Posted on 06/14/2020 5:13:50 AM PDT by RaceBannon
The following is a full transcript of the Oral Arguments held by the DC Circuit Appellate Court in reference to a Petition for a Writ of Mandamus by General Michael T. Flynn, supported by the Department of Justice, to stop the now innecesary proceedings in the District Court. A decision from the three-Judge panel will be forthcoming.
The arguments were held by teleconference due to restrictions imposed by COVID-19 measures rendering an appearance in court impossible.
This is NOT an official document, but the author's rendition of the recording of the teleconference:
…The court is now sitting God Save the United States and this Honorable Court case number 20 Dash 51 43 in Re. Michael T. Flynn.
Miss Powell for the petitioner, Michael T. Flynn; Mr. Wall for the U. S. Department of Justice; Miss Wilkinson for the respondent, the Honorable Emmet G. Sullivan.
Ms. Sidney Powell, for Petitioner, Mr. Michael T. Flynn
Judge Karen Henderson:
Ah, good morning counsel, we will hear first from Miss Powell.
Ms. Sidney Powell:
Good morning.
May it please the court, this is Sidney Powell for petitioner Michael Flynn.
We're here now to stop further impermissible intrusion into the sole power of the executive branch under the take-care clause, to decide to dismiss the case and what circumstances warrant that dismissal.
The government here provided an extensive and thoroughly documented motion to dismiss this prosecution weighing as it should all the factors that go into that, including the provision of extraordinary exculpatory evidence 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 is a federal prosecutor before Attorney General Barr tasked him to review this case.
It cannot go on any longer. This is the quintessential case for mandamus because we have both issues of judicial usurpation of executive prerogatives and a clear abuse of discretion. The judge has no authority to do anything further in the case. There's no case or controversy any longer.
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. It's a little...
Judge Robert L. Wilkins (interrupting):
Uhmmm. This is Judge Wilkins, good morning.
Ms. Powell:
Good morning.
Judge Wilkins:
I have a question about the role of the District Court. Uhm. You essentially argue that the District court has no role, but in Rinaldi, where the Supreme Court was reviewing the denial of a Rule 48-A motion made by the government, the court did what it called a quote independent evaluation of the unusual circumstances disclosed by the record. So the Supreme Court believed that it had a role to perform an independent evaluation. Um, so doesn't that this record here have that saying role?
Ms. Powell:
Not in the circumstances of this case. The authorities are that, given the fact the presumption of regularity applies to everything the Attorney General has done, and there is no clear evidence whatsoever to go behind that, given the documentation, reasoning and briefing that has been provided, there is nothing further for the court to do. There's no indication there's no clear evidence there's no actual factor or reason to go behind the government's determination.
Judge Wilkins (interrupting):
Eehh, I don't see how that works, because the court also said in Rinaldi that it would not presume bad faith by the government. So the court did, you know, gave the government the benefit of the presumption of regularity, but it's yet still performed an independent evaluation.
Ms. Powell:
Only to the extent the court said it was not clearly to the contrary to the manifest public interest. There was no further proceeding of any significance, certainly amicus appointed, certainly no factual background investigation in Rinaldi; it was simply a review of the Petit policy and its application to the facts of Rinaldi.
And in Fokker Services this court issued the mandamus, of course, to proceed…to make sure the deferred prosecution agreement was entered, and it's doing so, it said the Leave of Court authority gives no power to the District Court to deny a prosecutor's Rule 48-A motion to dismiss charges based on disagreement with the prosecutors exercise of charging authority
Judge Wilkins (interrupting):
Do you 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 48-A motion in due course. Is that error?
Ms. Powell:
I think that is error. I mean, he can look at it on the face of the documents that have been filed, but I don't think in Rinaldi they went farther than the government statements of what it was doing and why it was doing it. Only the Executive can weigh the willingness of the government to prosecute, and there would be no remedy.
The court can't make the government prosecute this case!
Judge Wilkins:
Well, in Thompson, another Supreme Court case that decided by at least the government and their briefing, I can't remember he cited than yours. Also, the Supreme Court was reviewing the denial of a Rule 48-A motion by the government, and it said that it performed quote, ehmm, an independent examination of the record, close quote, and that was despite the solicitor general's suggestion that the court just simply dismiss the case.
Do you disagree that that's what the court said that it did in Thompson?
Ms. Powell:
No, but I think all that means is reviewing the documents that the government provided and the existing status of the record before it, not investigating new possibilities or assuming the role of the prosecutor to see about adding on perjury or contempt charges. He simply doesn't have the authority to do that.
And without a case in controversy, he's without jurisdiction to do anything further.
Judge Wilkins (interrupting):
Your mandamus petition…Umm, is you are…the rulings under review are the failure of the court of the District Court to grant the motion. So you believe that just him not granting the motion is sufficient grounds in and of itself to justify mandamus. Right?
Ms. Powell:
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 D. P. A decision, so either way…
Judge Wilkins (interrupting):
So that you can use the Fokker case that was not even a Rule 48-A case…uhm…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…uhm…argument there that there was any bad faith by the government for or that the presumption of regularity didn't apply? You…Do you think that the Supreme Court got it wrong in Rinaldi and Thompson?
Ms. Powell:
No, I'm saying that the independent review of the record consists of just that: A review of the record. And the record in this case is extremely well documented of prosecutorial misconduct and the suppression of Brady evidence that warrants dismissal under any circumstance. Aside from the fact we have motions had motions to withdraw pending that were very well documented. I mean this record contains enormous evidence now of government misconduct and the suppression of Brady evidence.
It's just the judge can't…He doesn't have the authority to appoint an amicus under the Smith case that Justice Ginsburg just wrote the unanimous decision for; he can't go out and create new issues. Of course, he can look at the materials before him, and we welcome him doing that. But to go ahead and grant the motion because there's no other alternative. Not a single case in the country has ever affirmed the denial of a motion to dismiss under 48-A!
Judge Wilkins:
Then it seems like you got a pretty good argument that you have an alternative avenue of review then, if he denies the motion, then you can come back here on appeal and we can…you can cite all of those presidents to our court, and we can decide that, that issue at that time.
Ms. Powell:
But he doesn't have the authority now to go beyond the record and do anything, except that. We would simply be delaying the inevitable and going through an inordinate process in the process of doing that. I mean, we just got dumped on a 72 page brief that we have to answer by Wednesday with 500 pages of exhibits!
Everybody else in this case is being paid by the government, except my client's defense team. The toll it takes on a defendant to go through this is absolutely enormous, and it's not justified by this case. This is the most impressive motion to dismiss I've ever seen in decades of practice and the most well documented. 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, and to force in the United States…the government dismissed, and Judge Posner wrote that decision explaining how the Special Prosecutor's position had to be vacated and the motion to dismiss had to be granted on mandamus. Then they asked…
Judge Henderson:
This is Judge Henderson. If Judge Sullivan had just I kept this motion waiting and languishing it be one thing. He has set a hearing for mid-July. For all we know, by the end of July, he will have granted the motion.
Ms. Powell:
But he doesn't have the authority to conduct that hearing, your honor. 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.
Judge Henderson:
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 I know…I don't know of any authority that says you can't hold a hearing before he takes action.
Ms. Powell:
Well, the only authority that in their best cases in Ray Richards, in which the third Circuit and on a motion to dismiss a sexual misconduct claim against someone in the Virgin Islands in a territorial court, said, we gotta have a little sunlight on the reasons here, because the only reason given was in the interests of justice, and certainly that's not sufficient.
But even that case it was actually, um, 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 48-A dismissal on that HSBC case describes Richards is requiring a 48-A dismissal because the district court's authority severely cabind the review to clearly contrary to the public interest, meaning the prosecutor acting in bad face, such a bribery, fecklessness, 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… I mean it won't just be a hearing on July 16th. It'll go beyond that. I think it's clear from the amicus position now that they want to take General Flynn the sentencing as soon as possible and impose upon him the maximum possible sentence 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, and the toll it's taking on the defendant is certainly irreparable harm.
Judge Wilkins and Henderson:
(talking at the same time)
Judge Wilkins:
Let me ask you…er…Oh, go ahead.
Judge Henderson:
Why couldn't we hold it in abeyance and let's see what happens on July 16?
Ms. Powell:
Because the damage continues to accrue by the day, because he has no case or controversy before him and no jurisdiction, because he doesn't have the authority to go do what he's trying to do or has done.
He didn't even have the authority of to appoint amicus under Justice Ginsburg decision.
Judge Wilkins:
I don't understand that that argument. 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, uhm, that was positioned to look through upstairs bedroom windows into the defendant home. And the defendant moves to suppress and amici including, you know, the Cato Institute and other organizations seek to participate as friends of the court and supported that motion to dismiss. You're saying that a district court wouldn't have authority to grant those motions?
