of regular order you were talking about,

[00:58:58] Speaker 02:
the court should still issue a more limited form of mandamus that takes off the table these evidentiary questions.

[00:59:05] Speaker 02:
They want to probe the executive's motives and we'll have to defend against that.

[00:59:10] Speaker 02:
You know, they say in their brief, quote, affidavits and declarations, end quote, and it seems to me that they want some evidentiary discovery process.

[00:59:17] Speaker 02:
I think that clearly should be off the table and contempt should be off the table.

[00:59:21] Speaker 02:
If all we're talking about is the meaning of Fokker and Rule 48

[00:59:25] Speaker 02:
And the court's going to decide that at the hearing with dispatch.

[00:59:28] Speaker 02:
We can come right back to the circuit.

[00:59:30] Speaker 02:
I think at a minimum you need that in order to get the sort of regular order you're talking about.

[00:59:35] Speaker 02:
But then I would say, Judge Henderson, and the reason I think you should go a step further is it's just not true that even if, as limited, he just denies the, or he grants the rule 48 motion.

[00:59:48] Speaker 02:
It's still not the case that the parties haven't suffered harms.

[00:59:52] Speaker 02:
The harms to General Flynn are obvious from the continued prosecution and the threat of contempt, unless this court takes it away.

[00:59:58] Speaker 02:
But the harms to the government are really what I'm focused on.

[01:00:02] Speaker 02:
You have, as you say, a potentially intemperate amicus.

[01:00:05] Speaker 02:
You have all of these allegations being lobbied at the executive branch.

[01:00:08] Speaker 02:
We're going to have to answer them in a public forum in a politicized environment.

[01:00:12] Speaker 02:
That's exactly the sort of thing that Fokker, when it walks through the harms in Part 2A, says it shouldn't be doing.

[01:00:18] Speaker 02:
It invades our deliberative process.

[01:00:20] Speaker 02:
It chills law enforcement.

[01:00:22] Speaker 02:
It sets up a conflict between the branches.

[01:00:24] Speaker 02:
And so I agree with you.

[01:00:27] Speaker 06:
We don't know that's going to happen.

[01:00:30] Speaker 06:
We have Judge Sullivan who is an old hand.

[01:00:33] Speaker 06:
He's an excellent trial judge.

[01:00:37] Speaker 06:
And he may say, to himself at least, you know, I asked for advice and I'm ignoring it and I'm granting the motion to dismiss.

[01:00:48] Speaker 06:
Shouldn't he be allowed to do that?

[01:00:51] Speaker 02:
I think Judge Henderson and the government respects Judge Sullivan, as you say, and experienced a judge on the district court.

[01:01:01] Speaker 02:
I think because we are past regular order, we have crossed into the mandamus threshold.

[01:01:07] Speaker 02:
If we had gone about this a different way, I might agree with you that order ought to be maintained.

[01:01:15] Speaker 02:
But because we've reached a point where

[01:01:18] Speaker 02:
You have the district court in its brief raising questions about prosecutorial motives.

[01:01:23] Speaker 02:
You have the court appointed amicus driving that home in its brief.

[01:01:26] Speaker 02:
The court is apparently contemplating that we'll defend ourselves and lay out exactly why we've done what we've done.

[01:01:39] Speaker 02:
All of this playing out against the backdrop of these incredibly harmful allegations.

[01:01:47] Speaker 02:
And I just, I think if it isn't already, it is threatening to become and will become a sort of public spectacle that I think mandamus is warranted to foreclose at this point.

[01:01:59] Speaker 02:
And I agree with you, Judge Anderson.

[01:02:01] Speaker 02:
I wish we weren't here, but we are.

[01:02:05] Speaker 02:
Focker is clear about granting the Rule 48 motion.

[01:02:08] Speaker 02:
And so there isn't, it's why would we have these unnecessary proceedings when they are really going to do damage to the executive branch at this point?

[01:02:16] Speaker 02:
given the way they've set up and the environment they're playing out in.

[01:02:20] Speaker 03:
But the government didn't file a petition for written mandateness.

[01:02:25] Speaker 03:
Mr. Flynn did.

[01:02:28] Speaker 02:
That's very fair, Judge Wilkins.

[01:02:30] Speaker 02:
I don't want to get too much into the government's deliberative process because, of course, our whole point is that's not permissible under Rule 48.

[01:02:37] Speaker 02:
But what I can say is there was uncertainty in the district court about what the district court was going to do.

[01:02:44] Speaker 02:
And on the same day the district court set the briefing schedule, before we'd made any final decision, General Flynn filed his mandamus petition.

[01:02:52] Speaker 02:
And at that point, we had to decide whether to support it or whether to file a duplicative petition that risked slowing this down.

[01:02:59] Speaker 02:
And we obviously decided to support the mandamus petition.

[01:03:02] Speaker 02:
And I think, honestly, it would be artificial to cabin off the separation of powers harms here just because we didn't file our own petition when, you know, they're presented in stark release.

[01:03:13] Speaker 02:
And certainly if that were important to the court, it should at least give us the opportunity to file some short, mandamus petition that could be consolidated with General Flynn's, because we are here saying there are serious, I mean, indeed grave, I think to Judge Routh's point, stark separation of powers concerns playing themselves out.

[01:03:31] Speaker 02:
These are not the sort of subtle abstract things that sometimes present themselves in these Article II and Article III cases.

[01:03:38] Speaker 02:
you have a court that is considering whether to keep alive the process.

[01:03:41] Speaker 03:
You're talking about regular order, and then you're saying that, well, we didn't file a mandamus petition, but if that's important, then give us leave here after argument to file one.

[01:03:53] Speaker 03:
I mean, that's far from regular order here.

[01:03:56] Speaker 03:
And you're arguing that, you know,

[01:03:59] Speaker 03:
If you're not inclined to grant the principal relief by the people who filed the motion, then grant some form of limited mandamus relief.

