Crime Victims Rights Amendment

The D.C. Circuit's Dubious Decision Ordering the Flynn Case Dismissed

A 2-1 ruling concludes that the district court cannot even hold a hearing on the subject.


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 need to enlist advocates for a particular conclusion, particularly where the judge was well familiar with the details of the case.

The majority, however, stands on weaker footing in concluding that the district judge could not even hold a hearing on the dismissal motion.  As Judge Wilkins explained in his dissent,

it is not inconsistent with the separation of powers for a district court to conduct regular proceedings and afford consideration to a motion, even if the eventual grant or denial of the motion might intrude on the Executive's exercise of his prosecutorial discretion. Again, this is not a case where we are being asked to decide whether the district judge may call the prosecutor to the stand or whether a Rule 48(a) motion may lead to an evidentiary hearing. This is a case about whether a district judge may even hold a hearing on a Rule 48(a) motion. While the selective-prosecution context is admittedly different than Rule 48(a), these cases nonetheless contradict the majority's conclusion that holding a hearing, in and of itself, is a per se improper intrusion upon executive power. If the presumption of regularity does not prevent holding a hearing or independently examining prosecutorial discretion in the selective-prosecution context, there is no good reason why the presumption of regularity precludes a hearing on a motion to dismiss under Rule 48(a), disallowing any consideration whatsoever and forbidding the district court from expressing its views on the record with respect to its previous findings on materiality and guilt—all in the name of the separation of powers.

The majority rebutted this conclusion, arguing that "[t]his is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion.' Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by … probing the government's motives. On that, both the Constitution and cases are clear: he may not."

The Constitution and the cases are not "clear" on this subject. Indeed, the majority's reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role–albeit a limited one–for the district court in evaluating motions to dismiss. It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus. On this point, I agree with former Judge Michael Luttig, who wrote in a prescient op-ed last month in the Washington Post that "[i]f the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error."

In venturing my conclusion that the district judge should have been allowed to hold a hearing, I don't mean to comment on the ultimate merits of the underlying motion to dismiss from the Government. Indeed, if anything it sounds like the arguments favoring dismissal may have only grown stronger since the Government filed its motion. News reports yesterday suggest that additional exculpatory notes from Peter Strzok have surfaced recently that only further undercut the Government's criminal case.

But the process is important here. Rule 48(a) requires "leave of court" before the Government can dismiss a case.  And that leave-of-court requirement exists not only for protecting defendant's interests (as the majority opinion discusses) but also for protecting other interests, such as those crime victims (as the majority does not substantively discuss). As I explained in my earlier post on this case,

for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim's views before dismissing a case. It may well be that most Government dismissal motions continue to be granted, even when a victim objects. But as a procedural matter, consideration of the victim's view ensures greater fairness–and certainly greater perceived fairness–in the process.

This conclusion is reinforced by the drafting history of Rule 48(a), recently summarized nicely in a short, on-line piece by Thomas Frampton. As he explains, "Rule 48(a)'s 'principal object' was never 'to protect a defendant against prosecutorial harassment,' Rinaldi v. United States, 434 U.S. 22, 30 n.15 (1977) (per curiam). Rather, it was implemented to give district judges a modest means of safeguarding the public interest when evaluating a motion like the one that has been filed in United States v. Flynn."

Other circuits have taken a more expansive view of the role of district judge's under Rule 48(a) than did the D.C. Circuit today. I wouldn't be surprised to see further review of this divided opinion–which essentially reads Rule 48(a)'s long standing leave-of-court requirement out of the rules of criminal procedure.

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  1. I think while we reflect on both the dubiousness of the decision and the intemperate and injudicious rhetoric that is a hallmark of Neomi Rao, now is a good time to remember that:

    1. The VC allowed her to raise her profile here in 2013; and …

    2. The VC in general, and Prof. Adler in particular, were noteworthy defenders of her elevation to the bench. Wait, here’s a quote for posterity from the VC!

    ….”In Rao’s case, groups are distorting and misrepresenting her views in an effort to paint her as extreme.”

    That’s funny! What else?

    “In case it is not clear, I am a huge fan of this pick. I have known Neomi Rao for well-over twenty years and I am confident she will make an excellent judge. She has a first-rate intellect and a high degree of intellectual independence. As a judge she would follow the law, as she understands it, and not worry about whether a given outcome was consistent with a particular political agenda or “party line.” In short, it is hard for me to think of someone who would be a better pick for this seat.”


    1. The clingers are desperate and disaffected. People in that situation tend to stick together. So long as they can, anyway. The Conspiracy’s cover for Judge Rao was predictable, political, and understandable, as are her nearly reflexive decisions from the bench.

      Judge Rao’s extremism — and that of other Trump nominees — will, however, likely provoke others to do what they can and should to defuse such polemical partisanship in the service of backwardness and intolerance. We are fortunate that the rules provide plenty of opportunity and method for better Americans to overcome the stale right-wing stylings of 200 Federalist-Heritage

      Most people are familiar with some of the measures that may be employed. I am confident that Democratic leaders are well aware of them.

