United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued June 12, 2020 Decided June 24, 2020

No. 20-5143

IN RE: MICHAEL T. FLYNN,

PETITIONER

On Emergency Petition for a Writ of Mandamus

Sidney Powell argued the cause for petitioner. With her on 

the petition for a writ of mandamus were Molly McCann and 

Jesse R. Binnall.

Jeffrey B. Wall, Deputy Solicitor General, U.S. 

Department of Justice, argued the cause for respondent United 

States of America. With him on the response to the petition for 

a writ of mandamus were Noel J. Francisco, Solicitor General, 

Eric J. Feigin, Deputy Solicitor General, Frederick Liu, 

Assistant to the Solicitor General, Kenneth C. Kohl, Acting 

Principal Assistant U.S. Attorney, and Jocelyn Ballantine, 

Assistant U.S. Attorney.

David Yost, Attorney General, Office of the Attorney 

General for the State of Ohio, Benjamin M. Flowers, Solicitor 

General, Steve Marshall, Attorney General, Office of the 

Attorney General for the State of Alabama, Kevin G. Clarkson, 

Attorney General, Office of the Attorney General for the State 

of Alaska, Leslie Rutledge, Attorney General, Office of the 

Attorney General for the State of Arkansas, Ashley Moody, 

Attorney General, Office of the Attorney General for the State 
2

of Florida, Christopher M. Carr, Attorney General, Office of 

the Attorney General for the State of Georgia, Jeff Landry, 

Attorney General, Office of the Attorney General for the State 

of Louisiana, Lynn Fitch, Attorney General, Office of the 

Attorney General for the State of Mississippi, Eric Schmitt, 

Attorney General, Office of the Attorney General for the State 

of Missouri, Timothy C. Fox, Attorney General, Office of the 

Attorney General for the State of Montana, Mike Hunter, 

Attorney General, Office of the Attorney General for the State 

of Oklahoma, Alan Wilson, Attorney General, Office of the 

Attorney General for the State of South Carolina, Ken Paxton, 

Attorney General, Office of the Attorney General for the State 

of Texas, Sean D. Reyes, Attorney General, Office of the 

Attorney General for the State of Utah, and Patrick Morrisey, 

Attorney General, Office of the Attorney General for the State 

of West Virginia, were on the brief for amici curiae the States 

in support of petitioner.

William J. Olson, Jeremiah L. Morgan, Herbert W. Titus, 

and Robert J. Olson were on the brief for amici curiae Former 

United States Attorney General Edwin Meese III and 

Conservative Legal Defense and Education Fund in support of 

petitioner.

Jerome M. Marcus was on the brief for amici curiae 

Eleven Members of the United States House of Representatives 

in support of petitioner.

John Reeves, pro se, was on the brief for amicus curiae 

John M. Reeves in support of petitioner and the United States.

Michael H. McGinley was on the brief for amici curiae 

Majority Leader Mitch McConnell and Senators Tom Cotton, 
3

Mike Braun, Kevin Cramer, Ted Cruz, Charles E. Grassley, 

and Rick Scott in support of the United States.

Leslie McAdoo Gordon was on the brief for amicus curiae 

Federal Practitioners in support of petitioner and the United 

States.

Eric B. Rasmusen, pro se, was on the brief for amicus

curiae Professor Eric Rasmusen in support of petitioner.

Beth A. Wilkinson argued the cause for respondent Judge 

Emmet G. Sullivan. With her on the response to the petition for 

a writ of mandamus were Kosta S. Stojilkovic and Rakesh 

Kilaru.

Eugene R. Fidell, Stanley J. Marcus, and Gershon M. 

Ratner were on the brief for amicus curiae Lawyers Defending 

American Democracy, Inc. in support of respondent.

Lawrence Robbins, Alan E. Untereiner, D. Hunter Smith,

and William W. Taylor III were on the brief for amicus curiae 

Watergate Prosecutors in support of respondent.

Daniel E. Jackson and John W. Keker were on the brief for 

amicus curiae Former Federal District Court Jurists in support 

of respondent.

Gregory S. Smith was on the brief for amicus curiae New 

York City Bar Association in support of respondent.

Before: HENDERSON, WILKINS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.
4

Opinion dissenting in part filed by Circuit Judge WILKINS.

RAO, Circuit Judge: Michael Flynn, former National 

Security Advisor to President Donald J. Trump, pleaded guilty 

to making false statements under 18 U.S.C. § 1001. Before 

sentencing, Flynn moved to withdraw his plea, alleging that the 

government failed to produce material exculpatory evidence

and breached the plea agreement. Several months later, the 

U.S. Attorney for the District of Columbia filed a motion to 

dismiss all charges. See FED. R. CRIM. P. 48(a) (“The 

government may, with leave of court, dismiss an indictment, 

information, or complaint.”). In its motion, the government 

explains that in light of newly discovered evidence of 

misconduct by the Federal Bureau of Investigation, the 

prosecution can no longer prove beyond a reasonable doubt 

that any false statements made by Flynn were material to a 

legitimate investigation—an element the government contends 

is necessary under Section 1001. See United States v. Gaudin, 

515 U.S. 506, 509 (1995). The government’s motion to dismiss

also explains that “continued prosecution of the charged crime 

does not serve a substantial federal interest.” Gov’t Mot. 

Dismiss Criminal Information, No. 1:17-cr-232, ECF No. 198,

at 2 (May 7, 2020). The district judge currently presiding over 

the case has yet to decide the government’s motion. Instead, he 

has appointed an amicus to present arguments in opposition to 

the government’s motion and to address whether Flynn should 

be held in criminal contempt for perjury. The district judge has

also scheduled a hearing on these questions for July 16, 2020.

Flynn petitioned for a writ of mandamus before this court

pursuant to the All Writs Act, 28 U.S.C. § 1651, seeking three 

forms of relief: (1) an order directing the district court to grant 

the motion to dismiss; (2) an order vacating the amicus 

appointment; and (3) an order reassigning the case to a different 
5

district judge. For this court to grant a writ of mandamus, “the 

right to relief must be ‘clear and indisputable’; there must be

‘no other adequate means to attain the relief’; and ‘the issuing 

court, in the exercise of its discretion, must be satisfied that the 

writ is appropriate under the circumstances.’” In re Cheney, 

544 F.3d 311, 312–13 (D.C. Cir. 2008) (quoting Cheney v. U.S. 

Dist. Court, 542 U.S. 367, 380–81 (2004)). Applying these 

standards, we grant Flynn’s petition in part. 

Although Rule 48 requires “leave of court” before 

dismissing charges, “decisions to dismiss pending criminal 

charges—no less than decisions to initiate charges and to 

identify which charges to bring—lie squarely within the ken of 

prosecutorial discretion.” United States v. Fokker Servs. B.V., 

818 F.3d 733, 742 (D.C. Cir. 2016). “To that end, the Supreme 

Court has declined to construe Rule 48(a)’s ‘leave of court’ 

requirement to confer any substantial role for courts in the 

determination whether to dismiss charges.” Id.; see also 

Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) 

(“Few subjects are less adapted to judicial review than the 

exercise by the Executive of his discretion in deciding ... 

whether to dismiss a proceeding once brought.”). The 

Judiciary’s role under Rule 48 is thus confined to “extremely 

limited circumstances in extraordinary cases.” United States v. 

Hamm, 659 F.2d 624, 629 (5th Cir. 1981); United States v. 

Ammidown, 497 F.2d 615, 621 (D.C. Cir. 1973) (emphasizing 

that Rule 48 motions must be granted “in the overwhelming 

number of cases”). More specifically, “[t]he principal object of 

the ‘leave of court’ requirement is ... to protect a defendant 

against prosecutorial harassment ... when the Government 

moves to dismiss an indictment over the defendant’s 

objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 

(1977). Rule 48 thus “gives no power to a district court to deny 

a prosecutor’s ... motion to dismiss charges based on a 
6

disagreement with the prosecution’s exercise of charging 

authority.” Fokker Servs., 818 F.3d at 742.1

Whatever the precise scope of Rule 48’s “leave of court” 

requirement, this is plainly not the rare case where further 

judicial inquiry is warranted. To begin with, Flynn agrees with 

the government’s motion to dismiss, and there has been no 

allegation that the motion reflects prosecutorial harassment. 

