i am not saying that one of these things is filed and the just record just has to stand it. -- the question becomes what is going to happen at the hearing, is that right? mr. wall: i think rule 48 a has a role to play, we know that. with unopposed motions, i would say that also the district court can make sure that it has the authoritative position of the executive ranch, which it might not. defendants sure the are tackled in the agreement against the motion to dismiss. i think beyond that, which are grant is a fairly narrow conception of the rule, i don't think there is a substantive role for the court to play, that is what the seventh circuit said in the united states.

it is even what it said in richard. you can ask for the reasons,. -- what if theth: court is concerned about favoritism being displayed to a politically powerful defendant? is that a proper reason to have a hearing? mr. wall: no. that is a concern that is not the domain of rule 48. judge griffith: what is your authority for that? mr. wall: in the united states, i would say richards or falkirk. it does not matter. the district court might believe the government has a bad motive to do all sorts of things, favoritism or something else. but everybody agreeing that the united states cannot be made to bring a prosecution even if it even ifeven if it is -- it's motive is not regular or impermissible, the same is

exactly true of a prosecution. there are checks on that. judge griffith: what would be an appropriate hearing for judge sullivan to call on these facts in this case? what are the outer limits of what he could do or what the government would think is appropriate? mr. wall: i don't think there is one on the facts of this case. we have the house of the defendant -- you areiffith: so saying no hearing at all would be appropriate? mr. wall: even if you need to understand the motion. as a substantive matter to try to get behind the motion for some motive or another, no. judge griffith: what do you mean if he needs to understand -- i am trying to get at what you think would be an appropriate hearing for judge sullivan to call in this case. what would that hearing look like? mr. wall: from these facts, i

don't think there is an appropriate hearing. i think in other cases you can imagine where a district was trying to understand the law. judge sullivan's breach made clear that he understands the law. he think it is a -- he thinks it is a different standard and he wants a hearing to probe our motives. those sorts of hearings will be permissible. judge griffith: thank you very much. chief judge sprinivasan: thank you. good morning. said,ght ms. powell had does the following of the 48 a motion by the government have to get approved by the solicitor ?eneral or attorney general mr. wall: this illicit or general is to be not involved.

-- the solicitor general is typically not involved. judge millett: i'm trying to figure out, like judge griffith, what that legal court is meant to cover and what it does not allow, it helps to understand what it does allow. i think you might have said it would be ok, i just want to confirm, referring judge wilkins, he was hypothetical about information coming in from the money passed from the defendant to the ausa. do you agree that it would be appropriate for the district a to have arule 48 hearing and ask the government what was the real reason for your decision?

you said in your motion, i think it was hypothetical -- evidence has come to my attention, maybe it is wrong, but here is the video. can the district court pushed to ask that question, what is the real motive here? mr. wall: in the sort of evidence you are hearing, no. judge millett: that is not what i said. i said have the attorneys come for hearing. here is the video, i have shared it with you, counsel. you know what video i'm talking about. maybe he will play again in court. and say, what is your real reason? mr. wall: i don't think that is appropriate to your here is how it should be handled -- i don't think that is appropriate. i think the judge can call u.s. attorney -- judge millett: so the district court cannot ask whether it was lied to by the government in a filing? mr. wall: not under rule 408a

it can ask for purpose of sanctioning -- judge millett: can it do that after it dismisses the case? mr. wall: i think you could do it before or after as a matter of sanctioning an attorney -- judge millett: i have no idea. can you issue sanctions or hold a government attorney in contempt after the case is dismissed? mr. wall: i don't know the answer. judge millett: i don't know either. mr. wall: can you supervise officers of the court -- judge millett: it is clearly not settled whether the district court can -- mr. wall: it may be. judge millett: well, i could not figure out either but you have more experience than me. mr. wall: the basis for that would be -- judge millett: the question is you have a motion and at least

