[Just notes so far. Maybe this will become a scholarly article.] Has anyone thought seriously about this? By serious thinking, I mean why anybody would want to have such a rule, and how it would apply in particular cases. Real, old-fashioned, doctrinal law, which includes a good dose of public policy. Instead, we have lots of ad hoc application to the Flynn case. The Flynn case is too easy,though, as I will shortly describe. The liberals who say Judge Sullivan should use Rule 48 to deny dismissal just mutter vaguely about deeds of darkness and how judges need to stop evil prosecutors from going easy on criminals. The conservatives who say Judge Sullivan should grant dismissal don’t go into the hypothetical question of circumstances where a judge *shouldn’t* grant dismissal.
Well I see one smart professor, Paul Cassell, has written a blog post and has written something on how victims should be consulted, though I searched “48” and came up dry in that. He’s represented the Jeffrey Epstein victims in a case related to this. He is right that the Rao-Henderson mandamus decision in Flynn slights the implications of Rule 48, but that’s OK because those implications aren’t relevant in Flynn— no crime victims, for example, because the crime didn’t harm anyone.
In “Why Do Rule 48(a) Dismissals Require “Leave of Court”?” Thomas Ward Frampton says:
The conventional view holds that it is necessary to distinguish between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges.6
The Government argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper.7
In support, the Government relies in part on forty-year-old dicta in the sole Supreme Court case interpreting Rule 48(a), Rinaldi v. United States.8
There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”9
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But the Government’s position—and the Supreme Court language upon which it is based—is simply wrong.10
That article in Stanford Law Review Online has lovely and practical formatting, by the way. They put the footnotes in the side margin, with very nice choices of fonts. I’d like to know who should get credit for that. It’s probably a student editor who will be famous someday because of knowing to do things like that. I will write to them. It is an illustration of how the Rich Get Richer: if you see someone do something well, it’s worth making suggestions for how to do it better, because they’re perceptive enough to know good advice when they see it, unlike most people. (See my “Disagreeing Agreeably”)I will tell them to add non-paywalled hyperlinks to the case citations in the margins, so readers can instantly go to the cases and see the context.
Aha: Patterico’s Pontifications has just done what I want to do here: get a serious discussion of Rule 48 going, with hypotheticals.
1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.
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2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.
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3. We request to dismiss this case because we think lilacs are very pretty flowers.
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4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.
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5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.
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6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.
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7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.
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8. We request to dismiss this case because we say so.
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Me, I see all of these as insufficient to justify the granting of a Rule 48 motion to dismiss. To me, there has to be some reason offered, making #8 insufficient. The motion to dismiss can’t be motivated by rank corruption such as bribery (#1), even if it represents the true position of DoJ by reason of that bribery (#2). The reason must bear some relevance to the case (#3) and it can’t be a patently fabricated falsehood that is contradicted by every scrap of paper in the case and all evidence available to the five senses (#4). I don’t think the reason could be a blatantly unconstitutional reason like race (#5) and I personally believe that it could not be justified for patently corrupt reasons (such as #6) or even purely out of cronyism (#7).
I agree we need a reason, so #8 is no good. Bribery of the prosecutor is a bad reason, so #1 is no good; but if it truly represents the position of the executive branch then the judge should dismiss, so #2 is fine. It becomes a political question. Also, th reason need bear no relevance to the case– the statute just says there has to be a reason— so #3’s lilacs are fine. I don’t think we need even rational basis here. Recall Judge Wilkins’ hypo in oral argument: what if DOJ wants to dismiss to avoid inflaming racial tensions, but to admit that would inflame racial tensions? Same with #4. The lilacs and lie are just saying, “We’ve got a reason we don’t want to tell you,” and that’s OK. #5 is tough. I’ll punt on that for now. #6 and #7 are like the #2 bribes– they raise political questions (#2 has the motivation being criminal, so it’s harder, but really they’re all analogous to Justice deciding not to prosecute in the first place, and nobody’s suggesting that a judge can initiate a prosecution). I’ll expand on all of this if I have time, but note how they raise hard questions and sharpen the discussion. Good for you Patterico!
My comment to him:
Excellent post! I do disagree with you completely, though. So let’s discuss. I haven’t read the other comments yet; I hope to do that tomorrow. The post says:
In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!
That’s right. Sort of. The judge cannot delay dismissing the defendant (speedy trial right, after all) to conduct a fishing expedition. If he has seen money change hands in the courtroom and wants to hold a hearing the next day to inquire, that’s OK. He has a prima facie case of impropriety that would justify denying the motion to dismiss and notifying Justice that they’ll want to send in a new prosecutor. Note that in this case, Justice will be *happy* that the judge is denying, an important point, even though Justice’s evil agent, the prosecutor, will be unhappy. And this would even go if the judge read in the newspaper that the prosecutor had been bribed.
But if, as in the Flynn case, the judge has an unhappy feeling that his political enemy Trump has somehow done something bad but he doesn’t know what but he doesn’t want to let him get away with it so he schedules a hearing in a month or two and asks everybody in Washington DC to submit dirt on the defendant AND he wants to ask the prosecutor if he’s been bribed, threatened, blackmailed, coerced, drugged, or replaced with a robotic version of his real self— then that’s no good. The judge has to have some basis for delaying denial, and he can’t delay releasing the defendant from his ordeal just because he has a funny feeling about it.