Additionally, the government’s motion includes an extensive 

discussion of newly discovered evidence casting Flynn’s guilt

into doubt. See Mot. to Dismiss, ECF No. 198. Specifically, the 

government points to evidence that the FBI interview at which 

Flynn allegedly made false statements was “untethered to, and 

unjustified by, the FBI’s counterintelligence investigation into 

Mr. Flynn.” Id. at 2. In light of this evidence, the government 

maintains it cannot “prove either the relevant false statements 

or their materiality beyond a reasonable doubt.” Id. Insufficient 

evidence is a quintessential justification for dismissing 

charges. See Ammidown, 497 F.2d at 623 (explaining that a 

motion to dismiss should be granted “if it is explained to the 

judge that there was ... an insufficiency of evidence ... or other 

similar consideration”). 

The government’s representations about the insufficiency 

of the evidence are entitled to a “presumption of regularity ... 

1

In response to the petition, the district judge argues greater judicial 

scrutiny is warranted when a Rule 48(a) motion is filed after a guilty 

plea because formal judicial action has already been taken. Yet this 

claim conflicts with black letter law: “Rule 48(a) continues to apply 

even after conviction and sentencing while the case is on direct 

appeal, and the same standard applies to a government request for 

dismissal at that stage as applies if the request came prior to trial.” 

3B WRIGHT & MILLER, FED. PRAC. & PROC. CRIM. § 802 (4th ed. 

2013).
7

in the absence of clear evidence to the contrary.” United States 

v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks 

omitted). On the record before the district court, there is no 

clear evidence contrary to the government’s representations. 

The justifications the district court offers in support of further 

inquiry—for instance, that only the U.S. Attorney signed the 

motion, without any line prosecutors, and that the motion is 

longer than most Rule 48(a) motions—are insufficient to rebut 

the presumption of regularity to which the government is 

entitled. 

These clearly established legal principles and the 

Executive’s “long-settled primacy over charging decisions,” 

Fokker Servs., 818 F.3d at 743, foreclose the district court’s

proposed scrutiny of the government’s motion to dismiss the 

Flynn prosecution. Before this court, the district judge explains 

that he plans to “question the bona fides of the government’s 

motion,” Sullivan Response 29 (quotation marks omitted), 

“inquire about the government’s motions and representations,” 

Sullivan Reply 26, “illuminat[e] the full circumstances 

surrounding the proposed dismissal,” id. at 12, and probe

“whether the presumption of regularity for prosecutorial 

decisions is overcome” in “the unusual facts of this case,” 

Sullivan Response 3. A hearing may sometimes be appropriate 

before granting leave of court under Rule 48; however, a 

hearing cannot be used as an occasion to superintend the 

prosecution’s charging decisions, because “authority over 

criminal charging decisions resides fundamentally with the 

Executive, without the involvement of—and without oversight 

power in—the Judiciary.” Fokker Servs., 818 F.3d at 741. The 

district court’s orders appointing an amicus, see infra 8–10, and 

scheduling the proposed hearing therefore constitute clear legal 

error.
8

Because legal errors ordinarily may be corrected on 

appeal, a writ of mandamus is proper only if there is “no other 

adequate means to attain ... relief.” Cheney, 542 U.S. at 380.

Although “an abstract concern with the separation of powers,” 

does not rise to the level of an irreparable injury, In re 

Al Nashiri, 791 F.3d 71, 79–81 (D.C. Cir. 2015), we have 

found the requisite harm as a matter of course when a party 

alleges the district court’s action usurps a specific executive 

power. See In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005)

(en banc); Fokker Servs., 818 F.3d at 749; Cobell v. Norton, 

334 F.3d 1128, 1139–40 (D.C. Cir. 2003); In re Sealed Case 

No. 98-3077, 151 F.3d 1059, 1065–66 (D.C. Cir. 1998).

In this case, the district court’s actions will result in 

specific harms to the exercise of the Executive Branch’s 

exclusive prosecutorial power. The contemplated proceedings 

would likely require the Executive to reveal the internal 

deliberative process behind its exercise of prosecutorial 

discretion, interfering with the Article II charging authority. 

Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 

167, 171 (5th Cir. 1965)). Thus, the district court’s 

appointment of the amicus and demonstrated intent to 

scrutinize the reasoning and motives of the Department of 

Justice constitute irreparable harms that cannot be remedied on 

appeal. See Cobell, 334 F.3d at 1140 (“[I]nterference with the 

internal deliberations of a Department of the Government of 

the United States ... cannot be remedied by an appeal from the 

final judgment.”); see also Cheney, 542 U.S. at 382.

We must also assure ourselves that issuance of the writ “is 

appropriate under the circumstances.” Cheney, 542 U.S. at 381. 

The circumstances of this case demonstrate that mandamus is 

appropriate to prevent the judicial usurpation of executive

power. The first troubling indication of the district court’s
9

mistaken understanding of its role in ruling on an unopposed 

Rule 48(a) motion was the appointment of John Gleeson to 

“present arguments in opposition to the government’s Motion.” 

Order Appointing Amicus Curiae, No. 1:17-cr-232, ECF No. 

205, at 1 (May 13, 2020) (emphasis added). Whatever the 

extent of the district court’s “narrow” role under Rule 48(a), 

see Fokker Servs., 818 F.3d at 742, that role does not include 

designating an advocate to defend Flynn’s continued 

prosecution. The district court’s order put two “coequal 

branches of the Government ... on a collision course.” Cheney, 

542 U.S. at 389. The district court chose an amicus who had 

publicly advocated for a full adversarial process. Based on the 

record before us, the contemplated hearing could require the

government to defend its charging decision on two fronts—

answering the district court’s inquiries as well as combatting 

Gleeson’s arguments. Moreover, the district court’s invitation 

to members of the general public to appear as amici suggests

anything but a circumscribed review. See May 12, 2020,

Minute Order, No. 1:17-cr-232. This sort of broadside inquiry 

would rewrite Rule 48(a)’s narrow “leave of court” provision.

And we need not guess if this irregular and searching

scrutiny will continue; it already has. On May 15, Gleeson

moved for permission to file a brief addressing, among other 

things, “any additional factual development [he] may need 

before finalizing [his] argument” and suggesting a briefing and 

argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232, 

ECF No. 209, at 1–2 (May 15, 2020). The district court granted

the motion and then set a lengthy briefing schedule and a July 

16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17-

cr-232. In his brief opposing the government’s motion, Gleeson

asserted the government’s reasons for dismissal were “pretext” 

and accused the government of “gross prosecutorial abuse.” 

Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10, 
10

2020). He relied on news stories, tweets, and other facts outside 

the record to contrast the government’s grounds for dismissal 

here with its rationales for prosecution in other cases. See id. at 

43, 46–47, 57–59.

These actions foretell not only that the scrutiny will 

continue but that it may intensify. Among other things, the 

government may be required to justify its charging decisions, 

not only in this case, but also in the past or pending cases cited 

in Gleeson’s brief. Moreover, Gleeson encouraged the district 

court to scrutinize the government’s view of the strength of its 

case—a core aspect of the Executive’s charging authority. See 

In re United States, 345 F.3d 450, 453 (7th Cir. 2003)

(condemning district court’s failure to dismiss criminal charges 

based on its view that “the government has exaggerated the risk 

of losing at trial”). As explained above, our cases are crystal 

clear that the district court is without authority to do so. See

Fokker Servs., 818 F.3d at 742; Ammidown, 497 F.2d at 623.

Finally, each of our three coequal branches should be 

encouraged to self-correct when it errs. If evidence comes to 

light calling into question the integrity or purpose of an 

underlying criminal investigation, the Executive Branch must

have the authority to decide that further prosecution is not in 

the interest of justice.2 As the Supreme Court has explained,

“the capacity of prosecutorial discretion to provide 

individualized justice is firmly entrenched in American law. ... 