argument is grant it and go home. the district court looks at that motion and says, i fear i have been like you in that motion. the opposition is that the district court has to grant the motion in which it feels it was lied to and maybe it is a violation of court rule with that very document, it nevertheless has to grant it and cannot inquire about whether or not it was lied to. that is the government's position before granting the motion. mr. wall: yes. it is not reviewable in that way. judge millett: rule 408a, when it says leave of court, did you know the supreme court is left open, the question of whether any other public interest decides harassment of a defendant in your position is protecting the integrity of the court from the very process in talking it -- i'm not about general public interest, i am talking about this narrow

interest, protecting the integrity of the court and the court process, that is not allowed. mr. wall: i'm saying that is the main of sanctions and contempt. -- domain of sanctions and contempt. judge millett: is it your position that there is no such interest inquiry? mr. wall: of the time you are outlining, yes. judge millett: so just limited to defendant harassment? mr. wall: it is defendant harassment and ensuring that the parties have reached authoritative positions. when they no longer want to proceed, that is considered a choice by both parties, yes, the court cannot seek the prosecution. auricle two and three do not permit that. -- article two and three do not permit that. judge millett: can they do that in the district court? mr. wall: no, cannot explain why? judge millett: i will give you a

couple of questions. i am being nudged by the chief court here. the motion for reconsideration, you did not do that either? mr. wall: they were dismissed. judge millett: go ahead and answer that. i have one more quick procedural question. the court did not provide notice that it would appoint enriquez and when it did not, he merely after the -- it .eemed a considered decision we were not aware of any requirement to ask for reconsideration of a decision, especially a considered one. we did not tell the district court it should not have done that. judge millett: one more thing, there has been some talk about

self interest in the case. is the government's view it appropriate to raise recusal issues if the district court judge, if the parties have not asked to recuse? mr. wall: i think that would be an odd requirement. judge millett: i think the recuse itself, even before there ,as any filing by judge flynn already asked for this qualification of the judge. are you aware of any case that has granted that, a mandamus granted? mr. wall: no, i'm not aware that a court has ever been faced with a situation like this one. this is unprecedented. judge millett: thank you. chief judge sprinivasan: thank you.

morning, mr. wall. mr. wall: good morning. i think we all always huge to the government. i think it is clear that courts complete under rule 48 a. i appreciate the mandamus alongside recusal of this roof judge at the panel stage. -- of the district judge at the panel stage. timeshare and separation of powers is .rotecting articles also in this case, the district judge

was also skeptical as you know in accepting the plea in the first place. flynn would have been sentenced long ago. judge, athe district the government's urging accepted the plea as supported by the government evidence. the government urged him to dream up the order. said, we commit our burden of proof beyond reasonable doubt. he looked at that. and now you are insisting that the district court contradicts an order that he previously granted, he previously got on board and you are saying, actually, never mind. -- rule 48 requires

leave of court. he has to participate. judge would not enter an order without doing what he could do to understand both sides -- a district judge. be is not appointing him to the judge, he was appointing him -- he was not appointing him to be the judge, he was appointing him to get the strongest argument. appreciate that your argument today has focused almost entirely on the prospect of a factual inquiry that i think you said the district judge seems to want to engage our prop. -- engage in. he never said he asked for it.

there is no order of discovery here. it is just arguments about the existing record, the best lawyers argument about the existing record, what is the flynn's --n general mr. wall: they are ready critical. the first is, you are certainly -- for a small subset of when you actually have a plea. you are not offering the district what is biz contradicting what is was offered earlier. it involves no form of judicial action and the court never exercises its power. accepting a plea is different

from allowing the executive to let a case go as a constitutional matter. to take the second part of your question, you are right that the district court never entered an order per se. hasust appointed one and now filed briefs asking for it. he has said that to this court in briefs to the panel and at various points in his petition. i think the council backed away from that and said he just wants to have a hearing and asked some questions. it was believed that discovery and evidence and probing of the issue. if the court think that is not the issue, and i think that should be among the limits took place on the district court when the case goes back. if all we are doing is arguing about 48, the district court is explained -- has explained what is legal view is. there is no basis for looking

