Reply Brief For The US

USCA Case #20-5143 Document #1846619 Filed: 06/10/2020 Page 1 of 26
No. 20-5143
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE: MICHAEL T. FLYNN, PETITIONER
On Petition For A Writ Of Mandamus

To The U.S. District Court For The District Of Columbia
REPLY BRIEF FOR THE UNITED STATES
NOEL J. FRANCISCO MICHAEL R. SHERWIN

Solicitor General Acting United States Attorney
BRIAN A. BENCZKOWSKI KENNETH C. KOHL
Assistant Attorney General Acting Principal Assistant United
JEFFREY B. WALL States Attorney
ERIC J. FEIGIN JOCELYN BALLANTINE
Deputy Solicitors General Assistant United States Attorney
FREDERICK LIU 555 Fourth Street, NW, Room 11-858
VIVEK SURI Washington, D.C. 20530
Assistants to the Solicitor General (202) 252-7252
U.S. Department of Justice
Washington, D.C. 20530
TABLE OF CONTENTS
Page
ARGUMENT ............................................................................................. 1
I. Respondent’s Rationales For Reviewing The Exercise Of

Prosecutorial Discretion Lack Merit .................................................... 1
II. Respondent Has Failed To Identify Any Valid Basis For Initiating
Its Own Investigation And Prosecution Of Petitioner For Criminal
Contempt ........................................................................................... 9
III. Respondent’s Objections To Mandamus Relief Lack Merit ................. 11
CONCLUSION......................................................................................... 19
i
TABLE OF AUTHORITIES
Page
Cases:
Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898

(D.C. Cir. 1993) .................................................................................... 15
Bessette v. W. B. Conkey Co., 194 U.S. 324 (1904) ........................................... 10
Bond v. United States, 564 U.S. 211 (2011) .................................................... 18
Bronsozian v. United States, No. 19-6220, 2020 WL 1906543

(U.S. Apr. 20, 2020) ................................................................................ 4
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) .......................................... 10, 11
*Cheney v. U.S. District Court, 542 U.S. 367 (2004) ............................. 13, 14, 16
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ............................ 8
McCray v. United States, 195 U.S. 27 (1904) .............................................. 6, 13
*Michael, In re, 326 U.S. 224 (1945) ............................................................. 10
Morrow v. District of Columbia, 417 F.2d 728 (D.C. Cir. 1969) ........................ 14
Parr v. United States, 351 U.S. 513 (1956) ..................................................... 14
Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192

(D.C. Cir. 2002) .................................................................................... 16
Richards, In re, 213 F.3d 773 (3d Cir. 2000) ............................................. 16, 17
*Rinaldi v. United States, 434 U.S. 22 (1977) ................................................... 4
Stone, In re, 940 F.3d 1332 (D.C. Cir. 2019) ................................................. 16
Thompson v. United States, 444 U.S. 248 (1980) ............................................... 4
United States, In re, 345 F.3d 450 (7th Cir. 2003) ......................................2, 5, 6
* Authorities upon which we chiefly rely are marked with asterisks.
ii
TABLE OF AUTHORITIES—Continued
Page
United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) .......................... 4, 5
United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) ................................... 4, 5
*United States v. Fokker Servs. B.V., 818 F.3d 733

(D.C. Cir. 2016) ....................................................................1, 2, 3, 13, 15
United States v. Hamm, 659 F.2d 624 (5th Cir. Unit A Oct. 1981)................. 4, 5
United States v. Marion, 404 U.S. 307 (1971) ................................................. 14
United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) .................................. 18
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019) ..................... 4
Wayte v. United States, 470 U.S. 598 (1985) ............................................. 14, 15
Constitution, Statute, and Rules:

U.S. Const. art. I .......................................................................................... 6
*U.S. Const. art. II ................................................................... 1, 6, 12, 15, 16

U.S. Const. art. II, § 3 ................................................................................ 13
*U.S. Const. art. III ........................................................... 1, 4, 11, 13, 16, 18
*18 U.S.C. § 401(1) ............................................................................... 10, 11

