And there it is. Judge Rao says that Judge Sullivan has no power to refuse to grant DOJ's motion to dismiss charges against Michael Flynn. An interesting opinion to be sure.
After stating that the constitutional separation of powers requires a certain reading of Rule 48, the majority addresses the major SOP argument from Flynn only in a FN and only w/ a citation to a treatise--a move more reminiscent of an advocate's brief than a judicial opinion. 
Just to clarify--the crux of this case was what power did Sullivan have. It is pretty well established that the executive's *charging* decisions are largely unreviewable, but this case wasn't just about charging b/c Flynn had already pleaded guilty and was awaiting sentencing.
In other words, the only real constitutional question in this case was what power does a judge possess after a guilty plea has been answered, and the DC Circuit just didn't answer that question. The whole opinion is about the charging power & the treatise citation is a cop out.
It's a cop out because treatises, as a general matter, simply describe the law. They don't assess the constitutionality or wisdom of that law. And b/c there was no controlling Supreme Court or DC Circuit precedent on the issue, that's what the DC Cir needed to do here.
To be clear--I don't know what the right answer is about the constitutionality or wisdom of judges taking a more active role in denying Rule 48 motions after a guilty plea has been entered. I think it is a difficult question, and that's why I was watching this case closely.
I'm no expert on mandamus, and so I can't assess the dispute between the majority and the dissent on whether that relief was appropriate in a case like this where the judge hadn't yet ruled. But there is one thing I'd like to say about the majority's reasoning on that issue.
The idea that the executive cannot be required to explain its decisions in open court strikes me as deeply troubling. Anyone who follows me knows that the only real check on prosecutorial power is political; if citizens disagree with prosecutors' decisions, they can vote them out
In order for elections to serve as a remotely effective check on prosecutors, voters need information about the decisions that prosecutors make. And this section from the majority opinion seems entirely inconsistent with the idea of democratic accountability to me.
That section, and this whole opinion TBH, takes a pretty extreme view of the separation of powers. It tells us that the branches are silos who may not encroach on each others' territories (and it also says the judicial territory is quite small.)
That view is incompatible with the idea of the branches checking and balancing one another. And in light of how much power legislatures have given to modern prosecutors, I think this extreme separation view poses a significant threat to liberty in this country.
