Rule of Law

RELEASE: Appeals Court Deals Body Blow to Checks and Balances in Flynn Case

WASHINGTON – On news that the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus to Judge Sullivan, ordering him to dismiss criminal charges against General Michael Flynn as requested by President Trump’s Department of Justice, Constitutional Accountability Center President Elizabeth Wydra issued the following statement:

Today’s ruling from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, ordering a lower-court judge to dismiss criminal charges against retired General Michael Flynn—charges to which Flynn has already pleaded guilty—would essentially erase a vital check by the judiciary on the power of the executive branch. The full D.C. Circuit should take up today’s ruling and reverse it.

As CAC argued in a brief on behalf of criminal law professors, Federal Rule of Criminal Procedure 48(a) was designed to prevent corrupt or politically motivated dismissals that would harm the public interest. The Rule provides, in part, “The government may, with leave of court, dismiss an indictment, information, or complaint.” (emphasis added). Those words, “with leave of court,” mean that the presiding judge has a say in whether Attorney General Barr should be allowed to simply drop the matter, an act that would aid one of President Trump’s stalwart allies by essentially giving him a “get out of jail free” card. 

However, today’s ruling—written by Judge Neomi Rao, a Trump appointee—barely addresses the history of Rule 48(a). Instead, by ignoring the text and history of Rule 48(a), it essentially revokes the lower-court judge’s discretion and deals a body-blow to checks and balances in a case that clearly cries out for independent judgment.



CAC brief in United States v. Flynn (District Court), on behalf of criminal law professors in support of neither party: 


Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at