Ms. Powell:
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, and…
Judge Wilkins:
(interrupting) Standing on the point, and on the motion. Appoint amicus on the position but the Court can’t do it on its own motion?
Ms. Powell:
No, I'm saying that the court cannot substitute its role for that of the government. It can’t take the place of the Attorney General or appoint someone to take the place of the Attorney General. That's precisely what Judge Posner rejected in Ray/United States. He can't go outside his lane to appoint somebody to do the job that..
Judge Wilkins:
(interrupting) The… the order appointing amicus appointed him to present arguments in opposition to the government's motion to dismiss. Uhm, that's… that's all that it says in that paragraph. So… So… How is that violating Article 2, to appoint someone to present arguments in opposition?
Ms. Powell:
Because the government had already made the decision to stop and the government is the only entity that can make that decision. The Department of Justice is the only entity that can decide whether to pursue this prosecution. The judge has no way of doing that on his own through amicus or a Special Prosecutor or anything else. The government has quit, and it's time to leave the field…
Judge Henderson:
Ms. Powell what is the…
(several talking at the same time)
Judge Wilkins:
Go ahead.
Judge Neomi Jehangir Rao:
Oh, uhm…What about…uhm…this is this is just what? What about appointing amicus for the contempt charges? Why don't even Supreme Court in the Young case said that the court can appoint a private party to prosecute contempt charge…me…to your argument with respect to the appointment of the amicus apply also to the contempt charges?
Ms. Powell:
Yes, as pointed out, and we did also in our brief, contempt doesn't lie for perjury in these circumstances. There 500 people in the national database of registered…Registry of Exonerations who would otherwise be susceptible to perjury prosecutions because they entered guilty pleas. But they were actually innocent…
Judge Rao:
That goes to the merits about whether contempt, what actually could actually be found. But what about the appointment of the amicus to look into contempt charges?
Ms. Powell:
There's no basis to do that, either. He doesn't have the authority to prosecute anyone for contempt. That's not the judge’s place to add on charges…that is solely within the prerogatives of the Department of Justice.
(Judge Wilkins attemps to interrupt)
Judge Rao:
But with the Supreme Court decision in Young?
Ms. Powell:
I don't I don't see that inconsistency.
Judge Rao:
In Young the court said that the District Court can appoint a private party to prosecute contempt charges.
Ms. Powell:
Well, in the circumstances of this case, contempt cannot lie by virtue of him having moved to withdraw his guilty plea…
Judge Rao:
Yeah, let me ask you one other question about the contempt charges. I mean, if we decide that reassignment here is not appropriate, would we have any grounds for reaching the contempt question? I don't believe Mr Flynn petition forward in mandamus after mandamus is on the contempt question itself. Is there any grounds we would have to be able to reach that question?
Ms. Powell:
Well, simply the fact that the judge doesn't have the authority to do it, and there's no continuing case or controversy.
Judge Wilkins:
Can I ask a question about the continuing case or controversy point? In Thompson 1980 Supreme Court case that I referred to earlier that was cited in the briefs…uhm…the Supreme Court…uhm…the Solicitor General suggested to the Supreme Court that the case be dismissed under Rule 48-A. And the Supreme Court did not itself dismiss the case…uhm in…the Supreme Court did not declare that there was no longer a case or controversy. Instead, Supreme Court remanded the case to the Court of Appeals for consid…reconsideration in light of the government's present position. So…uhm…in that case…um…the Supreme Court did not treat the fact that the government had filed a Rule 48-A motion as ending the case so that there was no longer the case or controversy. Don't you agree?
Ms. Powell:
Well, if I recall that case correctly, it was a mandamus for mandamus, and what the Court…what the Supreme Court decided was that the appellate court needed to address an additional issue.
That is not our situation, with the fact that not a single court in the country has ever refused to affirm a 48-A motion. There's no basis to proceed with this case. The government is the only entity. The Department of Justice is the only entity under Article 2, Section 3 that can prosecute the case.
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 going 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, Mr. Priestap, had a discussion with Andrew McCabe about trying to get the defendant to lie and what is our goal here and came back the next day reconsidering the fact that they had decided not to show him the evidence that they had, like they do with everybody else.
The fact they decided not even giving the 1001 mention, not the least of none even a warning, of course. No warning, but not even to mention 1001. They sent agents over there, according to Mr. Comey's testimony just…just told him a couple of agents were going to drop by, was that okay? And he said, of course, sure, he works with them all the time.
I mean, this is an appalling injustice. 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 of Department of Justice and evidence, falsified and everything else the government has presided…has provided extraordinary documentation, and the only thing left to do is for the judge to order the dismissal of this case, the delay…
Judge Wilkins:
And do an independent evaluation of the record before, before entering that dismissal.
Ms. Powell:
No, he could look at the record!
He could look at the record and…but the only thing to do as a result of that is to order this dismissal because of the presumption of regularity that attaches and the fact there's no clear evidence of anything else.
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. It's just not, I mean, it's contradictory to Fokker Services. It's contradictory toe Rinaldi. It's contradictory to, uh, the in Re.: United States in the 4th Circuit and Smith in the 5th Circuit in Hamm…
Judge Wilkins:
Where where in the, um, orders under review that the district court say anything about reasonable, plausible questions?
Ms. Powell:
It's in their brief.
Judge Wilkins:
That's not the order under review, though. The order under review…is…from your perspective…is…him…not granting the motion? That's something that not granting the motion itself, his grounds for mandamus?
Ms. Powell:
And appointing the amicus to do anything.
Judge Wilkins:
So…so, we have to find both of those things to be improper, to justify amicus? Is that your position, or is one of them…anyone of them by itself? Um, grounds for…for mandamus?
Ms. Powell:
I think either one by itself is grounds for mandamus, they are independent grounds for mandamus.
Judge Henderson:
Ms. Powell, let me ask you something about this appointment of amicus. In Fokker Services we ourselves appointed amicus. Now, if Judge Sullivan had not appointed amicus, would you be telling us that we couldn't appoint amicus?
Ms. Powell:
No, ma'am, 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.
What Judge Sullivan has done here is create 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.
If you want to add a charge…it ended…He can't
Judge Henderson:
But in focus services, we appointed, uh, someone to defend Judge Leon's order and this and that…television.
Ms. Powell:
Well, that's what Miss Wilkinson is doing here before this court. She's the analogous piece of…of that proposition. Not…not Mr Gleason.
Judge Henderson:
That's true. And you…you have no problem with her, obviously.
Ms. Powell:
Obviously, she's entitled to be here on…on behalf of the judge. Appellate courts often allow amicus participation, but the district court doesn't in criminal cases.
There's not even a provision in the rules for that!
In fact, if you go try to privately file a brief as an amicus in the District Court, you can't do it properly. All the docket entries have to be corrected.
There's no provision for amicus in criminal cases.
Judge Wilkins:
So I asked you…I asked you earlier if…if an amicus could file a motion in support…a brief in support of a motion to suppress. What's your answer? Is there authority for that? Yes or no?
Ms. Powell:
I would think there's authority for that…(Wilkins interrupts)…based on a motion that another party has filed that the judge wants to allow it…It would require Leave of Court I would think.
Judge Wilkins:
Based on what rule?
Ms. Powell:
Um, I don't think there's a rule for it, but I do believe that, for instance, there’s been amici in 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 gin up additional charges himself.
Judge Wilkins:
Well, just with respect to the Rule 48-A motion, um, it's your contention that if, um, for some reason, um, Mr. Flynn opposed the government's motion, it would be OK for an amicus to, uh, enter an appearance to file briefs in support of Mr. Flynn? Right?
Ms. Powell:
Well, at least there would still be a case and controversy before the court, and that would be up to the District Court whether to allow Leave to do that. I don't see a provision in the rules for it, but generally speaking, District Courts can do kind of what they want to do within bounds of reason.
Judge Wilkins:
So…So…So there's authority for it. So long as there is a case or controversy…is that…I'm just trying to understand your legal reasoning here.
Ms. Powell:
The legal reasoning is that he essentially appointed Mr. Gleeson as a Special Prosecutor. That he doesn't have the authority to do. If he'd asked Mr. Gleeson, for example, to weigh in on a side that existed in the case, that might be permissible…I would probably still argue against it, but I wouldn't have sought a Writ of Mandamus on it…I don't think…But to bring in…
Judge Rao:
Isn't your argument also that it's impermissible to have amicus briefs in criminal cases under the rules of the court?
Ms. Powell:
Yes, that is one of our arguments here because there isn't a rule. There is no rule providing for it. But like I said, I certainly think it’s done in other districts courts as long as it's on the side of one of the parties that seeks to continue the litigation, just not on behalf of the judges, an independent prosecutor himself.
Judge Henderson:
All right, Are there any more questions? Okay, Ms. Powell, will give you a couple minutes in reply.
Next is Mr. Wall.