      So, carry on, clingers . . . so long as so far as you can, anyway.

      1. So you are good to go with the government making threats and lying in court in an attempt to railroad an innocent man? Good to know just what it is that you approve of. Just out of curiosity, could you tell us what we should have done when the US government altered FBI notes a couple of weeks later because someone did not like the version done by the people who did the interview? Once you are broke in an attempt to pay for a defense and the government tells you they are going to go after your family next, what would you have done?

    2. Based on her reasoning here, they were right.

  2. Regarding the crime victims as a reason not to dismiss, in this case, who are they and how would they be harmed by dismissal?

    1. This would be a general issue; in addition to the numerous procedural issues with this opinion, it effectively reads out any requirement in 48(a) for Court Approval.

      In essence, if the government wants to dismiss, they get to. Maybe that is as it should be, but that’s not what they rule says.

      1. I think the problem may be that “what the rule says” is in tension with constitutional requirements, and as a result, has been preserved by a so-called saving construction.

        I could be wrong, so I am genuinely interested in how the rule would actually work in practice if applied according to Professor Cassell’s interpretation:

        Say a prosecutor wants to drop a case and the judge thinks it should go forward. Then what? Can the judge force the prosecutor to prosecute the case? Can he or she fire the prosecutor and appoint a different one whose preferences are more in line with the judge?

        Both of those things strike me as clear examples of judicial usurpation of a core executive power, and it’s just really hard for me to see how any interpretation of Rule 48(a) that is not very narrow would be consistent with the separation of powers.

        1. “I think the problem may be that “what the rule says” is in tension with constitutional requirements, and as a result, has been preserved by a so-called saving construction.”

          This might be an interesting issue, if not for the procedural posture of the case (w/r/t mandamus, appeal) and the small fact that this would need to be fully briefed after disposition of the pending motion.

          You know what would be awesome? If I had the superpower to have appellate courts swoop in and grant mandamus relief …. when a motion had not yet been decided (no interlocutory) and I still had a full appeal left.

          In other words, even if I accepted your novel theory (I don’t), then:

          1. If the judge granted the dismissal, then the issue wouldn’t be raised anyway (no need for a BS “saving construction”); and …

          2. If the judge did not grant the dismissal, then there would be an actual opinion, with real facts and analysis, that would have a real appeal! Like, with real facts and law and everything, and without procedural problems.

          1. But you are omitting the fact that Judge Rao expressly cited other cases that have narrowly interpreted the rule in her opinion.

            There is not really anything novel about the interpretation that judge Rao used or her argument that a broader interpretation of the rule would be an infringement on the executive power.

            She may not have called it a “saving construction”, but she clearly found, as other courts have, that a broad interpretation of the rule would be unconstitutional and then chose to interpret it narrowly.

            And as I said earlier, it’s difficult to see how a broad interpretation of the rule, like Professor Cassell’s, would actually work in practice.

            1. “She may not have called it a “saving construction”, but she clearly found, as other courts have, that a broad interpretation of the rule would be unconstitutional and then chose to interpret it narrowly.”

              And …. again, do you not understand anything about how unusual this is in terms of federal practice?

              How is it that you don’t seem at all concerned with the many procedural issues?

              And notice how weaselly you are in defense; not only saying that I am missing issues (which I did not address because they were not what I was talking about) but then saying that Prof. Cassell is arguing for a broad interpretation of the rule- and what he is arguing for, again, is a hearing.

              You know, the same de minimis fluorish that was the assumption of what the judge could do.

              This is shameful. I almost have to wonder about the people we suddenly have defending Rao; this is a Mary Rosh situation, isn’t it?

              1. “this is a Mary Rosh situation”


                Get over yourself.

                Like a future Supreme Court justice cares about some random commentator on the internet.

              2. It’s worth noting it’s Rao and Henderson, not just Rao.

                And I am certainly not defending her. As I said, mandamus seems like a rash, incorrect remedy here, though I would have likely reversed Flynn’s conviction on appeal had Sullivan refused to dismiss.

                1. Does the rule in question explicitly authorize the appointment of an amici to argue against the prosectution?

                  If not, I would have ruled that the judge can hold a hearing, but no amci and the judge can’t rely on anything already obtained from the amici in the final decision.

                2. As I noted elsewhere, the basic problem, and why I think that Mandamus was appropriate, was that Sullivan was going to allow Gleeson to intervene, and possibly even try to build a trial record by investigating the decision making behind the government’s mo5ion to dismiss. Regardless of the outcome, that would have permanently tainted the prosecution, depriving Flynn of both Due Process and Equal Protection (using reverse incorporation), while also violating Separation of Powers. Keep in mind that federal prosecutions are between the Executive Branch and the defendant, with the purpose of the Judiciary merely to make sure that the process is fair. But here, there was no longer a case or controversy, because both parties were in agreement. Sullivan’s only remaining duty was to determine whether or not the requested dismissal was fair to the defendant, Gen Flynn.