Fed. R. Crim. P. 11 ...................................................................................... 2
Fed. R. Crim. P. 48 .................................................................................. 3, 5
*Fed. R. Crim. P. 48(a) ........................................... 2, 4, 5, 6, 7, 13, 16, 17, 19
Other Authorities:
The Federalist No. 70 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ........ 14
iii
TABLE OF AUTHORITIES—Continued
Page
John Gleeson et al., The Flynn Case Isn’t Over Until the Judge Says It’s Over,
Wash. Post (May 11, 2020), www.washingtonpost.com/opinions/
2020/05/11/flynn-case-isnt-over-until-judge-says-its-over ....................... 12
U.S. Dep’t of Justice, Justice Manual (2020) ................................................... 8
iv
ARGUMENT
I. Respondent’s Rationales For Reviewing The Exercise Of

Prosecutorial Discretion Lack Merit
1. Respondent’s brief opposing mandamus says almost nothing about
the serious separation-of-powers concerns here. Respondent nowhere
acknowledges that, under Article II, the power to drop pending criminal charges
belongs to the Executive, not the Judiciary. Quite the opposite, respondent
asserts the power to determine whether the Executive’s exercise of prosecutorial
discretion really serves “legitimate prosecutorial interests.” Opp. 23 (citation
omitted). Respondent also nowhere acknowledges that, under Article III, a
federal court has no basis for exercising judicial power once the parties no longer
have any live controversy. Quite the opposite, respondent considers the end of
adversity to be a “breakdown in the adversarial process” that justifies increased
judicial involvement. Opp. 29.
To the extent respondent and its amici address Article II at all, they read
United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016), to mean that
the Executive controls the decision “whether to commence prosecution”—but not
whether to terminate a pending prosecution, especially after a guilty plea. Opp.
24 (emphasis added); see, e.g., Watergate Prosecutors Br. 9. Fokker’s reasoning
repeatedly refutes that reading. This Court explained that “[t]he Executive’s
charging authority embraces decisions about … whether to dismiss charges once
1
brought ”; that courts may not “second-guess the Executive’s exercise of
discretion over the … dismissal of criminal charges”; that “[d]ecisions … to
dismiss charges once brought[ ] ‘lie at the core of the Executive’s duty’ ”; that “ ‘few
subjects are less adapted to judicial review than … [the decision] whether to
dismiss a proceeding once brought ’ ”; that “decisions to dismiss pending criminal charges
… lie squarely within the ken of prosecutorial discretion”; that Federal Rule of
Criminal Procedure 48(a) “concerns the prosecution’s core prerogative to dismiss
criminal charges”; and that the Judiciary “lack[s] … competence to review the
prosecution’s … dismissal of charges.” Fokker, 818 F.3d at 737-738, 741-744
(emphases added; brackets and citations omitted). Respondent’s contrary view
would contract the Constitution’s protection of individual liberty, by qualifying
its “assur[ance] that no one can be convicted of a crime without the concurrence
of all three branches.” In re United States, 345 F.3d 450, 454 (7th Cir. 2003).
Respondent is right (Opp. 24) that Fokker distinguished between a deferred
prosecution agreement (DPA) or a dismissal under Rule 48(a) and a plea
agreement under Federal Rule of Criminal Procedure 11. But respondent misses
the point of the distinction, which is that “[u]nlike a plea agreement—and more
like a dismissal under Rule 48(a)—a DPA involves no formal judicial action
imposing or adopting its terms.” Fokker, 818 F.3d at 746. When the Executive
enters into a DPA or obtains dismissal under Rule 48(a), “[t]he court never
2
exercises its coercive power by entering a judgment of conviction or imposing a
sentence.” Id. The government’s motion here thus involves only “the
Executive’s traditional power over charging decisions,” not “the Judiciary’s
traditional authority over sentencing decisions.” Id. Just as in Fokker, the
government’s motion does not require respondent to undo any judicial judgment
or to exercise any sentencing authority. Opp. 25-26.
Respondent and amici further err in suggesting that the Executive’s
interest in conserving “limited ‘prosecution resources’ ” expires upon a guilty
plea. Watergate Prosecutors Br. 8 (citation omitted); see Opp. 25. As this case