behind what we have done on the face of the notion itself. it is even clearer that we ought to get mandamus because there is no reason to have an unnecessary preseason -- unnecessary proceeding. it is hard for me to see what the point of these formal procedures is at all. i think the panel was correct to enter mandamus. doesn't that cut exactly the other way? you have not even asked the district court to vote yet. the basic differential between this case and every other case except for richardson. said you are, you not asking the district court to contradict itself, but you are asking him to accept -- if you are not asking him to do something, you would not be here to mandamus him. you would be judged to sign off

under rule 48 a. right? right now there is a plea in place because there will be a sentencing hearing tomorrow. points, in -- two the motions dismissed, we laid out the fact that we thought we were entitled to have the motion dismissed granted. rather than accepting that argument, the district court has convened this proceeding, invited the public to participate. in moving forward, we are not asking the district court to contradict cells. we are -- contradict itself. we are asking the district court to say the attorney general has not made a policy judgment and it is no longer in the interest of the u.s. to prosecute whether or not the government could move forward on a factual basis. i am bound to that decision because that decision is under the constitution. there is no inconsistency

between those two things and that is why the court says that signing off on a dpa or allowing the court to dismiss prosecution is not like accepting a plea under rule 11. it does not invoke course of power. it does not involve formal or traditional action. it just agreed to let a case go. judge pillard: exactly. it is just really striking and remarkable. what is the government worried about if none of the inquiry you are highlighting has even been scheduled? he wanted an argument. is do youast question -- ms.ith ms. pyle powell that it is not the reading of 48 a that imposes the limitation on the court being able to deliberate but the separation of powers overlaying? the history of the rule is that

there actually was a robust contemplation that it would be scrutinized whether or not it was clinical favoritism. is it -- political favoritism. is it also your view because the separation of powers grants that unconstitutional? mr. wall: i think that overstates the history. there are some drafts that mention favoritism. but they did not put any mechanism in the rule for allowing the court. i am not sure the history is clear on those. it is reading that language in light of constitutional principles and avoidance. your other question very quickly, when you say what are the real harms, i think that is training all over again. what are the harms you can assert executive privilege. you don't have to answer these questions. you can stand on your motion, he can hold you in contempt, what is the big deal.

i think it understates the separation of powers. it is hard for me to read that and think it is not among the harms he is talking about to the executive branch. last pillard: just a very -- shouldn't the district court be able to consider in light of the strongest argument, and i am not talking about facts, whatever has been the record, that is all that there is, should the district be able to hold a hearing in light of the strongest argument on both sides why the government believed the evidence does not support going forward? do you agree that he should not be able in that 48 a does not authorize him to have a lawyer talking and kind of hearing and guide him an exercise in the leave of court authority? mr. wall: we have not said that the district court does not have the power to appoint that in cases generally.

the problem with that appointment here is like everything else the court is doing, it is designed to entrench an executive power. the courts have already said, i am not sure how i can prove this dpa, i think it is to leaning in the corporate defendants. the best argument about whether i should approve this or whether it is too lenient, depend on how weak it is. it says there is no substantial role for the court and whatever the district -- judge pillard: he did not say that though. he said i want to understand, i'm sorry. i'm interrupting. if he just wants to understand what the government's position is and he thinks the adversary system is the way to get there, and he can appoint the government on one side and have the government argued someone on the other. we don't have an objection to that. mr. wall: just to be clear, that is not what this is. judge pillard: we have a difference of opinion on that.