                  Sullivan had all the record he was entitled to. The Executive showed a plausible reason that it had decided to dismiss, and that was all that he could ask for. Since the defense agreed to the dismissal, there was no evidence that the dismissal was unfair to him, and there was no remaining case or controversy, there was no Constitutional or legal justification for keeping the case open. And any delay in dismissing the case would unfairly penalize Gen Flynn (which, very much, was what Gleeson appeared to want to do).

              3. The constitutional question is directly relevant to the procedural issues, and the opinion does indeed discuss, in some depth, the appropriateness of mandamus in this case.

                Judge Rao argues that Rule 48(a) cannot be used to prolong a case that the government and defendant agree should be dropped because that is an unconstitutional judicial usurpation of executive authority. (At least if the government has not totally dropped the ball in outlining its reasons)

                If she is correct, then allowing the case to proceed would cause serious harm to a co-equal branch of government. Preventing such harm is a defensible use of the mandamus remedy.

                I understand you came to another conclusion because you disagree with Rao’s constitutional argument, but the argument itself is hardly unreasonable, much less shameful.

                I also think you are mistaking the breadth of Professor Cassell’s position, which was outlined not just in this post but in an earlier post on this issue. He has said that he believes that judges should take into account the wishes of crime victims in deciding Rule 48(a) motions.

                But if you argue that a person should take into account the crime victim’s wishes in deciding whether or not to dismiss, even when the prosecution and defense agree that the case should be dismissed, then you necessarily believe that there are times when the judge should refuse to dismiss a case over the objections of both the prosecution and the defense based on the crime victim’s concerns.

                And if that is so, it would be useful to also explain how such a thing would work in practice.

                1. The problem is, literally every case where the court rules against the government on a major issue and the CoA reverses, you could say the government was harmed by having to justify its position. That’s not extraordinary; it is just how litigation works.

                  Wilkins has the better argument on mandamus. There was plenty of time to reverse Sullivan later.

                  1. How much “Later”…?

                    How much longer must this charade go on? How long can Sullivan drag it out? Until January 20th?

                    1. Trump will pardon him after the election if the case stlil drags on.

                    2. Trump could have ended it with a pardon any time.

                      Of course he lacks the guts, so he lets his judges do the dirty work.

                    3. Trump shouldn’t need to pardon an innocent man, if the justice system is just….

                    4. Armchair,

                      Trump shouldn’t need to pardon an innocent man

                      True. But Flynn admitted under oath that he is guilty. He either perjured himself (and so is guilty of that crime) or he is guilty. Whatever sensible might be said about this case, arguing that Flynn is an “innocent man” is not one of them.

                    5. Oh for the love of god….

                      No court in the land has ever considered a guilty plea “perjury” if the defendant didn’t actually do it.

                      It makes a mockery of the current system…

                    6. Not to mention that, since he was coerced into the lie by the prosecutor, the legally appropriate thing to do, if it IS legally perjury, is to go after THEM for suborning perjury.

        2. I agree with Loki that there are lots of procedural issues that Rao’s opinion seems to overlook,

          That being said, The majority seems to have been persuaded by
          A) the malfeasance by the FBI (at least the appearance of malfeasance). along with Sullivan’s dismissal of any hint of malfeasance and
          B) the appointment of a former judge who has publically advocated for the continued prosecution
          C) the separation of powers issues.

          The opinion seems to attempting to craft a remedy under 48 a which isnt supported in the statute in order to resolve the issues mentioned above.

          If Sullivan had limited his inquiries to whether the dismissal was improperly influenced in the chain of command leading up to and including the WH,

          1. It also looks like Rao was influenced by the content in Gleeson’s brief, especially its reliance on materials not in the record (and its disregard of information in the record regarding exculpatory evidence that was not provided to the Defendant).

            1. As they say, bad cases make bad law. As I see it, the court crafted a remedy bypassing a few procedural hurdles in order resolve Sullivan’s perceived threat to act as prosecutor.

        3. I think this is right. How can a court force a prosecutor to try a case? If the prosecutor is forced to try it, can he be forced to present the case in a manner that the judge would want it presented? Congress got rid of the special prosecutor law for a reason.

      2. This would be a general issue; in addition to the numerous procedural issues with this opinion, it effectively reads out any requirement in 48(a) for Court Approval.

        In essence, if the government wants to dismiss, they get to.

        No. Nobody disputes that if the defendant doesn’t consent, because the prosecution is engaging in gamesmanship, the judge can refuse to dismiss and force the prosectutors to go forward or dismiss with prejudice.

        1. As you know, Dilan, that isn’t the only reason.

          48(a) does not allow for an open-ended judicial fishing expedition. It would allow for limited judicial inquiry and a hearing w/r/t public interest.

          1. I don’t know what 48(a) requires. It just says “leave of court”. It doesn’t say what the judge can do.

            That’s why in the end you can’t do this thing through a Rule of Procedure. You need a statute. If X and Y are triggered, a panel of judges can appoint a prosecutor who can only be fired for cause. That’s what we had with the Ethics in Government Act, it was upheld by Morrison v. Olson, and that’s the way to do this sort of thing.