2 See U.S. Dep’t of Justice, Justice Manual § 9-27.200 cmt. (2020) 

(“[A]s a matter of fundamental fairness and in the interest of the 

efficient administration of justice, no prosecution should be initiated 

against any person unless the attorney for the government believes 

that the admissible evidence is sufficient to obtain and sustain a 

guilty verdict by an unbiased trier of fact.”).
11

[A] system that did not allow for discretionary acts of leniency 

would be totally alien to our notions of criminal justice.”

McCleskey v. Kemp, 481 U.S. 279, 311–12 (1987) (quotation 

marks omitted); see also United States v. Smith, 55 F.3d 157,

160 (4th Cir. 1995) (“[T]he duty of the United States Attorney 

[is] not simply to prosecute but to do justice.”) (quotation 

marks omitted). In the third branch, when a district court 

oversteps, the mandamus remedy allows the court of appeals to 

prevent encroachment on a coequal department. See Cheney, 

542 U.S. at 382 (“Accepted mandamus standards are broad 

enough to allow a court of appeals to prevent a lower court 

from interfering with a coequal branch’s ability to discharge its 

constitutional responsibilities.”).

Because this is not the unusual case where a more 

searching inquiry is justified, and because there is no adequate 

remedy for the intrusion on “the Executive’s long-settled 

primacy over charging decisions,” Fokker Servs., 818 F.3d at 

743, we grant the petition for mandamus in part and order the 

district court to grant the government’s Rule 48(a) motion to 

dismiss the charges against Flynn. 

We deny Flynn’s petition to the extent he seeks 

reassignment of the district judge. This case does not meet the 

“high bar” for reassignment, id. at 751, which would be 

appropriate only if the district judge’s conduct was “so extreme 

as to display clear inability to render fair judgment,” Liteky v. 

United States, 510 U.S. 540, 551 (1994). Flynn focuses 

primarily on comments the district judge made at sentencing, 

but “judicial remarks during the course of a trial that are critical 

or disapproving of, or even hostile to, counsel, the parties, or 

their cases, ordinarily do not support a bias or partiality 

challenge.” Id. at 555; see also In re Barry, 946 F.2d 913, 914 

(D.C. Cir. 1991) (“[A] trial judge is entitled to form his own 
12

judgment as to the conduct of a defendant and to take that 

judgment into account in sentencing.”). In light of these 

precedents, the district judge’s conduct did not indicate a clear 

inability to decide this case fairly. We decline to reassign the 

case to a new judge simply to grant the government’s Rule 

48(a) motion to dismiss. 

* * *

We include the following responses to the dissenting 

opinion in order to clarify the extent to which the dissent’s 

arguments are foreclosed by longstanding precedent and 

fundamental separation of powers principles.

First, the dissent glosses over the presumption of 

regularity to which the Executive is entitled in the exercise of 

its prosecutorial discretion. While the district court is not a 

“rubber stamp” when considering whether to grant “leave of 

court” under Rule 48, Ammidown, 497 F.2d at 622, any judicial 

inquiry is strictly bounded by the presumption of regularity, 

and the presumption is overcome only in extraordinary cases 

and by “clear evidence to the contrary,” Armstrong, 517 U.S. 

at 464. The dissent fundamentally misstates our opinion by 

insisting we hold “a district court may not even consider [a 

Rule 48 motion] before giving its ‘leave.’” Dissenting Op. 3. 

Perhaps that is to distract from the simple fact that neither the 

dissent nor the district judge has identified a legitimate basis to 

rebut the presumption here. Our precedents emphatically leave 

prosecutorial charging decisions to the Executive Branch and 

hold that a court may scrutinize a motion to dismiss only on the 

extraordinary showing of harassment of the defendant or 

malfeasance such as bribery—neither of which is manifest in 

the record before the district court. See supra 6–7. The dissent 

argues the presumption is overcome in this case because of the 
13

government’s “complete reversal” in moving to dismiss 

charges it previously supported. Dissenting Op. 17–18. Yet the 

government necessarily reverses its position whenever it 

moves to dismiss charges under Rule 48(a), and so the reversal 

standing alone cannot provide the irregularity. Given the 

absence of any legitimate basis to question the presumption of 

regularity, there is no justification to appoint a private citizen 

to oppose the government’s motion to dismiss Flynn’s 

prosecution. See Newman, 382 F.2d at 482.3

Second, the dissent undermines our recent decision in 

Fokker Services by recasting its necessary and well-considered 

reasoning as dicta. In that case, we relied on “settled 

constitutional understandings” to determine that Rule 48(a)’s 

“leave of court” requirement “confers no new power in the 

courts to scrutinize and countermand the prosecution’s exercise 

of its traditional authority over charging and enforcement 

decisions.” Fokker Servs., 818 F.3d at 741, 743. This part of 

the opinion is binding because the narrow interpretation of 

Rule 48(a) was essential to our interpretation of the Speedy 

Trial Act’s parallel “approval of the court” requirement. Id. at 

743; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 

67 (1996) (explaining that courts are bound by “those portions 

of the opinion necessary to th[e] result”). The dissent attempts 

to limit the holding of Fokker Services to its “particular legal 

3 The dissent’s only remaining argument relating to the presumption 

of regularity is that the government is purportedly misinterpreting 

Section 1001’s materiality element. Dissenting Op. 18. The question 

before us, however, is not whether the Executive’s legal theory is 

ultimately correct, but whether the Executive has the constitutional

discretion to end this prosecution—which for the reasons already 

discussed, it plainly does. In the initiation and cessation of a 

prosecution, it is the Executive’s view of the law that matters, not 

ours, because of its authority over criminal charging decisions.
14

context,” Dissenting Op. 4, but the decision is fundamentally 

about the scope of the Executive’s constitutional charging 

authority. As such, it is directly controlling here.

Third, the dissent asserts our adherence to Fokker Services

creates a circuit split. Dissenting Op. 4. Yet if a split exists, a 

proposition we dispute, it would be a result of Fokker Services’

binding interpretation of Rule 48(a). Even on the dissent’s view 

that we should limit our reading of the case, the dissent’s 

proposed free-ranging public interest inquiry reaches beyond 

anything in our precedents. The level of scrutiny “left open” by 

Rule 48(a), Dissenting Op. 6, must be understood in light of the 

respective constitutional powers assigned to the Judiciary and 

the Executive, which suggests a natural limit on the appropriate 

judicial inquiry. The district court has no mechanism by which 

it can maintain a prosecution in the absence of the Executive 

Branch moving forward. Therefore, while the district court

may check for regularity and ensure that a defendant is not 

being harassed by a motion to dismiss, its decision cannot turn 

on “what the judge independently consider[s] best in the public 

interest.” Ammidown, 497 F.2d at 623.4 A court should not 

4 The dissent maintains that the Supreme Court in Rinaldi and 

Thompson v. United States conducted an “independent evaluation” 

of the record to determine whether an unopposed Rule 48(a) motion 

should be granted. Dissenting Op. 10 (quoting 434 U.S. at 30; 444 

U.S. 248, 250 (1980)). Yet the references to an “independent 

evaluation” reflect the unremarkable proposition that, unlike a 

district court, a court of review like this court or the Supreme Court 

is limited to reviewing the facts included in the record. See, e.g., 

United States v. Bell, 708 F.3d 223, 225 (D.C. Cir. 2013) (“[O]n 

appeal we are limited to the record in the district court.”); FED. R.

APP. P. 10. The Supreme Court’s mention of an “independent 

evaluation” or “independent examination” does not support the 

authority of a district court—which is ordinarily not limited to a 
15

second-guess the prosecutor’s evaluation of the evidence 

except in the “blatant and extreme case” where “the dismissal 

has no basis in fact” whatsoever. Id. at 621, 622. The dissent

would sanction an expansive judicial inquiry under Rule 48(a) 

that runs afoul of Supreme Court precedent, this court’s 

precedent, and out of circuit precedent. See ICC v. Bhd. of 

Locomotive Engineers, 482 U.S. 270, 283 (1987) (“[I]t is 

entirely clear that the refusal to prosecute cannot be the subject 

of judicial review.”); Fokker, 818 F.3d at 743; In re United 

States, 345 F.3d at 454.

5

 

Fourth, although our dissenting colleague apparently 

agrees there is no need to cite a case on all fours before granting 

mandamus relief, he faults the majority for failing to identify a 

case in which mandamus was granted in nearly identical 

circumstances. Dissenting Op. 1, 7, 13. Fokker Services, 

however, directly rejects such a requirement: “[W]e have never 

required the existence of a prior opinion addressing the precise 

closed record—under Rule 48(a) to develop its own record of the 

prosecution’s charging decisions through the appointment of a 

private amicus or otherwise.

5 The dissent relies upon the Fifth Circuit’s “betrayal of the public 

trust” language to authorize courts to impose their independent 

conception of the public interest upon the Executive. Dissenting Op. 

5 (quoting Hamm, 659 F.2d at 629). As our sister circuits have

explained, such a “betrayal” arises only where there is clear evidence 

of misconduct such as “bribery, animus towards the victim, or a 

desire to attend a social event,” United States v. HSBC Bank USA, 

863 F.3d 125, 141 (2d Cir. 2017), or a federal prosecutor “acting 

alone rather than at the direction or with the approval of the Justice 

Department,” In re United States, 345 F.3d at 454. See also Hamm, 

659 F.2d at 629–30 (noting “extremely limited circumstances” for 

judicial oversight such as when a prosecutor accepts a bribe). Such 

circumstances are not alleged here. 
16

factual circumstances or statutory provision at issue in order to 

find clear error justifying mandamus relief.” 818 F.3d at 749–

50. In any event, as explained above, Fokker Services directly 

forecloses the district court’s actions in these circumstances. 

Some questions regarding Rule 48(a) may be “unsettled,” as 

the dissent maintains, but there is nothing unsettled about the 

principle that a district court cannot second-guess prosecutorial 

discretion where there has been no indication of irregularity. 

The novelty of the district court’s usurpation of power 

heightens rather than lessens the need for mandamus. Fokker 

Servs., 818 F.3d at 750. 

Fifth, the dissent minimizes the import of the district 

court’s orders, claiming that we are granting mandamus 

“before the district court has acted.” Dissenting Op. 2

(quotation marks omitted). Yet the district court has acted here. 

It has ordered briefing and scheduled a hearing in order to 

provide a court-appointed amicus the opportunity “to present 

arguments in opposition to the government’s Motion to 

Dismiss.” Order Appointing Amicus Curiae, ECF No. 205, at 

1. In other words, the court has appointed one private citizen to 

argue that another citizen should be deprived of his liberty 

regardless of whether the Executive Branch is willing to pursue 

the charges. Although no decision has yet been made on the 

motion to dismiss, the district court’s judicial supervision, 

detailed supra 7–8, “threatens to chill law enforcement by 

subjecting the prosecutor’s motives and decisionmaking to 

outside inquiry.” Wayte v. United States, 470 U.S. 598, 607–08

(1985). As explained above, we have held such “interference 

with the internal deliberations” of the Executive Branch to be 

a quintessential irreparable injury giving rise to mandamus. 

Cobell, 334 F.3d at 1140–43. 
17

Sixth, the dissent maintains that mandamus must focus 

exclusively on the petitioner’s harms, not the government’s, 

because the government has not formally petitioned for 

mandamus. Dissenting Op. 7–10 & n.2. Our court has squarely 

rejected this argument. In Cobell, we granted mandamus on the 

basis of irreparable injury to the Executive Branch in the 

absence of a “separate petition for mandamus” filed by the 

government. See Cobell, 334 F.3d at 1140 n.*; see also Ex 

parte Peru, 318 U.S. 578, 587–88 (1943) (relying on harm to 

the Executive, namely “embarrass[ing] the executive arm of 

the Government in conducting foreign relations,” to grant a 

mandamus petition to a foreign sovereign without requiring a 

separate government petition). Here, we invited the 

government to respond, and at argument the government 

offered to file a petition at the court’s request. Oral Arg. Tr. 

46–47. The Executive Branch is not just any “different party,” 

Dissenting Op. 8 (emphasis omitted), but a coequal branch of 

government responsible for prosecutorial decisions. See 

Cheney, 542 U.S. at 390 (“As this case implicates the 

separation of powers, the Court of Appeals must also ask, as 

part of th[e mandamus] inquiry, whether the District Court’s 

actions constituted an unwarranted impairment of another 

branch in the performance of its constitutional duties.”). 

Therefore, we must consider the irreparable harms to the 

Executive in a case such as this, in which the government has 

moved to dismiss. Cf. Doe v. Exxon Mobil Corp., 473 F.3d 345, 

356–57 (D.C. Cir. 2007) (noting it would be appropriate to 

examine separation of powers harms to the Executive if it had 

joined the petitioner’s mandamus request or “requested the 

dismissal of the action” below).

Seventh, the dissent swings for the fences—and misses—

by analogizing a Rule 48(a) motion to dismiss with a selective 

prosecution claim. Of course, the Executive may not 
18

“selectively prosecute[] someone based on impermissible 

considerations.” In re Aiken Cty., 725 F.3d 255, 264 n.7 (D.C. 

Cir. 2013). But “the equal protection remedy is to dismiss the 

prosecution, not to compel the Executive to bring another 

prosecution.” Id. (citing Armstrong, 517 U.S. at 459, 463). 

When the court scrutinizes a selective prosecution claim, it 

exercises the core Article III power by protecting individuals 

from improper and unconstitutional prosecutions. Young v. 

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 

(1987) (Scalia, J., concurring in the judgment) (“The judicial 

power ... includes the power to serve as a neutral adjudicator 

in a criminal case.”). Yet unwarranted judicial scrutiny of a 

prosecutor’s motion to dismiss places the court in an entirely 

different position. Rather than allow the Executive Branch to 

dismiss a problematic prosecution, the court assumes the role 

of inquisitor, prolonging a prosecution deemed illegitimate by 

the Executive. Judges assume that role in some countries, but 

Article III gives no prosecutorial or inquisitorial power to 

federal judges. See id. (“The judicial power ... does not include 

the power to seek out law violators in order to punish them.”);

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) 

(“[C]ourts ... do not, or should not, sally forth each day looking 

for wrongs to right. They wait for cases to come to them.”) 

(citation and quotation marks omitted). To suggest that judicial 

dismissal of an improper prosecution is analogous to the 

judicial continuation of an improper prosecution turns the

separation of powers on its head. 

Ultimately, the dissent fails to justify the district court’s 

unprecedented intrusions on individual liberty and the 

Executive’s charging authority. This is not a case about 

whether “a district judge may even hold a hearing on a Rule 

48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather,

it is about whether, after the government has explained why a 
19

prosecution is no longer in the public interest, the district judge 

may prolong the prosecution by appointing an amicus, 

encouraging public participation, and probing the 

government’s motives. On that, both the Constitution and cases 

are clear: he may not. 

* * *

For the foregoing reasons, we grant Flynn’s petition for a 

writ of mandamus in part and direct the district court to grant 

the government’s Rule 48(a) motion to dismiss. In light of that 

grant, we vacate the district court’s order appointing an amicus

as moot. See Great W. Sugar Co. v. Nelson, 442 U.S. 92, 94

(1979).

So ordered.
 WILKINS, Circuit Judge, dissenting in part: It is a great 

irony that, in finding the District Court to have exceeded its 

jurisdiction, this Court so grievously oversteps its own. This 

appears to be the first time that we have issued a writ of 

mandamus to compel a district court to rule in a particular 

manner on a motion without first giving the lower court a 

reasonable opportunity to issue its own ruling; the first time 

any court has held that a district court must grant “leave of 

court” pursuant to Federal Rule of Criminal Procedure 48(a) 

without even holding a hearing on the merits of the motion; and 

the first time we have issued the writ even though the petitioner 

has an adequate alternative remedy, on the theory that another 

party would not have had an adequate alternate remedy if it had 

filed a petition as well. Any one of these is sufficient reason to 

exercise our discretion to deny the petition; together, they 

compel its rejection. I therefore respectfully dissent from the 

majority’s grant of the writ. 