well illustrates, a case does not end upon the acceptance of the guilty plea.
Petitioner has pending motions to withdraw his plea and to dismiss the
prosecution, sentencing has not been completed, and appellate and collateral
review await. Those proceedings would require expenditure of prosecution
resources, and it is up to the Executive to decide whether that expenditure is
warranted.
More generally, respondent and amici are incorrect that dismissal
following a guilty plea somehow intrudes upon the Judiciary’s powers. Opp.
25; see, e.g., Watergate Prosecutors Br. 6. A judgment becomes final for
separation-of-powers purposes upon the completion of direct review—not upon
the entry of a guilty plea. U.S. Br. 25. It is therefore settled that Rule 48 may
3
be used to dismiss a prosecution at any time before trial and appellate
proceedings have ended, and Article III compels that conclusion because it
“demands that an ‘actual controversy’ persist throughout all stages of litigation.”
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (citations
omitted). The Supreme Court itself has ordered dismissal where the
government’s “motion was not made until after the trial had been completed.”
Rinaldi v. United States, 434 U.S. 22, 25 (1977) (per curiam). Even in cases where
the Solicitor General has determined that Justice Department policies require
dismissal after a judgment has been entered and affirmed on appeal, the
Supreme Court “has consistently responded … by granting certiorari and
vacating the judgments” to permit dismissal under Rule 48(a). Thompson v.
United States, 444 U.S. 248, 249 (1980) (per curiam); see, e.g., Bronsozian v. United
States, No. 19-6220, 2020 WL 190653, at *1 (U.S. Apr. 20, 2020).
2. Respondent lacks any persuasive answer to Fokker, which is “the
law in this Circuit and district courts must follow it.” Opp. 24. Respondent and
amici instead cite various cases they believe favor their reading of Rule 48(a)—
principally, United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973), United
States v. Hamm, 659 F.2d 624 (5th Cir. Unit A Oct. 1981) (en banc), and United
States v. Cowan, 524 F.2d 504 (5th Cir. 1975). In none of those cases, however,
did an appellate court actually affirm the denial of an unopposed Rule 48(a)
4
motion; for example, Ammidown involved the rejection of a plea agreement
rather than a dismissal, and explained that “Rule 48(a) does not apply as such
to the case at bar.” 497 F.2d at 619-620. Like the Seventh Circuit, the
government is “unaware … of any appellate decision that actually upholds a
denial of [an unopposed] motion to dismiss a charge.” In re United States, 345
F.3d at 453 (emphasis added). Any statements in those cases about a court’s
authority to scrutinize unopposed Rule 48(a) motions are thus dicta.
In addition, the dicta are ambiguous on their own terms. In Ammidown,
this Court emphasized that “it has traditionally been the prosecutor who
determines which case will be pressed to conclusion” and that “trial judges are
not free to withhold approval … merely because their conception of the public
interest differs from that of the prosecuting attorney.” 497 F.2d at 621-622. In
Hamm, the court acknowledged that “the trial court cannot compel the
prosecutor to proceed with the prosecution.” 659 F.2d at 632. And in Cowan,
the court acknowledged the necessity of reading Rule 48 in a manner that avoids
“encroaching on the primary duty of the Executive to take care that the laws are
faithfully executed.” 524 F.2d at 512-513. To the extent those opinions
elsewhere suggest that district courts may play a broader role in evaluating Rule
48(a) motions, such statements are inconsistent with Fokker and numerous
5
subsequent Supreme Court decisions reiterating the Executive’s authority over
charging decisions. See U.S. Br. 19 (citing cases).
3. Even assuming a district court may ever deny an unopposed motion
to dismiss, no court has endorsed a standard as broad as respondent’s, which
asks whether the Executive “acted properly” or was motivated by “favoritism.”
Opp. 22, 28 (citations omitted); see, e.g., Jurists Br. 10; cf. U.S. Br. 20-21. Absent
a constitutional violation, courts lack authority to restrain the exercise of a
coordinate branch’s constitutional powers “on the assumption that a wrongful
purpose or motive has caused the power to be exerted.” McCray v. United States,