          2. The primary, overriding, public interest here was that there was no legitimate reason to keep the case open, with the decision by the DOJ to dismiss with prejudice. Our Constitution, our Rule of Law, requires that federal criminal prosecutions be between the Executive and the defendant, with the Judiciary merely acting as referee. Allowing the intervention of another private party to ague for guilt, and thus possible incarceration, violates this bedrock foundation.

      3. Not quite. In the Flynn case, the DC Circuit left the open for the traditional role of judges in handling “leave of the court” matters in Rule 48 (a). They said that the hurdle that the DOJ has to clear is a low one, and they cleared it with their lengthy motion to dismiss. There’s no facial reason for Sullivan to drag this out longer.

        I believe that Sullivan recognized that belatedly. He pivoted to the “I just want a hearing” argument too late. Gleeson’s amicus brief that argued that Sullivan had all kinds of super powers came only 1.5 days before oral arguments, and both Flynn’s team and the DOJ jumped all over Gleeson’s arguments in their briefs and at oral arguments.

        1. That is, quite frankly, a load of BS. Both given the procedural posture (which I am intimately familiar with) and given the way that the Rao opinion “misconstrues” (is that the nice way of putting it?) both the facts and the law.

          It is an abomination; but just par for the course for her. The only upside to having her release these like clockwork is it will provide me ample opportunities in the future to mock Adler and the rest of the VC.

          1. Again, it seems like a big stretch to say that mandamus is available here. Rao and Henderson clearly reached there. I will go to my grave believing that there would have been nothing wrong with waiting for Sullivan to do whatever he was going to do and then taking an appeal from Flynn to decide this.

            At the end of the day, though, I don’t think Rao and Henderson are misconstruing the problems with a broad construction of Rule 48(a).

            1. Waiting for how long?

          2. If it’s BS, then it’s a nice smelling BS.

            How is Rao misconstruing the law?

            She relied primarily on US v Fokker (2016):

            “Of particular salience, Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain “leave of court” before dismissing charges against a criminal defendant. Fed.R.Crim.P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion.”

            Seems pretty clear to me that Sullivan has to dismiss.

            “To that end, the Supreme Court has declined to construe Rule 48(a)’s “leave of court” requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the “principal object of the `leave of court’ requirement” has been understood to be a narrow one — “to protect a defendant against prosecutorial harassment… when the [g]overnment moves to dismiss an indictment over the defendant’s objection.””

            Still seems that Sullivan should dismiss.

            “So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. See In re United States. The authority to make such determinations remains with the Executive.”

            I can’t see where Rao misconstrued Fokker. Please enlighten me.

      4. It is what the rule says. Read the majority opinion.

  3. Wow, so much for the rule of law as the Republican judges sided with Trump and Flynn over reason and logic and the law. Multiple times confessing to perjury means if you have the right connections no crime is committed.

    But now that the so-called conservatives have done so let’s all remember this decision the next time the issue of prosecutorial discretion arises, say with a policy not to convict and jail 10 year old children brought to this nation illegaly by their parents, childrem whom the conservatives would brand as hardened criminals who must be punished to the full extent of the law.

    Yes, conservatives who want the Trump administration to have the absolute right not to prosecute a political ally are going to have to live with the future in which a non-Trump administration now has the right to decline prosecution for whatever reason they so fit.

    Just another day in the destruction of the legal system by partisan zealots.

    1. One benefit of recent events is that the next Democratic administration may not repeat the mistake of the Obama administration, which enabled its predecessors to avoid accountability (for torture, most prominently).

      I have a hunch the Trump administration’s wrongdoers may not benefit from such undeserved leniency.

    2. Like how all those Democrat AG’s were declining to prosecute those Democrat rioters, looters, and murderers during the ongoing Democrat Race Riots?

    3. You’re an idiot. Flynn never confessed to perjury. Do some basic research on the case.

      1. ThePublius, He did confess to lying to the FBI though….under oath.

        And, if you’re going to be pedantic and insulting to Sidney, Flynn’s retraction constitutes an admission of perjury. Sidney may have been referring to that.

        We know that Flynn is guilty of at least one of these and likely both:

        (1) Lying to the FBI;
        (2) Perjuring himself in sworn statements to the United States District Court for the District of Columbia.

        So Sidney is right, even if he has been convicted of perjury.

        1. I recall some time ago discussions here about the use of threats of long sentences to coerce people to plead guilty to a lesser charge. The subject turned to people innocent of the full charge lying to plead guilty to an also-not-true lesser crime. A judge made a statement that such a person was, well, just an awful human being, and even if they were really innocent of the original charge, they should be punished for lying to escape the sword of Damocles.

          I have no idea if he actually lied to the FBI, but in this context, it’s clear if he did not, you are fine with hurting him for pleading guilty.

