Judge Emmet Sullivan of the U.S. District Court for D.C. July 20, 2006. Photo by Diego M. Radzinschi/LEGAL TIMES.

Prosecutorial discretion has accustomed us to the idea that decisions on who to charge and whose crimes to ignore are virtually unreviewable. The exceptions are narrow: such as the constitutional bar on bills of attainder which may compel prosecution. Fairness defenses to prosecution are many but instances where prosecution is abandoned after a voluntary admission of guilt are unheard of.

But in this case it has been suggested that the decision to abandon a prosecution involved personal or political favoritism towards the defendant by higher authority. Federal Rule of Criminal Procedure 48, like our Rule of Court 3:25, requires judicial approval to dismiss an indictment. The drafting history of the rule is clear that it was intended to provide a judicial check on dismissals motivated by personal favor, political influence, or worse, in order to preserve the reputation of the criminal justice system for impartiality. When the prosecution joins the defense in requesting a dismissal for possibly illegitimate reasons, the court is without the usual aid of the adversary system in uncovering the underlying reasons.

Our attention has therefore been drawn to the decision of the United States Justice Department to end its efforts against former National Security Advisor Michael Flynn. Despite his admission of guilt for making false statements to an FBI agent in violation of 18 USC §1001 the Department of Justice has asked D.C. federal trial judge Emmet G. Sullivan to dismiss the indictment declaring the government could not meet its burden of proof. But the defendant had testified to facts supporting each element of the crime: a knowingly false and material statement of fact. And the judge had found that his allocution was voluntary, and the false statement material.

The president, to whose command the attorney general ordinarily answers, had voiced his support for his former close campaign and national security aide. That fact, along with Trump's support of Roger Stone even after his conviction for dishonesty and witness tampering, presented an appearance of impropriety to many. One was former federal judge John Gleeson and two co-authors who had held high office in the Department of Justice in the pages of the Washington Post called for Sullivan to "appoint an independent attorney to act as a 'friend of the court,' ensuring a full, adversarial inquiry." They wrote in the op-ed that Judge Sullivan has the ability to "hold hearings to resolve factual discrepancies."

Remarkably Judge Sullivan embraced the suggestion, appointed Gleeson as amicus curiae, and asked him to address both the merits of the proposed dismissal, and also whether an order to show cause should issue for criminal contempt under 18 USC §401 or the court's inherent authority if Flynn had committed perjury in his testimony. Many were alarmed—is the judge becoming a prosecutor? We think not. Both federal rules and our rules direct a judge who has observed or suspects contempt of court to refer the matter to a prosecutor. But in the unique circumstance here the prosecutor is barred by the rules of conflict of interest from taking both sides of the case. Flynn of course is separately represented.

Judge Sullivan has set a briefing schedule for the motion to dismiss. But the defendant Flynn has turned to the U.S. Court of Appeals for the D.C. Circuit seeking a writ of mandamus to vacate the order appointing Gleeson as amicus, and compelling Judge Sullivan to dismiss the indictment. The Justice Department will doubtless join him. Judge Sullivan himself as the target of the proposed mandamus may be separately represented.

Ours is an adversary system. As Judge Richard Posner has observed prosecution requires the participation of all three branches—legislative, executive, judicial. But the judicial role is not a rubber stamp. A law must meet constitutional requirements, the prosecution meet the tests of arbitrariness, and integrity. Bad faith prosecutions based on unconstitutional laws may be enjoined. Dombrowksi v. Pfister (1965)

But this case presents the possibility that the decision to abandon a prosecution is an improper one. Federal Rule of Criminal Procedure 48, like our Rule of Court 3:25, requires judicial approval to dismiss an indictment. The federal rule requires the defendant to show "a fair and just reason for requesting the withdrawal."

The appointment of an amicus in our adversary system serves the important purpose of open adjudication. The amicus is commissioned to develop arguments for the judge's consideration. That gives the parties—the DOJ and the defendant Flynn—the opportunity to meet those arguments, and to develop the record for the likely appeal. The motion will be argued in open court—far preferable to the judge quietly researching and pondering in camera. With amicus and the parties presenting their arguments the press and public will have much better ability to assess the merits of the contending views, increasing confidence in the judge's decision.

The inherent logic of Rule 48 and its origins show that a judge's approval is not a mechanical checkoff, but rather a way to protect the public interest in the integrity of the criminal justice system. Judge Sullivan's decision to appoint an amicus is a proper exercise of a judge's work as independent finder of fact and law in our adversary system.

But what about the order's direction to Gleeson to opine on the appropriateness of a contempt citation? As Judge Richard Posner observed for the Seventh Circuit "[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992). "[But] [t]here is an exception for criminal contempts of court," Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987).

If former Judge Gleeson makes such a recommendation, Judge Sullivan will have to decide then if a prosecutor should be appointed and whether the matter should be heard before Sullivan, before whom the events unfolded, or be referred to another judge. We await with interest the next steps in this drama.