195 U.S. 27, 56 (1904). It would violate Article II to disregard a prosecutorial
dismissal or presidential pardon on the ground that the Executive was motivated
by “favoritism” toward the defendant, just as it would violate Article I to
disregard a statute on the ground that Congress was motivated by “favoritism”
toward special interests. In re United States, 345 F.3d at 453. At most, courts
may determine that a Rule 48(a) motion reflects the considered position of the
Executive. Respondent has not questioned the government’s motion on that
ground.
Respondent also fails to explain how its contrary view of Rule 48(a) would
work in practice. Courts lack any effective mechanism to compel the Executive
to take a prosecution to trial—even if they believe that the refusal to prosecute
6
rests on an improper motive. The absence of any such means of enforcement
confirms that Rule 48(a)’s leave-of-court requirement serves a different
interest—namely, to protect defendants from dismissals without prejudice, not
to encourage broad judicial inquiries into whether unopposed dismissals serve
the public interest.
In any event, respondent offers no valid reason why the government’s
motion here was insufficient. Respondent notes that the motion was signed by
the Acting U.S. Attorney rather than line prosecutors. Opp. 15. But whenever
the government decides to dismiss, it has necessarily changed its view of the
propriety of prosecution—which may lead those who previously advanced the
opposite position to withdraw for reasons that do not necessarily connote
disagreement. What matters is that the motion represents the authoritative
position of the Executive, which the signature of a high-ranking official
confirms. Respondent also suggests that the thoroughness of the government’s
explanation—spanning “20 pages of largely factual argument”—indicates that
something is awry, while simultaneously criticizing the government for not
attaching additional “declarations or affidavits.” Id. The government’s
extensive explanation amply satisfies any procedural requirement that the
Executive recount its reasons. And the government has no obligation to
persuade the district court—through the submission of evidence—that it has
7
correctly assessed the interests of justice and the strength of the charges. U.S.
Br. 15-16.
Turning to the substance of the government’s motion, respondent finds
even less to criticize. Respondent’s primary complaint (Opp. 14, 16) is that the
government’s arguments about materiality contradict its prior view that the
information was material. But as the government has explained, its view that
proving materiality would be difficult was based on the cumulative weight of
evidence that came out over the course of time, and was not informed by
petitioner’s broad allegations of prosecutorial misconduct. U.S. Br. 21-23; Doc.
198, at 18. After assessing all the evidence, including additional information
about the investigation and extensive impeaching materials that had emerged
about key witnesses since the time of the plea, see U.S. Br. 2-8, 23, the
government determined that it would have been unlikely to obtain a guilty
verdict from an unbiased trier of fact and should not rely on the plea. See U.S.
Dep’t of Justice, Justice Manual § 9-27.200 cmt. (2020).
Respondent suggests (Opp. 28) that the government should have cited
more case law on materiality. First, that criticism misunderstands a district
court’s role: “it is entirely clear” that a prosecutor’s “refusal to prosecute” based
on the belief “that the law will not sustain a conviction … cannot be the subject
of judicial review.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283
8
(1987). Second, even if the government’s evidence would meet the standard of
legal sufficiency, the government determined that the evidence as a whole was
unlikely to convince an actual jury to find guilt beyond a reasonable doubt.
Third, respondent disregards the government’s alternative and independent
reasons for dismissing the prosecution: the interests-of-justice concern given the
circumstances surrounding the FBI’s interview of petitioner, and the difficulties
in proving willfully false statements. See U.S. Br. 21-23. Those reasons alone
amply support the government’s decision to dismiss. Id.
Finally, respondent criticizes the government for failing to address
petitioner’s 2017 statements relating to his work for Turkey. Opp. 15, 28. But
