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New York City Bar Association Files Amicus Brief in Flynn Case

Citing “serious public concern about the fair administration of justice in a case involving a senior government officer and close associate of the President of the United States,” the New York City Bar Association has filed an amicus brief in the case of United States of America v. Michael T. Flynn, in the U.S. District Court for the District of Columbia.

The brief is in support of the district court’s designation of amicus curiae to oppose the motion of the Government to dismiss the case against Flynn and in opposition to the petition for a writ of mandamus directing the district judge to grant the Department of Justice’s motion to dismiss its criminal case against Flynn, vacate the appointment of John Gleeson as amicus curiae and transfer this case to another district court judge.

The brief argues that mandamus, whereby a judge can compel an action by a lower court, is only appropriate when three conditions are met: (1) no other adequate means of relief are available to the petitioner; (2) the petitioner’s right to the writ is clear and indisputable; and (3) the writ is appropriate under the circumstances.

The Court should deny in its entirety the petition for a writ of mandamus, the brief states, because “[p]etitioner, in this case fails to meet even the first condition because there are adequate means of relief available to him in the form of direct appeal.” The brief notes that the Supreme Court “has specifically stated that it is “unwilling to utilize [writs of mandamus] as substitutes for appeals” and that the requirement that no other adequate means be available to a mandamus petitioner to obtain the relief sought was “designed to ensure that the writ will not be used as a substitute for the regular appeals process.”

To support its contention that the district court “was well within its discretion to appoint amicus curiae,” the brief cites Fed. R. Crim. P. 48(a), which provides that the government may dismiss an indictment, information or complaint only “with leave of court.” In Rinaldi v. United States, the Supreme Court explained that the “leave of court” requirement “obviously vest[s] some discretion in the court,” and while “[t]he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection,” the Court noted that Rule 48(a) has “also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest.”

The brief further cites federal appellate courts, including the Court reviewing this matter, that have interpreted the phrase “by leave of court” as intending “to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice,” and that a court deciding a Rule 48(a) motion should not “serve merely as a rubber stamp for the prosecutor’s decision.”

“The abrupt about-face by the government on the eve of Petitioner’s sentencing threatens to undermine public confidence in, and raises substantial questions about, the administration of justice,” states the brief. “This is particularly true where the Petitioner is a close associate of the President and former high-ranking member of the current administration, especially in light of Attorney General Barr’s recent decision to override his own staff prosecutors’ sentencing recommendations in the case of Roger Stone, another intimate of the President…. Thus the highly irregular circumstances of this case cry out for the district court, with the aid of the appointed amicus, to ensure that the government’s motion to dismiss is not ‘prompted by considerations clearly contrary to the public interest.’” 

“For the foregoing reasons this Court should deny the petition for a writ of mandamus,” the brief concludes.

The brief can be read here: