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Trump administration lawyers called on the U.S. Court of Appeals for the D.C. Circuit to instruct the judge presiding over retired Lt. Gen. Michael Flynn’s case to allow the Justice Department to drop its charges against the former Trump national security adviser.
Solicitor General Noel Francisco, the top litigator for the executive branch, filed a 45-page brief with the appeals court on Monday, asking its judges to agree with the petition for writ of mandamus filed by Flynn’s defense team and to tell Judge Emmet Sullivan to allow the Justice Department to dismiss. The solicitor general was joined in his brief by acting U.S. Attorney for D.C. Michael Sherwin, Assistant U.S. Attorney Jocelyn Ballantine, Assistant Attorney General Brian Benczkowski, and other top Trump administration lawyers.
The article goes on to state the following:
“The Constitution vests in the Executive Branch the power to decide when — and when not — to prosecute potential crimes. Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented,” Francisco told the appeals court. “Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges. This Court should issue a writ of mandamus compelling dismissal.”
The solicitor general cited Federal Rule of Criminal Procedure 48(a) that says “the government may, with leave of court, dismiss an indictment.”
Francisco argued, “That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose, nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own.
“Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss.”
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