Wednesday, August 12, 2020

Flynn Hearing - Maybe This is Not Mandamus

Yesterday's Flynn hearing was long - almost four hours - and somewhat contentious. But it was more about the role of Mandamus then what Flynn's attorney would have wanted the court to consider. 

Prosecutors typically do have discretion to dismiss cases as they so please.  But when an individual has already plead guilty, the question is more complicated, as forcing a judge to just dismiss without asking questions as to why the DOJ is dismissing, would render the court a rubber stamp of prosecutorial discretion. Interesting issues discussed during the hearing included whether the district court can inquire as to the reasons for the dismissal. After all, Federal Rule of Criminal Procedure 48(a) allows for government dismissal "with leave of court."

But for the most part, the hearing turned on the remedy being employed by defense counsel to secure a dismissal - A Writ of Mandamus. One has to wonder if defense counsel had just waited for the court to rule on the DOJ's Dismissal Motion whether this hearing would even be happening. 

See Khorri Atkinson, Full DC Circ. Not Inclined to Immediately Halt Flynn's Case.


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