I. 

Mandamus is a “drastic and extraordinary remedy,” 

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) 

(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)), and 

its “three threshold requirements are jurisdictional,” such that 

the absence of any one compels denial of the writ and dismissal 

of the petition for want of jurisdiction, Am. Hosp. Ass’n v. 

Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016); see also In re 

Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 

2014) (“[T]hree conditions must be satisfied before a court 

grants a writ of mandamus: (1) the mandamus petitioner must 

have ‘no other adequate means to attain the relief he desires,’ 

(2) the mandamus petitioner must show that his right to the 

issuance of the writ is ‘clear and indisputable,’ and (3) the 

court, ‘in the exercise of its discretion, must be satisfied that 

the writ is appropriate under the circumstances.’” (quoting 

Cheney, 542 U.S. at 380–81)). In issuing a writ of mandamus 

compelling the District Court to immediately grant the 
2 

Government’s motion to dismiss the information against 

Flynn, the majority concludes that each of these prerequisites 

is satisfied. The majority is in each respect mistaken. 

A. 

One of the most striking conclusions of the majority is 

virtually buried: It finds the issuance of mandamus to be 

appropriate under the circumstances, where those 

circumstances include the absence of any district-court ruling 

on the motion at issue. Our Court is “particularly disinclined” 

to issue this extraordinary writ “before the district court has 

acted.” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 

192, 198 (D.C. Cir. 2002); see also United States v. Hubbard, 

650 F.2d 293, 309 (D.C. Cir. 1980) (observing that mandamus 

would be inappropriate prior to district-court action because 

“[i]t is the trial court and not this court that should engage in 

the initial consideration”).1

 This “particular[]” reluctance is the 

natural consequence of our considered recognition of our 

proper role in the federal judicial system: “As an appellate 

court, ‘we are a court of review, not of first view[.]’” Capitol 

Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 789 (D.C. Cir. 

2019) (alteration in original) (quoting Cutter v. Wilkinson, 544 

U.S. 709, 718 n.7 (2005)). The majority, which cites to no case 

in which we have granted mandamus so precipitously, is 

1

 The majority argues that the district has “acted,” because by 

appointing amicus and scheduling a hearing, it has threatened to 

exercise “judicial supervision” over prosecutorial decisionmaking. 

Majority Op. 16. By this logic, mandamus becomes an ordinary 

means to pretermit district-court consideration and have this court 

decide whether to grant or deny a motion to dismiss once the lower 

court “acts” in a manner that threatens to scrutinize the prosecutor’s 

discretion. Relying as it does on diluting mandamus and overriding 

long-settled procedure, this reasoning collapses under its own 

weight. 
3 

apparently willing to set aside this Court’s well-established and 

well-founded concern for the maintenance of the ordinary 

course in order to proceed in an unprecedented manner. But I 

view our historical disinclination to act out of turn as a 

compelling, independent ground for declining to mandate the 

immediate grant of the Government’s Rule 48(a) motion. 

B. 

In considering whether Flynn’s right to relief is “clear and 

indisputable,” it serves to remember that the question at hand 

is not whether or under what circumstances a district court may 

deny a Rule 48(a) motion, but whether it may give 

consideration to such a motion before ruling on it. It should 

come as no surprise that, before today, neither we nor any other 

Court of Appeals has ever read Rule 48(a)’s “leave of court” 

provision to mean that a district court may not even consider

such a motion before giving its “leave.” Cf. United States v. 

Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973) (“[W]e do not 

think Rule 48(a) intends the trial court to serve merely as a 

rubber stamp for the prosecutor’s decision.”). In fact, some of 

our case law clearly points in the opposite direction: “The 

requirement of judicial approval entitles the judge to obtain and 

evaluate the prosecutor’s reasons.” Id. (emphasis added). 

In contending that its trailblazing result is somehow 

compelled by precedent, the majority transforms dicta into 

dogma. “[A] statement not necessary to a court’s holding is 

dictum,” In re Grand Jury Investigation, 916 F.3d 1047, 1053 

(D.C. Cir. 2019), and “[d]icta is never binding on any court,” 

Murray Energy Corp. v. EPA, 936 F.3d 597, 627 (D.C. Cir. 

2019) (citing Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 

235 (1959)). In United States v. Fokker Services B.V., 818 F.3d 

733 (D.C. Cir. 2016), this Court addressed the district court’s 

denial of a joint motion to exclude time under the Speedy Trial 
4 

Act, 18 U.S.C. § 3161 et seq., pursuant to a deferred 

prosecution agreement, 818 F.3d at 737–38. The Court there 

had no occasion to make any decision about Rule 48(a), yet the 

majority invokes Fokker as “foreclos[ing] the district court’s 

proposed scrutiny” of such a motion. Majority Op. 7. Nor are 

we bound by Fokker’s sweeping elucidations on the scope of 

executive power, issued as they were in Fokker’s particular 

legal context. Cohens v. Virginia, 19 U.S. 264, 399 (1821) (“It 

is a maxim not to be disregarded, that general expressions, in 

every opinion, are to be taken in connection with the case in 

which those expressions are used. If they go beyond the case, 

they may be respected, but ought not to control the judgment 

in a subsequent suit when the very point is presented for 

decision.”). 

In addition to being improper, the majority’s reliance on 

the Rule 48(a) dicta from Fokker creates a split with our sister 

Courts of Appeals. Fokker’s Rule 48(a) commentary fails to 

take due cognizance of federal appellate authority establishing 

that an important impetus behind the Supreme Court’s insertion 

into Rule 48(a) of the “leave of court” requirement was the 

protection of the public interest, not simply the prevention of 

abuse of the defendant. See, e.g., In re Richards, 213 F.3d 773, 

786–87 (3d Cir. 2000) (“Rule 48(a) . . . also permits courts 

faced with dismissal motions to consider the public interest in 

the fair administration of criminal justice and the need to 

preserve the integrity of the courts.”); United States v. Cowan, 

524 F.2d 504, 509–13 (5th Cir. 1975) (concluding that Rule 

48(a)’s “history . . . belies the notion that [the Rule’s] only 

scope and purpose is the protection of the defendant. . . . [I]t 

[is] manifestly clear that the Supreme Court intended to clothe 

the federal courts with a discretion broad enough to protect the 

public interest in the fair administration of criminal justice”). 

In the same vein, numerous federal appellate courts have 

recognized that a court in receipt of an unopposed Rule 48(a) 
5 

motion may consider the public interest in ruling thereon. See, 

e.g., United States v. Romero, 360 F.3d 1248, 1251 (10th Cir. 

2004) (“[A] court is generally required to grant a prosecutor’s 

Rule 48(a) motion to dismiss unless dismissal is clearly 

contrary to manifest public interest.” (quoting United States v. 

Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985)); United States 

v. Pimentel, 932 F.2d 1029, 1033 n.5 (2d Cir. 1991) (same);

United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981) 

(“[E]ven when the defendant consents to the motion to dismiss, 

the trial court, in extremely limited circumstances in 

extraordinary cases, may deny the motion when the 

prosecutor’s actions clearly indicate a ‘betrayal of the public 

interest.’” (quoting Cowan, 524 F.2d at 514)); Ammidown, 497 

F.2d at 622 (concluding it is “appropriate” for a trial judge to 

consider the “protection of the public interest” “in considering 

whether to deny approval [] to dismissals of cases”); see also 

Rinaldi v. United States, 434 U.S. 22, 31–32 (1977) (per 

curiam) (in reviewing a district court’s denial of an unopposed 

Rule 48(a) motion, “agree[ing] with the Solicitor General that 

. . . no societal interest would be vindicated” by continuing the 

prosecution (internal quotation marks omitted)); cf. Young v. 

United States, 315 U.S. 257, 259 (1942) (“The public interest 

that a result be reached which promotes a well-ordered society 

is foremost in every criminal proceeding. That interest is 

entrusted to our consideration and protection as well as that of 

the enforcing officers.”). 

