the sole power of the executive branch under the take care clause to decide to dismiss the case and what circumstances warrant 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 ten years experience as an f b i agent but ten years as a federal prosecutor before attorney general bar task him to review this case it cannot go on any longer this is the quintessential because we have both issues of judicial usurpation of executive power our prerogative 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 executives determination to dismiss th record here have that same role not in the circumstances of this case the authorities are that given the fact the presumption of regularity applies to everything in 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 fact or reason to go behind the government's determination of the facts and see how that works because the court also said in result the 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 still performed and dip in the evaluation 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 no amicus appointed certainly no factual background investigation and rinaldo it was simply a review of the petite policy and its application to the facts of rinaldo and fokker services this court issued the mandamus of course to proceed to make sure the deferred prosecution agreement was entered and doing so at the leave of court authority gives no power to the district court to deny a prosecutor's rule forty eight dollars a motion to dismiss charges based on the record and will issue an opinion on the government's forty eight dollars a motion in due course set there i think that is err i mean  can look at it on the face of the documents that have been filed but i don't think in ranald went farther than the government statements of what it was doing and why it was doing  only the executive can waive the willingness of the government to prosecute and there would be no remedy i mean the court can't make the government prosecute this case in thomson another supreme court case that  cited by at least the government in their briefing i can't remember you cited in years also the supreme court was reviewing the denial of forty eight a motion by the government and  said that it performed quote and depend that the examination of the record close quote and that was despite the solicitor general's suggestion that the court just simply dismissed the case that that's what the court said in thompson 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 investigat 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 and controversy he is without jurisdiction to do anything further i mean  also said that the court's withholding of approval would amount to a substantial unwarranted intrusion on the executive branch is fundamental prerogative and the judiciary is lack of competence competence to review the prosecutions initiation and dismissal of charges according to  with all the and thompson when the supreme court itself performed an independent evaluation of the record when there was argument there that there was any bad faith by the government or were that the presumption of regularity didn't apply you think that bob no i'm i'm sorry in court got it wrong you know with all the pumps and no i'm saying that the independent review of the record consists of just  review of the record and the record in this case is extremely well documented of prosecutorial misconduct and the suppression of evidence that warrants dismissal under any circumstances aside from the fact we have had motions to withdraw pending that were very well documented in this record contains enormous evidence now of government misconduct and the suppression of brady evidence it's just that the judge can't he doesn't have the authorit 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 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 forty eight then it seems like you've got a pretty good argument that you have an alternative to have a new review people nice the motion then you can come back here on appeal and we can you can cite all of those precedents to our court and we can decide that issue at that time 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 ordinance process and the process of doing that i mean we just got dumped on a seventy two page brief that we have to answer by wednesday with five hundred pages of exhibits everybody else in this case is being paid by the government except my clients defense team the 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 and decades of practice and the most well documented and  and judge leon i think it was a two page motion to dismiss that pursuant to which he dismissed three defendants for the government after guilty pleas just a couple of years ago and if we're right united states government dismissed and judge if judge sullivan had just 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 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 just a branch into the product of part one of justice 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 he can't hold a hearing before he takes action well the only authority that in their best case this isn't right richard and which the rd circuit and on a motion to dismiss a sexual misconduct claim against someone in the virgin islands in a territorial court said we've got to have a little sunlight on the reasons here because the only reason given was in the interests of justice and certainly that's not sufficient but even in that case it was actually altered by the court's decision and or discussed by the courts decision and h s b c bank the case out of mr gleason's court that reversed the review to clearly contrary to the public interest meaning the prosecutor acting in bad faith such as bribery fecklessness animus to the victim or the self interest things like that there was 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 th it will go beyond that i think it's clear from the amicus position now that they want to take general flynn to sentencing as soon as possible and impose upon him the maximum possible sentence and to make a go through that process when the ultimate result jurisdiction because he doesn't have the authority to do what he's trying to do or has he didn't even have the authority to appoint the me because under justice ginsburg decision i don't understand that that argument i mean suppose in the run of the mill criminal case well it's not run in the mail because the government has evidence from a drone camera that that was positioned to look through upstairs bedroom amicus to do the job that the government would have done if the government chose