        2. That is the only evidence of lying – the stipulation in the guilty plea. No admissible evidence to this day of lying. None. Worse, the interviewing agents at the time had believed that Flynn had been truthful.

          And you forget that the guilty plea was coerced, with full knowledge and complicity of the prosecutors, who were doing the coercion. They had all the evidence in front of them (even while hiding much of it from the defendant and his attorneys). They knew that that they could never prove the charge in an impartial trial. (Their case would have been limited to SSA Joe Pientka testifying why he believed that Flynn had been lying, when at the time he didn’t, with the 302s available inadmissible as hearsay, and the lead agent there, Peter Strzok, having already been fired for lying).

          So, why shouldn’t Brandon Van Grack and the other prosecutors be charged with suborning perjury, if Flynn is charged with perjury? They drew up the plea agreement knowing it to contain falsehoods. Worse, they repeatedly lied to the court. Why not also prosecute them for Perjury themselves, as well as Obstruction of Justice?

        3. Flynn wasn’t under oath talking to the FBI. This shows how people are misled. 1001 is a tool used for selective prosecution that makes it a serious felony to lie to an FBI agent even if you’re not under oath. It’s a reason never to talk to the FBI, if there’s any chance someone in that building doesn’t like you.

    4. “ Yes, conservatives who want the Trump administration to have the absolute right not to prosecute a political ally are going to have to live with the future in which a non-Trump administration now has the right to decline prosecution for whatever reason they so fit.”

      Crooked Hillary Clinton and her illegal email server? Black Panthers after having effectively admitted in court to voter intimidation?

  4. I thought Reason used to be a Libertarian website?

    Here we have an individual being railroaded by the government. The government finally comes to its senses and dismisses the case. Then the judge wants to pursue an independent investigation! Crazy.

    Why should the judge get to hold a hearing on whether he can do it or not. In the post, it is even admitted that the judge is in the wrong and the defense is one of “process” and allowing the judge to have the hearing. Why should a defendant be put through more expensive difficulties for the sake of a process whose result is foreordained?

    I hope that this sets a strong precedent in favor of dismissing similar cases that involve less politically connected defendents. The rule is there to protect the defendants, the prosecution has sufficient advantages already.

    1. I thought Reason used to be a Libertarian website


  5. Indeed, the majority’s reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role–albeit a limited one–for the district court in evaluating motions to dismiss.

    That’s actually my problem here. The fricking Rules Committee has no constitutional status whatsoever. Where does it get off thinking it has any power to empower judges to take over prosecutions from the Executive Branch.

    Morrison v. Olson is good law. CONGRESS can definitely get involved and set forth exactly the circumstances when judges might appoint an independent prosecutor. But the Rules Committee? Stick to procedure, guys.

    Having said all that, I am very skeptical about mandamus as a proper remedy here. I agree with Judge Wilkins that this could have gone to a decision by Judge Sullivan, and then if he declined to dismiss, Flynn could have appealed and probably won. (Note that even Judge Wilkins intimates that there’s huge problems with construing Rule 48(a) as granting judges an open ended power to refuse to dismiss.)

    1. So, one of the issue here is not only did Sullivan not make a decision, but part of his reasoning was he wanted a hearing specifically to…

      1. “question the bona fides of the government’s
      2. “inquire about the government’s motions and representations,”
      While his hand-picked amicus promised to…
      3. “encouraged the district court to scrutinize the government’s view of the strength of its case—”

      So, the hearing wasn’t just about making a decision on dropping the case, but about further investigation of the government case and reasoning about dropping charges. Which would of course lead to another hearing and more requests and potential orders…

      When the court is playing the role of questioning and providing oversight for the the prosecution decisions of the executive branch (as Sullivan proposed), it crosses a constitutional line into also prosecuting the case. This was emphasized by Sullivan’s request to look into new charges of perjury. That is not the purview of the courts. Because THAT was the focus of the Sullivan’s proposed hearing, it was shot down and mandamus was needed.

  6. “(as the majority does not substantively discuss)”

    There is no “victim” here. No reason to discuss.

    He pled to lying to the FBI. Is a law enforcement agency a “victim”?

    1. December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:

      He lied about several conversations with Sergey Kislyak about sanctions
      He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
      He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
      He was satisfied with the services his attorneys had provided
      He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
      He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
      He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
      During his interview with the FBI, he was aware that lying to the FBI was a federal crime

      1. Just to the last – how did he know that lying to the FBI was criminal? The decision not to warn him of that was made at the very top of the FBI, likely be either D Comey or DD McCabe. Counterintelligence Division AD Bill Priestap, whom both Strzok and Pientka, the interviewers, reported to, was overruled by top management. He had wanted both the standard §1001 warning, and to show Flynn the transcripts. He got neither. And apparently DAG Sally Yates was mortified by it, when she found out about the interview later that day (they bypassed the DOJ apparently for just that reason).

  7. HA HA HA HA HA HA HA!!!

    Suck on it, you snowflakes.

    As your wise hero once intoned, elections have consequences.