[01:04:11] Speaker 03:
Um, and you're making that argument, even though you don't have a mandamus petition before us.

[01:04:17] Speaker 03:
I mean, none of that is regular order counsel.

[01:04:20] Speaker 02:
Judge Wilkins, I'll grant them very little about this case is, is regular order at this point.

[01:04:26] Speaker 02:
I don't think.

[01:04:27] Speaker 02:
that are not filing a mandamus petition can be taken as legally relevant in any way.

[01:04:33] Speaker 02:
We are a respondent supporting petitioner that regularly occurs in courts, including the Supreme Court.

[01:04:39] Speaker 02:
We make the full range of arguments and our legal arguments and our harms are considered by those courts as I think they should be here.

[01:04:46] Speaker 02:
And my only point to Judge Henderson was to get us back to regular order, you'd need at least mandamus that would take off the table the evidentiary proceedings and questions and contempt.

[01:04:57] Speaker 02:
But even if you just narrowed it to the legal question of the meaning of Rule 48, which would mean that most, I mean, the vast bulk of the court-appointed amicus briefs is no longer relevant to the hearing, even then, you still ought to take the additional step of granting mandamus.

[01:05:11] Speaker 02:
And the cases that Judge Henderson and I would point you to are Fokker and NRA United States themselves.

[01:05:16] Speaker 02:
Those were questions of first impression, but both this court and the Seventh Circuit said the constitutional principles are so clear we're going to give mandamus.

[01:05:24] Speaker 02:
And here we have not just the constitutional concerns under Article 2 and Article 3, but you have the decision in Fokker itself.

[01:05:31] Speaker 02:
So I think the case of mandamus.

[01:05:34] Speaker 06:
I keep coming back to in Fokker, the district, we knew what the district court did.

[01:05:39] Speaker 06:
We don't here.

[01:05:42] Speaker 02:
Oh, I agree.

[01:05:43] Speaker 02:
And I think it's possible then that if you come up at an earlier stage in Fokker, this court wouldn't have granted mandamus.

[01:05:49] Speaker 02:
But once it grants mandamus and Fokker and explains why it's doing it and it explains how it reads rule 48 and it says a dozen different times that there's prosecutorial discretion.

[01:06:00] Speaker 02:
Courts can't scrutinize.

[01:06:02] Speaker 02:
There's no oversight.

[01:06:03] Speaker 02:
It's not just, it's not just imputing the decision of the district court there.

[01:06:07] Speaker 02:
It's imputing everything that district court was doing that led up to it because courts, it says, don't have any substantial role.

[01:06:14] Speaker 02:
They have quote, no oversight power, end quote.

[01:06:17] Speaker 02:
And so I don't once you know that from Fokker, then I take the point that, you know, if look, this is not briefs and hearing.

[01:06:24] Speaker 02:
That's not what this is right now.

[01:06:25] Speaker 02:
That is not how this is shaping up in the district court.

[01:06:28] Speaker 02:
But even if we were somehow to limit it to a more normal type proceeding without all of the stuff that respondents brief says it wants to get into, that's all now squarely foreclosed by, by Fokker.

[01:06:40] Speaker 02:
So I understand pre-Fokker why it might not have been enough, but it seems to be now it, it, it,

[01:06:46] Speaker 02:
indisputably is.

[01:06:47] Speaker 01:
Mr. Wall, I'm concerned about your fallback position that we could grant some kind of partial relief.

[01:06:56] Speaker 01:
I mean, wouldn't that require the court to articulate actually far more legal standards about what precisely is on and off the table?

[01:07:09] Speaker 01:
That seems to be a lot of law to be making in the mandamus

[01:07:14] Speaker 01:
and seems much less clean than just, you know, issuing a writ of mandamus in full.

[01:07:21] Speaker 01:
I'm just wondering whether, I mean, if you really think that this partial mandamus would actually be more minimalist than a clean writ of mandamus.

[01:07:35] Speaker 02:
No, Judge Rollins, let me be very clear about this.

[01:07:39] Speaker 02:
The writ of mandamus is warranted here.

[01:07:41] Speaker 02:
It is clear and indisputable that the Rule 48 motion has to be granted under Rule 48.

[01:07:46] Speaker 02:
And if we're right about that, there is no reason to let these harmful proceedings play themselves out in the district court.

[01:07:52] Speaker 02:
So we completely agree that the cleanest way to resolve the case under Fokker is to grant the writ.

[01:07:59] Speaker 02:
I was just explaining to Judge Henderson that if the court sort of has these concerns about granting the writ,

[01:08:05] Speaker 02:
it's it seems a little bit unfair to the petitioner in the government to say you should observe regular order because nothing about these proceedings threatens to be regular to put them back on a regular track you have to create at least some kind of mandamus but i completely agree with you that that does require you to say look Fokker is clear that it doesn't have evidence and it does require you to address contempt piece the cleaner way to do it is just to say Fokker is clear that the court has to grant the rule forty eight motion and so

[01:08:35] Speaker 02:
you know, given the harms to the defendant and the government, the Richard issue.

[01:08:41] Speaker 02:
And I will fully grant, Judge Henderson, that it's an extraordinary writ.

[01:08:45] Speaker 02:
And we do not ask for it in ordinary cases and in an ordinary dispute between private parties.

[01:08:50] Speaker 02:
It wouldn't be appropriate here.

[01:08:52] Speaker 02:
But this is a separation of powers case.

[01:08:54] Speaker 02:
I mean, if you take a case like Cheney where you just think about discovery, bringing the branches into possible conflict, and the Supreme Court grants mandamus,

[01:09:02] Speaker 02:
This case, it seems to me, is two steps beyond that.

[01:09:06] Speaker 02:
You have actual conflict between the branches, where the court wants to inquire into why we did this in the face of allegations that there was some impropriety.