petitioner was not charged for those statements. Doc. 1, at 1-2. Accordingly,
whatever the strength of those allegations in light of subsequent developments,
they do not support continued prosecution of the charges here. An inquiry into
those uncharged statements would second-guess the government’s refusal “to
commence prosecution,” something even respondent recognizes is
impermissible. Opp. 24.
II. Respondent Has Failed To Identify Any Valid Basis For Initiating
Its Own Investigation And Prosecution Of Petitioner For
Criminal Contempt
Respondent contends that, even if dismissal is granted, further
proceedings are necessary to determine whether the court should bring criminal-
9
contempt charges against petitioner. Opp. 33; see App. 77. Respondent,
however, is silent on the long line of Supreme Court precedent establishing that
perjury, in itself, is not criminal contempt under 18 U.S.C. § 401(1). U.S. Br.
29. Respondent does not explain how, even if petitioner committed perjury, that
conduct satisfies the elements of “actual obstruction” and “intent to obstruct”
under Section 401(1). Id. at 28-30 (brackets and citations omitted). Nor does
respondent explain why, even if such conduct could be considered contempt,
the authority to prosecute petitioner does not lie with the Executive. Id. at 30-
31. Nor, finally, does respondent explain why, if petitioner could be prosecuted
for contempt by the court, any defendant who pleads guilty and later asserts his
innocence could not likewise be prosecuted.
Respondent asserts (Opp. 34) that courts have the “inherent power” to
punish contempt in order to “preserv[e] … the truth-seeking process.” But “the
exercise of the inherent power of lower federal courts can be limited by statute.”
Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991). Here, Section 401(1) “limit[s]”
a court’s “inherent” power to punish contempt. Bessette v. W. B. Conkey Co., 194
U.S. 324, 326 (1904). And it is well established that perjury, in itself, is not
punishable under Section 401(1), regardless of whether it “may produce a
judgment not resting on truth.” In re Michael, 326 U.S. 224, 227 (1945).
Accordingly, there is no valid “basis” for respondent to “ ‘conduct
10
investigations’ ” into whether “the representations in [petitioner’s] January 2020
declaration are true” and whether “they present attenuating circumstances for
his prior, contrary statements.” Opp. 34-35 (citation omitted).
Respondent nevertheless contends that Chambers “uph[eld] [a] court’s
inherent authority to punish ‘acts which degrade the judicial system, including
… misleading and lying to the Court.’ ” Opp. 33-34 (citation omitted). But
Chambers concerned a court’s authority to impose civil litigation sanctions, not
criminal punishment. 501 U.S. at 40. The quoted language also comes not from
the Supreme Court’s holding, but from a lower court’s decision describing the
conduct that an attorney’s-fee statute “was not broad enough to reach.” Id. at
41. And respondent offers no support at all for the novel and intrusive factual
“investigations” it contemplates conducting. Opp. 35 (citation omitted).
Because the court could not prosecute petitioner under Section 401(1) even if he
had committed perjury, such additional factfinding would serve no purpose—
other than to burden the parties, delay this case’s end, and usurp power beyond
Article III limits.
III. Respondent’s Objections To Mandamus Relief Lack Merit
1. Respondent and amici argue that, regardless of whether dismissal
ultimately must be granted, mandamus is premature now because the district
court has not yet ruled on the government’s motion. See, e.g., Opp. 18-21; NYC
11
Bar Ass’n Br. 4-7. The court, however, has already set the table for wide-ranging
judicial superintendence of the Executive’s decision to terminate petitioner’s
prosecution. Respondent’s brief contemplates a process of “factual …
development,” Opp. 29; an examination of the Executive’s “bona fides,” id.
(citation omitted); a review of “declarations [and] affidavits,” Opp. 15; an
investigation into whether the “line prosecutors” agreed with the “then-Acting
U.S. attorney,” id.; and an inquiry into whether the Executive’s decision serves
“due and legitimate prosecutorial interests,” Opp. 23 (citation omitted).
On top of all that, respondent appointed as amicus a lawyer who has
opined that the government’s motion “reeks of improper political influence.”
