In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.
General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources. General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress. Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.
The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.
General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part. The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge. In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.
The D.C. Circuit opined that dismissals of criminal matters rest soundly with prosecutorial discretion. Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment. United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).
The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted. General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.
Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch. It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions. Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.
Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.
The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.” (Slip. Op. at 14.)
Dismissal cannot turn on what a judge independently thinks in in the public interest. A court should not second guess except in an extreme case: extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with Article III powers.
The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.
Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand. The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all. The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.
The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue. Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.” (Slip Op. Dissent at p. 3, Part B).
The dissent expressed fear that the majority has read the public interest out of Rule 48. The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.
The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.
Prosecutorial discretion cannot be made into an impenetrable shield. The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.
This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.” (Slip. Op. Dissent at p. 17).