Fokker’s oversight is understandable, since the analogy to 

Rule 48(a) was raised and addressed by only one of the three 

parties during briefing, such that the Court did not have the 

benefit of adverse presentation of the issue before expounding 

on it in dictum. But the majority has used Fokker functionally 

to constrict the parameters of the District Court’s Rule 48(a) 

inquiry to include only the prevention of prosecutorial 

harassment of the defendant. No binding authority establishes 
6 

this, and indeed the Supreme Court itself recognizes appellate 

authority to the contrary. See Rinaldi, 434 U.S. at 29 n.15. In 

fact, the Rinaldi Court expressly reserved—found it 

“unnecessary to decide”—whether a district court had 

discretion “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.” Id. To 

state, as Fokker did in language the majority now quotes, see 

Majority Op. 5, that “the Supreme Court has declined to 

construe Rule 48(a)’s ‘leave of court’ requirement to confer 

any substantial role for courts in the determination whether to 

dismiss charges,” 818 F.3d at 742 (citing Rinaldi, 434 U.S. at 

29 n.15), is to intimate that the Supreme Court had occasion to 

construe Rule 48(a) one way or another on this issue, which it 

did not. 

The fact is that “[t]he Supreme Court has left open whether 

the court can ever refuse leave to dismiss if the government’s 

request to dismiss is consented to by the defendant.” 3B 

CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & PETER J.

HENNING, FEDERAL PRACTICE AND PROCEDURE § 802 (4th ed. 

2013) (citing Rinaldi, 434 U.S. at 30, and Watts v. United 

States, 422 U.S. 1032 (1975) (mem.)). This Court has twice 

opined, in dicta, on the factors that might properly guide a 

court’s consideration and disposition of such a motion. See 

Fokker, 818 F.3d at 742–46; Ammidown, 497 F.2d at 619–22. 

While the majority is bound by neither of these decisions, its 

election to treat Fokker as controlling is particularly unsettling 

in view of its willful neglect of our Court’s countervailing 

views expressed in Ammidown. There, the Court envisioned a 

district court in receipt of an unopposed Rule 48(a) motion as 

being “entitle[d] . . . to obtain and evaluate the prosecutor’s 

reasons,” and not “serv[ing] merely as a rubber stamp for the 

prosecutor’s decision.” 497 F.2d at 622. According to 

Ammidown, “the judge should be satisfied that the agreement 
7 

adequately protects the public interest” and “may withhold 

approval if he finds that the prosecutor” committed “such a 

departure from sound prosecutorial principle as to [constitute] 

an abuse of prosecutorial discretion.” Id. (citation omitted). 

None of the authority on which the majority relies supports 

its novel premise that “further judicial inquiry”—by which it 

appears to mean any judicial inquiry—is proper only in “rare” 

or “extraordinary” cases. See Majority Op. 5–6. And although 

it invokes a host of non-binding authority regarding 

permissible grounds for denying a Rule 48(a) motion, see id. at 

5–6, 14–15 & n.5, that question is simply not before us. 

In NetCoalition v. SEC, 715 F.3d 342, 354 (D.C. Cir. 

2013), we noted that “[m]andamus does not lie when our 

precedent no longer, at least in part, binds,” and we have 

declined to find “a ‘clear and indisputable’ right to mandamus 

relief” where the parties present countervailing “substantial 

argument[s]” on unsettled legal issues, In re Khadr, 823 F.3d 

92, 100 (D.C. Cir. 2016). The majority declares it to be “clear 

and indisputable” that no consideration of the Rule 48(a) 

motion may be had by the very court whose leave is required 

to effectuate that motion, but the majority’s need to engage in 

such contortions to reach that conclusion is reason enough to 

deny the writ. 

C. 

Next, the majority addresses whether “other adequate 

means to attain the relief” exist, concluding that “the district 

court’s actions will result in specific harms to the exercise of 

the Executive Branch’s exclusive prosecutorial power.” 

Majority Op. 8. Here, too, the majority errs, this time by 

shifting its focus away from the adequate means by which the 

party seeking mandamus may obtain relief and by erecting an 

indefensibly high wall between the branches of government. 
8 

The majority states that “there must be ‘no other adequate 

means to attain the relief.’” Majority Op. 5. But in Cheney v. 

U.S. District Court for the District of Columbia, the source of 

this proposition, the Supreme Court stated that “the party

seeking issuance of the writ [must] have no other adequate 

means to attain the relief he desires.” 542 U.S. at 380 

(alteration in original) (emphasis added). Indeed, the Supreme 

Court has consistently framed this element around the 

petitioner, not around other parties who have not moved for 

mandamus relief. See, e.g., Kerr v. U. S. Dist. Court for N. 

Dist. of Cal., 426 U.S. 394, 403 (1976) (“Among these 

[conditions for issuance of mandamus] are that the party 

seeking issuance of the writ have no other adequate means to 

attain the relief he desires.” (emphasis added)). The majority 

cites no cases in which a court has concluded that a petitioner 

has satisfied her burden to show no other adequate means to 

attain her sought-after relief based on the absence of alternative 

avenues of relief for a different party that did not petition the 

court for the writ. 2 Neither Flynn nor the Government cited 

2

 Contrary to “squarely reject[ing]” the notion that a court must focus 

on the adequate relief of the party seeking mandamus, Majority Op. 

17, Cobell rejected the notion that the party seeking interlocutory 

appeal and, in the alternative, mandamus relief, must file two 

different petitions in order to abide by our procedural rules. See 

Cobell v. Norton, 334 F.3d 1128, 1140 n.* (D.C. Cir. 2003) (citing 

FED. R. APP. P. 21 and CIR. R. 21). In Ex parte Republic of Peru, in 

which the Supreme Court considered a petition for mandamus sought 

by Peru, the Supreme Court analyzed whether Peru had an adequate 

remedy. It concluded that Peru, as “a friendly sovereign state,” was 

entitled to have its claims “presented and settled in the course of the 

conduct of foreign affairs by [the Executive Branch],” and that Peru 

should not have to endure “the delay and inconvenience of a 

prolonged litigation” when the relief it seeks should be resolved in a 

non-judicial forum. 318 U.S. 578, 586–87 (1943). Here, and unlike 
9 

such a case. The inconvenient reality is that the petitioner—

Flynn—has an adequate means, via a traditional appeal, to 

attain relief should the District Court deny the Government’s 

Rule 48(a) motion. See In re al-Nashiri, 791 F.3d 71, 78 (D.C. 

Cir. 2015) (“Mandamus is inappropriate in the presence of an 

obvious means of review: direct appeal from final judgment.”);

Cheney, 542 U.S. at 380–81 (noting that the requirement of 

absence of adequate alternative remedies is “designed to ensure 

that the writ will not be used as a substitute for the regular 

appeals process”). This fact alone defeats our jurisdiction and 

requires the Court to dismiss Flynn’s petition for a writ of 

mandamus. 

And even if it were proper for the Court to consider the 

Government’s argument that it will suffer an irreparable injury, 

in Ex parte Republic of Peru, the majority grants mandamus solely 

on the basis of a non-petitioner’s interests. 

The majority goes on to say that we “must” consider the 

irreparable harms of the non-moving party because that party filed 

the Rule 48(a) motion that got this ball rolling in the district court, 

but one need look no further than the majority’s immediately 

succeeding citation to find contradictory authority. See Majority Op. 

17 (citing Doe v. Exxon Mobile Corp., 473 F.3d 345, 356–57 (D.C. 

Cir. 2007)). “[W]e need not resolve the political question issue on 

the merits at this time,” because “[n]one of the cases cited by our 

[dissenting] colleague stand for the proposition that we should grant 

a mandamus for which the executive has not prayed.” Exxon Mobile 

Corp., 473 F.3d at 356; see also id. at 357 (noting that, had the 

Executive “requested dismissal of the action,” the separation-ofpowers issue “would have been before the district court” in the first 

instance). And while the majority points out that the Government 

offered at oral argument to file a mandamus petition, Majority Op. 

