This paper is a bombshell for the Flynn case. The drafting history shows that Rule 48 exists precisely to stop well connected defendants from having “Washington” direct dismissal of charges. And the Supreme Court inserted the “leave of court” language itself to address corruption
The paper points out two other important things. First, the only Supreme Court case to address Rule 48, Rinaldi, was a post-plea case. As many have noted, Rinaldi said the trial court had to grant the motion. But Frampton notes that the opinion never mentions separation of powers
Second, in expressing its preference for a leave of court requirement, the Supreme Court directed the committee to one of its recent cases, which said a court could not defer to law enforcement when they confess error.
I have no idea what effect, if any, this new-found history will have in the Flynn case. The prevailing DC Circuit case on Rule 48, Fokker, takes a different view of the reason for the leave of court language in the rule—a view seriously undermined by Frampton’s research here.
But I will say that Thomas Frampton has done precisely what legal academics are supposed to do — he did the research. He uncovered primary source documents that are incredibly important to understanding an important issue of the day. And he’s letting the research speak for itself
