The Court of Appeals for the D.C. Circuit has ordered Judge Emmet Sullivan to grand the government’s motion to dismiss the criminal charges against Michael Flynn.

The appeals court ruled after Sullivan appointed an “amicus” counsel to argue against the motion.

Background is available in these prior posts.

You can read the Order here. Here are excerpts from the majority (2-1) decision:

The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled….

A hearing may sometimes be appropriate before granting leave of court under Rule 48; however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because “authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.” Fokker Servs., 818 F.3d at 741. The district court’s orders appointing an amicus, see infra 8–10, and scheduling the proposed hearing therefore constitute clear legal error….

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority…. Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal….

Because this is not the unusual case where a more searching inquiry is justified, and because there is no adequate remedy for the intrusion on “the Executive’s long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, we grant the petition for mandamus in part and order the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn. We deny Flynn’s petition to the extent he seeks reassignment of the district judge.


The majority also addressed the claim in the Dissent that appeal court action was premature and should await a ruling by Sullivan (emphasis added).

Fifth, the dissent minimizes the import of the district court’s orders, claiming that we are granting mandamus “before the district court has acted.” Dissenting Op. 2 (quotation marks omitted). Yet the district court has acted here. It has ordered briefing and scheduled a hearing in order to provide a court-appointed amicus the opportunity “to present arguments in opposition to the government’s Motion to Dismiss.” Order Appointing Amicus Curiae, ECF No. 205, at 1. In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges. Although no decision has yet been made on the motion to dismiss, the district court’s judicial supervision, detailed supra 7–8, “threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry.” Wayte v. United States, 470 U.S. 598, 607–08 (1985). As explained above, we have held such “interference with the internal deliberations” of the Executive Branch to be a quintessential irreparable injury giving rise to mandamus. Cobell, 334 F.3d at 1140–43….

Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority.

It’s unclear what happens to Sullivan’s apparent intention to consider criminal contempt against Flynn, which Sullivan wanted the amicus appointee to opine about. But since the court vacated the appointment of amicus counsel, at least that avenue Sullivan wanted is foreclosed.

For the foregoing reasons, we grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss. In light of that grant, we vacate the district court’s order appointing an amicus as moot.


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