The Standard under which the Flynn Case Should Be Decided, and the Correct Result

On Friday, the US Court of Appeals for the DC Circuit will hear oral argument on the petition for mandamus to require the district court to grant the government’s motion to dismiss the case against Gen. Michael Flynn.  Fed. R. Crim. P. 48(a) permits the government, “with leave of court,” to dismiss the prosecution.  The key question, then, is how much discretion the district court has under the “leave of court” language and under what standards that discretion should be exercised.

That question is addressed in a forthcoming Stanford Law Review article by newly hired University of Virginia Law Professor Thomas Frampton.  Although I cannot access Frampton’s article in a way it can be linked here, I have read a paper copy, and it’s described in this piece in the National Law Journal.  Its gist is that the Supreme Court was wrong in its observation in  Rinaldi v. United States, 434 U.S. 22 (1977), fn. 15,  that  “the principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the government moves to dismiss an indictment over the defendant’s objection.”  Instead, Frampton’s research contends the rule was designed “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.”  Prof. Frampton derives this conclusion from his examination of the Rule’s drafting in the 1940’s.  As Frampton describes it, the Rules Committee had a long and closely divided debate on whether to adopt the “leave of court” phrasing or, instead, merely require the government to submit a statement of reasons.  In the end, the Committee adopted the former.  Frampton acknowledges that this does not by itself resolve the question presented in the Flynn case, but argues that it means Judge Sullivan has more than just a ministerial role.

One can admire the detail of Prof. Frampton’s research but still conclude, as I do, that it does not adequately bolster the view that Judge Sullivan can, for any practical purpose, take over a prosecution when the Justice Department views that prosecution as rooted in excessively political motives and brought to fruition by a variety of questionable, at best, investigative practices.

First, the Supreme Court is a more authoritative expositor of its own published rules than a distant, post-facto inquiry into (murky, and by its own account sharply divided) Committee debates of 70 or 80 years ago.  The Committee works for the Court, not vise versa.

Second, the idea that judges should be “guardians of the public interest” in prosecutorial rectitude — or in anything — expands the judicial function beyond what the Constitution establishes, and falls to a criticism of judicial overreach similar to the one in Justice Ginsburg’s recent opinion for a unanimous Court in  United States v. Sineneng-Smith  —  an opinion that sharply admonished lower courts to remain as the passive instruments the Framers, for well thought-through reasons, designed them to be.

Third,  judges too can be subject to illicit political (and other) considerations, which is why federal district court judges Claibone, Hastings, and Nixon (among a few others) got impeached. And the public’s ability to jettison corrupt prosecutors through the political process is much superior to its ability to jettison federal judges appointed for life.

Fourth, even if Prof. Frampton is right about the “real reason” for the “leave of court” language, it doesn’t get him where he needs to go. The Rules Committee deliberations he cites themselves illustrate the difficulty in getting to the destination: The underlying problem is still there, to wit, the danger of excessive judicial entanglement with executive branch decisions. Even assuming courts have some kind of substantive role in deciding when a prosecution must proceed over the wishes of the prosecutor, the bedrock principle of separation of powers means that the standard for deciding when to exercise that authority must be stringent indeed.* Prof. Frampton does not attempt to articulate one, but it must be this or something close: That the court may deny the prosecution’s motion to dismiss only if no reasonable person could discern a good faith, factual basis for the prosecutor’s action.

Such a standard cannot be met in the Flynn case. The (largely uncontested) showing of hijinks and sleazy tactics by the FBI agents working with the Office of Special Counsel, chronicled in the government’s motion to dismiss and many other places, is at this point more than enough to establish a basis for a principled prosecutor to want to walk away from a case whose pungent aroma is as unappetizing as it is here. Judge Sullivan himself used the infamous Ted Stevens case to upbraid the Justice Department for not doing enough to make sure its prosecutors behave uprightly.

OK, Bill Barr listened.  Case dismissed.

*This may be the reason that I have been unable to find a single case in which a district court has refused the government’s motion to dismiss a prosecution in the approximately 75 years since the “leave of court” language was added to Rule 48(a).