Mr. Jeff Wall, for the US Department of Justice Mr. Wall:
Thank you, Your Honor, on May, please the court. Jeff Wall for the United States.
I'd like to, uh, have the opportunity to address a number of the questions that the court has asked petitioner's counsel, but I want to start with two points, one on the merits to you, Judge Wilkins and one on harmsto you, Judge Henderson.
And I think, by the way, that's the right order to take them. In recent mandamus cases like Fokker and, like Blumenthal, the emoluments clause case,the court looked at the marriage, asked whether there was a clear and indisputable right on the merits and then turned to the mandamus factors and the harms.
I think that makes particular sense here because if we're clearly right about Fokker, that it doesn't leave an oversight power and the courts are a substantial role with respect to unopposed Rule 48-A motions. I think it's easier to see, Judge Henderson, why it's so harmful to continue to allow this process to play itself out on the District Court. Taking the merits first, Judge Wilkins, Rinaldi was a case in which the court assumed…I think its clearest in footnote 15…it assumed in the broader standard and then said even that standard can't be satisfied so the trial court has abused its discretion in denying the motion, a motion by the way, that came after judgment in that case, not just after a plea or trial, but after judgment.
Thompson, of course, was just a case in which we wanted to pull the Prosecutor in the Supreme Court, and we asked the court to GVR and even thereafter in the Court of Appeals it send it back to the District Court to allow us to do that.
But I completely grant, Judge Wilkins, neither one of those cases resolves the substantive standard for Rule 48. They resolve that Rule 48 applies contra responded assertion all the way on direct review. There's no magical line of the plea, but they don't resolve the substance standard.
The case that does that in the case that we rely on for mandamus here is this court's decision and Fokker. That's the decision that resolved the substantive standard for the denial of the Rule 48 motion.
Judge Wilkins:
How is it resolved that, when the case was not in appeal level, the Rule 48-A motion?
Mr. Wall:
Because what chief judge…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. 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, he said, the err is so clear because look at our look at what has to be the rule under Rule 48 and then that has to be the rule for DPAs as well.
So I understand parts 2a and 2b of the opinion in Fokker to be central to the judgment and to what it goes on to do when it applies that standard later in the opinion. And I think the language of Fokker when it goes through that discussion leaves no doubt it's dismissing charges, not just convincing, but dismissing. Is it squarely within the can of prosecutorial discretion that there's no oversight power in the courts, no involvement by the judiciary. And it says no substantial rules role for courts. And if we're right about what Fokker says, we're stuck to Rule 48 to term to my…my point to you judge, understand? Then it's really a question of what is the point of further proceedings, if the District Court is required by circuit case law to grant the Rule 48 motion and…
Judge Wilkins:
You believe that Fokker stands for the proposition that…that District Court can't perform an independent evaluation of the record?
Mr. Wall:
I think it does in the following sense, Judge Wilkins. I understand Fokker to mean that if tomorrow based with kind of tolling agreement that was at issue and Fokker District courts…(interruption) I'm gonna set up a process for deciding whether to grant this agreement, I'll hear from both sides there a number of factual questions I'm gonna have to resolve about whether you're going too easy on particular defendants, and the District court did all of that.
I understand that to be, yes, a straightforward violation of Fokker, and it's again, it's not just the sort of idea that there will be some briefs and…and hearing Judge Anderson the harm is that as the responding explains both in the opening briefing page 2 reply, the point of this is to investigate, they state the prosecutorial decisions and prosecute toll motives. There was a response words.
Judge Wilkins:
The order itself says that…that which is under review, says that amicus is appointed to present arguments in opposition to the government's motion to dismiss. That's the order under review. Anything it doesn't say anything about, you know, fact development there, anything else?
Mr. Wall:
So with all respect, Judge Wilkins, two points first, but we're not here on appeal for an order. We're here, you know, on mandamus, and mandamus is an extraordinary recourse that directs the District Court to do something. It's not necessarily review on order, and here we're asking that the District Court be directed to grant the Rule 48 motion.
But second, beyond the order, the reason for entering the order as respondents briefs in this court have explained. So we now know what's gonna go on below. 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 and indeed bot the District Court and the court appointed amicus have, on the one hand, suggested in 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, that's going to mean that we are, in the District Court's view, and are gonna have to come in and answer those questions and defend against them. And that's all the systemic costs that this court laid out in part 2a of Fokker. So in order to have the sort of an anodine proceeding that some of these questions are assuming this, court would have to issue mandamus, you have to take off the table evidentiary proceedings and the like, you have to take off the table contempt. You have to say, just the Rule 48 motion, you address that dispatch and then you could come back to this court… But that point, that's the proceeding, there’s…
Judge Wilkins:
This court doesn't even have the authority to appoint Amicus to advise it on whether it should issue in order to show cause for contempt?
Mr. Wall:
Judge Wilkins, we, unlike the petitioner, we had not argued that district courts did generally lack the power to appoint amici, I think, either under the rules or more likely under their inherent authority. But what we have said is that 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.
And if that's true than a force, your eye has got to be true for the Rule 48 context, which was the basis or Fokker's reasoning with respect two DPAs. So we're not saying that a court…the district courts don't have the power to do this generally, what we're saying is that here…but there are problems with this particular appointment of the…of the amicus. And just to get back to your your question to understand, 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 are gonna play out. This has already become, and I think it's only becoming more of a public spectacle, particularly in light of the amicus filing in the District Court two days ago, 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.
Judge Rao:
A little while, if I could just ask you, I mean, the court has...you know, our quote is repeatedly declined to grant mandamus so the government addresses abstract separation of powers violations such as in...Surely…So I'm just wondering if you could be more specific and more particular about what the concrete separation of powers violation is here. I mean Rule 48 does allow Leave of Court, right? So it's a problem…what precisely is the problem here? What precisely is the infringement on the articles of power?
Mr. Wall:
I think Judge Rao, that the separation of powers harms here. You're right, they can be very subtle and very abstract in a lot of cases, I think they are stark in its concrete here as it comes, because here we know from that what 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.
Why did particular prosecutors not signed the brief? Why did the Attorney General make this decision? Was he right on these various grounds? What about the uncharged conduct? With respect to the Turkey statements…we're going to have to breathe and apparently put on evidence in defence of all of that so that the District Court can then reach a decision, one circuit law compels him to grant the motion, and I think that it is an intrusive process and it is gonna harm the executive and he can't ignore that it is playing out in a politicized environment that I think is made worse by the kind of…honestly that sort 70 page almost polemic that amicus filed which alleges that the President and the Attorney General have engaged in grave misconduct.
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. It says, quote, no substantial role, end quote, it's hard for me to see how much clearer than the court is…
Judge Wilkins:
But…but…but…all of the 48-A…the 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. So…then there must be some case…where…uhm…or some…some set of circumstances, where is unfortunate, as the clash of the two branches of government might be, where Rule 48-A does some work. Isn't that right?
Mr. Wall:
Judge Wilkins, because I think it is right in the following sense 48-A does work in cases where it's an opposed motion 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. You don't have a prosecutor that’s been bribed or a defendant who hasn't been counseled about the dismissal. But we do say that for unopposed motions to dismiss relatively small side of applications under 100 48-A that where the parties agree and they're both making considered decisions…Yes, the court is required to grant, in light of the constitutional concerns that this court discussed in Fokker and the second thing I'd say, Judge Wilkins, just to drive this home, is I understand respondent to accept that everything I just said is right in the pre plea situation. They agree that if the defendant hadn't please pleaded, and we jus…was just an ongoing prosecution, we could pull this back. There'd be nothing a court could do about it, couldn't force us to go to trial. And a court, even if it were upset about our motives, couldn't perform in the oversight that would need to grant the motion. And so the move that they make and it's a key to the merits that Page 19 of the replies to say..OK, but Fokker is just for the pre-plea situation, it doesn't apply once the court has accepted the plea, and I think that's got to be wrong for no fewer than four reasons.
First, once we know that it's not the concern of the Rule in most of the cases, which of the pre-plea cases, then we know it's not really what the law cares about.
Second, the constitutional concerns are exactly the same after the plea: We no longer want proceed in the Executive, and there's no longer a controversy between parties.
Third, we know, as you said from Rinaldi, the US can dismiss even after judgment, even after trial, let alone after pleas. There's no magical plea line, and
Fourth, Fokker rejected exactly this distinction. It said, accepting the plea agreement, to be sure, it's a judicial act that calls on the court's authority. But just dismissing that it said doesn't. That's just letting a case go in deference to the Executive exercise of prosecutorial discretion.