[01:09:15] Speaker 02:
And I understand that to be exactly what Chief Judge Srinivasan said in Fokker, courts may not do.

[01:09:21] Speaker 02:
And I really don't think it's hard to see what the harms are going to be to the government over the next couple of months if we and the defendant are put through that process, which is all for naught.

[01:09:31] Speaker 02:
if at the end of the day the district court is required by law to grant our motion?

[01:09:37] Speaker 06:
Well, let's drop the phrase regular order and let's talk about one of the requirements I don't think I've heard anybody mention and that is the adequate remedy at law.

[01:09:47] Speaker 06:
That's what I'm talking about as far as regular order.

[01:09:51] Speaker 06:
You granted assuming you have an indisputable right and that to me seems pretty clear.

[01:10:01] Speaker 06:
You still have to say why there is no adequate remedy at law.

[01:10:07] Speaker 06:
And I'm not going to repeat myself, but why is there none if on July 16, Judge Sullivan grants the motion to dismiss?

[01:10:20] Speaker 02:
So I'll take one more stab, Judge Henderson, and I think it's this.

[01:10:26] Speaker 02:
Even if, you know, a month or two from now,

[01:10:30] Speaker 02:
the court grants our Rule 48 motion.

[01:10:34] Speaker 02:
In the meantime, you will have a proceeding that's forcing us to explain ourselves, to do it apparently through affidavits, declarations, some kind of an evidentiary process in the district court.

[01:10:46] Speaker 02:
I don't know whether... And the district court is very careful and it's briefed not to say exactly what it envisions, but, you know, the district court has left itself room for

[01:10:56] Speaker 02:
Uh, not just documents of that kind, but witnesses and all the rest.

[01:11:01] Speaker 02:
Um, and that is going to intrude.

[01:11:04] Speaker 02:
It's going to all the harms in part two way of Fokker.

[01:11:06] Speaker 02:
It's going to intrude on our deliberative process.

[01:11:09] Speaker 02:
And I, I, I think the court has to take account of the fact that those respondents briefs and the court appointed amicus, they're impugning the motives of the attorney general of the United States.

[01:11:21] Speaker 02:
And it's going to pull the judiciary into a fight that should play out in a public

[01:11:26] Speaker 02:
political arena.

[01:11:28] Speaker 02:
And I think those are real harms to the executive branch, even if at the end of having been put through that whole process, and what I think threatens to be a spectacle in the district court, the district court ultimately grants the Rule 48 motion.

[01:11:46] Speaker 02:
And if we're right, as you started, that Fokker says district courts shouldn't be doing these things, it's hard to imagine a case

[01:11:55] Speaker 02:
where a district court would do something foreclosed by Fokker, that would be more harmful than what we're facing on the circumstances here.

[01:12:04] Speaker 02:
If ever the court were going to say a district court needs to grant the Rule 48 motion, that's what Fokker clearly and indisputably requires.

[01:12:14] Speaker 02:
It seems like this would be the classic case.

[01:12:17] Speaker 06:
All right.

[01:12:18] Speaker 06:
Are there any more questions?

[01:12:20] Speaker 06:
No.

[01:12:21] Speaker 06:
If not, then we'll hear from Ms.

[01:12:23] Speaker 06:
Wilkinson.

[01:12:24] Speaker 06:
Thank you, Mr. Wall.

[01:12:29] Speaker 04:
Thank you, Judge Henderson, and may it please the court.

[01:12:32] Speaker 04:
The petition asks this court to grant really an extraordinary remedy for mandamus to prevent this district court from even considering or questioning a pending motion.

[01:12:43] Speaker 04:
This court should deny that petition for three reasons.

[01:12:47] Speaker 04:
First, the government's motion, as this court has already pointed out, is still pending, and it may very well be granted.

[01:12:54] Speaker 04:
Alternative relief is available below.

[01:12:58] Speaker 04:
The law does not clearly and indisputably foreclose the district court's consideration of the government's motion.

[01:13:05] Speaker 04:
And third, it would be inappropriate to grant mandamus in a case involving open questions where the government is raising novel constitutional arguments that were not raised below.

[01:13:14] Speaker 04:
As this court has said, it is essential for those questions to be raised below to maintain the regular order.

[01:13:22] Speaker 04:
No one disputes that a federal district court cannot second-guess a legitimate exercise of procedural discretion

[01:13:28] Speaker 04:
simply because it disagrees with it.

[01:13:30] Speaker 04:
But that is not the issue before the court.

[01:13:33] Speaker 04:
The issue here is whether a federal district court judge can set an expedited briefing schedule and appoint an amicus to provide adversarial briefing before ruling on a motion that requires leave of court.

[01:13:46] Speaker 04:
The answer is and must be yes.

[01:13:51] Speaker 01:
Yes, Judge Raul.

[01:13:52] Speaker 01:
In a case such as this,

[01:13:57] Speaker 01:
where both the government and the defendant agree with the motion to dismiss.

[01:14:02] Speaker 01:
I mean, isn't the appointment of an amicus creating an Article 3 case for controversy where there isn't one?

[01:14:09] Speaker 04:
No, Your Honor, there is a case in controversy here for several reasons.

[01:14:15] Speaker 04:
One, as you know, the government and the defendant are asking for the motion to be dismissed with prejudice.

[01:14:26] Speaker 04:
By definition, there cannot be a ruling to dismiss those charges with prejudice if the court doesn't have jurisdiction.

[01:14:35] Speaker 04:
And the parties want that, of course, because they don't want another prosecutor to come back and look at these charges and bring those charges against Mr. Flynn.

[01:14:44] Speaker 04:
So everyone in this case agrees that this motion, if it should be granted, should be granted with prejudice so the charges are ended.

[01:14:55] Speaker 01:
Well, what happens though in a case, maybe another way of asking this, if the district court were to determine that the motion to dismiss should be denied, then what happens?

