THE TIGHTENING NOOSE:

The court-appointed amicus began by counting the ways justice shouldn't happen in the United States before saying those no-no's were "exactly" what's happened in the Flynn case:

To describe the Government's Motion to Dismiss as irregular would be a study in understatement. In the United States, Presidents do not orchestrate pressure campaigns to get the Justice Department to drop charges against defendants who have pleaded guilty--twice, before two different judges--and whose guilt is obvious. And the Justice Department does not seek to dismiss criminal charges on grounds riddled with legal and factual error, then argue that the validity of those grounds cannot even be briefed to the Court that accepted the defendant's guilty plea. Nor does the Justice Department make a practice of attacking its own prior filings in a case, as well as judicial opinions ruling in its favor, all while asserting that the normal rules should be set aside for a defendant who is openly favored by the President.

Yet that is exactly what has unfolded here.

Gleeson then said that there is "clear evidence" that DOJ's motion to dismiss is a "corrupt and politically motivated favor unworthy of our justice system." These machinations, Gleeson contends, are not out of U.S. District Judge Emmet Sullivan's reach to stop because there is a "live" Article III case or controversy. Sullivan promptly jumpstarted the Flynn case after the D.C. Circuit denied the defendant's motion for an extraordinary writ of mandamus (i.e., an attempt to force Sullivan to dismiss the case). Oral arguments have been set for Sept. 29.

The DOJ, Gleeson asserted, fell "short" when arguing that precedent proved Rule 48(a)'s "with leave of court" clause amounts to a rubber stamp that requires dismissal--with no wiggle room for judicial discretion.

"But the Government falls short in its apparent effort to wring from Fokker a categorical rule that this Court has no authority to review the exercise of discretion that led to the instant Motion to Dismiss. Fokker did not silently 'eviscerate[]' Ammidown, which it cited with approval," Gleeson's brief went on. "Nor did it impliedly sideline text, history, and decades of cases. Neither its holding nor its reasoning created an atextual asymmetry in Rule 48(a) by holding that courts may deny opposed motions--but may not deny unopposed ones. Fokker indeed described protecting defendants as the 'principal object' of the rule (not the 'exclusive object'), but it also stated that 'clear evidence' may overcome 'the presumption of regularity" that prosecutors enjoy in wielding their charging power."

And the government isn't entitled to the presumption of regularity in this decidedly irregular case, according to Gleeson. The government can not be granted license to lie about its rationales for dismissal by sidelining the judge entirely, he argued:

Every purpose served by the reason-giving requirement of Rule 48(a) would be gutted if the Government were free to mislead the Court, or to proffer explanations that do not withstand even cursory consideration, or to declare that the Court is powerless to even inquire about any of the Government's asserted rationales.

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