    1. Open wider, AustinRoth.

      Or not. Your comfort is a diminishing concern for America’s betters.

      1. I know right? Clearly the concern is so diminished our American Betters are violently attacking, looting, and burning down our stores!

        Yippee, hooray for our Betters!

    2. Yes, if Trump weren’t elected, Flynn would not be in this mess, ’tis true.

  8. US v Fokker Services

    I suggest that everyone reads that decision, as it is the basis of the DC Circuit’s granting of mandamus.

    “So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.”

    “As with the “leave of court” language in Rule 48(a) and the “public interest” authority in the Tunney Act, we construe the “approval of the court” language in § 3161(h)(2) in a manner that preserves the Executive’s long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences.

    So, far from being a “dubious” decision, In Re Flynn is actually a straightforward application of existing DC Circuit precedent. Sullivan was ordered by the emergency panel to respond in terms of Fokker. The very best argument he could offer was a milquetoast “but I haven’t decided anything yet! Let me have a hearing!” However, that very argument was undermined by Sullivan’s other arguments in his briefs where Sullivan planned an expansive inquiry into the decision to file the motion to dismiss- the exact sort of judicial inquiry that that Fokker prohibited!

    Seriously, please read Fokker if you haven’t. It’s a straightforward decision by Srinivasan from 2016. The panel in Flynn didn’t want to demolish a pretty clear-cut ruling to satisfy the urge of some in the legal community to get Trump at all costs.

    1. Dosen’t matter. The commenters here (eg: Loki) just want to hyperventilate and whine about ‘intemperate’ Judge Rao

      1. I do not want to whine about Judge Rao’s intemperance.

        I want to arrange for Judge Rao a long career of writing seething, strident, inconsequential dissents.

        Anyone know what it would take to enlarge the bench of the United States Court of Appeals for the District of Columbia Circuit?

      2. Well, Loki also once proclaimed…in a previous incarnation of VC…that Richard Nixon was the only U.S. president ever to have been impeached.

    2. Your assertion that law professors should educate themselves on the law before criticizing judicial actions consistent with that law is hurtful and ignores decades of top tier legal scholarship.

      Possibly racist.

  9. I might have missed it, but has this blog ever had a posting on the subject of Gleeson’s amicus brief in the Flynn case? Has the arguments therein ever been rebutted?

    If you haven’t seen it here is one link to it.

    1. The arguments were just quite thoroughly rebutted by the Circuit Court. Did you not read THEIR opinion?

    2. VC did, and Judge Rao did.

      1. Nah, VC didn’t. But I can certainly more or less write the comment thread in my head so no big loss.

        1. But I can certainly more or less write the comment thread in my head

          Well, you certainly have more than enough room in there for the exercise.

        2. You sure Bray did not write something, Sarcastr0? I could have sworn Gleason was discussed. Meh, maybe not.

          1. I wouldn’t swear to it, but I do remember anticipating the fiesta with no payoff.

  10. I wouldn’t be surprised to see further review of this divided opinion

    Out of curiosity, who would be around to petition for that?

    1. Can’t any judge who is on this appellate circuit ask for en banc? (I assume Eugene, or anyone with actual federal appellate clerking experience can easily answer this definitively.) I did not think that requesting en banc had to come from a party. Or, I assume, the “losing” judge on this 3-person panel could ask for en banc, no?

    2. One of the DC Circuit Judges. I don’t think that Sullivan has standing to appeal the writ of mandamus.

      1. Indeed. That’s what made me wonder.

        For your amusement, in English law sometimes a court can be a defendant. For example, when the Magistrates’ Court allowed the private prosecution of Boris Johnson (then just a humble MP) for misconduct in public office in the form of lying during the Brexit campaign, that decision was judicially reviewed by the Divisional Court (and quashed) in a case called Boris Johnson v. Westminster Magistrates’ Court.

        1. No different here. In many courts, mandamus cases are denominated Party v. Trial Court (Real Party In Interest). In jurisdictions like California with liberal mandamus rules instead of interlocutory appeals, you see a ton of cases in the form “Jones v. Superior Court”.

          1. Children’s Court here in California as well. I’ve seen plenty of appeals that were given case names along the lines of, “[County Counsel’s Office] v LA Superior Court.”

  11. Professor Cassell, the bottom line is Judge Sullivan invited this ruling when he appointed an amicus. Courts “erring” by maintaining separation of powers seems preferable to individual liberty than the alternative.

  12. The wonderful Judge Rao strikes again.

    1. A Conspiracy favorite.

      At the cost of spending the remainder of their professional lives on the inconsequential, disaffected, disrespected fringe of mainstream academia.

  13. If the decision is made by granting the writ of mandamus, then what would be the purpose of the hearing? And why should anyone attend it?