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 on the merits collapses, and then we're just back to judge Henderson's question about the harms and why grant mandamus, why grant mandamus now…
Judge Wilkins:
Fokker made clear that there are different considerations at different stages of a criminal case…uhm…to the extent that…uhm…you…even if we credit that…that...that Fokker is…is binding on the Rule 48-A. And here we have two different district judges that, as a part of their obligations under Rule 11 made factual findings as to materiality and basis for plea, etcetera, and so the government's motion doesn't just implicate the government's position. It implicates those rulings that…uhm…two district court judges have made. So…the case isn't in…in the same posture as it would be prior to the plea agreement in that respect.
Mr. Wall:
I absolutely agree with part of that. I think it is certainly true that there are different concerns at different stages, and Fokker says accepting the plea agreement does call on the court facility because it has to ascertain whether there's a factual basis for the plea But it contrasts that with dismissal and take a case like into the part I disagree with that. Once you've crossed that plea line, and a defendant has pleaded, that suddenly everything that follows invokes the courts have felt already in some way that changes the calculus, because Fokker says that's not true, and the best example I think it is in Re. United States in the 7th Circuit, the District Court…and it wasn't just a pleading, there was a sentence, and in light of the sentence that government wanted to dismiss some of the charges because it no longer wanted to proceed with him, and the district court is upset about that. It wouldn't allow the government to dismiss, and the 7th Circuit said: look, it doesn't matter even if the government's trying to get around the District Court sentencing authority, it's the master of its own case. It gets to decide when to bring or when to dismiss charges. So I agree that a Rule 11 acceptance of a plea agreement, if that's what were before the court, that's different. But this and Fokker's language’s crystal clear about this. It's accepting DPAs and dismissing on a rule 48 says, quote, are not formal judicial action imposing or adopting, end quote, terms on defendants or parties. They're not…the court formally signing off on anything.
When Judge Sullivan grants this Rule 48 motion as he's required to, he's not taking back anything he's done before. He's not expressing any opinion on the government's case. He's not saying he agrees or disagrees. He’s just acknowledging a co-equal branch’s exercise of it’s core Executive power.
Judge Wilkins:
I have a question about…uhm…I have a question about…uhm…your position…the United States position about…uhm…uhm…it's representations in support of a Rule 48-A motion. Is it your position that the…that the government does not have to…uhm…state all of its reasons in support of dismissing the case? Only those that it chooses to…uhm…share with the court?
Mr. Wall:
It is, Judge Wilkins, but I don't think anything turns on that here and that you need to agree with me on that. I think we could have come in and just moved to dismiss without providing an explanation to the District Court. We do that at times and district courts routinely grant them. No appellate court’s ever reversed in a situation like that.
But here we did. We went beyond what we thought we were obligated to do under the circumstances. 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, as Miss Powell said. I mean, I think this is one of the most, uh, well, robust Rule 48 motions you'll find.
Judge Wilkins:
So…So…dude, to…I guess Understand…uhm…my concern. Suppose you have a case where…eh…federal law enforcement officers pleaded guilty to criminal civil rights violation for using excessive force and in the government…uhm…says that they…they uncovered some Brady evidence and…uhm…are moving to dismiss under 48-A…uhm,…after the guilty plea…uhm…but part of the reasoning of the authorities was that…uhm…as to why they didn't believe they'd be able to prove this case beyond a reasonable doubt…uhm…that defendant was black…I'm sorry…the victim is black, the defendant, law enforcement officers white. And they did not believe that the jury would…would believe the black victim over the white officer without corroborating evidence. And that's unfortunate, but that's the reality. And so that was one of the reasons for dismissing. But they thought that that wouldn't play well, so they didn't say that in the motion. They just said that the exculpatory evidence was the reason they're dismissing. Is that proper?
Mr. Wall:
So two points, Judge Wilkins, one is legal, and one is practical.
The legal one is that there's an easy way to deal with that here given the mandamus posture. I think Fokker is clear that the government, as long as it provides a reason, any reason at all, can…and it's not an unconstitutional reason…can dismiss. So, yes, I think that that motion there should be granted.
But the easy way to deal with that and the mandamus posture is to say, Look, even if you think that there's room for some kind of…ah…a Richard's like rule or we think there's it…(interruption) it's not clear and indisputable.
Judge Wilkins:
I'm sorry, I I couldn't hear about 10 seconds of that. Could you repeat whatever you said? I need you.
Mr. Wall:
You sure? I'm sorry.
If you thought that it wasn't clear under Fokker whether the court could allow that type of explanation, you could try to leave that open and just say, look, whatever that might be on the merits, it's clear and indisputable that wherever the bar is, the government met it here through its fulsome explanation.
And the practical thing I'd say is…I certainly hope that the government has never filed a motion like that, and I'm not aware of it…but even then, yes, I think the court should have to grant it because the government, whatever its motives, no longer wants to proceed. But what you would see is you see other defendants walking in, attaching that motion, and bringing Armstrong claims, saying the government is making racially based decisions in its prosecutions, and based on your hypo, it sounds like they have a pretty good, pretty good grounds for that. So I think there are remedies for this other than needing to control Rule 48 to get into what the Executive’s motives …
Judge Wilkins:
If…if…if there's remedies for it, it can't be a remedy for it, unless you know that it's happening. And if the government doesn't have to disclose all of its reasons, then he’d never know that it's happened, right?
Mr. Wall:
But that's always been...
Judge Wilkins:
But the court isn't allowed to ask whether there were any other reasons. You'd never know that it's happening, right?
Mr. Wall:
But that would be equally true.
In a case like Fokker, Judge Wilkins, the District Court could always say: Look, I think that the US Attorney has cut a sweetheart deal with the corporate defendants here, 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. And the point of Fokker is that it isn't to the courts to police whether the Executive has pure or impure motives. 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. But Rule 48, Fokker says, is not the mechanism for policing the kind of harms that you're worried about. And if…if a court could do the sort of thing that you’re talking about, then I think Fokker has to be a dead letter because, either with respect to Rule 48 or a DPA, the court concerned about the Executive’s motives could always inquire. And I understand that inquiry to be exactly what Fokker shuts off.
Judge Rao:
So Mr Wall are uu suggesting any…I mean, normally the standard is that there is a presumption of regularity. What about the case in which a District Court could feel that that presumption is overcome on the face of the materials presented by the government?
Mr. Wall:
Two points judge Rao. Well, first, I don't think that presumption is…is relevant here and put it to you this way. If the court, if a District Court thought that the government had a bad feed motive for declining to bring a prosecution, I take it everyone agrees that the court couldn't force the US to bring the case, and the same is true for maintaining a prosecution. As Fokker says, there's no oversight role for the courts, 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. If you look at that passage of the opinion, all it's doing its listing that as another reason for adopting its rule. Even with respect to constitutional claims, courts have very low to second guess in the absence of clear evidence of a constitutional…unconstitutional motive and give that as a reason for reading Rule 48 its way. It's not adopting some exception to its…its reading of the rule. But even if it were, we'd still be entitled to mandamus because Armstrong is completely clear, Judge Rao, that you have to have clear evidence of an unconstitutional motive to rebut the presumption, and they can argue back and forth about whether they think the Attorney General is right about this or about that, but there's nothing here that remotely approaches clear evidence of an unconstitutional motive. That's what you need to rebut the presumption, even if it were relevant.
Judge Rao:
So…so….you…regularity, in your view, would only be an impermissible motive? There are not other types of irregularities?
Mr. Wall:
That's right, because it's only an unconstitutional motive that would allow the court to step in…that you need an independent constitutional motive like a racially based prosecution. So, yes, if a District Court thought that a US attorney where favoring his friend, that would be terrible conduct. There are political remedies for that, but there are judicial remedies under Rule 48, if the considered decision of the Executive branch, whatever its motives, is that it no longer wishes to proceed. It doesn't have to bring the case. And, by the way, whatever its motives, there's no longer an Article 3 case of controversy, even
Judge Wilkins:
if…even if the…the prosecutor…um…was dismissing the case because…um…it did not believe that the…a white police officer should have to answer for using excessive force on a black defendant…uhm…and they say that in their pleading…um…under Rule 48-A the District Court still has to grant the motion?
Mr. Wall:
Judge Wilkins, I don't think that the court can force the Executive to keep that case alive. In the absence of the case and controversy, as I tried to say earlier, it may well be a basis for dismissing other prosecutions. But even if you disagree with me on that, the reason your…your hypothetical has force is because it's an unconstitutional motive. It's the kind of thing that could qualify for Armstrong. 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, and I don't think you can leverage that, Judge Wilkins to say that’s…
Judge Wilkins:
Then what's his leave of court mean, then? What work…what work at all this Leave of Court do, then?
Mr. Wall:
Well, it doesn't work, of course, with respect to opposed motions to dismiss, and the work that it does for the far smaller set of unopposed emotions in a situation like this is it allows the court to make sure that it's the considered decision of the executive. You don't have a prosecutor has been bribed, and it's the considered position of the defendant. That defendant hasn't been poorly counselled. 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. I think certainly a District Court is warranted in asking the defendant: Are you sure about this? Because it sure seems like the government keeps yanking your chain.