to continue the prosecution on the motion but the court can do it on its own motion 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 appointed him to present arguments in opposition to the government's motion to dismiss that's that's all that it says in that paragraph so so how is that violating article two to appoint someone to present arguments in opposition because the government has already made the decision to stop and the government 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 a make us point being on the get for the contempt charges right into the supreme court in the young a sense that the court can appoint a private party to prosecute contempt charges i mean do your argument with respect to the dollars 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 so the comeback goes to the  about whether contempt would actually could actually be found but what about the appointment of the amicus to to look into contempt charges 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 only within the product as of the department of justice i don't i don't see that inconsistency is there any grounds we would happen able to reach back question simply the fact that the judge doesn't have the authority to do it and there's no continuing case or controversy can i ask a solicitor general suggested to the supreme court that the case be dismissed under rule forty a day and the supreme court did not itself dismiss the case and the supreme court  not declare that there was no longer a taste for controversy instead the supreme court reminded the case to the court of appeals for consider reconsideration in light of the government's present position that there was no longer a case or controversy don't you agree well if i recall that case correctly it was a mandamus for a 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 forty eight  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 two section three 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 gone on for as long as three years the fact that the f b i agents literally made up statements to put on a three to the fact that agent or mr pr stabbed had a discussion with andrew mccabe about trying to get the defendant to lie and you know 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 to even give him a one thousand and one mention not the least of not even a warning of course no warning but not even to mention one thousand and one they sent agents over there mr cummings testimony just just told me a couple agents were going to drop a bomb was that ok and he said of course sure he works with them all the time i mean this is an appalling injustice it's it's it's it's a travesty of justice that this man has dragged through this for three years on a case that was absolutely concocted by f b i agents with some help from the department of justice and evidence falsified and everything else the government has has provided extraordinary documentation and the only thing left to do is for the judge to order the dismissal of this case the delay and do an independent evaluation of the record before 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 in the orders under review that the district court say anything about reasonable plausible questions it's in their brief that's not the order under review th or is one of them any one of them by itself grounds for for mandamus i think either one by itself is grounds for mandamus there are independent grounds for man we couldn't appoint a make us no man 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 created his own issues that he wants to investigate that aren't related to the motion to dismiss or even the case before him in any way you want to add a charge identity but in foc well that's what ms wilkinson is doing here before this court she's the analogous piece of that proposition not not mr gleason that's true and you know you have no problem with her obviously you know obviously she was and i don't to be here on but 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 rule for that in lot of emotion that another party has filed that the judge wants to allow it would require a leave of court i would think based on what rule i don't think there's a rule for it but i do believe that for instance there making 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 well at least there would still be a case and controversy before the court and it would be up to the district court whether to allow leave to do that i don't see a provision in the rules for it but generally speaking district courts kind of do what they want to do with and balance of reason 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 your legal reasoning here the legal reasoning is that he essentially appointed mr gleason as a special prosecutor that he doesn't have the authority to do if he did ask mr gleason for example to to weigh and on assad that existed in the case that might be permissible i free in criminal cases under the the role of the court yes that is one of our arguments here because there is no rule there is no rule providing for it but like i said i've certainly seen it done and 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 and i think by the way that's the right order to take them in recent mandamus cases like soccer and like blumenthal the lawyers clause case the court looked at the merits asked whether there was a clear and indisputable right on the merits and then turn to easier to see judge henderson why it's so harmful to continue to allow this process to play itself out in the district court taking the merits st judge will consider when all the was a case in which the court sumed i think it's clearest in footnote fifteen it assumed to the broader standard and then said even that standard can't be satisfied so the trial court has abused its discretion in turning a motion a motion by the way that came after judgment in that case not just after a plea or but i completely grant judge will consider neither one of those cases resolves the substantive standard for for forty eight dollars they resolve the rule forty eight dollars applies contra responded to search and all the way on direct review there's no magical line justified mandamus he said the air is so clear because look at our look at what has to be the rule under rule forty eight dollars and then that has to be the rule for d p s as well so i understand parts to a and to be of the opinion and fokker to be central to the judgment and to what it goes on to do when it applies that standard later and in the opinion and i think the language of fokker when it goes through that discussion leaves no doubt it's