we have to draw a line. mr. wall: the district court told you if you live in the hearing position -- petition, it says it wants to see whether the public interest was served and whether there is geomet prosecutorial interest. this is not a lack of understanding. the district court fully understands the united states's position. it wants to inquire into whether or not deposition is legitimate. that is exactly what articles to in three do not allow. and three do not allow. chief judge sprinivasan: judge wilkins? view, there is a factual development at the rule 48 a hearing, yes or no? mr. wall: beyond ensuring that

you have the authoritative positions of the parties, yes. you can make sure the defendant's counsel and the prosecutor has not gone rogue or been bribed, but outside of that, yes. so it in mys: hypothetical, there is a videotape of the u.s. attorney taking a suitcase full of cash and the judge wants to have a hearing on that because that same u.s. attorney signed the motion. you would say that that hearing is appropriate or not appropriate from the rule 48 a? mr. wall: i would say the hearing to make sure that the executive actually wants to dismiss is not a problem. but if the u.s. attorney shows up and says, i want to dismiss, we will deal separately with that. judge wilkins: excuse me, sir.

my hypothetical is that the u.s. attorney is the one in the videotape making a bribe and the judge makes that. the person standing in front of him, the u.s. attorney is the person in the videotape. mr. wall: that is the toughest case at the margin i will give you. if the answer from the executive whether some, then individual in the executive branch has committed a crime is not the domain of rule 48 a. the executive branch could prosecute on separate authorities. but it would not be a basis for denying the rule 48 a motion. it would be a separate criminal proceeding involving a corrupt attorney. judge wilkins: and that is based ker?aul mr. wall: and the constitutional

backdrop. if the attorney general said, yes, i would like to dismiss and for good reasons, i would simply look into whether the u.s. attorney took a bribe. i think the court will be required to grant the motion and dismiss the prosecution. it could not keep it alive. judge wilkins: suppose there is a hypothetical situation 10 years from now with the administration where the attorney general is in the bribes.e taking the no authority under 48 a to dismiss the case? mr. wall: my answer is still the same. the remedies for that are so obvious that it would not need to be the domain of rule 48 a and i don't think anyone has contemplated that rule 48 a is meant for that exact sort of public corruption. judge wilkins: so the case would

still get dismissed as to that defendant who bribed the attorney general? the attorney general might be able to be prosecuted or impeached but the defendant would get off free as a result of committing a bribe? is that the way 48 a works? mr. wall: maybe if i can come at it a different way. in the majority of cases where what we are talking about are not charges, even the district court agrees that there is no rule for courts to play under rule 48 a, even if they think the executive has failed to prosecute for some improper reason like bribery, favoritism, or corruption. everyone agrees that the executive cannot be made to prosecute the case, no matter how impermissible its motive for declining to do so. all we are saying is as a rule-based matter, the same rule applies to rule 48 a if we have brought the charge. dismissing it, the same as bringing it as a constitutional matter.

it should be punished, to be sure. there were other remedies for it. but they do not consider rule 48 a. judge wilkins: the 48 a motion could be made after sentencing. you are saying if the attorney general is bribed by the defendant after the sentence because the defendant did not like the sentence that he got, the court would still have to vacate the conviction based on 48 a even with a videotape evidence of a bribe to the attorney general? mr. wall: there is no substantial rule for courts to perform that sort of judicial screening and oversight. the executive ranch's conduct of rescue should is governed by the legislative branch and the public through vegetative oversight, impeachment. it is not governed by the courts under rule 48 a, that is right. judge wilkins: thank you, that is all i have. chief judge sprinivasan: thank you. judge ralph? thank you.

i guess my first question to you panel opinion the which rested in significant measure on the failure of the government to file a separate mandate and the subsequent hearing en banc, why has the government not filed the separate mandate petition at this point? mr. wall: i understand the arguments about the timing. i don't understand the argument that the court cannot look at them and that we needed to file a separate petition. if we are a party, we file a brief for the united states articulated at length and in conclusion we urged mandamus. i think the line between cases to be whether we find them to be irrelevant, not how we capture them. nothing would have been different if we found exactly same -- exactly the same briefs.