Judge Wilkins:
So why isn't it the case that if…if the government makes a considered but racist decision that 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, and perhaps under pressure from the public or Congress or whatever, the District Court may not be able itself to force government to prosecute the case that maybe through operation of the legislative branch or other pressures from the public and the media…uhm…a new prosecutor is appointed and the case proceeds? Why isn't that exactly what Leave of Court…uhm…is…should operate?
Mr. Wall:
Judge Wilkins, your…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 that this are…
Judge Wilkins:
But…but if the government can't make the case go away…and the case is in limbo…then while it's in limbo, pressure could be brought to bear on the government to reconsider its decision, right?
Mr. Wall:
Let me say two more things Judge Wilkins.
First, I think, as Judge Kavanaugh explained the ruling for that kind of an equal protection violation is to dismiss other cases, it's not to compel the government to move forward with this prosecution.
Second, even if you disagree with the reasoning of…of…of that, if you have 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. And as a constitutional matter, we don't have anything like that here and it’s just to…to square the circle. You can't leverage that back, I think, to saying that even if you could enquire in some Armstrong type case because the face of the motion disclosed a possible constitutional violation that then you can enquire in every case. That then would just eat…eat the rule.
So I think you can say it’s right, that there are other liberties for the equal protection violation, 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 that there's any unconstitutionality, that there's any evidence that we violated the equal protection clause or anything like that.
Judge Wilkins:
Thank you.
Judge Henderson:
Mr Wall, let me ask you, you threw out a question probably 30 minutes ago. What would be the harm in, uh, going ahead and mandating the granting of the motion to dismiss? The harm is to me, anyway, regular order, and mandamus is a drastic remedy, you know that. We all know that. Nobody has been able to find a case in which, uh, mandamus has issued where the District Court has not acted in the…in the sense of a ruling, and order, something that we can review now, this District Judge has taken two actions. He's appointed an amicus, and he set a hearing. Now, unless you agree with, uh, with Ms. Powell that the setting of a hearing is something that's alter juris, is a point that leaves the appointment of the amicus and, granted, he may have chosen and intemperate amicus. But that doesn't mean that he is going to deny this motion. And considering the drastic remedy that mandamus is, considering there's no precedent that allows us to move on without an order, I don't see. And considering that there's a hearing been set for July 16th I don't see, ah, why we don't observe regular order and allow him to rule. For all we know, he will say this amicus brief is over the top, the dismissal motion is granted.
Mr. Wall:
So, Judge Henderson, a few points.
Yes, it's an extraordinary writ. We would say this is an extraordinary case. I think we're well past, but iregular.
Judge Henderson:
I agree with that. I agree. It's an extraordinary case.
Mr. Wall:
And I think that at a minimum, at a minimum, in order to have the sort of regular order you're talking about, the Court should still issue a more limited form of mandamus that takes off the table these evidentiary questions they want to probe the Executive’s motives. And we'll have to defend against that. You know, they say in their brief, quote, affidavits and declarations, end quote. And it seems to me that they want some evidentiary or discovery process. I think that clearly should be off the table, and contempt should be off the table.
All we're talking about is a meaning of Fokker and Rule 48 and the Court's going to decide that at the hearing with dispatch, we can come right back to the circuit. I think at a minimum, you need that in order to get a sort of regular order you're talking about.
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 a limited, he just denies, eh, grants the Rule 48 motion, it's still not the case that the parties haven't suffered harms. Harms to General Flynn, obvious from the continued prosecution and the threat of contempt of this court takes away. But the harms to government are really what I'm focused on. You have, as you say, a potentially intemperate amicus. You have all of these allegations being lobbied at the Executive branch. We're gonna have to answer them in a public forum in a politicized environment. That's exactly the sort of thing that Fokker, when it walks through the harms in part 2A says it shouldn't be doing…it invades our deliberative process. It chills law enforcement, creates a sense of a conflict between branches. And so I agree...
Judge Henderson:
So we don't…we don't know…we don't know that's going to happen. We have Judge Sullivan, who is a an old hand. He's a excellent trial judge. And he may say to himself at least: You know, I asked for advice and, uh, I'm ignoring it, and I'm granting the motion to dismiss. Shouldn't he be allowed to do that?
Mr. Wall:
I think, Judge Henderson, and the government respects Judge Sullivan, as you say an experience hand a judge on the District court. I think we're…because we are past regular order, we have crossed into the mandamus threshold. If we had gone about this a different way, I might agree with you that order ought to be maintained, but because we've reached a point where you have the District Court in its brief, he believes in questions about prosecutorial motives. If the court appointed amicus driving that home in its brief, the court is apparently contemplating that will defend ourselves and late [interruption] weight out exactly why we we've done what we've done…all of this playing out against the backdrop of these incredibly harmful allegations. And I just I think if it isn't already, it is threatening to become and will become the sort of public spectacle that I think mandamus is warranted to…to foreclose at this point, and I agree with you Judge Henderson, I wish we weren't here, but we are. Fokker is clear about creating a Rule 48 motion…and so there isn't…it's…why would we have these unnecessary proceedings when they're really going to do damage to the Executive branch at this point, given the way they've set up and the environment they're playing out in.
Judge Wilkins:
But the government didn't file a petition for a Writ of mandamus, Mr. Flynn did.
Mr. Wall:
That's very fair, Judge Wilkins, the scene…there was…I don't get too much in the government's deliberative process because, of course, the whole point is that's not permissible in the Rule 48. But what I can say is there was uncertainty in the District Court about what the District Court what was going to do. And on the same day the District Court set the briefing schedule before we'd need any final decision, General Flynn his mandamus petition, and at that point we had to decide whether to support it or whether to file a petition that risked slowing this now. And we obviously decided to support the mandamus petition, and I think, honestly, would be artificial to carve off the separation of powers harms here. Uh, just because we didn't file our own petition when you know they're presented in stark relief. And certainly if that were important to the court, it should at least give us the opportunity to file some short mandamus petition that could be consolidated with…with General Flynn's. Because we are here saying there are serious, indeed grave, I think to Judge Rao’s point stark separation of powers concerns playing themselves out. These are not the sort of subtle abstract things that sometimes present themselves in Article 2 and Article 3 cases, you have a court that is considering whether to keep alive the process.
Judge Wilkins:
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. Being that's far from regular order here and you're arguing, let you know if you're not inclined to grant the principal relief by the people who filed a motion, then grant some form of limited mandamus relief…uhm…and you're making that argument even though you don't have a mandamus petition before us…being…none of that is regular order counsel.
Mr. Wall:
Judge Wilkins, I'll grant, very little about this case is…is regular order at this point, I don't think that our not filing a mandamus petition at this point could be taken as legally relevant in any way. We are a respondent supporting a petitioner. That regularly occurs in courts, including the Supreme Court. We make the full range of arguments, and our legal arguments are harms…are considered by these courts as I think they…they should be here and my only point to Judge Henderson was to get us back to regular order you need at least mandamus that would take off the table the evidentiary proceedings and questions and contempt. 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 hear, even then, you still ought to take the additional step of granting mandamus and in the case of Judge Henderson, I would point you to our Fokker and in Re. United States themselves. Those were questions of first impression, but both this court in the 7th Circuit said the constitutional principles are so clear we're gonna grant mandamus. And here we have not just the constitutional concerns on Article 2 and Article 3, but you have the decision in Fokker itself. So I think the…
Judge Henderson:
I keep coming back to in Fokker the district…we knew what the District Court did. We don't here.
Mr. Wall:
Oh, I agree, and I think it's possible then, that if you come up at an earlier stage in Fokker this court wouldn't have created a mandamus. But once it creates mandamus in 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. Courts can't scrutinize. There's no oversight. It's not just…it's not just impugning the decision of the district court there: It's impugning everything the District Court was doing that led up to it because courts, it says, don't have any substantial role. They have, quote, no oversight power, end quote, and so I don't want, you know that from Fokker. Then I take the point that, you know, if you look this is not briefs and hearings, that's not what this is right now. That is not how this is shaping up in the District Court. But even if we were somehow to limit it to a more normal type proceeding, without all of the stuff that respondents briefs says it wants to get into, that's all now squarely foreclosed by…by Fokker. So I understand…
[several voices at once]
Judge Rao:
I’m concerned about your fallback position that we could grant some kind of partial relief. I mean, wouldn’t that require the court to articulate, actually, far more legal standards about what, precisely is on and off the table? Um, that seems to be a lot of law to be making in the mandamus posture and much less clean than just, you know, he should like a Writ of Mandamus in full. I'm just wondering whether, I mean, if you really think that this partial mandamus would actually be more minimalist than, um, a clean, um, Writ of Mandamus?
