Wednesday, June 24, 2020

Commentary on Flynn Decision - What Should Judge Sullivan Do Now?

The opinion of the DC Circuit Court can be found here - Download Flynn opinion 

Some thoughts - 

1.  Bottom line is that the decision in a 2-1 vote that the Flynn case should be dismissed.

2. Rule 48 plays a crucial role in the decision - " Whatever the precise scope of Rule 48's 'leave of court' requirement, this is plainly not the rare case where further judicial inquiry is warranted."

3. The court rejects Flynn's request to seek reassignment of the district judge. 

4.  The court relies heavily on the Fokker decision.

5.  Much of the decision (7 pages) is spent on responding to the dissent. 

6. The court states - "This is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion. . . .  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." 

The dissent - 

1.  This is first time granting a mandamus without first giving the lower court a chance to rule. - "Flynn fails to carry his burden, and especially given that the District Court has yet to rule on the motion to dismiss, the writ should not issue to compel the District Court to grant the motion."

2. The court is using dicta from the Fokker case, which creates a split with other Court of Appeals.  

3. "Both this Court and the Supreme Court regularly permit the participation of amici in the criminal context, however, and there is no readily apparent reason why, in appropriate circumstances, a district court might not exercise its inherent power to do the same - especially in the absence of any authority expressly prohibiting it."

So what happens now?

Will  Judge Sullivan ask for an en banc review of this decision?  Will he conduct an inquiry as he did in the Ted Stevens case?  And are there other options here?  Stay tuned. 

(esp)

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