as dismissing charges not just commencing but dismissing i understand that to be yes a straightforward violation of a fokker and it's it's again it's not just the sort of idea that there will be some brief senate and here in judgment nurse and the harm is that as the spawn explains both in the open reply the point of this is to investigate they say the prosecutorial cision to can prosecute toile motives there was a response words the order itself says the 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 it was already anything it doesn't say anything about all of the system that costs at this court laid out in part to a of a soccer so in order to have the sort of anadan proceeding that some of these questions are assuming this court would have to issue mandamus you have to take off the table eviden proceedings and the like if to take off the table content you'd have to say just the rule forty eight motion to address that dispatch and then you could come back to this court but at that point if that's the proceeding there's a court does not and the district court doesn't even have the authority to appoint amicus to advise on whether it should issue an order to show cause for contempt so judge look as we unlike the petition and we have not argued that district once we know that those are the harms there's no reason not to take that final step because we know the harms are going to play out this is already become and i think is only becoming more of a public spectacle particularly in light of the amicus filing in the can be more specific and more particular about what the concrete separation of powers violation is here i mean we're forty eight allow me of a court right there is a problem like what host the factual questions why did particular prosecutors not sign 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 turkey statements general have engaged in a 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 case law says that's exactly what courts shouldn't be doing it  substantial role in quote it's hard for me to see how much clearer study the court but all of the forty a day of opinions from every court has said that the court has some role that the role involves making sure that there is not something that's being done clearly contrary to the public interest so then there must be some case where for some some set of circumstances where as unfortunate as a clash of the two branches of government might be where decisions of the parties you don't have a prosecutor who's been bribed or a defendant who hasn't been counseled about the dismissal but we do say that for unopposed motions to dismiss the relatively small set of applications under a one hundred and forty a day where the parties accept that everything i just said is right in the pretty please situation they agree that if the defendant hadn't plead pleaded and we just witnessed an ongoing prosecution we could pull this back and 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 any oversight it would need to grant the motion and so the move that they make the key to the merits at page one thousand other replies to say ok but soccer is just for the pre please situation it doesn't apply materiality and the basis for plea etc and so the government's motion doesn't just implicate the government's position it implicates those rulings that i absolutely agree with part of that judge will it is certainly true that there are different concerns at different stages and fokker says accepting the plea agreement does call on the court's authority because it has to ascertain whether there's a factual basis for the government wanted to dismiss some of the charges because it no longer wanted to proceed with them and the district court was upset about that it wouldn't allow the government to dismiss and the th circuit said look at doesn't matter even if the government's trying to get around th fockers language is crystal clear about this it's a deep accepting d p s and dismissing a rule forty eight says quote are not formal judicial action imposing or adopting an quote terms on on defendants or parties they're not the court formally signing off on anything when judge sullivan grants this rule forty eight 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  branches exercise of its core executive power i have a question i have a question about your position and the united states position about  of dismissing the case only those that it chooses to share with the court it is judge wilkins but i don't think anything turns on that hearing that you need to agree with me on on that i think we could have come in and just move to dismiss without providing an explanation of this record we do that at times and district courts routinely grant them know what public courts never reversed in a situation like that but here we did we went beyond what felt we were obligated to do under the circumstances we provided a robust explanation to the district court and we think whatever rule forty eight dollars might require as a procedural matter we've more than clear that hurdle as ms policy said i mean i think this is one of the most robust rule forty eight motions you'll find so so i guess understand my concern suppose you have a case where a federal law enforcement officer has pleaded guilty to a criminal civil rights violation for using excessive force and then the government says that they  the authorities was that as to why they didn't believe they'd be able to prove this case beyond a reasonable doubt was to send in a slack i'm sorry the victim black the the defendant law enforcement officer is white and they had not belief that the jury would with 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 their reasons for dismissing but they thought that that practical the legal one is that there's an easy way to deal with that here given the mandamus posture i think fockers is clear that the government as long as it provides no reason or any reason at all can and it's on constitutional reason can dismiss so yes i think that that motion there should be granted but the easy way to deal with that in the mandamus posture is to say look even if you think that there's room for some kind of a a richards like rule and we think there's it's it's clear under fokker whether the court could allow that type of explanation you could try to leave it open and just say 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 would 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 would have to grant it because the government whatever its motive no longer wants to proceed but what you would see is you'd see other defendants walking and attaching