The Flynn Case. Flynn pleads guilty to making a false statement to FBI agents. Before sentencing, he fires his Covington and Burling swamp lawyers for conflict-of-interest and incompetence and hires lawyer Sidney Powell. She pushes the prosecution harder, and they produce new exculpatory evidence. The attorney-general order an investigation into prosecutorial misconduct and on its completion moves to dismiss charges in a motion of 20 pages or so describing why this would be “in the interests of justice”. Defendant agrees with dismissing charges.
Judge Sullivan is reluctant to grant the motion to dismiss. Retired judge Gleeson writes an op-ed in the Washington Post saying that Judge Sullivan should deny the motion and should appoint an amicus curiae to argue the case for denying it. A few days later Judge Sullivan does so, appointing Gleeson as the amicus, inviting motions by anyone else who wants to be an amicus, scheduling a hearing for more than a month later, and also asking Gleeson to explore whether Flynn should be held in criminal contempt for falsely saying he’d made false statements to the FBI as part of his guilty plea.
Judge Sullivan says xxx and yyy.
This case is easy because everybody should agree that if the prosecutor admits to misconduct and that he’s behaved unjustly, and there’s no evidence to the contrary, the judge should not be able to aid the injustice by keeping the defendant under threat of incarceration.
Even under Judge Sullivan’s interpretation this is true. Suppose Flynn really is guilty of making false statements to an FBI agent, and President Trump phoned up the Attorney General and told him to drop the case because he’d decided it wasn’t worth prosecuting even though Flynn had made the false statements, and threatened to fire the Attorney General if he didn’t change the prosecution team and find a new chief attorney who would file to dismiss. That is not corruption; that is not misconduct; that is just the elected official making the policy decision of which crimes to prosecute. Most crimes do not get prosecuted. The Justice Department looks at them and decides which cases to take up and which ones to ignore for lack of resources or because they’re not important enough. A friend in the Los Angeles US Attorney’s office told me 20 years ago, for example, that if a drug case involved less than a ton of marijuana, his office wouldn’t even look at it. They were too busy with bigger cases. Defendant Flynn has paid millions to defend himself in this case, and we can expect the Department of Justice to have spent millions prosecuting it. And what is it about? It is selective prosecution for the victimless crime of lying to FBI agents about something when they already knew it was a lie, there was no underlying crime being investigated, and nobody cared about the lie anyway. This should not be a high-priority crime, yet it is being prosecuted where Justice is ignoring sales of 1,900 pounds of marijuana because they’re too busy.
In all of our hypotheticals, we assume that Prosecutor has brought charges against Defendant and has filed a motion with the Judge to dismiss charges with prejudice.
Case 1. The Bribed Prosecutor I. Defendant supports dismissal. In his motion to dismiss, Prosecutor says his reason for dismissal is that Defendant paid him a bribe of $10,000 to dismiss.
Deny dismissal. Judge should cite Prosecutor for contempt and tell his client, the Dept of Justice, to appoint a new prosecutor.
Case 2. The Bribed Prosecutor II. Defendant supports dismissal. In his motion to dismiss, Prosecutor admits that his reason for dismissal is that Defendant agreed to pay $10,000 to a government program to buy lunches for starving children in Africa.
Deny dismissal. Judge should cite Prosecutor for contempt and tell his client, the Dept of Justice, to appoint a new prosecutor.
Case 3. The Bribed Prosecutor III. Defendant supports dismissal. Third Party files a motion telling Judge that Defendant bribed Prosecutor $10,000 to drop charges.
Deny dismissal if true. Judge should hold a hearing.
Case 4. The Bribed Prosecutor IV. Defendant supports dismissal. Judge reads in a well-known newspaper that Defendant bribed Prosecutor $10,000 to drop charges.
Deny dismissal if true. Judge should hold a hearing.
Case 5. The Bribed Prosecutor V. Defendant supports dismissal. Judge reads in a well-known newspaper that Defendant must have bribed Prosecutor, because otherwise why would charges be dropped?
Grant dismissal. This isn’t prima facie evidence of bribes, just an irresponsible opinion.
Case 6. The Bribed Prosecutor VI. Defendant supports dismissal. Judge reads an anonymous source on Twitter saying that Defendant bribed Prosecutor $10,000 to drop charges.
Grant dismissal. This is prima facie evidence of bribes, but evidence too weak to follow up on.
Case 7. The Defendant Who Wants Vindication. Defendant opposes dismissal. He says he wants the Prosecutor either to fully vindicate him in wording of his choice in a revised dismissal motion or to go to trial, where the evidence will prove so weak as to leave Defendant vindicated.
Deny dismissal. Defendant deserves vindication, and the government needs the stick of public embarassment to stop it from bringing false charges in the future.
Bribery of the DA would be grounds for denial of dismissal. But that’s for agency law reasons— he is betraying his principal (the President or Attorney-General) as well as his principles. If the DA’s paralegal forgets his signature– which nowadays just means submitting to ECM-Pacer pretending to be him– and submits a Rule 48 dismissal motion, and the judge finds out, the judge can deny that one too. It’s an agency problem.
Do you see no difference after a plea is accepted? What about after sentencing? Can a killer bribe the DA from prison and force his release?
Interesting. Yes, actually. That’s basically the Clinton end-of-term pardons of e.g. Marc Rich. A judge CANNOT undo the pardon. The proper remedy is impeachment. In Clinton’s case, I’m not sure what it would be— cirminal proseuction for bribery, I guess.