A divided panel of the D.C. Circuit Court of Appeals on Wednesday ordered Judge Emmet Sullivan to grant the Justice Department’s motion to dismiss the indictment against Michael Flynn, who fleetingly served as President Trump’s first national security adviser.
In a majority ruling written by Judge Naomi Rao and joined by Judge Karen LeCraft Henderson, appointees of Presidents Trump and Bush 41, respectively, the court held that the executive branch has the constitutional power of prosecutorial discretion, including the authority to decide which cases to charge and whether to persist in charges once they’ve been brought.
This power is in tension with Rule 48(a) of the Federal Rules of Criminal Procedure, which requires the Justice Department to seek “leave of the Court” before dismissing an indictment. While not deciding the potentially legitimate parameters of this requirement, the majority reasoned that it is for the protection of defendants from prosecutorial harassment.
Relying on the D.C. Circuit’s 2016 Fokker precedent, the court found that Rule 48(a) does not permit a thoroughgoing inquiry into the executive branch’s reasoning for dismissal – at least in a case in which the accused joins the prosecution in seeking a dismissal with prejudice (such a dismissal stands as a final judgment and bars the government from re-charging the defendant with the same offense at a later date).
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The ruling is legally sound, but I confess to being surprised. As I’ve explained, mandamus is a rare remedy because appellate courts do not like to conclude that district judges are in profound error and need to be corrected.
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My sense, after listening to the oral argument nearly two weeks ago, was that the D.C. Circuit would probably allow Judge Sullivan to go forward with the proceeding he had scheduled for mid-July but would respectfully nudge him to follow settled law and dismiss the case, which he has seemed disinclined to do.
The appellate court could then have reversed any further errors he made in the normal course of litigation. Clearly, however, the panel majority decided Sullivan had gone too far and needed more than gentle prodding. Thus, it has issued the extraordinary mandamus writ.
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