Mr. Wall:
You know, Judge Rao, let me be clear about this. The writ of mandamus is warranted here; it is clear and indisputable that the Rule 48 motion has to be granted under Rule 48. And if we're right about that, there is no reason to let these harmful proceedings play themselves out in the District Court. So what we completely agree is that the cleanest way to resolve the case under Fokker is to grant the writ.
I was just explaining to Judge Henderson that if the court sort of has these concerns about granting the writ, it seems a little bit unfair to the petition of 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 grant 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 intensities. The cleaner way to do it is just to say Fokker is clear that the court has to grant the Rule 48 motion.
And so, you know, given the harms to the defendant and the government, the Richard issue, and I will fully grant Judge Henderson that it that it's an extraordinary writ, and we do not ask for in ordinary cases and in an ordinary dispute between private parties, it wouldn't be appropriate here.
But this is a separation of powers case.
I mean, if you take a case like Cheney where you just think about discovery being bringing the branches into possible conflict and Supreme Court grants mandamus, in this case, it seems to me, is two steps beyond that. 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, and I understand that to be exactly what [unintelligible] said in Fokker courts may not do. I really don't think it's hard to see what the harms are gonna be to the government over the next couple of months if we and the defendant are put through that process, which is also not, if at the end of the day, the District Court is required by law to grant our motion.
Judge Henderson:
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. That's what I'm talking about as far as regular order, uh, you, granted, assume that you have an indisputable right and that, to me, seems pretty clear. You still have to say why there is no adequate remedy at law and I'm not gonna repeat myself. But why is there none? Yes, on July 16, Judge Sullivan grants demotion to dismiss.
Mr. Wall:
So I'll take one more stab, Judge Henderson, and, uh, and I think it's this, even if, ah, you know, a month or two from now the court grants the Rule 48 motion. In the meantime, you will have a proceeding that's forcing us to explain ourselves to do it apparently wit affidavits, declarations, some kind of an evidentiary process in the District Court. I don't know whether in the District Court is very careful in its briefs not to say exactly what it envisions, but yeah, the District Court has left itself a room for not just documents of that kind, but witnesses and all the rest, and that is going to intrude, it's going all the harms in part 2A of Fokker. It's gonna intrude on our deliberative process. And I think the court has to take account of the fact that those respondent’s briefs and the amicus impugn the motives of the Attorney General of the United States.
And it's gonna pull the Judiciary into a fight that should play out in a public political arena. And I think those are real harms to the Executive branch, even if at the end of having been put through that whole process and on what I think threatens to be a spectacle in the District Court, the District Court ultimately grants the Rule 48 motion.
And if we're right, as you stated, that Fokker says, the District Courts shouldn't be doing these things. It's hard to imagine a case where a District Court would see something foreclosed by Fokker that would be or harmful that and what we're facing on the circumstances here, if ever. 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. It seems like this would be the classic case.
Judge Henderson:
All right. Are there any more questions? No? If not, then we'll hear from Ms. Wilkinson.
Thank you, Mr Wall.
Ms. Beth Wilkinson, for Respondent, Judge Emmet Sullivan Ms. Wilkinson:
Thank you, Judge Henderson, and may it please the court. The petition asks this court to grant really an extraordinary remedy for mandamus…to present…to prevent this District Court from even considering or questioning a pending motion. This court should deny that motion for three reasons.
First, the government's motion, as this court has already pointed out, is still pending, and it may very well be granted. Alternative relief is available below.
Second, the law does not clearly and indisputably foreclose the District Court's consideration of the government's motion.
And third, it would be inappropriate to grant mandamus in a case involving open questions or the government's raising novel constitutional arguments that were not raised below. As this court has said, it is essential for those questions to be raised below to maintain the regular order.
No one disputes that a Federal District Court cannot second guess a legitimate exercise of prosecutorial discretion simply because it disagrees with it. But that is not the issue before the court. The issue here is whether a Federal District Court judge can set an expedited briefing schedule and appoint an amicus to provide adversarial briefing before ruling on a motion that requires Leave of Court. The answer is, and must be yes.
Judge Rao:
In a case such as this, where both the government and the defendant agree with the motion to dismiss. I mean, isn't the appointment of an amicus creating an Article 3 case of controversy where there isn't one?
Ms. Wilkinson:
No, your honor, there is a case and controversy here for several reasons.
One, as you know, the government and the defendant are asking for the motion to be dismissed with, uh, with prejudice. By definition, there cannot be a ruling to dismiss the charges with prejudice if the court doesn't have jurisdiction. 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. So everyone in this case agrees that this motion, if it should be granted, should be granted with prejudice. So these charges are ended.
Judge Rao:
Well…What happens, though, in the case, may be another way of asking this is, is if the District Court were to determine that the motion to dismiss should be denied. Then what happens then? Then we go on to sentencing Mr. Flynn, even though the Executive is no longer pressing its prosecution?
Ms. Wilkinson:
There's no reason at this point to hear that the District Court is going to deny the government's motion to dismiss. But if for some reason the facts and 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 Mandamus, and that happened in in Ray, Aitken says, you know, in there, the court said, and denied the first motion for the writ because they said the government hadn't had the chance to act. And in fact, they gave years 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.
Judge Rao:
So here we're not in any situation similar to that.
Ms. Wilkinson:
As Judge Henderson has said, the court only set a briefing schedule and has a hearing for July 16th. The order to the amicus is circumscribed to only presenting arguments in opposition, and there's no suggestion that the court is going to call witnesses or do anything that the parade of horribles that government…the government and petitioner was laying out for you. All this court is doing is getting advice,
Judge Rao:
And what standard is an Article 3 judge supposed to apply in this context? In order to affect the motion to dismiss, well, Rule 48 just says there must be a Leave of Court. But what's the standard that the district court judge must apply?
Ms. Wilkinson:
Well, the governing law here is in Anna Down, which is still good law, it was cited by Fokker, and there as Fokker reiterated, I think we have to look at whether that presumption of regularity or there was a clear violation of the public interest for the court to seriously consider whether it can deny the motion to dismiss. So there is a presumption, as you mentioned earlier, and the question is, is there any basis to overcome that presumption that would guide the courts inquiry after receiving the briefing and asking questions of the government and the parties.
Judge Rao:
But I think I mean, the public interest is not a standard that it mentions in the rule, and I mean in our constitutional system of government isn't the public interest with respect to whether prosecution goes forward. Isn't that public interest one that is committed firmly under Article 2 to the Executive branch…umm, and to the politically accountable executive branch not to on Article 3 Court?
Ms. Wilkinson:
Generally, yes, your Honor, the prosecutorial profit is protect and consider the public interest. 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 they’re allowing the motion to dismiss. Miss E reviewed at the abuse of discretion, and they found that it did abuse discretion. But they said, we have not decided whether you could consider Rule 48 in light of the public interest. And, in fact, the descent led by Justice Rehnquist said he thought it was clearly an independent basis to review a Rule 48 motion.
But in an event that law is not clear here, there's no clear and indisputable standard for this court to issue a Writ of Mandamus based on the fact that standard is unclear as to how you determine Leave of Court and any kind of abuse of discretion or discretion. What we do know is in this court, in the Circuit Court in Fokker and…and down…both provided for a review by the Court of the government's motion and allowed for questioning. When you decided the case in in Fokker, Judge Leon questioned the parties, including the government, in open court on several occasions, and he had conferences when Fokker was decided. No one said that in that opinion, you cannot ask questions. You cannot have a hearing. And in fact, the government never took Judge Leon up on a mandamus. There's no situation in and out of the government
Judge Wilkins:
The government argues that…that Fokker necessarily…uhm…rebuke…uhm…that approach by the District Court. What's your response to that?
Ms. Wilkinson:
That's not what Fokker says. What Fokker says is that the District Court judge abused his discretion when he denied the motion, which was a speedy trial motion necessary for the deferred prosecution agreement when he stated that he disagreed with the government's prosecutorial decisions. That indeed is an improper basis to deny in motion to dismiss. And that was the circumscribed ruling at Fokker. Fokker does not deal with Rule 48-A as you've talked about, but it certainly doesn't say that you can't have consideration or scrutiny. In fact, it says just the opposite. Throughout the opinion, they talk about scrutiny and they talk to being about it being circumscribed. But they certainly don't say the court has no right to ask questions. And here all the judge’s doing is receiving briefings and having a hearing, and the parties, the petitioner and the government didn't object to that below.
So they have no alternative.
Yes, sir.
Judge Rao:
I mean, how did the presumption of regularity than apply in a situation like this? Before asking questions, you know, appointing amici, um doesn't the district court have to determine that the presumption is overcome?
Ms. Wilkinson:
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. 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. The court was clear that there is a presumption, so it is a long hill to climb to overcome that presumption. But there's nothing in Fokker that says you may not question the government, and in fact, the government answers these kinds of questions all the time.
