judge tatel. judge tatel: i have two questions. i would like to ask you the same question that joe srivastava and asked ms. powell. are you aware at all of any case in which a court of appeals has prevented a writ of mandamus to prevent a district court from conducting a hearing? mr. wall: i believe. i would have to look. the closest i could give you is cheney. no documents had changed hands. obviously, this court says there were adequate determinants to -- alternatives to mandamus. i think the same is true here. i think the reasoning is terrible. where did the hearing that implicates the separation of powers? i do not think we have to wait for the process to play itself out. the process itself is part of the constitutional harm. >> the release has to be declared indisputable. there isn't one where mandamus is granted. i would say what i said earlier. the district court said it wanted to have a hearing tomorrow. i would think that would be mandamus double -- mandamusable. judge tatel: in your brief, you argue that, and i'm quoting

judge tatel: i asked you a question. if in the end either the district court on rule 48 is giving no discretion or if fearse this court later rule 48 as leaving the district court no discretion, what is the purpose of going through all this? mrs. wilkinson: two. that doesn't mean it is clear and indisputable now and that mandamus is appropriate now? you are trying to what would this court do. itself of the judge participating with leave of court, which is receiving the briefings so we understand the scope of the government's motion and the law, and allowing lawyers to argue it and make a petition -- even if the answer is predictable, is not an error and certainly not the basis for a mandamus for this reviewing court to come in and direct him to what you are suggesting in the hypothetical is inevitable. judge tatel: thank you. i have no further questions. judge srinivasan: judge garland? garland: if i read what happened in the district court all of it did was order and an oralease argument to be held. -- focusesn focuses

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

judge tatel. i have two: questions. i would like to ask you the same question that joe srivastava and asked ms. powell. all of any case in which a court of appeals has prevented a writ of mandamus to prevent a district court from conducting a hearing? chief judge srinivasan: i believe -- -- mr. wall: i believe. i would have to look. the closest i could give you is cheney. no documents had changed hands. obviously, this court says there were adequate determinants to most --s -- to maintain two mandamus. i think the same is true here. ishink the reasoning terrible. hearing that parationes the se of powers? i do not think we have to wait for the process to play itself out. the process itself is part of the constitutional harm. where --is no case excuse me, i do not know what those prohibition cases are your mentioning, but setting those aside, there is not one where mandamus is granted before the district court actually held a hearing that you know of? no, but i will say what i said earlier. if a district court tomorrow sa

judge tatel. >> i just have a quick summary type of question. could you just tell us what is your very very best argument, your very best argument given there are so few rooting for you what is your very best argument that is clear and indisputable that the district court has no answer were rule 48a under the circumstances of the case like this where one government drops the prosecution after the district court accepted a plea of guilty and number two the district court has not acted on your mind shunned to dismiss. what is your best argument that is clear and indisputable and it does to circumstances together? >> i am reading from faulk or decisions to dismiss pending charges lies clearly with an oppressive torrid discussion to decline rule 48a to confer any substantial role of the court in that determination whether to dismiss charges and by the way judge said the two distinguished rulele 48 something like rule 1. >> butca that case involves more than two circumstances. >> i think i granted earlier indictment to that of would have been a harde