USCA DC Orders Response From Flynn Judge

The U.S. Court of Appeals for the District of Columbia Circuit today ordered the District Judge in the Flynn case to respond, within 10 days, to the defendant’s request for the Court of Appeals to order the District Court to grant the government’s motion to dismiss.

It is routine for the trial court to be named a respondent in writ petitions, but it is unusual for the court to actually respond. That task normally falls to the party who won in the trial court, the “real party in interest.” In this case, though, the whole bone of contention is that there is no disagreement between the parties, and the court is delaying, at least, a dismissal they both want. The order cites the D.C. Circuit precedent United States v. Fokker Services, B.V. (2016), which does indeed support the parties’ position in this case.

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. See e.g., Newman, 382 F.2d at 480. 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.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the defendant through repeated efforts to bring—and then dismiss—charges. Id.

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, 345 F.3d 450, 453 (7th Cir. 2003). The authority to make such determinations remains with the Executive.