If you look at Rinaldi, then Chief Judge King of the Southern District of Florida's Court, call the prosecutors in and ask questions. The Supreme Court and Rinaldi didn't say that kind of questioning was improper. That happens every day in District Courts when a party files emotion and the judge asked questions. That's all that's happening here. There's nothing more, nothing less.
Judge Rao:
Oh, I mean, there is more here.
There's an appointment of an amicus to oppose the motion to dismiss, and that is that I don't believe is an order down, you know, everyday occurrence.
Ms. Wilkinson:
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 present arguments in opposition to the government's motion to dismiss. And we…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, 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 reads both sides, both briefings, asks the government's question and grants a motion to dismiss.
Judge Rao:
Let me get to what’s presenting here. I mean, what is the…I mean…you know where the government decided to drop the prosecution and the defendant agrees that what is the standard that they're arguing? I mean, who are they arguing on behalf of?
Ms. Wilkinson:
They're arguing on behalf of the adversarial position, just like this Court does often, or the Supreme Court does, I mean, one of the famous cases, 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.
Judge Rao:
Right. So what is the…So you're saying that there's some kind of judicial right or judicial power here that the amicus is representing?
Ms. Wilkinson:
No, I think it 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 but it needs advice or legal briefing on an issue. But here it's even more important because there's you need an adversarial briefing. The government and Mr. Flynn are aligned.
Judge Rao:
But that's in a criminal case that…that is the adversarial process: It's the government against a criminal defendant. Who is the…what does that even mean to have an adversary where the government and the defendant agree. Like what does that mean? It this representing some kind of inherent authority of the court?
Ms. Wilkinson:
It it's. it's representing the authority of the court to understand the opposing arguments. 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. It doesn't mean that the District Court thinks this motion under Rule 48-A should be denied.
All we're doing coming forward is arguing the other side, and all the District Court was doing is have appointed an amicus to say: What is the scope of the authority? Can a motion, an unopposed motion under Rule 48 be denied? And if so, what is the standard? As you just asked me, the standard is not clear. So what are the outlines? What are the cases and what do they say about the court's authority to ask questions and to make that decision?
Judge Rao:
The…really the amicus isn't an adversary you're not…then you're saying the amicus is…just provide understanding about the law to the District court?
Ms. Wilkinson:
I think it's the amicus is an adversary in the sense that he was directed to take positions, opposing the government's motion to dismiss. So I believe the government and the petitioner would surely see the amicus as an adversary. And that's important because the court doesn't have to listen to the amicus as Judge Henderson said. The court is an experienced judge. He can ignore the amicus. He could take some of the points under consideration, and then he can ask these questions and make his ruling. But he wanted to hear …yes Judge.
Judge Rao:
I don't think here…I mean, you've also recognized, right? I mean, there is a core article to power over prosecution. Even the weakest understanding departed from to admit that the Executive power, you know, includes control of a prosecution. I think you have to articulate here what is the countervailing Article 3, um, issue at stake. So one keeps in the Nixon case, right? There was…there was a conflict between article 2 and Article 3. In the Article 3 power there, that the court articulated, was, um, the District Court essential function and protecting individual liberty in a criminal trial.
But here I think I guess I'm wondering if you can articulate what is the panel veiling Article 3 power at stake in a case where the government and the defendant agrees on the motion to dismiss.
Ms. Wilkinson:
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. Amadan says the same thing and even in Nixon, your honor, the court, citing the framers, made clear that even though you're dividing and allocating the sovereign towers among three co-equal branches, the framers of the Constitution sought to provide a comprehensive system. But the separate powers were not intended to operate with absolute independence. And here you had the government exercising its Article 2 powers coming in and asking the court to make an independent finding for a plea. Had the court make a legal finding and a factual finding and by, as Fokker says, the court has exercised its coercive power and convicted the defendant. There's a public conviction in Louisville trial, so the government didn't have to go through that 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, and now the government is coming back and saying: We want you to dismiss the charges and, apparently, vacate your findings of guilt. It's not clear what they want to do about the actual plea, because that's not subject of this mandamus, the plea agreement that is between the government and the defendant and what…what the effect of that is if the charges are dismissed.
But they're asking the court, the Executive branch, to come in and reverse or vacate findings. And so the court has right…the duty, and the language under Leave of Court to ask the government questions…the staff…the Rule 48 language that's been in the statue for over 80 years that the Supreme Court suggested in Congress approved. There's not a case since that language went in that says Leave of Court is meaningless when the parties agree, and that's the government and the petitioner's position. Be clear, they are saying those words mean nothing when the defendant and the government agree, and that makes no sense under all of the cases, starting with Rinaldi, it makes no sense in light of all the cases around the country where every panel has at least considered whether the court below abused its discretion when they denied a motion to dismiss.
Judge Rao:
Perhaps, I mean, a 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 sanctioning a person where the Executive branch wants to drop the prosecution. I mean, Leave of Court may not mean that much, even if it means something more than a rubber stamp.
Ms. Wilkinson:
True, Your Honor. And I think every case has said that it's a circumscribed of review, a limited inquiry that a court can do under that standard, but it doesn't say no review. It doesn't say no questions. And the government's position is somehow by the court asking the government questions about the motion that it filed that, somehow, that some irreparable harm, if it is, that goes on in a district court every day of the week. It went on in Fokker, it went on an Amadam, it went on in Rinaldi. The District Court, in each of those cases, asked the prosecutor's questions, and they didn't stand up and say: We don't have to answer them, Leave of Court means nothing. They answered the questions that gave the court the information, and the government certainly knows how to refuse to answer or refuse to provide information if it deems it appropriate. And this is the reason why this case, all of these issues should have been brought up with the District Court below. 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. And instead they run the District Court and come to you.
Judge Wilkins:
Counsel…uhm…the government says that with respect to kind of the…uhm…case or controversy and the Article 2 prerogatives and how move 40 a day is supposed to work that even if the government and the motions says, you know, we're moving to dismiss because we don't want to prosecute this white defendant for, um um beating and using excessive force against a a black victim, um, that the court would still be compelled under Rule 48-A. To grant the motion to dismiss in that the remedy iIf any for that sort of unconstitutional bias would be, you know, defendants in other cases, um, filing some sort of Armstrong motion…Um, or I guess, some, um I guess, um, action by other branches… Um, you know, after after the dismissal, to reprimand the Executive. What…What's your response toe to that point of view of global 48 A.
Ms. Wilkinson:
It won't surprise the court that I strongly disagree with that…the case law that's already well known by this court, starting with Rinaldi and the cases around the country give examples of where a court can move in, deny emotion, which include bribery. That's not even a constitutional violation. You just heard Mr. Wall mentioned it a few minutes ago and all of those cases provide that could be an example where prosecutor was bribed and likely, if that were true, is not going to put that in the pleading in the motion to dismiss and that could cause a court concern and could be the basis for a motion to dismiss. So if the government was acting in a racist way, and either…this need those bases to the court or the court was able to uncover them through questioning, yes, that would be a basis to dismiss.
The next question is, then, what could what…could the court do? It would depend on the posture of the case. If it was an early decision in the case and the defendant actually hadn't pled guilty, then there's more limited options. But as you said, is there still public pressure that can come as a result of the courts issuing that motion? But if the defendant has pled guilty, the more difficult question or the more interesting question is the Article 3 court now has supervisory power over that defendant, as Fokker says. Once you have a guilty plea, the court has jurisdiction over sentencing. 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, who the court sentenced, that defendant? 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.
Judge Wilkins:
Thank you.
Ms. Wilkinson:
The District Court is not acting as a prosecutor, Your Honor. Nor has he made up his mind about the pending issues. He is considering the government's motion and receiving briefing from all the parties. After hearing the arguments, Judge Sullivan will do what he is called on to do on a daily basis, will decide the motion with such a combined inquiry, there is no clear and indisputable justification for this court to enter the fray now and stop a federal district Court judge from carrying out his Article 3 responsibilities.
Thank you.
Judge Henderson:
All right, Any more questions? All right, Madam Clerk, uh, either council has any time, right? That's right? Great.
Right, Ms. Powell, why don't you take two minutes,?
Ms. Powell:
Your honor. First, there were no valid rule 11 proceedings in this case to take the guilty plea, but mainly the first judge he took it should have recused already. He mysteriously recused a few days later, but for the same reasons that would have existed when he recused seven days later, he should have recused immediately. And the government knew that information, but General Flynn didn't.
The second guilty plea colloquy that Judge Sullivan did was not a full colloquy at all. In fact, he ended it by asking repeated questions and saying he had many, many, many questions, including about how this was material and how it impeded the government’s investigation. All of that is now refuted completely by the extraordinary exculpatory evidence that Mr. Jensen disclosed that has been hidden from the defendant for three years. That's what makes this case different from every other case.
