The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On May 7, the Department filed a motion seeking leave from the district court to dismiss the charges against Michael Flynn. Despite Flynn's repeated confessions and the district court's prior rejection of arguments now made in support of Flynn, such as the argument that his lies were not "material" to ongoing investigations, Attorney General William Barr has decided to reverse course.
Rule 48(a) of the Federal Rules of Criminal Procedure provides that the federal government "may, with leave of court, dismiss an indictment, information, or complaint." So what does it take for a court to grant the government "leave" to dismiss the indictment? A new (short) paper by Thomas Frampton provides some answers, some of which conflict quite a bit with the much political commentary about the case.
Here's the abstract:
The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)'s "leave of court" requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the "leave of court" language was added to Rule 48(a) "without explanation," but "apparently" this verbiage had as its "principal object . . . to protect a defendant against prosecutorial harassment."
But the Government's position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the "principal object" of Rule 48(a)'s "leave of court" requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive's decision to abandon a case.
To be clear, there may be good reason for the district court to grant the Government's motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48's forgotten history.
(Hat tip: Carissa Hessick)