[01:15:06] Speaker 01:
Then we go on to sentencing Mr. Flynn even though the executive is no longer pressing its prosecution.

[01:15:15] Speaker 04:
There's no reason at this point to fear that the district court is going to deny the government's motion to dismiss.

[01:15:25] Speaker 04:
But if, for some reason, the facts or the answers to the questions at the hearing gave some basis for that, I'm sure the parties, including the government this time, and Mr. Flynn, would file another motion or another writ for Mandaevis.

[01:15:40] Speaker 04:
And that happened in in Ray Aikens, as you know.

[01:15:43] Speaker 04:
And there, the court said and denied the first motion or the writ because they said the government hadn't had the chance to act.

[01:15:52] Speaker 04:
And in fact, they gave years.

[01:15:54] Speaker 04:
to the government agency, the NRC, to make that decision and only when that agency announced that it would not rule did this court issue a writ of mandamus.

[01:16:03] Speaker 04:
So here we're not in any situation similar to that.

[01:16:06] Speaker 04:
As Judge Henderson has said, the court only set a briefing schedule and has a hearing for July 16th.

[01:16:14] Speaker 04:
The order to the amicus is circumscribed as only presenting arguments in opposition.

[01:16:18] Speaker 04:
And there's no suggestion that the court is going to call witnesses or do anything that the parade of horribles that the government and petitioner was laying out for you.

[01:16:28] Speaker 04:
All this court is doing is getting advice.

[01:16:30] Speaker 01:
And what standard is an Article III judge supposed to apply in this context?

[01:16:40] Speaker 01:
In order to assess the motion to dismiss,

[01:16:44] Speaker 01:
Rule 48 just says there must be leave of court.

[01:16:48] Speaker 01:
But what's the standard that the district court judge must apply?

[01:16:53] Speaker 04:
Well, the governing law here is in Amidam, which is still good law was cited by Fokker.

[01:16:58] Speaker 04:
And there, as Fokker reiterated, I think we have to look at whether that presumption of regularity or there was a clear

[01:17:09] Speaker 04:
violation of the public interest for the court to seriously consider whether it can deny the motion to dismiss.

[01:17:16] Speaker 04:
So there is a presumption, as you mentioned earlier, and the question is, is there any basis to overcome that presumption?

[01:17:22] Speaker 04:
And that would guide the court's inquiry after receiving the briefing and asking questions of the government and the parties.

[01:17:31] Speaker 01:
But I mean, the public interest is not a standard that's mentioned in the rule.

[01:17:37] Speaker 01:
And I mean, in our constitutional system of government, isn't the public interest with respect to whether a prosecution goes forward, isn't that public interest one that is committed firmly under Article 2 to the executive branch and to the politically accountable executive branch, not to an Article 3 court?

[01:18:02] Speaker 04:
Generally, yes, Your Honor, the prosecutorial prerogatives protect and consider the public interest.

[01:18:08] Speaker 04:
But in Rinaldi, the Supreme Court specifically held out that standard, I think, you know, in footnote 15, where they said they aren't ruling.

[01:18:16] Speaker 04:
They are allowing the motion to dismiss be reviewed at the abuse of discretion.

[01:18:21] Speaker 04:
And they found that it did abuse discretion.

[01:18:24] Speaker 04:
But they said, we have not decided whether you could consider a Rule 48

[01:18:29] Speaker 04:
in light of the public interest.

[01:18:31] Speaker 04:
And in fact, the dissent led by Justice Rehnquist said he thought it was clearly an independent basis to review a rule 48 motion.

[01:18:41] Speaker 04:
But in any event, that law is not clear here.

[01:18:43] Speaker 04:
There's no clear and indisputable standard for this court to issue a writ of mandamus based on the fact that the standard is unclear as to how you determine leave of court and any kind of abuse

[01:18:57] Speaker 04:
of discretion or discretion.

[01:19:00] Speaker 04:
What we do know is in this court, in this circuit court, in Fokker and Amidam both provided for a review by the court of the government's motion and allowed for questioning.

[01:19:14] Speaker 04:
When you decided the case in Fokker, Judge Leon questioned the parties, including the government, in open court on several occasions.

[01:19:23] Speaker 04:
And he had conferences.

[01:19:24] Speaker 04:
When Fokker was decided, no one stated in that opinion, you cannot ask questions.

[01:19:30] Speaker 04:
You cannot have a hearing.

[01:19:31] Speaker 04:
And in fact, the government never took Judge Leon up on a mandamus.

[01:19:37] Speaker 04:
There's no situation in Amidam.

[01:19:39] Speaker 03:
The government argues that Fokker necessarily rebuked that approach by the district court.

[01:19:50] Speaker 03:
What's your response to that?

[01:19:52] Speaker 04:
That's not what Fokker says.

[01:19:54] Speaker 04:
What Fokker says is that the district court judge abused his discretion when he denied the motion, which was the speedy trial motion necessary for the deferred prosecution agreement, when he stated that he disagreed with the government's prosecutorial decisions.

[01:20:13] Speaker 04:
That indeed is an improper basis to deny a motion to dismiss.

[01:20:17] Speaker 04:
And that was the circumscribed ruling of Fokker.

[01:20:20] Speaker 04:
Fokker does not deal with Rule 48 as you've talked about, but it certainly doesn't say that you can't have consideration or scrutiny.

[01:20:27] Speaker 04:
In fact, it says just the opposite throughout the opinion.

[01:20:30] Speaker 04:
They talk about the scrutiny and they talk about it being circumscribed, but they certainly don't say the court has no right to ask questions.

[01:20:38] Speaker 04:
And here, all the judge is doing is receiving briefing and having a hearing.

[01:20:45] Speaker 04:
And the parties, the petitioner and the government, didn't object to that below.

[01:20:51] Speaker 04:
They have no alternative.

[01:20:52] Speaker 04:
Yes, Your Honor.

