The D.C. Circuit’s Dubious Decision Ordering the Flynn Case Dismissed
Today the D.C. Circuit granted Michael Flynn’s petition for a writ of mandamus, ordering District Judge Sullivan to grant the government’s motion to dismiss the criminal case against Flynn. Judge Rao, joined by Judge Henderson, concluded that District Judge Sullivan erred in appointing an amicus to defend continuation of the Flynn prosecution and in scheduling a hearing on the Government’s motion. For more background on the case, see my post here and Jonathan’s post here.
The critical legal issue is the district judge’s role, under Federal Rule of Criminal Procedure 48(a), in deciding whether to grant “leave of court” for the Government to dismiss a criminal case. Judge Sullivan had taken an expansive view of his role, even appointing an amicus (distinguished retired District Judge John Gleeson) to argue against the Government’s unopposed motion to dismiss. The majority found this appointment a “troubling indication” of the district court’s “mistaken understanding” of its role in ruling on an unopposed Rule 48(a) motion:
Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts—answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.
The majority’s conclusion on the impropriety of appointing an amicus seems correct to me. In discharging his leave-of-court obligations, the district judge had no nee
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