there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare. There is a specific rule created for this purpose.
Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors.
I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.
Third, there is also case law. In
Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under
Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions. There are also related cases in
Bartkus v. Illinois, 359 U. S. 121 (1959), and
Abbate v. United States, 359 U. S. 187 (1959). The
Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s
Petite policy. The Court laid out the standard for such motions. The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s
Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”
There are also lower court decisions on this inherent authority. For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in
United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions.
Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns. One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case. That was just roughly ten years ago. As with Flynn, there was an allegation of withheld evidence by prosecutors.
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