that motion and bringing armstrong claims saying the government is making racially based decisions and it's prosecutions bias based on their hypo it sounds like they have pretty good pretty good grounds for that so i think there are remedies for this other than needing to contort rule forty eight to get into what the executives motives are if  if there's remedies for it there 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 you never know that it's happening right but that's that the district court isn't allowed to address whether there are any other reasons you'd never know that it's happening right but that would be equally true in a case like focker a judge welcomed in the district court could always say look i think that the u s attorney has cut a sweetheart deal with corporate descendants here and so i want to get some briefing and i want some argument in hearing on whether there was improper influence brought to bear on this and the point of fokker is that it 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 this way if the courts if a district court thought that the government had a bad faith motive for declining to bring a prosecution i take it everyone agrees that the court couldn't force us to bring the case and the same is true for maintaining a prosecution fokker says there's no oversight role for the courts and when it refers this is the key thing judge route when it refers to the presumption of regularity it's not saying there is some exception to the rule it's laying down in that situation if you look at that passage of the opinion all reading rule forty eight dollars it's way it's not adopting some exception to it it's reading of the rule but even if it were we'd still be entitled to mandamus because armstrong is completely clear judge you have to have clear evidence of an unconstitutional motive 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 that's right because it's only an unconstitutional motive that would allow the court to step in that you need an independent constitutional womanlike of racially based prosecution so yes if a district court thought that a u s attorney were favoring his friend that would be terrible conduct there are political remedies for that but there aren't you disha remedies under rule forty eight dollars if the if the considered decision of the executive branch whatever its motive 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 three case or controversy even as even that even if the the prosecutor was dismissing the case because  it did not believe that a white police officer should have to answer for using excessive force on a black defendant and they say that and they're pleading a basis for dismissing other prosecutions but even if you disagree with me on that the reason your hypothetical has forced is because it's an unconstitutional mode it's the kind of thing that could qualify for armstrong and you can bracket that question off if you work at all does leave of court do them well it does work of course with respect to opposed to motions to dismiss and the work that it does for the far smaller set of unopposed motions in a situation like this is it allows the court to make sure that it's the considered decision of the executive you don't have a prosecutor has been bribed and it's the considered position of the defendant the defendant hasn't been poorly counseled imagine a situation where a defendant agrees to a dismissal without prejudice even when the government has repeatedly been bringing 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 and deny the motion and then the political chips 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 but maybe serve the operation of the legislative branch or other pressures from the public and the media a new prosecutor is appointed and the case to trial which i think goes to show why this isn't a concern of will forty eight a desire to have a nice but if the government can't make the case go away in the cases in limbo th it's in limbo pressure could be brought to bear on the government to reconsider its decision so let me see two more things just work and st i think as judge kavanaugh explained and in aiken the remedy for that kind  protection violation is to dismiss other cases it's not to compel the government to move forward with this prosecution and nd even if you disagree with the reasoning of akin if you had that kind of a case where the prosecutor put forward on its face in the motion as it in the 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 just to  square the circle you can't leverage that back i think to saying that even if you could inquire and some armstrong type case on because the face of the motion disclosed a possible constitutional violation that then you can inquire in every case that then would just eat the rule so i think it is right that there are other remedies for the equal protection violation it's not meant to be taken care of under rule forty eight but you don't have to agree with me on that because here no one i think is arguing not even  of the motion to dismiss that the government filed there's any unconstitutionality there's any evidence that we violated the equal protection clause or anything like thank you  you you threw out a question probably thirty minutes ago what would be the harm in going ahead and mandating the granting of the motion to dismiss the harm is to me anyway regular order and mandamus is a drastic remedy you know that we all know that nobody's been able to find a case in which a mandamus has issued where the district court has not acted in the in the sense of a ruling an order something that we can review he is going to deny this motion and considering the drastic remedies that mandamus is considering there is no precedent that allows us to move  without an order i don't see and considering that there's a hearing been set for july th i don't see 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 that is missile motion is granted so you judge henderson a few points yes it's an extraordinary writ and we would say this is an extraordinary case i think we're well past the regular i agree with that i agree it's an extraordinary case and i think you know if i was at a minimum at a minimum in order to to have the sort of regular order you're talking about the and it seems to me that they want some evidence or discovery process i think that clearly should be off the table and contention off the table if all we're talking about is the meaning of fokker and who will forty eight dollars 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 the sort of regular order you're talking about but then i