[01:20:54] Speaker 01:
I mean, how does the presumption of regularity then apply in a situation like this?

[01:21:00] Speaker 01:
I mean, before asking questions, you know, appointing amicus, doesn't the district court have to determine that the presumption is overcome?

[01:21:14] Speaker 04:
No, Your Honor, the government, the court could not determine whether the presumption had been overcome without at least questioning the government about its motion.

[01:21:23] Speaker 04:
I think Judge Wilkins was pointing that out when he was saying if you had a pleading and the government didn't include all the facts because they only wanted to present certain facts, the court by definition would have to inquire to determine whether that presumption was overcome.

[01:21:38] Speaker 04:
The court was clear that there is a presumption.

[01:21:41] Speaker 04:
So it is a

[01:21:42] Speaker 04:
long hill to climb to overcome that presumption.

[01:21:46] Speaker 04:
But there's nothing in Fokker that says you may not question the government.

[01:21:49] Speaker 04:
And in fact, the government answers these kinds of questions all the time.

[01:21:52] Speaker 04:
If you look at Rinaldi, then Chief Judge King of the Southern District of Florida's court, called the prosecutors in and asked questions.

[01:22:02] Speaker 04:
The Supreme Court in Rinaldi didn't say that kind of questioning was improper.

[01:22:06] Speaker 04:
That happens every day in district courts when a party files a motion

[01:22:10] Speaker 04:
and the judge asked questions.

[01:22:11] Speaker 04:
That's all that's happening here.

[01:22:13] Speaker 04:
There's nothing more, nothing less.

[01:22:15] Speaker 01:
Oh, I mean, there is more here.

[01:22:16] Speaker 01:
There's an appointment of an amicus to oppose the motion to dismiss.

[01:22:20] Speaker 01:
I mean, that is, that I don't believe is an, you know, everyday occurrence.

[01:22:28] Speaker 04:
You're absolutely right, Your Honor, because normally parties are opposed, but here in this unusual circumstance where both parties agree, all the district court did was appoint an amicus to

[01:22:40] Speaker 04:
present arguments in opposition to the government's motion to dismiss.

[01:22:44] Speaker 04:
And we know, because at least some time has passed, that the amicus filed that brief and did not ask for any witnesses, did not request any fact finding.

[01:22:53] Speaker 04:
So to go to Judge Henderson's point about the regular order, if this court doesn't step into the fray and allows the district court to do its job, it may well be that the court

[01:23:05] Speaker 04:
reads both sides, both briefings, asks the government's question, and grants the motion to dismiss.

[01:23:12] Speaker 01:
Who is the amicus representing here?

[01:23:15] Speaker 01:
I mean, where the government decided to drop a prosecution and the defendant agrees, what is the standard that they're arguing?

[01:23:27] Speaker 01:
I mean, who are they arguing on behalf of?

[01:23:32] Speaker 04:
They're arguing on behalf of the adversarial position just like this court does often or the Supreme Court does.

[01:23:39] Speaker 04:
I mean, one of the most famous cases is Dickerson where the government was not going to challenge the Miranda standard and the court appointed an amicus there to argue because the government chose not to take that position.

[01:23:53] Speaker 01:
Right, but so what is the, so you're saying that there's some kind of judicial

[01:23:58] Speaker 01:
right or judicial powers here that the amicus is representing?

[01:24:06] Speaker 04:
No, I think I mean, I think as Mr. Wall stated, there's an inherent power and it occurs at the district court level, not frequently for the court to appoint an amicus when it needs advice or legal briefing on an issue.

[01:24:23] Speaker 04:
But here it's even more important because there's you need adversarial briefing.

[01:24:27] Speaker 04:
The government and Mr. Flynn are aligned.

[01:24:31] Speaker 01:
I know, but in a criminal case, that is the adversarial process.

[01:24:36] Speaker 01:
It's the government against a criminal defendant.

[01:24:39] Speaker 01:
What does it even mean to have an adversary where the government and the defendant agree?

[01:24:46] Speaker 01:
I mean, is this representing some kind of inherent authority of the court?

[01:24:53] Speaker 04:
It's representing the authority of the court

[01:24:57] Speaker 04:
to understand the opposing arguments.

[01:24:59] Speaker 04:
Just like here, Your Honor, you have the government and the petitioner aligned, and the district court was brought in to argue the other side.

[01:25:07] Speaker 04:
It doesn't mean that the district court thinks this motion under Rule 48 should be denied.

[01:25:12] Speaker 04:
All we're doing coming forward is arguing the other side, and all the district court was doing is appointing an amicus to say, what is the scope of the authority?

[01:25:21] Speaker 04:
Can a motion

[01:25:23] Speaker 04:
an unopposed motion under Rule 48 be denied.

[01:25:25] Speaker 04:
And if so, what is the standard, as you've just asked me?

[01:25:29] Speaker 04:
The standard is not clear.

[01:25:30] Speaker 04:
So what are the outlines?

[01:25:32] Speaker 04:
What are the cases?

[01:25:33] Speaker 04:
And what do they say about the court's authority to ask questions and to make that decision?

[01:25:39] Speaker 01:
The amicus isn't an adversary.

[01:25:42] Speaker 01:
You're saying the amicus is to just provide understanding about the law to the district court?

[01:25:51] Speaker 04:
I think the amicus is an adversary in the sense that he was directed to take positions opposing the government's motion to dismiss.

[01:26:00] Speaker 04:
So I believe the government and the petitioner would surely see the amicus as an adversary.

[01:26:04] Speaker 04:
And that's important because the court doesn't have to listen to the amicus.

[01:26:08] Speaker 04:
As Judge Henderson said, the court is an experienced judge.

[01:26:11] Speaker 04:
He can ignore the amicus, he can take some of the points under consideration, and then he can ask his questions and make his ruling.