we have not been able to find ay case from any court where respondent supported a petitioner and a court cannot look at the arguments that party was making in support of the release. you, rao: i may agree with but at this point it seems like some members of the court not. mr. wall: i understand that there may be disagreement over that. -- two culminate now and file a mandamus petition, it would have been word for word what we already put in front of the court is exactly what i understand is not necessary. i think it would have been a distracting, it arguably would have been in the same eyes of the members who think we should've filed earlier. even if you thought there was some problem with us as a party and petitioner, which we do

routinely in the courts of appeals. flynnl think general under cases like bath, it is not an abstract separation of powers. -frees his own article injury. even more generally with respect to equitable relief, courts will call out a time of interest in deciding whether to deny equitable relief. it is hard to understand how the court can do that and look at the harm's way party that actually filed a requested mandamus. i think it would be coming down to saying we did not charge a particular way. i don't understand the rules or, since to recommend that approach. no one here seems to be suggesting that the district court can deny the rule 40 motion on the facts. we accept your argument that

probing the reasons behind the executive decision about whether to prosecute an infringement of article two. it is clear in other cases. aboutid -- you talk cheney. when the court found a separation of powers, an appeal is not considered an eloquent means of protecting the affected in power. i think that is also what the 1998 case stands for involving independent counsel. i was wondering if you are aware of any cases in which we have found the separation of powers and then not-- granted mandamus because we have waited for an executive rule? mr. wall: i am not aware of any case where the resolution of a

motion compelled by clear law and the conduct of hearing the motion would violate articles two and three or any other constitutional principle. but mandamus was denied. the closest example is the seventh circuit where the seventh circuit granted mandamus. no, i'm not aware of anything like that. i understand there is some skepticism on the court about doing it at this stage. we do think that cheney and that anses make clear appeal is not going to be an accurate remedy because of the harms it faces. but if the course is -- if the court disagrees, the lease it would need to do is to place limits that the panel thought were in place and that the court has indicated. it would need to indicate to the district court that it needs to take a harder look at rule 48 because it's role is a limited

one. i think it should take off the table defective element the district court is trying to hold over. i think the district court would need to make a quick decision so that we can come back to that mandamus panel in a timely way. judge rao: thank you. :hief judge sprinivasan one quick question. mr. wall: yes sarah. sir.s, chief judge sprinivasan: and it would be denied at the time mandamus was granted? mr. wall: that's right. >> i have a quick question. tribal -- trial judge appointed amicus, he wanted to

-- he wanted him to opine on whether he had committed contempt. -- as ar to it as they respecter of content. are there two ways to look at it? their protects the article three interests protects -- it protects article three interests because they can hold whatever -- whoever is responsible in contempt. however it can also indicate that judge flynn is thinking -- i am sorry, judge sullivan is thinking, i might have to dismiss the charges, but i am not through with him yet. you have a position on that? although we are not being upfront on a content piece of it, the criminal defense

lawyers explained in their brief in district court, it is not an uncommon occurrence for a defendant to plead guilty and later decided that he wants to retry his plea and maintain his innocence. that is a fairly common proceeding in district court. folks in the criminal division willware no district judge raise contempt for that. i'm not aware that he has raised a specter of contempt. the supreme court cases are clear that that may be perjury, but it is not contempt. even amicus has not tried to make an argument. other cases like michael. i think that raising that creates a real question about why now and why this. it is not a separation of powers

so it is not something we focused on. i do think it is fairly troubling and more of the latter than the former. it seems more over the defendant's head that something that the district court is legally entitled to do. i am not sure how it is arguable under cases like hutchings and michael. nobody has tried to make the district case, nobody has addressed that in this court. >> thank you. chief judge sprinivasan: thank you. judge roger is? >> i will pass. chief judge sprinivasan: thank you. judge tatel: i have a summary type of question. could you just tell us what is your very best argument? few, what isre so your very best argument that it is clear and indisputable that

the district court has no financial rule 40 88 role under 8 a circumstances -- 4 role under the circumstances. actedstrict court has not on your motion to dismiss. what is your best argument that is clear under those two circumstances? it is clear i am not going to persuade you. judge tatel: i am always open to persuasion. mr. wall: decisions are left squarely within the prosecutorial discretion providing the supreme court has declined believable requirement to confer any substantial role for courts in the termination for charges -- i am quoting.