would say judge understand and the reason i think you should go a step further and is it's just not true that even if  but the harms to the 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 going to have to answer them in a public forum in a politicized environment that's exactly the that's going to happen we had john solvent who is a old hand he's a excellent trial judge and he may say to himself at least you know i asked for advice  experience and judge on the district court i think we are proud 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 apparently contemplating that will defend ourselves and and la way 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  clear about granting that will forty eight dollars 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 and whole point is that's not permissible in the rule forty eight but what i can say is there was uncertainty in the district court about what the district was going to do and on the same day the district court set the briefing schedule before we'd made any final decision  filed his mandamus petition and at that point we had to decide whether to support it or whether to file a duplicate a petition that we just slowing this now and we obviously decided to support the mandamus petition and i think honestly would be artificial to cabin off the separation of powers harms here be just because we didn't file our own petition when you know they're presented in stark relief and certainly if that were important the court should at least give us the opportunity to file some short mandamus petition that could be consolidated with general flans because we are here saying there are serious i mean indeed grave i think to judge ross point stark separation of powers concerns playing themselves out these are not the sort of subtle abstract things that sometimes present themselves in these articles to an article three cases you have a court that is considering whether to keep alive a proxy you're talking about regular order in then you're saying that well we didn't file 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 that you know if you're not inclined to grant the principal relief by the people who regularly occurs in courts including the supreme court we make the full range of arguments and our legal argument and our harms are considered by those courts as i think they should be here and my only point to judge henderson was to get us back to regular order the constitutional principles are so clear we're going to give mandamus and here we have not just the constitutional concerns on article two an article three but you have the decision and in fokker itself so i think the you know the founders and i kept coming back to in fact are the district we knew what the district court said we don't hear oh i agree and i think it's possible then that if you come up at an earlier stage in fokker this court would have created mandamus but once  impugning the decision of the district court they're competing everything the district court was doing that led up to it because courts it says don't have any substantial role they have no oversight or in quotes and so i don't want you know that from  then i take the point that you know if this is not brief and hearing 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 the more normal type proceeding without all of the stuff that about your fallback position that we could grant some kind of partial relief i mean what does that require the court to articulate actually far more standards about what discord so we completely agree that the cleanest way to resolve the case under fokker is to grant the red i was just explaining to judge henderson that if the court sort of has these concerns about granting  it's it seems a little bit unfair to the petitioner in the government to say you should observe regular order because nothing about these proceedings threatens to be a 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 it's clear that it doesn't have evidence and it does require you to address the content to be the cleaner way to do it is just to say fokker it's clear that the court has to grant a rule forty eight motion and so that you know given the harms to the defendant and the government the richard issue and i will fully grant generous and the did that it's an extraordinary writ and we do not ask for an 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 discovering and being bringing the branches into possible conflict and the supreme court grants mandamus this case it seems to me is 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 still there was some impropriety and i understand that to be exactly what chief just one of us and said in fokker courts may not  i really don't think it's hard to see what the harms are going to be to the government over the next couple of months if we in the defendant are put through that process which is all for naught if at the end of the day the district court is required by law to grant our motion 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 of all that's right i'm talking about as far as regular order you granted henderson and and i think it's this even if you know a month or two from now the court grants are rule forty a motion in the meantime you have a proceeding that's forcing us to explain ourselves to do it apparently through affidavits declaration some kind of an evidentiary a process in the district court i don't know whether in the district court is very careful in its priest not to say exactly what it invasions but you know 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 when what i think threatens to be a spectacle in the district court the district court ultimately grants the rule forty eight dollars motion and if we're before right as you started that that fokker says the district courts shouldn't be doing these things it's hard to imagine a case where a district court would come something foreclosed by fokker that would be more harmful that and what we're facing on the circumstances here if however if ever the court were going to 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 you know the government and the defendant are asking for the motion to be dismissed with with prejudice i guess an ition there cannot be a ruling dismiss those charges with prejudice if the court doesn't have to or stitch and the parties once that of course because they don't want another prosecutor to come back and look at these charges and bring those charges against mr  determine that the most should be denied and then what happens then we go on to sentencing mr flynn even though the executive is no longer pressing