  14. Sorry, this “analysis” is idiotic. Suppose a judge wanted to “hold a hearing” to determine whether or not a Black person has any rights that a white judge is bound to respect – it’s only a hearing, right? Obviously, the appellate court could intervene. By the same logic, the appellate court can intervene where (as here) the “amicus” has expressly stated that he intends to prove that the government is corrupt. A trial court does NOT get to opine on Trump’s merits or ethics UNLESS it’s absolutely essential to the case; here, even a corrupt president would be entitled to dismiss. The point (the key point) is that the remedy for a corrupt dismissal is NOT an additional prosecution of a third party – it’s impeachment or defeat of the corrupt president at the ballot box. A trial court judge does NOT get to investigate the president; that’s just not how the separation of powers work!

  15. Judge Sullivan had taken an expansive view of his role, even appointing an amicus (distinguished retired District Judge John Gleeson) .

    Not very distinquished or neutral when a retired judge publically advocates for continued prosecution. Was he auditioning for the job before Sullivan?

  16. Next, General Flynn should sue the DOJ for his legal fees. Millions, if I am not mistaken. This case was a complete miscarriage of justice.

    And if DOJ lawyers broke the law by concealing evidence from the Court, prosecute them.

    1. He lied, you half-educated, superstitious bigot. That his political allies will shield him from accountability for his misconduct, at least briefly, does not change that.

      1. It bothers you, doesn’t it. No, not this case. I meant the 200th judge confirmed by the Senate in the last 3.5 years. Of this number, 53 were circuit court judges. Ah yes, Judge Walker now sits on the DC circuit.

        I think perhaps, former POTUS Obama and former VP Biden might want to look for a good attorney right about now. Something tells me they will be facing a civil suit, shortly.

        I’ll be sending along some “mini-mes” shortly. Have a blessed day.

        1. Civil? Did you see the notes? Criminal.

          1. Yes, civil. There won’t be a criminal trial of former POTUS Obama or Brain-Damaged Biden. I do think there will be a civil trial, with depositions and…how shall I say….discovery.

            I have not seen the notes. They’ll come out soon enough. I am quite certain there is more. It will also come out.

            The prosecution of a former 4-star general? A complete and utter travesty.

            1. What relief then that Flynn wasn’t a 4-star general.

          2. No criminal trial. Way too nasty of a can of worms to open. A civil trial turning his name to mud would be enough.

            1. I dunno. If the evidence points to using investigation to hurt a political enemy, why not? We just went through an impeachment in the other direction over that.

              The only way either side will learn not to do this, so important is it the Founding Fathers added several amendments to forestall it, is to haul it out into the light for prosecution and say loudly: they really meant it.

  17. He lied when he plead guilty. He was coerced into that lie.

    The proper response here is actually going after the prosecutors for subornation of perjury. If Sullivan were actually interested in justice here, he’d have been going after Flynn’s prosecutors for suborning perjury in the form of that plea agreement.

    1. That Sullivan has not submitted the former prosecutors names to the relevant bar associations for sanctions is prima facie evidence that he is not acting in good faith.

      1. And yet when you read the documentation that has been released by DOJ you wonder what the heck is going on. These are sad days for America

        1. I cannot believe it = FBI corruption. I mean, as a child, I idolized FBI agents. One of my family’s proudest moments was when my cousin was hired and completed training. An FBI agent. That actually meant something. They were the straight arrows.

          So yes, I agree with you that now is a sad time in our history. The pandemic is just icing on the cake.

          As a citizen, I will never look at the FBI the same way again. You know, you read shit about the hair-raising shit they pulled from time to time in the past, and you say, “Whoa”.

          But then you see it like this, and then you say Whoa!

          1. When the tape recorder was invented, and the FBI continued to rely on written notes of interviews, that should have been enough to clue us in that they were corrupt. I blame Joe Friday for clouding a generation’s minds.

            1. It is actually worse here. SSA Joe Pientka, who along with Peter Strzok, had interviewed Flynn in his office at the WH, filed the FD 302s for the interview later the same day in the FBI’s 302 change management Sentinel system. Those 302s have never been provided to the defense, despite repeated requests for them. The FBI seems to still be claiming that they have disappeared, which is seemingly impossible, without leaving evidence of the deletion. Instead, the version provided the defendant was apparently the one edited by Strzok and Lisa Page, DD McCabe’s FBI attorney, and then filed after approval by McCabe. Notably, neither Page nor McCabe had been present at the interview. The text messages between Strzok and Page reflected this, and according to Strzok, part of the problem was making the amended 302s sound like they were in Pientka’s voice (who was the interviewer taking notes, and who had filed the original, since deleted, 302s).

  18. “It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus. ”

    This makes no sense given Flynn’s liberty interest. The same theory could be used to prolong injustice in any and every case. Sullivan has already impinged on Flynn’s liberty by accepting an improperly pled plea agreement, which we also now know was fraudulent. He then further aggravated this impingement on liberty by not dismissing the case of his own accord based on the pleadings made by Flynn’s attorney. Now he endeavors to prolong this impingement on liberty with a hearing. But there is no guarantee that he will rule after that hearing. The facts before us indicate he would delay.

    This all would be a miscarriage of justice were Sullivan paying Flynn’s lawyer from his own pocket, but he is not. Sullivan has personally imposed a lengthy and likely expensive legal battle on Flynn.