[01:26:19] Speaker 04:
But he wanted to hear, yes, Judge.

[01:26:22] Speaker 01:
Sorry.

[01:26:23] Speaker 01:
I mean, I guess I think here, I mean, as you've also recognized, right, I mean, there is a core Article II power over prosecution.

[01:26:31] Speaker 01:
Even the weakest understandings of Article II admit that the executive power, you know, includes control over prosecution.

[01:26:41] Speaker 01:
But it's hard.

[01:26:42] Speaker 01:
I think you have to articulate here, what is the countervailing Article III

[01:26:49] Speaker 01:
issue at stake.

[01:26:50] Speaker 01:
So, for instance, in the Nixon case, right, there was a conflict between Article II and Article III, and the Article III power there that the court articulated was the district court's essential function in protecting individual liberty in a criminal trial.

[01:27:07] Speaker 01:
But here, I think, I guess I'm wondering if you can articulate what is the countervailing Article III power at stake.

[01:27:18] Speaker 01:
in a case where the government and the defendant agree on the motion to dismiss.

[01:27:26] Speaker 04:
Fokker laid that out by saying the court is allowed to question the presumption of regularity of the prosecutorial decision even when the defendant and the government agree.

[01:27:39] Speaker 04:
Amidown says the same thing and even in Nixon, Your Honor, the court citing the framers made clear that even though

[01:27:45] Speaker 04:
you're dividing and allocating the sovereign powers among three co-equal branches, the framers of the Constitution sought to provide comprehensive system, but the separate powers were not intended to operate with absolute independence.

[01:27:58] Speaker 04:
And here, you've had the government exercising its Article II powers, coming in and asking the court to make an independent finding for a plea.

[01:28:08] Speaker 04:
They've had the court make a legal finding and a factual finding, and by, as Fokker says,

[01:28:13] Speaker 04:
The court has exercised its coercive power and convicted the defendant.

[01:28:17] Speaker 04:
There's a public conviction in lieu of a trial, so the government didn't have to go through that.

[01:28:21] Speaker 04:
And that's very important for Article 3 power, that you're stepping into the shoes of the jury and saying, based on this finding, we can adjudicate this defendant guilty.

[01:28:31] Speaker 04:
And now the government is coming back and saying, we want you to dismiss those charges and apparently vacate your findings of guilt.

[01:28:40] Speaker 04:
It's not clear what they want to do about the actual

[01:28:44] Speaker 04:
plea because that's not subject of this mandamus.

[01:28:47] Speaker 04:
The plea agreement that is between the government and the defendant and what the effect of that is if the charges are dismissed.

[01:28:54] Speaker 04:
But they're asking the court, the executive branch, to come in and reverse or vacate its findings.

[01:29:01] Speaker 04:
And so the court has the right, the duty, and the language under leave of court to ask the government questions.

[01:29:10] Speaker 04:
The rule 48 language that's been in

[01:29:13] Speaker 04:
the statute for over 80 years that the Supreme Court suggested and Congress approved, there's not a case since that language went in that says leave of court is meaningless when the parties agree.

[01:29:25] Speaker 04:
And that's the government and the petitioner's position.

[01:29:29] Speaker 04:
Be clear, they are saying those words mean nothing when the defendant and the government agree.

[01:29:34] Speaker 04:
And that makes no sense under all of the cases, starting with Rinaldi.

[01:29:37] Speaker 04:
It makes no sense in light of all the cases around the country where every

[01:29:42] Speaker 04:
panel has at least considered whether the court below abused its discretion when they denied a motion to dismiss.

[01:29:51] Speaker 01:
Well, perhaps, I mean, leave of court may not be, you know, a kind of rubber stamp, but leave of court is, those words on its own are also, it's hard, I think, to fit into leave of court, the ability for a court to keep sentencing a person

[01:30:10] Speaker 01:
where the executive branch wants to drop the prostitution.

[01:30:13] Speaker 01:
I mean, leave of court may not mean that much, even if it means something more than a rubber stamp.

[01:30:20] Speaker 01:
It's true, Your Honor.

[01:30:21] Speaker 04:
And I think every case has said that it's a circumscribed review, a limited inquiry that a court can do under that standard.

[01:30:29] Speaker 04:
But it doesn't say no review.

[01:30:31] Speaker 04:
It doesn't say no questions.

[01:30:33] Speaker 04:
And the government's position is somehow by the court asking the government questions about the motion that it filed.

[01:30:39] Speaker 04:
that somehow that's some irreparable harm.

[01:30:41] Speaker 04:
If it is, that goes on in a district court every day of the week.

[01:30:45] Speaker 04:
It went on in Fokker.

[01:30:46] Speaker 04:
It went on in Amidoun.

[01:30:48] Speaker 04:
It went on in Rinaldi.

[01:30:49] Speaker 04:
The district court in each of those cases asked the prosecutors questions, and they didn't stand up and say, we don't have to answer them.

[01:30:56] Speaker 04:
Leave of court means nothing.

[01:30:58] Speaker 04:
They answered the questions.

[01:30:59] Speaker 04:
They gave the court the information.

[01:31:02] Speaker 04:
And the government certainly knows how to refuse to answer or refuse to provide information.

[01:31:07] Speaker 04:
if it thinks it's appropriate.

[01:31:09] Speaker 04:
And this is the reason why this case, all of these issues should have been brought up with the district court below.

[01:31:14] Speaker 04:
If the government did not like the process of the amicus or the briefing, or the petitioner didn't, they should have raised it with Judge Sullivan.

[01:31:22] Speaker 04:
And instead they then run the district court and come to you.