it can distinguish rule 48 from something like rule 11. involvesel: that case neither of two circumstances. mr. wall: two things. caseuld have been a harder but it would've come out the same way. i don't understand what difference hearing can make because that is part of the process that is foreclosed as we know, the constitutional backdrop. that leaves a distinction between the pre-plea and pulse plea situation. -- post plea. to reject that does not rule out standards for proceeding. and the constitutional wrestles that led him to interpret the rule in the way that it did are the same.

there is nothing magical about the plea. it does not enter a judgment of conviction. there are so many things that go on in from the -- in front of the district court. text that the rule does not distinguish, the chief does not distinguish, the constitutional principles are the same. once we know that rule 48 is not meant to do this for the pre-plea situation, i don't see how the court could say that as a rule-based matter it is meant to do it for the post plea situation. judge tatel: i have no further questions. chief judge sprinivasan: thank you, judge garland? judge garland: yes, thank you. you were asked about how often we grant mandamus and separation of powers cases -- in separation of powers cases. you amended the question by saying what really matters is the process. you said the real problem is the

hearing itself. on howying to draw clear we draw a line between this kind of separation of powers leading to mandamus and the many other ones that we have in the district court not leading to end a miss -- mandamus. there are a lot of separation of that challenge actions of various demonstrations under separation of powers. the argument in the appropriations clause case that we heard the last en banc was that the allegedly unauthorized wouldng by the executive constitute a violation of separation of powers. here is a hypothetical. assuming there is standing and the claim has been disputable, would it be appropriate for a plaintiff to petition this court to mandamus a district judge to rule in its favor and not wait

for the district court to overrule? mr. wall: in a case between private parties, i am not sure that it would. i would limit it in three ways. judge garland: the representatives or congress as a whole. hypothetical, the congress claims that the executive branch in disregard of the appropriations clause is spending money. imagine that the executive branch says we don't care about the appropriations clause. we will spend it anyway. why is that separation of powers remedial while having to go to the hearing claim that you have here is non-remedial? i'm only looking at that alternative. if we assumed away all of the threshold questions, just

to preserve our objections on those grounds -- judge garland: [indiscernible] mr. wall: constitutional principles have to be crystal clear. you have a clear and in this available right, not just be right on merit as you know. in thearland: hypothetical, the constitution says appropriations were made by congress and the executive says, i don't care, i will spend the money anyway. the not saying that is circumstance we are in, i am just asking you. imagine the supreme court is also held in another case that the executive can't come up -- can't, which hardly seems that not evens have to be heard by the district judge? mr. wall: two other things.

it is not the district court imposing the injury. it is the inner branch. mandamus is about confining a district court within the bounds of his lawful authority. this is much more squarely within -- [indiscernible] and you have here the executive branch in the case raising the harms from of the district court is doing. you can pay back money. here, you cannot undo the scrutiny from the district court's process it has set up. there is no way. judge garland: i'm looking at the alternative remedies. the claim in the hypothetical i am raising is the money is being to beand or is about

spent and that will constitute irreparable injury to the congressional branch and the money cannot be attained in any practical way because it is being spent on goods and services -- obtained. it cannot be given back by anyone. why is you going to a hearing, you meeting the executive branch, more important or more remedial than congress's authority to determine spending? mr. wall: i assume that a situation where a party is coming in and asking for an injunction against the spending of the money. but mandamus is directed to the district court because the district court is opposing. there is an executive injury. yes, you would have to run the equitable factors on success and merits. i do not think it is a problem for the court in terms of if it

