It’s right on, as I have argued in the Washington Post, USA Today, The Hill, and in this debate hosted by The Federalist Society.
The majority concludes this way:
Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.The dissent starts like this:
It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.
But finding mandamus proper truly does read "with leave of court" out of Rule 48. Issuing the writ is a finding that a district judge has a ministerial duty to dismiss upon the government's filing a 48a request/notice, i.e., must dismiss. This reading re-writes the rule to read "The government may, whether or not the court grants leave, dismiss an indictment. . . ." The ultimate decision to dismiss might be the right one, but that should be up to Sullivan in the first instance, and not coerced by improper application of an extraordinary writ.
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DeleteAs explained in the flynn decision, the briefs, and during oral argument, the "with leave of court" requirement exists primarily to protect a criminal defendant when the gov seeks to dismiss without prejudice and then bring back charges at its convenience (harrassment). In those scenarios, the "with leave of court" requirement has plenty of work to do. Finding mandamus proper in a case of an unopposed motion to dismiss with prejudice does not change that. And even in unopposed motions, the dc circuit still contemplates the possibility of leave being denied. But given the separation of powers, the substance of the motion to dismiss here, and the presumption of regularity (without evidence to rebut it here), the court found mandamus proper. Remember 48a is a court rule, and must be interpreted consistent with the separation of powers mandated by the constitution.
As an aside, even more exculpatory evidence was disclosed just today. At the very same time the line FBI agents had written a memo closing out the flynn investigation due to lack of any evidence or reason to believe he was colluding with russia, we now know why that decision was overruled. The white house. Obama and Biden and Comey and Strzok etc sat around discussing Flynn and his investigation. Yes, despite bidens totally false denial, the white house was involved in a brainstorming sesssion on how the incoming national security adviser for the opposing party should be criminally investigated. Despite comey explaining that the call with the russian ambassador was legit, biden apparently suggested they throw the logan act at flynn. And obama apparently wanted him investigated by the "right people." Would the "right people" be a line fbi field office investigator (outside of HQ)? No, apparently the "right person" was strzok himself, the guy invoved in the ridiculous kids-glove clinton exoneration, who is texting on a fbi cellphone to a colleague about his hatred of trump and how theyd stop him.
Of course, i cant wait to see msnbc explain how white house involvement in resurrecting a closed criminal investigation of a political opponent is totally kosher. With all the barr attacks, youd think theyd remember that their just professed position is that white house involvement in ***any criminal investigation*** is a big no no. Oh well.
The disclosure is horrible for comey. This guy is writing contemporaneous memos to himself and waxing his bs fake-folksy garb about how improper it was for trump to ask him to take it easy on flynn. Apparently the same alarm bells didnt go off when biden suggested possible charges for flynn, which of course was the pretext the FBI jumped on.
Thanks for the response, 934. But if sometimes dismissal isn’t a ministerial duty, then then there isn’t an indisputable right to dismissal. So mandamus is not available. How, I ask, is evidence to rebut the presumption to be developed if not by the court (by, for example, appointing amicus; of course the court itself does not and should not serve as grand inquisitor) where the parties are unanimous in a refrain of “nothing to see here”? How would that ever get fleshed out? The exception, in my limited imagination, seems to be a bit illusory. At any rate, I’d be interested in getting a final word from the full court or higher on the operation of this rule. Regardless of outcome, some clarity on how it should be applied in every case doesn’t sound like a bad thing.
DeleteLooking forward to reading up on the other bombshell you referenced.
No mention of Turkey, or the lies the guy told. I guess you are okay with those types of things since it is clear you are so adept at lying to yourself.
DeleteWhy do you hate America so much?
Great, I look forward to your next brief arguing that the government can't be taken at it's word just because it puts it in writing. Because that is what the ruling really stands for.
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ReplyDeleteCall me old fashion, but no one has ever proven he lied about Turkey. He admitted lying because they threatened his son. If you think the turkey case is righteous, take a look at US v. Bijan Rafiekian. When there was an actual trial on those issues, the judge dismissed the case for insufficient evidence.
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To get evidence to rebut the presumption in the flynn case-- to prove the case was dropped to help trump--you would go to Brandon Van Grack, the former prosecutor on the flynn case, and ask him to become a whistleblower. You can bet that Gleeson already tried that, but failed.
In the roger stone case, the former prosecutor, aaron zelinsky, did become a whistleblower and is claiming people explicitly told him politics were at play in the stone case. And he named names, so i am looking forward to those people coming before Congress and explaining who told them politics was at play, and if that was the case, why they participated.
Back to the flynn case, Van Grack is apparently not willing to become a whistleblower. That says a lot. He is probably not willing because in doing so, hed have to explain why he violated a court order and did not turn over brady material. And the Brady issue is the reason the flynn case was dismissed.
So in the end, there is no clear evidence to rebut the presumption of regularity.
Van Grack’s problem isnt so much the Brady violations, as long as Sullivan doesnt mind.. but the under the table Giglio conspiracy with Flynn’s previous counsel.
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