17, the fact remains that no such petition has ever been filed, and thus 

none is before us. 
10 

the majority overstates the separation-of-powers dilemma 

presented by Rule 48(a) motions. It is an unremarkable 

proposition that, pursuant to his constitutional duty to “take 

Care that the Laws be faithfully executed,” U.S. CONST. art II, 

§ 3, the Executive has “broad discretion” over prosecutorial 

matters, and that a “presumption of regularity” attaches to the 

exercise of that discretion, United States v. Armstrong, 517 

U.S. 456, 464 (1996) (citations omitted). It is (or should be) 

equally uncontroversial that such discretion is not absolute and 

that the presumption of regularity does not shield such 

discretion from review. Indeed, the Supreme Court said as 

much in Rinaldi, where the Court “[did] not presume[] bad 

faith on the part of the Government at the time it sought leave 

to dismiss the indictment,” 434 U.S. at 30, yet nonetheless 

conducted an “independent evaluation” of the record, id. at 23; 

see also id. at 30, to determine whether the unopposed Rule 

48(a) motion should have been granted. See also Thompson v. 

United States, 444 U.S. 248, 250 (1980) (performing 

“independent examination of the record” and remanding, rather 

than granting, government’s motion to dismiss indictment). 

The same principle holds true in the selective-prosecution 

context, where the district court may dismiss an indictment if 

it finds “the decision to prosecute [was] ‘deliberately based 

upon an unjustifiable standard such as race, religion, or other 

arbitrary classification.’” Wayte v. United States, 470 U.S. 

598, 608 (1985) (quoting Bordenkircher v. Hayes, 434 U.S. 

357, 364 (1978)). While the Supreme Court has iterated some 

separation-of-powers concerns around the conduct of 

discovery pursuant to such a motion, see Armstrong, 517 U.S. 

at 468, it has never cited the separation of powers as prohibiting 

the district court from holding a hearing on such a motion. To 

the contrary, courts have allowed not just plain hearings (or 

oral arguments) on such motions to dismiss, but evidentiary 

hearings where the prosecutor is subject to questioning under 
11 

oath. See United States v. Falk, 479 F.2d 616, 623 (7th Cir. 

1973) (en banc) (remanding and reassigning case for a hearing 

in which the defendant could question the Assistant United 

States Attorney as to specific issues related to the defendant’s 

motion to dismiss for selective prosecution); see also United 

States v. Berrios, 501 F.2d 1207, 1209, 1212 (2d Cir. 1974) 

(finding no abuse of discretion in the district court’s order that 

the government turn over, for in camera review, a 

memorandum sent by the prosecutor to the U.S. Department of 

Justice recommending prosecution of the defendant). 

In other words, it is not inconsistent with the separation of 

powers for a district court to conduct regular proceedings and 

afford consideration to a motion, even if the eventual grant or 

denial of the motion might intrude on the Executive’s exercise 

of his prosecutorial discretion. Again, this is not a case where 

we are being asked to decide whether the district judge may 

call the prosecutor to the stand or whether a Rule 48(a) motion 

may lead to an evidentiary hearing. This is a case about 

whether a district judge may even hold a hearing on a Rule 

48(a) motion. While the selective-prosecution context is 

admittedly different than Rule 48(a), these cases nonetheless 

contradict the majority’s conclusion that holding a hearing, in 

and of itself, is a per se improper intrusion upon executive 

power. If the presumption of regularity does not prevent 

holding a hearing or independently examining prosecutorial 

discretion in the selective-prosecution context, there is no good 

reason why the presumption of regularity precludes a hearing 

on a motion to dismiss under Rule 48(a), disallowing any 

consideration whatsoever and forbidding the district court from 

expressing its views on the record with respect to its previous 

findings on materiality and guilt—all in the name of the 

separation of powers. 
12 

None of this is to say that a district court, in considering 

an unopposed Rule 48(a) motion, necessarily has carte blanche

to do whatever it likes. One can certainly imagine 

circumstances in which a district court employed devices that 

would be sufficiently intrusive into the Executive’s purview as 

to violate the separation of powers and counsel in favor of 

immediate relief from the related orders. See, e.g., Matter of 

Commodity Futures Trading Comm’n, 941 F.3d 869, 872, 874

(7th Cir. 2019) (granting mandamus to vacate order of district 

court requiring executive personnel “to appear and reveal what 

lies behind their published words”); Cheney, 542 U.S. at 387, 

391 (indicating mandamus might be appropriate where district 

court approved discovery requests to the Executive that 

“ask[ed] for everything under the sky”). An appellate court 

faced with such conditions might conclude that “exceptional 

circumstances amounting to a judicial ‘usurpation of power’” 

existed, such that the “extraordinary remedy” of mandamus 

might be justified. Will v. United States, 389 U.S. 90, 95 

(1967). But that case is not before us. Not only has the District 

Court not issued subpoenas or ordered discovery, it has given 

no indication of its intent to do so. Instead, it is the District 

Court’s intention to consider the motion in the ordinary course, 

with briefing and argument, and the majority now labels that a 

“judicial usurpation of power.” See id. In so concluding, the 

majority has improperly siloed the different branches of 

government in an effort to prevent the possibility of intrusive 

inquiry that may or may not occur. To the extent that any of 

the majority’s fears of intrusive inquiries are well-founded, 

they could easily be resolved by providing instruction to the 

District Court as to the metes and bounds of a permissible Rule 

48(a) hearing, with this panel (if it wished) retaining 

jurisdiction in the event those bounds were overstepped. Cf. 

Berrios, 501 F.2d at 1213 (“Against the possibility that, upon 

remand, a difference might arise between the court and the 

government regarding the [extent to which matters of 
13 

prosecutorial decisionmaking remain confidential], we retain 

jurisdiction for the purpose of review of the court’s ruling.”). 

“[A] petitioner’s right to relief is ‘clear and indisputable’ 

where he or she can point to ‘cases in which a federal court has 

held that’ relief is warranted ‘in a matter involving like issues 

and comparable circumstances.’ Accordingly, we will deny 

mandamus even if a petitioner’s argument, though ‘pack[ing] 

substantial force,’ is not clearly mandated by statutory 

authority or case law.” In re Al Baluchi, 952 F.3d 363, 369 

(D.C. Cir. 2020) (second alteration in original) (quoting Doe v. 

Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007), and In 

re Khadr, 823 F.3d at 99–100). No one contends that Flynn 

must have a case “on all fours,” Majority Op. 15, but the 

required showing—one of legal certainty—is a “high hurdle.” 

NetCoalition, 715 F.3d at 354. Said another way, “[l]egal 

aporias are the antithesis of the ‘clear and indisputable’ right 

needed for mandamus relief.” In re al-Nashiri, 791 F.3d at 86. 

In issuing the writ compelling the District Court to grant the 

pending motion without considering it, the majority shuts its 

eyes to the unsettled state of the law on the relevant questions: 

the import of Rule 48(a)’s “leave of court” provision, the size 

and shape of a district court’s discretion in considering an 

unopposed Rule 48(a) motion, and the interplay between the 

Executive’s prosecutorial discretion and the Judiciary’s 

adjudicative power in these circumstances. Flynn has adequate 

means to attain the relief he seeks, and he has pointed to no 

authority mandating his preferred outcome here. As such, 

Flynn fails to carry his burden, and especially given that the 

District Court has yet to rule on the motion to dismiss, the writ 

should not issue to compel the District Court to grant the 

motion. 
14 

II. 

The majority also concludes that the writ should issue to 

compel the vacation of the District Court’s order appointing 

amicus (1) to address whether Flynn should be held in criminal 

contempt for perjury, and (2) to present arguments in 

opposition to the Government’s otherwise-unopposed Rule 

48(a) motion. In neither respect has Flynn carried his burden 

to establish that his right to relief is “clear and indisputable.” 

A. 