[01:31:26] Speaker 03:
Council, the government says that with respect to kind of the

[01:31:32] Speaker 03:
case or controversy in the Article II prerogatives and how Rule 48A is supposed to work, that even if the government in a motion says, you know, we're moving to dismiss because we don't want to prosecute this white defendant for beating and using excessive force against a black victim,

[01:32:02] Speaker 03:
that the court would still be compelled under Rule 48A to grant the motion to dismiss and that the remedy, if any, for that sort of unconstitutional bias would be defendants in other cases filing some sort of Armstrong motion or I guess some action

[01:32:32] Speaker 03:
by other branches, you know, after the dismissal to reprimand the executive.

[01:32:41] Speaker 03:
What's your response to that point of view of Rule 48A?

[01:32:47] Speaker 04:
It won't surprise the court that I strongly disagree with that.

[01:32:50] Speaker 04:
The case law that's already well known by this court, starting with Rinaldi and the cases around the country, give examples

[01:32:59] Speaker 04:
of where a court can move, can deny a motion, which include bribery.

[01:33:02] Speaker 04:
That's not even a constitutional violation.

[01:33:04] Speaker 04:
You just heard Mr. Wall mention it a few minutes ago.

[01:33:08] Speaker 04:
And all of those cases provide, that could be an example where a prosecutor was bribed and likely, if that were true, he's not going to put that in the pleading and the motion to dismiss.

[01:33:18] Speaker 04:
And that could cause a court concern and could be the basis for a motion to dismiss.

[01:33:22] Speaker 04:
So if the government was acting in a racist way and either gave those

[01:33:27] Speaker 04:
meet those bases to the court or the court was able to uncover them through questioning, yes, that would be a basis to dismiss.

[01:33:36] Speaker 04:
The next question is then what could the court do?

[01:33:40] Speaker 04:
It would depend on the posture of the case.

[01:33:42] Speaker 04:
If it was an early decision in the case and the defendant actually hadn't pled guilty, then there's more limited options.

[01:33:50] Speaker 04:
But as you said, there's still public pressure that can come as a result of the court issuing that motion.

[01:33:56] Speaker 04:
But if the defendant has pled guilty, the more difficult question or the more interesting question is the Article III court now has supervisory power over that defendant.

[01:34:09] Speaker 04:
As Fokker says, once you have a guilty plea, the court has jurisdiction over sentencing.

[01:34:15] Speaker 04:
So the question is if that police officer had pled guilty and the government disagrees with moving to the dismissal and the court denies it,

[01:34:25] Speaker 04:
Could the court sentence that defendant?

[01:34:28] Speaker 04:
I don't know the answer to that question, but there's certainly a basis for the judge to deny the motion to dismiss on those grounds.

[01:34:46] Speaker 03:
Thank you.

[01:34:55] Speaker 04:
The district court is not acting as a prosecutor, Your Honor, nor has he made up his mind about the pending issues.

[01:35:02] Speaker 04:
He is considering the government's motion and receiving briefing from all the parties.

[01:35:07] Speaker 04:
After hearing the arguments, Judge Sullivan will do what he is called on to do on a daily basis.

[01:35:13] Speaker 04:
He'll decide the motion.

[01:35:15] Speaker 04:
With such a combined inquiry, there is no clear and indisputable justification for this court to enter the fray now.

[01:35:23] Speaker 04:
and stop a federal district court judge from carrying out his Article 3 responsibilities.

[01:35:30] Speaker 04:
Thank you.

[01:35:31] Speaker 06:
All right, any more questions?

[01:35:35] Speaker 06:
All right, Madam Clerk, neither council has any time left, right?

[01:35:42] Speaker 06:
Correct.

[01:35:43] Speaker 06:
All right, Ms.

[01:35:44] Speaker 06:
Powell, why don't you take two minutes?

[01:35:47] Speaker 05:
Your Honor, first, there were no valid Rule 11 proceedings in this case to take the guilty plea.

[01:35:56] Speaker 05:
But mainly, the first judge who took it should have recused already.

[01:36:00] Speaker 05:
He mysteriously recused a few days later.

[01:36:03] Speaker 05:
But for the same reasons that would have existed when he recused seven days later, he should have recused immediately.

[01:36:09] Speaker 05:
And the government knew that information, but General Flynn didn't.

[01:36:12] Speaker 05:
The second guilty plea colloquy that Judge Sullivan did was not a full colloquy at all.

[01:36:17] Speaker 05:
In fact, he ended it by asking repeated questions, saying he had many, many, many questions, including about how this was material and how it impeded the government's investigation.

[01:36:29] Speaker 05:
All of that is now refuted completely by the extraordinary exculpatory evidence that Mr. Jensen disclosed

[01:36:36] Speaker 05:
that has been hidden from the defendant for three years.

[01:36:39] Speaker 05:
That's what makes this case different from every other case.

[01:36:42] Speaker 05:
When that happened in Stevens, Judge Sullivan had no problem dismissing the case at all.

[01:36:47] Speaker 05:
He didn't inquire behind the government's two-page motion to dismiss.

[01:36:51] Speaker 05:
They simply produced the evidence and dismissed the case.

[01:36:54] Speaker 05:
Why we're making a special exception here for General Flynn is beyond my capacity to understand the law when every case in the country

[01:37:01] Speaker 05:
has affirmed a grant of a motion to dismiss and not denied one in any way shape or form.

[01:37:09] Speaker 05:
I mean, every appellate case in the country has affirmed the grant of a motion to dismiss or has said the case has to be dismissed.

[01:37:18] Speaker 05:
They don't have any ability to go question behind the government's perspective on why it made the decision.

[01:37:25] Speaker 05:
Absent an Armstrong problem, which clearly doesn't exist here,

[01:37:29] Speaker 05:
or clear evidence, not plausible questions, not amusings, not imaginings, but clear evidence of some serious wrongdoing that indicates bad faith on the part of the government.

[01:37:42] Speaker 05:
And Rinaldi makes clear that the leave of court provision was included to protect the defendant from prosecutorial harassment.

[01:37:54] Speaker 05:
There is neither a case or controversy here any longer.

[01:37:57] Speaker 05:
The government and the defendant have agreed that the case must be dismissed.

[01:38:00] Speaker 05:
The government is not going to carry on the prosecution.

[01:38:03] Speaker 05:
It cannot be forced to by an Article III court that's outside its bounds.

[01:38:08] Speaker 05:
And the motion for writ of mandamus should be granted on all counts.

[01:38:13] Speaker 06:
All right.

[01:38:14] Speaker 06:
Thank you, Ms.

[01:38:14] Speaker 06:
Powell.

[01:38:15] Speaker 06:
Mr. Wall, why don't you take two minutes?

[01:38:23] Speaker 02:
Judge Anderson, can you hear me?

[01:38:25] Speaker 06:
Yes.

[01:38:26] Speaker 02:
Thank you.

[01:38:27] Speaker 02:
So just a couple of very brief points.

[01:38:31] Speaker 02:
I didn't hear respondent address what I think is the central point on the merits, which is that once they've conceded that Fokker does not allow the court to go any further with respect to the pre-police situation, because there's no way to make the executive proceed with the prosecution.

[01:38:49] Speaker 02:
And once we know that it's a Rule 48 in a constitutional matter,

[01:38:52] Speaker 02:
There's no way to force the government in that situation.

[01:38:55] Speaker 02:
They don't have any argument.

[01:38:57] Speaker 02:
There is a matter of reading the rule and interpretive principles or constitutional concerns that would distinguish the post police situation.

[01:39:04] Speaker 02:
That's just not what rule 48 is, is meant for.

[01:39:07] Speaker 02:
And I think Fokker's clear about that.

[01:39:09] Speaker 02:
So then really they've hung their hat on just the notion that it's too early in time.

[01:39:14] Speaker 02:
And as I tried to say earlier,

[01:39:16] Speaker 02:
I think, Judge Henderson, there are real harms that are going to come from the kinds of questions they want to ask.

[01:39:22] Speaker 02:
I mean, in the brief, they say they want to ask about the uncharged conduct.

[01:39:25] Speaker 02:
So not just why we no longer want to maintain this prosecution, but why we haven't brought separate charges against this descendant.

[01:39:33] Speaker 02:
Everybody, I thought even respondent conceded commencement prosecutions off the table, but they want to ask about uncharged conduct.

[01:39:40] Speaker 02:
They want to ask about related prosecutions.

[01:39:42] Speaker 02:
They want to ask about why certain prosecutors signed particular briefs, whether they agreed with our position, whether they didn't.

[01:39:48] Speaker 02:
They want to ask questions on the reasons that the attorney general gave, like his policy judgment, that the federal interest is no longer warranted.

[01:39:56] Speaker 02:
And if the court thinks about the manner in which we are going to have to answer those questions in the district court, what we are going to have to say, whether as a factual or as a legal matter in terms of disclosing our own deliberative processes and the like, I think it's fairly clear why Fokker said,

[01:40:12] Speaker 02:
courts were not supposed to go down this road.

[01:40:15] Speaker 02:
And I take the point that the train isn't at the end of the line, that it's only partially left the station.

[01:40:20] Speaker 02:
But I think that's why Fokker said the train's never supposed to leave in the first place in order to respect the division of constitutional authority between the executive and the judiciary.

[01:40:31] Speaker 02:
In light of these Article II and Article III concerns like the ones Judge Rao was raising, there are real harms here.

[01:40:38] Speaker 02:
And if we know what has to happen at the end of the day,

[01:40:41] Speaker 02:
But with all respect, the district court should be directed to do it now rather than have some unnecessary and very harmful further proceedings.

[01:40:50] Speaker 06:
Mr. Wall, let me ask you something that is, I think in your brief, but I don't think you mentioned it this morning.

[01:40:58] Speaker 06:
And that is the harm to Article 2, perhaps not harm, but the benefit of self-correction.

[01:41:10] Speaker 06:
On this record before us, if there was bad faith, it occurred in the original prosecution.

[01:41:19] Speaker 06:
And shouldn't we allow Article 2 to self-correct?

[01:41:27] Speaker 02:
Absolutely, Judge Anderson.

[01:41:29] Speaker 02:
And I think, and this goes to the question Judge Wilkins was asking earlier, even if we could legally come in and not give any reasons for the motion, we did give

[01:41:39] Speaker 02:
fairly fulsome reasons and that the Attorney General had two independent rationales and, or sorry, three independent rationales.

[01:41:47] Speaker 02:
And although they've challenged two of them on sort of legal bases, no one, not the court appointed amicus and not the respondent, has said a word about the portion of the motion where the Attorney General says that looking at the circumstances surrounding the FBI's interview of General Flynn and the fact the way it went on and the way it wasn't communicated to others at the White House and all the rest

[01:42:08] Speaker 02:
that he concluded that it was no longer in the interest of justice to proceed with the prosecution.

[01:42:14] Speaker 02:
Now, the reason they don't say a word about it is because I think no one disputes that that is the kind of judgment that is at the core of Article II power.

[01:42:23] Speaker 02:
It's difficult to imagine, at least outside the military context, a more core Article II judgment.

[01:42:28] Speaker 02:
And yes, Judge Henderson, when we put that forward in the motion, whether we were required to or not,

[01:42:33] Speaker 02:
Absolutely, I think that at that point, the district court is required to grant the Rule 48 motion.

[01:42:41] Speaker 06:
All right.

[01:42:42] Speaker 06:
Thank you.

[01:42:43] Speaker 06:
Do my colleagues have any questions?

[01:42:46] Speaker 03:
No.

[01:42:48] Speaker 06:
No further questions.

[01:42:49] Speaker 06:
All right.

[01:42:50] Speaker 06:
All right.

[01:42:51] Speaker 06:
Counsel, your case is submitted.

[01:42:54] Speaker 06:
And Madam Clerk, if you'll adjourn court.