it prosecution there's no reason at this point to fear that the district court is going to deny the government's motion to dismiss but if for some reason the facts with 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 of another motion or another writ from him davis and that happen in re akins as you know and there the court said and denied the st motion or the writ because they said the government hadn't had the chance to act and in fact they gave few years to the government agency the n r c to make that decision and only when that agency announced that it would not only presenting arguments in opposition and there's no suggestion that the court is going to call witnesses or do anything that the pray to part of the government the government in petitioner was laying out for you all this court is doing is getting advice and d i think we have to look at whether the 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 in the question is is there any basis to overcome that presumption that would guide the court's inquiry after receiving the briefing and asking questions of the government and the parties in the will and i mean in our constitutional system of government you think the public interest with respect to whether a prosecution goes forward is in fact public interest one that is committed firmly under article two to the executive branch and to the politically accountable executive branch not to an article three court generally yes your honor the prosecutor abuse of discretion and they found that it did of use discretion but they said we had not decided whether you could consider a rule forty eight dollars in light of the public interest and in fact the dissent led by justice rehnquist said he thought it on the fact that the 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 both provided for a review by the court of the government's motion and allowed for questioning when you decided the case and fokker judge leon questioned the parties including the government in open court on several occasions and he had conferences when focker was decided no one say that in that opinion you cannot ask questions you cannot have a hearing and in fact the government never took there's no situation and i doubt women the government argues that the fucker necessarily repeat that approach by the district court what's your response to that that's not what fokker says what soccer says is that the district court judge abused his discretion when he denied the motion which was the speedy trial motion necessary for the deferred prosecution agreement when he stated that he disagreed with the government's prosecutorial decision that indeed is an improper basis to deny a motion to dismiss and that was the circumscribed ruling of fokker fokker does not deal with rule forty eight 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 a bit about it being circumscribed but they certainly don't say the court has no right to ask questions and hear all the judge is doing is receiving precinct and having a hearing and the parties the petitioner and the government didn't object to that below well they had no its motion i think judge wilkinsons 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 order you know every day occurrence 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 what appoint 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 fings ask the government question and grants the motion to dismiss the amicus representing the air i mean what is the i mean you know where the government decided to drop a prosecution and the defendant agrees what is this standard that they're arguing to me what are they arguing on behalf of they're arguing on behalf of the adversarial position just like this think i mean i think as mr wall stated there's an inherent power and it occurs at the district court level not frequently for the court to appoint an amicus when it needs advice or legal briefing on an issue but here it's even more important because there's you need adversarial briefing the government what mr flynn are lined with so 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 it even mean to have an adversary where the government and the defendant agree like what is the i mean this is representing some kind of inherent authority of the court it's it's representing the authority of the court to understand the opposing arguments just like here your honor you have the government of 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 forty eight dollars should be it's not all we're doing coming forward is arguing the other side and all the district court was doing is appointing an amicus to say what is the scope of the authority  case as an adversary in the sense that he was directed to take positions opposing the government's motion to dismiss i believe the government of the petitioner ritually see the emma case as an adversary and that's important because the court doesn't have to nixon case right there was there was a conflict between article two an article three in the article three powers they are that the court articulated was it to support essential function of protecting individual trial but here i think i guess i'm wondering if you can articulate what is the count of availing article three power at stake in a case where the government and the defendant agree on the motion to dismiss talk or lay that out by saying the quote the court is allowed to question the presumption of regularity of the  the defendant and the government agreed amidon 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 powers among three co equal branches the framers of the constitution sought to provide comprehensive system but the separate powers were not intended to operate with absolute independence and here you had the government exercising its article two powers coming in and asking the court to make an independent funding for a plea it had the court make a legal finding and a factual finding and by as as fokker says the court has exercised its coercive power and convicted the defendant there's a public conviction in lieu of a trial so the government didn't have to go through that and that's very important for article three 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 those charges and apparently vacate your findings of kilts 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 its findings and so the court has the right the  and the language under leave of court to ask the government questions the staff the rule forty eight language that's been in the statute for over eighty years that the supreme court suggested and congress approved there's not a that language went in that