skews13
Diamond Member
- Mar 18, 2017
- 9,397
- 11,773
- 2,265
Is Judge Sullivan required to grant the Trump Administration’s motion to dismiss charges against Michael Flynn? Not necessarily.
Today the new Trump appointed US Attorney Timothy Shea moved to dismiss the charges against Michael Flynn.
Rule 48(a), allows the prosecutor to dismiss "with leave of the court."
Normally, where the defendant consents, this is a no-brainer. Of course, the Judge will grant the government’s motion, just like the Judge grants most motions brought by the government.
But, does the Judge have any power to deny a government motion to dismiss?
Yes. Most jurisdictions, including federal courts, recognize that under the doctrine of Separation of Powers , charging is an Executive Function and the decision to dismiss is a Judicial Function.
In California, while Chief Supreme Court Justice Ronald George was on the Los Angeles Trial Court, he famously refused to grant the District Attorney’s motion to dismiss murder charges against the Hillside Strangler and appointed the Attorney General to continue with prosecution, leading to convictions.
Under federal law, prior case-law has limited the ability of Judges to exercise this power to disagree with the prosecutor. The Judge is not required rubber stamp a Rule 48 motion to dismiss. But Judges can only deny the motion in extraordinary circumstances where the judge finds that the prosecutor abused his or her discretion, and where the judge finds that prosecutor has failed to consider factors in the public interest. The Judge may not withhold approval merely because his or her conception of public interest differs from that of prosecuting attorney.
In the government’s motion, they say that Flynn’s false statements were not “material” to the FBI’s Russia investigation. “Materiality” is an element of the crime of false statements. Were Flynn’s false statements about meetings with Kislyak and other Russians and Flynn’s false statements about lobbying for Turkey “material” to the Russian investigation? Almost certainly, but cases say Judges aren’t supposed to base a denial of a motion to dismiss on differing views of the evidence.
It would be an extraordinary move for the Judge to deny the motion. But consider Judge Sullivan’s past comments about Flynn in this case. “Arguably, you sold your country out.”
Sullivan could conceivably find extraordinary circumstances, bad faith, or disservice to the public interest and deny it. Alternatively, Sullivan could request briefing, maybe appoint an amicus, and possibly delay a decision until next year.
It’s not over.
Today the new Trump appointed US Attorney Timothy Shea moved to dismiss the charges against Michael Flynn.
The government is moving to dismiss the charges per Rule 48(a).
Rule 48(a), allows the prosecutor to dismiss "with leave of the court."
Normally, where the defendant consents, this is a no-brainer. Of course, the Judge will grant the government’s motion, just like the Judge grants most motions brought by the government.
But, does the Judge have any power to deny a government motion to dismiss?
Yes. Most jurisdictions, including federal courts, recognize that under the doctrine of Separation of Powers , charging is an Executive Function and the decision to dismiss is a Judicial Function.
In California, while Chief Supreme Court Justice Ronald George was on the Los Angeles Trial Court, he famously refused to grant the District Attorney’s motion to dismiss murder charges against the Hillside Strangler and appointed the Attorney General to continue with prosecution, leading to convictions.
Under federal law, prior case-law has limited the ability of Judges to exercise this power to disagree with the prosecutor. The Judge is not required rubber stamp a Rule 48 motion to dismiss. But Judges can only deny the motion in extraordinary circumstances where the judge finds that the prosecutor abused his or her discretion, and where the judge finds that prosecutor has failed to consider factors in the public interest. The Judge may not withhold approval merely because his or her conception of public interest differs from that of prosecuting attorney.
In the government’s motion, they say that Flynn’s false statements were not “material” to the FBI’s Russia investigation. “Materiality” is an element of the crime of false statements. Were Flynn’s false statements about meetings with Kislyak and other Russians and Flynn’s false statements about lobbying for Turkey “material” to the Russian investigation? Almost certainly, but cases say Judges aren’t supposed to base a denial of a motion to dismiss on differing views of the evidence.
It would be an extraordinary move for the Judge to deny the motion. But consider Judge Sullivan’s past comments about Flynn in this case. “Arguably, you sold your country out.”
Sullivan could conceivably find extraordinary circumstances, bad faith, or disservice to the public interest and deny it. Alternatively, Sullivan could request briefing, maybe appoint an amicus, and possibly delay a decision until next year.
It’s not over.
Is Judge Sullivan required to grant Trump Motion to dismiss charges against Michael Flynn? No.
Is Judge Sullivan required to grant the Trump Administration’s motion to dismiss charges against Michael Flynn? Not necessarily. Today the new Trump appointed US Attorney Timothy Shea moved to dismiss the charges against Michael Flynn. In an...
www.dailykos.com
