Jon Turley was a legal intern at NSA when I was principal litigation counsel there. I greatly respect Jon's legal intellect, but we clearly disagree on the merits of the Flynn prosecution, and his opinion here (usatoday.com/story/opinion/…) assumes too much. /1
Fed. Rule of Crim. Pro. 48(a) conditions the government's motion to dismiss an indictment on "leave of court." That phrase was added to the Rule by the Supreme Court and, as the Advisory Committee Notes make clear, /2
"the first sentence of this rule [adding the "leave of court" requirement"] "will change existing law." So, the Rule change removed the unfettered right of the prosecutor to dismiss, and now provides the court with the discretion to safeguard the integrity of the judicial /3
process by requiring that the prosecutor now obtain the court's approval to dismiss. If "leave of court" has any substantive content, it is perfectly within Judge Sullivan's purview to now entertain outside views on how he should exercise that "leave of court." /4
I don't claim to know the outer boundaries of the authority embraced by "leave of court." I do believe that Judge Sullivan is perfectly within his right to solicit the views of outsiders (amicus curiae, etc.) on how he should be guided in exercising that authority. /5
Sullivan's actions may yet present the overreach that Jon Turley condemns, but that remains to be seen. For now, Judge Sullivan is properly seeking outside advice on what "leave of court" means in the context of this politically freighted case, /6
and how he can best protect the integrity of the judicial process in the face of a Justice Department that has been politicized to an extent rarely (ever?) seen before. /7