John Gleeson et al., The Flynn Case Isn’t Over Until the Judge Says It’s Over, Wash.
Post. (May 11, 2020), www.washingtonpost.com/opinions/2020/05/11/
Flynn-case-isnt-over-until-judge-says-its-over. In a brief filed today, the amicus
doubles down on that charge, urging the district court to examine the
prosecutors’ subjective motives and to determine whether the Executive has
engaged in “politically motivated” conduct “to benefit a political ally of the
President.” Doc. 223, at 3.
Such ongoing judicial supervision of the Executive’s charging decision
warrants mandamus given the stark separation-of-powers concerns. Under
Article II, it is the President—not the Judiciary—who must “take Care” that
12
prosecutors exercise their powers “faithfully” and in the public interest. U.S.
Const. art. II, § 3. This Court accordingly explained in Fokker that district courts
lack power “to scrutinize the prosecution’s discretionary charging decisions”; that
the Executive may exercise “authority over criminal charging decisions …
without the involvement of—and without oversight power in—the Judiciary”; that Rule
48(a) “confers no new power in the courts to scrutinize … the prosecution’s
exercise of its traditional authority”; that courts lack authority “to scrutinize
prosecutorial charging choices”; that charging decisions “are ill-suited to
substantial judicial oversight ”; and that courts err by “subject[ing] [charging
decisions] to judicial scrutiny.” 818 F.3d at 741, 743-744, 750 (emphases added).
In short, respondent’s intended inquiry would be an “act of judicial usurpation,”
McCray, 195 U.S. at 54, for which mandamus is a traditional remedy, see Cheney
v. U.S. District Court, 542 U.S. 367, 380 (2004).
Likewise, as explained, any judicial extension of the case after there is no
longer a controversy between the parties exceeds the court’s Article III
jurisdiction. Courts of appeals have long issued extraordinary writs—
traditionally, the writ of prohibition, but in modern times, the writ of
mandamus—“to prevent an encroachment, excess, usurpation, or assumption
of jurisdiction on the part of an inferior court” or “to bring a lower court back
13
within its jurisdiction.” Morrow v. District of Columbia, 417 F.2d 728, 733 (D.C.
Cir. 1969).
In these extraordinary circumstances, the district court’s prolongation of
the prosecution also threatens petitioner’s rights in a manner that warrants
mandamus. The initiation and continuation of a criminal prosecution “may
seriously interfere with the defendant’s liberty, … disrupt his employment, drain
his financial resources, curtail his associations, subject him to public obloquy,
and create anxiety in him, his family and his friends.” United States v. Marion,
404 U.S. 307, 320 (1971). The Supreme Court has made clear that such harms
do not justify mandamus relief in a typical case, Parr v. United States, 351 U.S.
513, 519-521 (1956), but they do when combined with “exceptional
circumstances amounting to a judicial usurpation of power,” Cheney, 542 U.S.
at 390 (citation omitted).
“Judicial supervision in this area, moreover, entails systemic costs of
particular concern.” Wayte v. United States, 470 U.S. 598, 607 (1985). First,
“[e]xamining the basis” of a prosecutor’s decision “delays” that decision’s
implementation. Id. Such delay contradicts the Framers’ understanding that
the Executive would act with “[d]ecision, activity, secrecy, and dispatch.” The
Federalist No. 70, at 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
Second, “subjecting the prosecutor’s motives and decisionmaking to outside
14
inquiry” “threatens to chill law enforcement.” Wayte, 470 U.S. at 607. That
chilling effect, in turn, “impair[s] the performance of a core executive
constitutional function.” Fokker, 818 F.3d at 741 (citation omitted). Third,
under Article II, the Executive “is entitled to confidentiality in the performance
of [its] responsibilities … and in the process of shaping policies and making
decisions.” Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 909
(D.C. Cir. 1993) (citations and internal quotation marks omitted). Judicial
scrutiny of charging decisions “may undermine prosecutorial effectiveness by
revealing the Government’s enforcement policy.” Wayte, 470 U.S. at 607.
Finally, judicial supervision in this area threatens the Judiciary itself. The court-
appointed amicus seeks to initiate a judicial examination into accusations that