were to grant mandamus here, why not mandamus in every other case because here what you have is clear circuit law and the district court has put in place a process where it cannot be remedied later. judge garland: that may adjust the hypothetical one more time. aat i'm asking is whether judge can beat mandamused to make a ruling. imagine somebody applies for a preliminary injunction. in a judge says, we will have a hearing, i don't care with the supreme court says, i want a big hearing and i want a bunch of facts. congress's argument is that every day separation of powers is being violated. mandamus would be directed against the district court to make a decision it has not yet made which is what you are asking the district court to do here -- asking us to do here.

ordering the district court to make a decision that it has not yet made. mr. wall: i think the difference between a case like that one or this one is that the separation of powers does not require federal to stop injuries. you have to satisfy whatever the legal requirements for injunction and all the rest. it does prohibit federal courts from injuring the executive are from particular ways. that is the traditional function of mandamus, or at least one of them. i think that is the difference between your hypothetical and this case. it could be on one side of the line without sweeping in all of the complication you are concerned about. judge garland: thanks very much. appreciate the answer. chief judge sprinivasan: thank you, judge griffith? griffith: i have one question. you are right to play that to the separation of powers concerns.

how do we agree to separation of powers for the government to be asked questions? why can't it be the case that at this hearing when an inappropriate line of questioning, the court objects ?nd it gets appealed isn't that how we normally deal with claims of separation of powers being violated by asking questions? that was exactly the court's reasoning. all the executive leader to do is assert the privilege and then we can deal with harms, even if the district requires you to turn over that you say -- something you say is privileged. it is simply requiring the assertion of the privilege.

the supreme court that would -- said that was insufficiently responsible. there is a harm that i think this court should monitor to making the executive come in and respond to the kind of accusation that this court appointed amicus has put in the seven-page brief that the court has read. i think it diminishes the interest of the branch to say, what is the harm, bring -- what is the harm in being called to account like that. if you want to hold you in contempt, he can. that entire proceeding which will be a spectacle in front of the district court is what articles two and three are with -- are supposed to push. there is no controversy left between the parties and the court is injecting itself in a way that creates harms to the executive.

>> thank you. chief judge sprinivasan: thank you. tt?ge mille judge millett: in other criminal there has been a question to dismiss or not like the case of united states versus armstrong. the government did not want to do, it just said no. we cannot comply to a judgment against this and we will appeal. i am trying to understand the harms here. sometimes it sounds like you want mandamus against mr. gleason. i hear the arguments. knowt this point, we don't what the district court would ask. don't know what the district court would insist upon. the district court ask something

and we say we are not going to answer because it is privileged or separation of powers. you could say that. there is nothing that compels you to start turning over documents. you could just say you refuse to comply. the government could take our appeal. why isn't that? there is nothing here that requires you to disclose. you don't have to respond to every argument made by mr. gleason. already, weou said stand on our file. we will say no more. thehe court thinks that basis again, we will take our appeal. with that process not protect you against any separation of powers injury? mr. wall: i don't think it would. two point.

one, as you know, these are exceptionally normal rules. it is a very high hurdle. only when you have clear evidence of an unconstitutional motive. we are talking about the process for the government to avoid injury. i am talking about the process for the government to avoid injury. if you ignore arguments and you feel like you don't have to answer, you can refuse to answer. they are not relevant. they are not legally relevant, we will not address them. you did not say that to the district court. mr. wall: my first point is probing the executive in the way that armstrong allows is a very narrow option. -- exception. judge millett: i'm talking about the process that was in the government's position in the lower court in armstrong. the process was used there and it can be used here to avoid any harm. no one makes you.