  19. Can ANYONE please explain to me what, exactly, would Judge Sullivan’s (or any judge’s) options be if he could hold a Rule 48 hearing? Specifically — and I find it mystifying that I haven’t seen this discussed in anything I’ve read on this case — what could Sullivan do if he decided the case sold not be dismissed???

    I assume he can’t force a prosecutor to prosecute a case against a defendant if the prosecutor feels the case should be dismissed. Can he appoint a special prosecutor to prosecute the defendant for the charged crime? That would seem unconstitutional and extremely unfair for the defendant, not to mention creating a huge conflict for the judge, no?

    So what would be the point of denying leave of court? I can understand not letting the prosecutor game the system by dismissing the case without prejudice, and for the judge in this type of hearing to force the prosecutor to dismiss the case with prejudice and possibly pay the defendant’s fees. But what about cases like this where the dismissal would bar another indictment, and the defendant agrees with the dismissal?

    I feel like I must be missing something obvious, since it seems like an obvious question but nobody mentions it in their essays (that I’ve read, at least). I’d appreciate it if anyone in the know can educate me. Thanks!

    1. Yeah you are missing something. He pleaded guilty twice and voluntarily affirmed that he was not coerced, that he was doing it of his own freewill. Sullivan should have just sentenced him at the hearing in which they discussed his continued cooperation. Then he could have appealed and been exonerated or “not”. But in an attempt to be as generous to Flynn as possible we end up here because now Bill Barr is knuckling the Justice Department to please Trump and fulfill his dreams of a theocratic US.

      1. So you’re just going to fly right on past the coercion in the record by the prosecutor as entirely irrelevant. Good to see leftists come out honestly in favor of prosecutorial misconduct and generally punishing their enemies through fraudulent political showtrials.

    2. In this case, at least, Judge Sullivan could have simply proceeded to sentencing: while of course the prosecution typically does participate, there’s nothing in particular that requires it.

    3. I keep wondering about that, too. What is the end game for Sullivan, if he wins? It seems his only point is to drag out the proceedings and to have an occasion for press coverage of his insinuations againt the Trump Administration. Or, being a judge, he jst wants more time to vent his opinions and he doesn’t care if anybody is listening or how m uch it costs or that the defendants is a real person who wants to get back to his life. Would somebody PLEASE tell us what’s supposed to happen later under their theory that a judge can deny dismissal?

  20. The way I read the decision, a crucial factor was Sullivan’s plan to investigate the DOJ’s motive for the dismissal.

    The decision suggests that the judiciary has no right to hold a hearing on the DOJ’s motive.

    And yet, Cassell blows right by that, into a more abstract criticism of disallowing a hearing of unspecified topics. Perhaps Cassell could either say that Sullivan was entitled to hold a hearing to investigate the DOJ’s motives, or say (implausibly) that that’s not what Sullivan had in mind, or say (oddly) that Sullivan was entitled to schedule such a bogus hearing, but that the hearing would then get blocked by some later appeal.

  21. “the judiciary has no right to hold a hearing on the DOJ’s motive”

    They, in fact, do not. Congress can, a Special Prosecutor can, but the Courts do not initiate litigation or investigations. They are the arbitrators (supposedly)

  22. OK! Who is in the reform the FBI rules to ensure everyone else get the same materiality standard Flynn got here.


    1. No, they should get the Hillary Clinton Standard. Far more lenient.

    2. I’m in for an even higher standard. Tape all recordings, assume untaped interviews with FBI and indeed any federal agent are illegitimate, and any information or confession that came out of that interview was the result of waterboarding or a similar tactic.

      1. Works for me.

        Public release of recordings? FOIAble? Or just released to opposing counsel?

        1. Recordings not used in a criminal prosecution should be sealed to all but the interviewee and his counsel. Once an indictment is brought they should be FOIAble.

      2. Yeah, all congress would have to do is amend the law to require an audio recording. No audio recording played at trial, no crime.

    3. I’m all for the fibbies taping all interactions. Also if they have undercover agents in a case or contracted those services out have to disclose to the judge any and all positions those agents had in the organization and all acts they took.

    4. Some good ideas here. And good to see some people still into the policy problem, not just their guy.

      A new Church Committee but for ordinary domestic federal investigations?
      Or just push the specific recordings law?

  23. At the risk of sounding nitpicky, I wonder if Cassel could discuss footnote 3 in the majority opinion. There, the majority addresses the claim by Sullivan’s counsel that the trial court has greater discretion to deny a prosecutor’s postconviction motion to dismiss than it does to deny one made pretrial. The majority says rule 48(a) applies equally after conviction as it does before. This seems odd to me — I can understand why denial of a pretrial motion to dismiss may impinge on the prosecutor’s charging discretion, but it’s hard for me to see why the same is true after the trier of fact has found the defendant guilty. The majority cites no cases holding that the same rules apply after conviction, only citing a treatise, albeit a distinguished one.

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