When that happened in Stephens’ judge Sullivan had no problem dismissing the case at all. He didn't inquire behind the government's two page motion to dismiss. They simply produced the evidence and dismissed the case.
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 has affirmed a grant of a motion to dismiss and not…not denied one in any way, shape or form.
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. They don't have any ability to go question behind the government's perspective on what, why it made the decision absent an Armstrong problem, which clearly doesn't exist here, or clear evidence. Not plausible questions. Not musings, not imaginings but clear evidence of some serious wrongdoing that indicates bad faith on the part of the government.
And Rinaldi makes clear that the Leave of Court provision was included to protect the defendant from prosecutorial harassment. There is neither a case or controversy here any longer. The government and the defendant have agreed that the case must be dismissed. The government is not going to carry on the prosecution that cannot be forced to by an Article 3 court that's outside its bounds.
And the motion for Writ of Mandamus should be granted on…on all counts.
Judge Henderson:
All right. Thank you, Ms. Powell.
Mr. Wall, why don't you take two minutes?
Mr. Wall:
Just under some…
Judge Henderson:
Yes.
Mr. Wall:
Thank you.
So, uh, you just a couple of very brief points.
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-plea situation, because there's no way to make the Executive proceed with the prosecution, and once we know that as a rule 48-A a constitutional matter, there's no way to force the government in that situation…They don't have any argument that there is a matter of reading the rule and interpretive principles or constitutional concerns that would distinguish the post-plea situation.
That's just not what Rule 48-A is…is meant for, and I think Fokker's clear about that.
So then, really, they've hung there their hat on just the notion that it's too early in time, and as I tried to say earlier, I think, Judge Henderson, there are real harms that are gonna come from the kinds of questions they want to ask. I mean, in the brief, they say they want to ask about the uncharged conduct, not just why we no longer want to maintain this prosecution, but why we haven't brought separate charges against this defendant.
Everybody, I thought even responded, conceded commencement prosecution was off the table, but they want to ask about charge conduct they want to ask about related prosecutions. They want to ask about why certain prosecutors signed particular briefs.
Whether they agree with our position, whether they didn't, 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 and if the court thinks about the manner in which we're gonna have to answer those questions in the District Court what we're going to have to say, whether it's 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 courts were not supposed to go down this road, and I take the point that the train is in at the end of the line that it's only partially left the station. 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. In light of these Article 2 and Article 3 concerns, like the ones Judge Rae was raising, there are real harms here.
And if we know what has to happen at the end of the day, with all respect the District Court should be directed to do it now, rather than have some unnecessary and very harmful further proceedings.
Judge Henderson:
Mr. Wall, let me ask you something that is, I think in your brief, but I don't think you mentioned it this morning, and that is your harm to Article 2, perhaps not harm, but the benefit of self-correction. On this record, before us, if there was bad faith, it occurred in the original prosecution. And shouldn't we allow Article 2 to self-correct?
Mr. Wall:
Absolutely, Judge Henderson, and I think again 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 … and reasons. And the attorney general had two independent rationales and, I’m sorry, three independent rationales.
And although they've challenged two of them on sort of legal bases, no one, not the court appointed in the case 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 that he concluded that it was no longer in the interests of justice to proceed with the prosecution.
Now the reason they don't say a word about it is because I think, and no one disputes that that is the kind of judgment that is at the core of Article 2 power. It's difficult to imagine the stuff that the military context a more core article 2 judgment. And, yes, Judge Henderson, when we put that forward in the motion, whether we were required to or not. Absolutely. I think that at that point, the district court is required to grant the rule 48-A motion.
Judge Henderson:
All right. Thank you.
Uh, do my colleagues have any questions?
Judge Wilkins:
No.
Judge Rao:
No.
Judge Henderson:
All right… All right.
Counsel, your case is submitted.
And Madam Clerk, if you'll adjourn Court.
Clerk:
The honorable court is now adjourned until Wednesday, September 9th, at 9:30 am.
Geez dude........WOT.
Ridiculous
Just what I need with a cup of espresso and a hangover — A WALL OF TEXT.
Ouch!
Thanks for the post, though...will revisit after the haze lifts.
Judge Sullivans Written Response to the Appeals Cort:
Look, A lot of people were Paid good money to make sure General Flynn was Prosecuted, it doesn’t matter that no crime was committed, we got Paid to do a Job and we have to see it through.
Short version:
Wilkins torpedoed the proceedings right off the bat. It’s all about race dontcha know. They’re picking on Sullivan because he’s black.
Adjourned until SEPTEMBER 9th?
Delay achieved?
It looks as if this 3rd world appellate court will deny Flynn’s motion to dismiss, and let Sullivan will do what he wants. If that happens, the prediction here is Flynn will be pardoned this Nov. 4th.
Clearly the panel was concerned about politics, and not the law or the rights of the accused.
Judge Sullivan has, with the help of partisan democratic lawyers, now accused Flynn of a crime. He has also accused the DOJ, and the AG of not prosecuting the case for political reasons, which may be criminal.
So....the Judge CANNOT be the ACCUSER and sit to hear the evidence. Flynn, cannot face his accusers any longer in this court. Flynn is DENIED his 4 th Amendment rights in this process.
Sullivan should file a complaint with the DOJ, or the upper level court, to hear his charges. However, he must grant Flynn his innocence and freedom while he plays prosecutor.
Trump shouldn’t bother pardoning Flynn. He won’t accept a pardon because he didn’t commit a crime, nor should he. No, Flynn will eventually be free, and the government (my hard earned tax money) will be used to compensate him.
All this delay is political, just to prevent the story from breaking before the election. The Judges are dirty, because they have accepted partisan accusers, with zero evidence of what they claim, over Flynn right to face his accusers. The judges are complicit with the governments crimes against Flynn.
it’s confusing to me that the Judge gets an attorney to argue on his behalf before the Appellate court. If there is a controversy, the Judge has created it, and isn’t that Powell’s point? I am not a lawyer.
The law is what the deep state wants it to be. The confidence that so many had that the law would HAVE to act a certain way here is,in my opinion, misplaced. One side is winning here and they will continue to win because the Evil Ones have discovered that they can outrage reason and plain language law and get away with it. Flynn, one way or another, is screwed and will continue to be screwed for as long as his side sits and takes it.
As long as it’s after the election,but of course the circus these 3 clown judges who are bringing race into this,will be on the media 24\7 as William Barr being a Trump stooge,exactly what the Supreme court decision in Fokker case was meant to prevent.
These judges are products of,we just make it up as we go along club,Judge Sullivan has already shown his cards that he is biased just as these judges have,just more signs of the disintegration of our Republic
So if the Motion to Dismiss is denied, and the Judge issues a penalty, and it were to go to appeal, does the Judge and Amicus Briefer appear as defendants?
POTUS will Pardon Flynn and many others, (not convicted Drug Dealers who used Firearms in the commission of their Crimes like Obama did), right after the November Election, Win or Lose.
There will be a decision this week. This is a very high profile case.
Thanks for posting the oral argument. Important read.
Everybody else in this case is being paid by the government, except my client's defense team. The toll it takes on a defendant to go through this is absolutely enormous, and it's not justified by this case. This is the most impressive motion to dismiss I've ever seen in decades of practice and the most well documented. 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, and to force in the United States…the government dismissed, and Judge Posner wrote that decision explaining how the Special Prosecutor's position had to be vacated and the motion to dismiss had to be granted on mandamus.
Here, Sidney Powell makes the point that the defendant is still being punished by the government, for a crime that he never committed.
We have Judge Sullivan, who is an old hand. He's a excellent trial judge. Judge Henderson makes this point. What is she thinking? I think that we now know that Judge Sullivan is largely ignorant of the law, beyond partisan and has been gleefully jumped into doing what the Coup d'Etat cabal could not do.
And now we have a couple of examples of Ms. Wilkinson pounding the table. That's what lawyers do when they don't have either the law or the facts on their side. But, she is representing the Judge, not the adversaries. That's because the adversaries are now on the same side and only the corrupt judge is trying to continue the punishment.
But here, in this unusual circumstance where both parties agree, all the District Court did was appoint an amicus to present arguments in opposition to the government's motion to dismiss. And we…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, 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 reads both sides, both briefings, asks the government's question and grants a motion to dismiss.
Here, Ms Wilkinson admits that the court has stepped in to act as the prosecutor, because the court is not happy with the decision of the prosecution. Something that the court cannot do.
No, I think it 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 but it needs advice or legal briefing on an issue. But here it's even more important because there's you need an adversarial briefing. The government and Mr. Flynn are aligned.
The craziest argument in the entire proceeding. She is saying that since both sides now agree, the court must argue the former prosecution side. After all, LTG Flynn has been well framed and he needs to remain framed.
They don't have to reconvene. They can just issue their decision on the mandamus, or other direction to the District Court.
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