the Executive’s decision is “politically motivated,” Doc. 223, at 30, and such a
politically charged examination in a judicial forum imperils the Judiciary’s own
reputation.
If accepted, respondent’s view would invite examination of dismissal
decisions and prosecutorial motives—complete with amicus participation and
evidentiary development—in not only this case, but others. Such examination
would undermine core separation-of-powers principles and have damaging
practical consequences. It would regularly require the Executive to reveal
sensitive strategic considerations and factual information, even when it chooses
15
to drop a prosecution specifically to protect classified information, pending
investigations, or other core Executive concerns. “Accepted mandamus
standards are broad enough … to prevent a lower court from interfering with a
coequal branch’s ability to discharge its constitutional responsibilities,” Cheney,
542 U.S. at 382, and mandamus is thus entirely appropriate here.
2. Respondent’s contrary arguments lack merit. Respondent is
incorrect (Opp. 19) that In re Stone, 940 F.3d 1332 (D.C. Cir. 2019), and Republic
of Venezuela v. Philip Morris Inc., 287 F.3d 192 (D.C. Cir. 2002), support denying
mandamus. In Stone, this Court denied mandamus directing a district court to
change a defendant’s conditions of pretrial release, 940 F.3d at 1336, while in
Philip Morris, the Court denied mandamus prohibiting a district court from
remanding a case to state court, 287 F.3d at 199. Neither case involved an
ongoing violation of the separation of powers.
Respondent’s reliance (Opp. 19) on In re Richards, 213 F.3d 773 (3d Cir.
2000), is similarly misplaced. In Richards, the Third Circuit denied mandamus
to a petitioner challenging a district court’s decision to “schedule[] a hearing to
explore further the underlying facts” rather than grant the government’s Rule
48(a) motion. Id. at 776. But the Third Circuit considered only the common-
law doctrine of nolle prosequi, not any Article II and III concerns. And the court
denied mandamus only because it was “unaware of any binding precedent”
16
precluding such a hearing. Id. at 788. Here, unlike in Richards, there is binding
precedent—namely, Fokker—making clear that district courts lack the power to
oversee the Executive’s exercise of prosecutorial discretion. Indeed, Fokker
granted mandamus based on separation-of-powers concerns alone, without any
prior precedent directly on point. A fortiori, mandamus is warranted here, where
the Court is faced with the same constitutional concerns and its decision in
Fokker.
Moreover, without considering the constitutional backdrop, the Third
Circuit in Richards characterized Rule 48(a) “as a ‘sunshine’ provision that
exposes the reasons for prosecutorial decisions.” 213 F.3d at 788. The court
recognized that “ordering a hearing on the facts … took [the trial judge] to the
outer limits of his authority.” Id. at 789 n.9. And the court warned the trial
judge that it “strongly doubt[ed] that a refusal to dismiss would be justifiable”
and that, “[s]hould he deny the motion on remand, or refuse to rule promptly
one way or another,” it would entertain a fresh mandamus petition. Id. Here,
the district court has gone far beyond a simple hearing by appointing an amicus,
contemplating additional factual development, and even proposing new
criminal charges. Mandamus thus is appropriate here, regardless of whether it
was in Richards.
17
Finally, respondent errs in analogizing (Opp. 29-30) its order to the
appointment of amici in cases where the prevailing party declines to defend the
judgment below. In such cases, there remains an Article III controversy because
the appellant, aggrieved by the judgment below, has standing to appeal and the
prevailing party retains an “ongoing interest” in the underlying dispute. Bond v.
United States, 564 U.S. 211, 217 (2011) (citation omitted). Here, there is no
longer any Article III controversy at all; appointing an amicus thus serves to
create a new controversy, not to help resolve an existing one. Mandamus is
necessary to put an end to the district court’s “takeover” of this case. United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1581 (2020).
18
CONCLUSION
This Court should issue a writ of mandamus directing the district court to
grant the government’s motion under Rule 48(a) to dismiss the information.
Respectfully submitted,
NOEL J. FRANCISCO MICHAEL R. SHERWIN

