In December 2017, Michael Flynn, former National Security Adviser to President Donald Trump, pleaded guilty in federal district court to making materially false statements to FBI investigators.  During interviews with the FBI, Flynn allegedly misled investigators about his contacts with Russian Ambassador Sergey Kislyak during the 2016 presidential campaign and 2016-17 presidential transition.  After Flynn’s sentencing was delayed several times, Attorney General William Barr announced a review of Flynn’s case in February 2020.  On May 7, 2020, the Interim U.S. Attorney for the District of Columbia, a former adviser of Barr’s, filed a motion to dismiss the criminal information against Flynn.  Flynn soon indicated that he consented to that motion.  The district court announced on May 19, 2020, that it would allow interested parties to file amicus briefs to assist the court in considering the government’s motion to dismiss.

CAC filed an amicus brief on behalf of criminal law professors in support of neither party.  Our brief argues that the district court should consider the public interest in deciding whether to grant the government’s motion to dismiss.

In its motion, the government critically mischaracterized Federal Rule of Criminal Procedure 48(a), which requires the government to obtain “leave of court” to dismiss an indictment, information, or complaint.  Specifically, the government stated that this Rule’s “leave of court” provision is intended primarily to protect defendants from prosecutorial harassment—that is, where the government repeatedly charges a defendant with a crime and then dismisses the case before jeopardy attaches in an effort to gain an unfair advantage.  The government contends that because such harassment is not an issue in this case, the court’s role in considering its motion to dismiss should be “narrow and circumscribed.”  But as our brief explains, the text and history of Rule 48(a) demonstrate that the Rule’s “leave of court” provision was not solely, or even primarily, intended to protect defendants from prosecutorial harassment, as the government contends.  Instead, the Rule was designed to protect against corrupt or politically motivated dismissals that might undermine the fairness and integrity of our nation’s criminal justice system.

First, we review the history of Rule 48 and conclude that the Rule’s text and history demonstrate that it was designed to prevent politically motivated dismissals of criminal cases.  We explain that, prior to Rule 48(a)’s drafting, federal prosecutors enjoyed unfettered discretion to dismiss criminal cases, with problematic results.  The Advisory Committee that drafted the Federal Rules of Criminal Procedure discussed this issue extensively, and Rule 48(a) was ultimately adopted to abrogate the preexisting common-law rule that had allowed for a defendant’s political connections to unduly influence dismissals.  Second, we explain that the government’s argument that the court lacks discretion to deny its motion is unpersuasive, as it is contrary to the text and history of Rule 48(a), and even the cases on which it relies do not support its claim.  We conclude by urging the court to consider the public interest in resolving the government’s motion to dismiss.