 “The power to punish for contempts is inherent in all 

courts; its existence is essential . . . to the due administration of 

justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873); accord 

Michaelson v. United States, 266 U.S. 42, 65 (1924) (referring 

to this premise as “settled law”). Federal Rule of Criminal 

Procedure 42 provides a procedure by which a district court 

may appoint an attorney to prosecute contempt, should the 

government decline to do so. FED. R. CRIM. P. 42(a)(2). This 

Rule reflects the fact that “it is long settled that courts possess 

inherent authority to initiate contempt proceedings for 

disobedience to their orders, authority which necessarily 

encompasses the ability to appoint a private attorney to 

prosecute the contempt.” Young v. United States ex rel. Vuitton 

et Fils S.A., 481 U.S. 787, 793 (1987). “Moreover, a court has 

the power to conduct an independent investigation in order to 

determine whether it has been the victim of fraud.” Chambers 

v. NASCO, Inc., 501 U.S. 32, 44 (1991). Far from establishing 

his clear and indisputable right to relief, neither Flynn, nor the 

majority in his stead, engages this precedent or forwards any 

legal arguments as to why a district court that may undeniably 

appoint a private attorney to prosecute contempt lacks the 

lesser power to appoint amicus to advise it regarding whether 

it ought to do so. Nor does the majority explain why directing 
15 

the District Court to grant the motion to dismiss renders moot 

the District Court’s appointment of amicus to advise it on the 

legally separate issue of contempt. 

B. 

Similarly, Flynn fails to establish that it is clear and 

indisputable that the District Court erred in its appointment of 

amicus to present arguments in opposition to the Government’s 

Rule 48(a) motion. Flynn’s only legal argument on the topic is 

addressed to the District Court’s Local Rules, the ambiguity of 

which falls well short of bringing the issue beyond dispute. 

(Notably, the majority’s solution to Flynn’s failure to carry his 

burden on this point is to ignore the issue altogether. The 

majority uses its passing conclusion that amicus participation 

is improper as a basis for ordering the separate relief of 

mandamus on the Rule 48(a) motion—and then, having done 

so, it declares the amicus issue moot.) 

Local Civil Rule 1.1(a) provides that “[t]hese Rules govern 

all proceedings in the United States District Court for the 

District of Columbia,” and Local Civil Rule 7(o) contemplates 

the submission of amicus briefs. But Local Civil Rule 7, 

entitled “Motions,” is duplicated to a limited extent in Local 

Criminal Rule 47, also entitled “Motions,” and the latter 

includes no mention of amicus briefs. And, as Flynn argues, 

the Supreme Court observed in Hollingsworth v. Perry, 558 

U.S. 183 (2010), that local rules “have the force of law,” id. at 

191 (internal quotation marks omitted). Flynn’s contention 

that the Local Rules should be read as prohibiting the 

participation of amici in criminal cases is therefore a plausible 

one, as the Civil Rules provide for amici while the Criminal 

Rules do not. 
16 

 But this Court has never held that an arguable proposition 

entitles a petitioner to the extraordinary writ of mandamus. See 

In re Al Baluchi, 952 F.3d at 369 (“[W]e will deny mandamus 

even if a petitioner’s argument, though ‘pack[ing] substantial 

force,’ is not clearly mandated by statutory authority or case 

law.” (second alteration in original)). And relying entirely as 

he does on his construction of the Local Rules, Flynn fails to 

engage with the fact that, in the absence of countervailing 

authority, courts have “inherent power to provide themselves 

with appropriate instruments required for the performance of 

their duties. This power includes authority to appoint persons 

unconnected with the court to aid judges in the performance of 

specific judicial duties, as they may arise in the progress of a 

cause.” Ex parte Peterson, 253 U.S. 300, 312 (1920) (citation 

omitted). The character and confines of such inherent 

authority, as concerns a district court’s appointment or 

allowance of amici, are simply not well developed. Cf. United 

States ex rel. Gudur v. Deloitte Consulting LLP, 512 F. Supp. 

2d 920, 927 (S.D. Tex. 2007) (observing that “[n]o statute, rule, 

or controlling case defines a federal district court’s power to 

grant or deny leave to file an amicus brief”); Jin v. Ministry of 

State Sec., 557 F. Supp. 2d 131 (D.D.C. 2008) (asserting, on 

the basis of a number of district-court cases, that “[d]istrict 

courts have inherent authority to appoint or deny amici[,] 

which is derived from Rule 29 of the Federal Rules of 

Appellate Procedure” (citation omitted)). 

Both this Court and the Supreme Court regularly permit 

the participation of amici in the criminal context, however, and 

there is no readily apparent reason why, in appropriate 

circumstances, a district court might not exercise its inherent 

power to do the same—especially in the absence of any 

authority expressly prohibiting it. Flynn’s counsel even 

conceded at oral argument that district courts have the authority 

to accept amicus briefs in some criminal cases. Oral Arg. Tr. 

19–21. To the extent the majority’s sub silencio holding on the 
17 

propriety of amicus participation rests on the absence of such 

authority in this particular case, the distinction has no legal 

basis, and certainly not a clear and indisputable one. And if the 

majority’s unuttered reasoning were premised on the absence 

of a case or controversy, its mandate that the District Court 

grant the Government’s Rule 48(a) motion to dismiss the 

information with prejudice would be wholly inappropriate. 

See, e.g., Flynt v. Weinberger, 762 F.2d 134, 135–36 (D.C. Cir. 

1985) (per curiam); Murray v. Conseco, Inc., 467 F.3d 602, 605 

(7th Cir. 2006). What is indisputable is that adverse 

presentation of the relevant issues aids courts in their 

decisionmaking—indeed, this is one of the foundational 

premises of our judicial system. United States v. Nobles, 422 

U.S. 225, 230 (1975). Yet the majority gives this bedrock 

principle of our legal system no weight or consideration. As 

such, I must dissent from the majority’s functional ruling that 

the appointment of amicus violated a clear and indisputable 

right held by Flynn. 

* * *

 The majority opinion effectively transforms the 

presumption of regularity into an impenetrable shield. In 2017, 

the then-Acting Attorney General told the Vice President that 

Flynn’s false statements “posed a potential compromise 

situation for Flynn” with the Russians, Gov’t Mot. Dismiss 

Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May 

7, 2020), and just a few months ago, the prosecution said that 

Flynn’s false statements to the FBI “went to the heart” of a 

valid counterintelligence inquiry and “were absolutely 

material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at 

10–11, No. 1:17-cr-232, ECF No. 132 (Nov. 1, 2019). Now, in 

a complete reversal, the Government says none of this is 

true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr232, ECF No. 198. The Government doubles down by 
18 

asserting in its motion to dismiss that Flynn’s statements could 

not have been “material” within the meaning of 18 U.S.C. 

§ 1001 because the FBI had no grounds for any “viable” 

investigation of Flynn at the time he made those statements, id. 

at 13, even though that contention appears squarely belied by 

our precedent, see United States v. Moore, 612 F.3d 698, 701 

(D.C. Cir. 2010) (“We . . . hold[] a statement is material if it 

has a natural tendency to influence, or is capable of influencing, 

either a discrete decision or any other function of the agency to 

which it was addressed.”) (emphasis added); United States v. 

Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (Scalia, J.) (“A lie 

influencing the possibility that an investigation might 

commence stands in no better posture under § 1001 than a lie 

distorting an investigation already in progress.”). This is no 

mere about-face; it is more akin to turning around an aircraft 

carrier. 

The Government asserted to us that it has no duty to inform 

the court in a motion to dismiss pursuant to Rule 48(a) of all of 

its reasons for seeking dismissal. Oral Arg. Tr. 33. Today the 

majority declares that nevertheless—in spite of the 

Government’s abrupt reversal on the facts and the law, and 

although the Government declares itself entitled not to be 

forthcoming with the District Court—these circumstances 

merit no further examination to determine whether there may 

be additional reasons for the prosecutor’s actions, and if so, if 

any such reasons are impermissible. Under the majority’s 

interpretation of Rule 48(a), so long as the defendant consents 

to the dismissal, “leave of court” is a dead letter.

The Government may be entitled to “leave of court” under 

Rule 48(a) to dismiss the criminal information to which Flynn 

pled guilty, but that is not for us, as a Court of Appeals, to 

decide in the first instance. Rather, the District Court must be 

given a reasonable opportunity to consider and hold a hearing 
19 

on the Government’s request to ensure that it is not clearly 

contrary to the public interest. I therefore dissent.