Solicitor General Acting United States Attorney
BRIAN A. BENCZKOWSKI KENNETH C. KOHL
Assistant Attorney General Acting Principal Assistant United
JEFFREY B. WALL States Attorney
ERIC J. FEIGIN /s/Jocelyn Ballantine
Deputy Solicitors General JOCELYN BALLANTINE
FREDERICK LIU Assistant United States Attorney
VIVEK SURI 555 Fourth Street, NW, Room 11-858
Assistants to the Solicitor General Washington, D.C. 20530
U.S. Department of Justice (202) 252-7252
Washington, D.C. 20530
JUNE 2020
19
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(a)(7)(B)(ii) because it contains 3,900 words. This brief
also complies with the typeface and type-style requirements of Federal Rule of
Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word
in Calisto MT 14-point font, a proportionally spaced typeface.
/s/Jocelyn Ballantine
JOCELYN BALLANTINE
CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2020, I electronically filed the foregoing
brief with the Clerk of the Court by using the appellate CM/ECF system. I
further certify that the participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/Jocelyn Ballantine
JOCELYN BALLANTINE

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USCA Case #20-5143 Document #1846619 Filed: 06/10/2020 Page 1 of 26

IN THE UNITED STATES COURT OF APPEALS

IN RE: MICHAEL T. FLYNN, PETITIONER

On Petition For A Writ Of Mandamus

REPLY BRIEF FOR THE UNITED STATES

NOEL J. FRANCISCO MICHAEL R. SHERWIN

I. Respondent’s Rationales For Reviewing The Exercise Of

III. Respondent’s Objections To Mandamus Relief Lack Merit ................. 11

Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898

Bessette v. W. B. Conkey Co., 194 U.S. 324 (1904) ........................................... 10

Bond v. United States, 564 U.S. 211 (2011) .................................................... 18

Bronsozian v. United States, No. 19-6220, 2020 WL 1906543

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) .......................................... 10, 11

ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ............................ 8

McCray v. United States, 195 U.S. 27 (1904) .............................................. 6, 13

*Michael, In re, 326 U.S. 224 (1945) ............................................................. 10

Parr v. United States, 351 U.S. 513 (1956) ..................................................... 14

Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192

*Rinaldi v. United States, 434 U.S. 22 (1977) ................................................... 4

Stone, In re, 940 F.3d 1332 (D.C. Cir. 2019) ................................................. 16

Thompson v. United States, 444 U.S. 248 (1980) ............................................... 4

* Authorities upon which we chiefly rely are marked with asterisks.

*United States v. Fokker Servs. B.V., 818 F.3d 733

United States v. Marion, 404 U.S. 307 (1971) ................................................. 14

United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) .................................. 18

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019) ..................... 4

Wayte v. United States, 470 U.S. 598 (1985) ............................................. 14, 15

Constitution, Statute, and Rules:

*U.S. Const. art. II ................................................................... 1, 6, 12, 15, 16

*U.S. Const. art. III ........................................................... 1, 4, 11, 13, 16, 18

*18 U.S.C. § 401(1) ............................................................................... 10, 11

Fed. R. Crim. P. 48 .................................................................................. 3, 5

*Fed. R. Crim. P. 48(a) ........................................... 2, 4, 5, 6, 7, 13, 16, 17, 19

I. Respondent’s Rationales For Reviewing The Exercise Of

1. Respondent’s brief opposing mandamus says almost nothing about

the serious separation-of-powers concerns here. Respondent nowhere

asserts the power to determine whether the Executive’s exercise of prosecutorial

discretion really serves “legitimate prosecutorial interests.” Opp. 23 (citation

omitted). Respondent also nowhere acknowledges that, under Article III, a

adversity to be a “breakdown in the adversarial process” that justifies increased

judicial involvement. Opp. 29.

the Executive controls the decision “whether to commence prosecution”—but not

whether to terminate a pending prosecution, especially after a guilty plea. Opp.

24 (emphasis added); see, e.g., Watergate Prosecutors Br. 9. Fokker’s reasoning

charging authority embraces decisions about … whether to dismiss charges once

brought ”; that courts may not “second-guess the Executive’s exercise of

discretion over the … dismissal of criminal charges”; that “[d]ecisions … to

Criminal Procedure 48(a) “concerns the prosecution’s core prerogative to dismiss

prosecution’s … dismissal of charges.” Fokker, 818 F.3d at 737-738, 741-744

(emphases added; brackets and citations omitted). Respondent’s contrary view

would contract the Constitution’s protection of individual liberty, by qualifying

Respondent is right (Opp. 24) that Fokker distinguished between a deferred

prosecution agreement (DPA) or a dismissal under Rule 48(a) and a plea

exercises its coercive power by entering a judgment of conviction or imposing a

Executive’s traditional power over charging decisions,” not “the Judiciary’s

traditional authority over sentencing decisions.” Id. Just as in Fokker, the

or to exercise any sentencing authority. Opp. 25-26.

Respondent and amici further err in suggesting that the Executive’s

interest in conserving “limited ‘prosecution resources’ ” expires upon a guilty