U.S. District Judge Emmet Sullivan of the District of Columbia. Photo: Diego M. Radzinschi/ALM

Updated at 4:52 p.m. 

The Trump Justice Department's move to drop the case against Michael Flynn is putting a fresh spotlight on a 1977 U.S. Supreme Court case that addressed the judiciary's rule guiding prosecutors and judges in the dismissal of criminal charges.

The court rule in question says, "the government may, with leave of court, dismiss an indictment, information, or complaint." In other words, a judge has some role in those rare circumstances where prosecutors ask a court to dismiss a case.

But how much of a role? The Flynn case is raising that question, and legal academics are combing through historical records to provide some answers—or clues—to the range of options available to U.S. District Judge Emmet Sullivan of the District of Columbia as he weighs the Justice Department's decision to ditch the Flynn case.

The "leave of court" provision was meant "primarily to guard against the prospect that dismissal is part of a scheme of 'prosecutorial harassment' of the defendant through repeated prosecutions—a prospect not implicated by, as here, a motion to dismiss with prejudice," asserted Timothy Shea, then the acting U.S. attorney in Washington, in the Justice Department's request that Sullivan dismiss the Flynn prosecution.

To bolster his argument, Shea pointed to the 1977 Supreme Court ruling in Rinaldi v. United States, which involved a defendant prosecuted by state and federal authorities for the same robbery offense. The justices concluded that a trial judge was wrong to deny the government's motion to dismiss the case.

A footnote in that opinion said "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."

Thomas Frampton, a Harvard Law School lecturer, dug into the history of the "leave of court" rule for a forthcoming Stanford Law Review article. His conclusion: "The government's position—and the U.S. Supreme Court language upon which it is based—is simply wrong."

Frampton's research contends the rule "was 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."

"In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors' attempt to abandon a case," he added.

Frampton said Sullivan might conclude there is "good reason" to approve the Justice Department's request to dismiss the Flynn case. "But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned," he wrote.

Sullivan has appointed Debevoise & Plimpton partner John Gleeson, a onetime federal judge in Brooklyn, to make arguments against the Justice Department's move to dismiss the Flynn case. Flynn twice pleaded guilty to making false statements, but his case had not yet been set for sentencing. The judge on Monday set oral argument for July 16.

Flynn's lawyers had pressed claims that Flynn should be allowed to withdraw his guilty plea. They also contend that Sullivan should "immediately" grant the Justice Department's motion to dismiss the case. On Tuesday the defense lawyers asked the U.S. Court of Appeals for the D.C. Circuit to reassign the case to a different judge and to direct the trial court to dismissal of the Flynn prosecution.

"This court has held that the discretion of the Justice Department under Rule 48(a) is predominant, while the role of the judge is ministerial: '[D]ecisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion' and 'at the core of the executive's duty to see to the faithful execution of the laws,'" Flynn's lawyers said in their petition at the D.C. Circuit.

Here's a snapshot of what a few lawyers said in recent days about Sullivan's role and the scope of his power:

>> Peter Shane of the Ohio State University Moritz College of Law: "Neither the parties fling briefs, nor the retired judge advising Sullivan, are 'stand[ing] in the place of the government.' They are, rather, providing information and counsel. But there is more here at stake: In monitoring the integrity of Flynn's prosecution, Sullivan is also working to preserve the integrity of the court system he represents. In doing so, Sullivan's effort to protect the integrity of the prosecution is an important reminder that prosecution is an executive function, but it's a judicial one too." [The Atlantic]

>> Jessica Roth of the Cardozo School of Law: "In 1977, the United States Supreme Court expressly reserved judgment on whether courts have authority to refuse such joint applications in Rinaldi v. United States. Most circuits similarly have declined to address the question. But the right answer seems to be that courts do have that review authority, albeit in very limited circumstances. It would be bizarre for a rule requiring 'leave of court' for all dismissals to be construed as making that leave entirely perfunctory when joined by the defense, without saying so expressly." [Just Security]

>> Jonathan Turley of George Washington University Law School: "I have repeatedly praised [Sullivan] and expressed my respect for his demeanor and directness. However, these orders raised deeply troubling questions of judicial overreach and enmity. Despite my admiration for Judge Sullivan, I believe he is moving well outside of the navigational beacons for judicial action and could be committing reversible errors if he denies the unopposed motion or moves forward on this perjury claim." [Turley's blog]

>> Carissa Byrne Hessick of the University of North Carolina School of Law: "While the arguments against Sullivan's decision to allow amicus briefs are pretty silly, whether he can—or should—deny the government's motion is not clear. Ordinarily, judges will not stand in the way of a prosecutor who decides to dismiss criminal charges against a defendant rather than take a case to trial. That is because the decision whether to prosecute an individual is a core executive power. But Flynn's case progressed further than just prosecution: He had already pleaded guilty and was awaiting sentencing. In other words, his case had reached the point where judicial power was needed, not just executive power." [Slate]

>> Margot Cleveland of Mendoza College of Business: "Judge Sullivan and Gleeson want to relitigate the decision not to prosecute Flynn. But that is not for the judiciary to do, it is an executive branch decision." [The Federalist]

>> Andrew Crespo of Harvard Law School and Kristy Parker of Protect Democracy: "What is a judge to make of all of this—the transparently flawed arguments, the unending presidential pressure campaign, the baldly political interference? This much is clear: Judge Sullivan not only has the authority but also the obligation to try to sort it all out. Fortunately, he has already indicated a willingness to do so, naming a capable former prosecutor and retired jurist to serve as the court's appointed amicus curiae in future proceedings to adjudicate the government's motion." [Lawfare]

 

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