says leave of court is meaningless when the parties agree and that's the government and the petitioners 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 her and all the it makes no sense in light of all the cases around the country for every panel has at least considered whether the court below abused  lover stamp to your honor and i think every case has said that it's a circumscribed 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 filed that somehow that's some irreparable harm if it is that goes on in a district court every day of the week it went on and fokker went on and the down it rinaldi the district court in each of those cases asked the prosecutors questions and they didn't stand up and say we don't have to answer them leave of court means nothing they answered the questions they gave the court the information and the government certainly knows how to refuse to answer or refuse to provide information if it thinks it's 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 controversy i'm starting to prerogatives and how will forty days supposed to work that even the the government in a motion says you know we're moving to dismiss because we don't want to prosecute this white defendant for beating and using excessive force against a black victim  that the court would still be compelled under rule forty a day to to grant the motion to dismiss and that the remedy if any for that sort of unconstitutional bias with the you know surprise the court that i strongly disagree with that at the case law that's already well known by this court starting with reality and the cases around the country give examples of where a court can move can deny motion which include bribery that's not even a constitutional violation you just heard mr wall mention it a few minutes ago and all of those cases provide that could be an example where a prosecutor was private and likely if that were true he's not going to put that in the pleading  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 gave those 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 the 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 they're 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 of the more interesting question is the article three courts 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 for the judge today to deny the motion to dismiss on those grounds the district court is not acting as a prosecutor and 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 confined inquiry there is no clear and indisputable indisputable justification for this court to enter the fray now and stop a federal district court judge from carrying out his article three responsibilities thank you all right any more questions all right madam clerk either plea but mainly the st judge who 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 how this was material and how it impeded the government's investigation all of that is now refuted completely by the extraordinary scope a tory 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 and stevens 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 produce the evidence and dismiss 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 of 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 wh it made the decision absent an armstrong problem which clearly doesn't exist here or clear evidence not plausible questions not a musings not imaginings but clear evidence of some serious wrongdoing but in the case bad faith on the part of the government and resulting makes clear that the the leave of court provision was included to protect the defendant 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 it cannot be forced to buy an article three court that's outside its bounds and  conceded that fokker does not allow the court to go any further with respect that preclude the situation because there's no way to make the executive proceed with prosecution and once we know that as a rule forty eight the constitutional matter there's no way to force the government in that situation they don't have any argument there as a matter of reading the rule in interpretive principles or constitutional concerns that would distinguish the post police situation that's just not what it will forty eight dollars is is meant for and i think fockers clear hung their 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 going to come from the kinds of questions they want to ask i mean in the brief they say they want to ask about the on charge conduct so 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 respondent conceded commencement prosecution was off the table that they want to ask about contracts conduct they want to ask about related prosecutions they want to ask about why certain prosecutors signed particular briefs whether they agreed 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 are going to have to answer those questions in the district court what we're going to have to say whether as a factual or as a legal matter in terms of disclosing our own deliberat these 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 isn't at the end of the line that it's only partially left the station but i think that's why fokker said the trains never supposed to in the st place in order to respect the division of constitutional authority in the executive and that you do syria in light of these article to an article three concerns like the ones  and if we know what has to happen at the end of the day with all respect to the district court should be directed to do it now rather than have someone necessary in very harmful further proceedings mr well let me ask you something that is i think in your brief that i don't think you mentioned it this morning and that is the harm to article two perhaps not 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 articles two fairly fulsome reasons and that the attorney general had two independent rationales and or sort of three independent rationales and although they challenge two of them on sort of legal bases no one not the court appointed amicus and not the respondent has said a word about the portion of the motion where the attorney general says that looking at the circumstances surrounding the f b i 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 interest of justice to proceed with a prosecution now the reason they don't say a word about it is because i think no one disputes that that is the kind of judgment that is at the core of article two power it's difficult to imagine least outside the military context a more core article two judgment and yes judge understand 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 forty