Friday, May 22, 2020
Michael Flynn Case: D.C. Circuit Orders Judge Sullivan to Respond to Mandamus Petition | National Review
It is apt to get Judge Sullivan’s attention that the only case the panel cited is United States v. Fokker Services B.V. In that 2016 ruling, the D.C. Circuit granted a writ of mandamus against a district judge who refused to dismiss a case (on a deferred prosecution arrangement) because the judge thought the Justice Department was letting the defendant off too easily. The Fokker Court explained that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a judge has no power to deny a motion to dismiss charges. The D.C. Circuit there elaborated that decisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion,” and that judges may not substitute their view that a defendant should be prosecuted in place of the Justice Department’s determination that a case should be dropped.
The D.C. Circuit’s order that Judge Sullivan must respond cites Rule 48(a), along with Fokker.
Some DC Circuit clerks are having a lot of fun.