to anorney could tell you immediate appeal. but nobody has even mentioned that. that would protect you against disclosing anything that you should have to disclose. mr. wall: i think the process itself is harmful and if a district court said tomorrow, i want you to justify this dpa and if you would not explain to me why you have entered into it or why you have taken a deal, you can stand there as the amicus says various things and i create a record on your silence and i of pullt to be the sort on that is not permissible because you are extending the terminal process, you are asking the executive to expose it political process, you are 32 reveal sensitive information. judge millett: no one is threatening to reveal. we are asking the government to reveal something that the government considers to be

privileged. maybe the district court is wrong as rain. but the district court thinks it is an open question. i mandamus every time -- there ndamus every time that is asked? mr. wall: when i district court rules in that way, it is mandamus and the reason, it may not persuade you but the reason is the harm from serving a constitutionally invested power in other branch is -- a line -- asking thett: question is a constitutional violation, just so we understand . mr. wall: in the clause proposed

by rule 408a judge millett: just to be clear, i was surprised about your response to that line in the clause. this is a hypothetical case. thehave a criminal case and district court has set a standard order on disclosures. want torict court -- i make sure you have done everything you have given them everything you have. you have asked everyone who would know or have information and the government says yes. there is nothing else. we have done an open file process in this case we have given the defendant everything. the third came -- that third time before trial, everything has been disclosed. absolutely, your honor. the first day of trial, in the theence of the court, defendant hands the prosecutor a briefcase overflowing with $20

bills. it is handed to the prosecutor who is the u.s. attorney and the attorney general standing right next to her. and the government upon receipt of that briefcase admits to the district court rule 48 motion to dismiss. it is 10 pages long with affidavits and it says there was a grave violation in this case. more presence of the district court, money has exchanged hands. previous presentations are now being undermined. and your position as i understood from your prior answer is that the district court has no choice but to grant that motion to dismiss and that will be true even if it is unclear whether the district court could prosecute criminal contempt in the court's presence after a case is dismissed. mr. wall: yes.

the court can impose sanctions and pursue a violation. it may be able to pursue a bribery -- new life -- judge millett: i understand. has it sullied the courts's reputation by closing the deal between the two parties? what is your clear authority for that because it says on page 743, to be sure, a district court judge is not obliged to accept the creeds on its face and even after an expert nation makes a mockery of judiciary power. what is your authority that rule 43 a, even if it is a risk that will put the court in criminal contempt once the case is dismissed? mr. wall: three things. the first is i take everyone to

agree that that is a situation. i take it even judge sullivan agrees. the question is whether the plea somehow triggers a different regime and under rule 48, we don't think it does. judge millett: to be clear, i don't agree that that would be true in the presence of the court. but go ahead. mr. wall: i did not understand that anyone could dispute that. iso in fact, the court talking about the mockery of justice, it is talking about that context, could you fall in a nonjudicial role? here, -- ne i am not asking another hypothetical question. that did not make a mockery on

his face? i am not for a minute suggesting that is what is going on in this case to be absolutely clear. mr. wall: i did not understand the motion in your hypothetical on its face to be a mockery. the question was what the motive was that might undermine what it was saying. the motion on its face was fine. it seems like the kind of thing that could be granted in lots of other cases. i took it to be that the judge has a question about what the real motives are of the prosecutor. judge millett: i will restate the hypothetical. the district court does not wish to be party to the deal. granting the motion will do. mr. wall: if the motion just comes and says, we think there is a violation and we want to dismiss but the court thinks that is not the motion, there is bribery -- judge millett: it is clear as rain what is going on.

-- maybeg to make sure it is just your position. the court wants to protect the integrity of the court and not grant the motion and the government's position can confirm. rule 43 does not allow the district court to not participate in that activity. preserve the integrity of the judicial process. mr. wall: if you are asking about the consent of context, -- ne judge millett: i do apologize, rule 48 a. we will break away -- announcer: we will break away to fulfill our commitment.

[captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. any use of the closed-captioned coverage of the house proceedings for political or commercial purposes is expressly prohibited by the u.s. house of representatives.] the speaker pro tempore: the house will be in order. the chair lays before the