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Furthermore, the panel has already indicated it may be taking Flynn’s mandamus petition seriously; the appellate court ordered Judge Sullivan to file an opposition, and invited the DOJ to file papers as well. Additionally, the court’s brief order specifically references a prior circuit court decision that emphasised the limited scope of judicial review under the operative dismissal rule, Rule 48 of the Federal Rules of Criminal Procedure.While Rule 48 requires the government to obtain “leave of court” before dismissing a criminal case, there is indeed a very substantial legal question whether a trial judge can ultimately deny a motion to dismiss a criminal case absent an objection from the defendant, even if the government acts in bad faith. That question has yet to be resolved by the Supreme Court.Team Trump Wants Flynn Back for 2020, Sees Him as Its ‘Nelson Mandela’But that unanswered legal question is distinct from the issue of whether Sullivan is barred from even making an inquiry into the government’s good faith before ruling on the DOJ’s request for leave to dismiss, particularly where as here there is ample basis for concern about the DOJ’s conduct, and even the veracity of its motion papers.Indeed, a federal circuit court in Philadelphia that was presented with this very issue emphatically ruled that a writ of mandamus is improper in such circumstances, reasoning that mandamus is not the “proper vehicle for challenging a lower court’s refusal to dismiss” under the governing rule, and that an appellate challenge cannot be heard until the trial court conducts any desired inquiry regarding, and issues a ruling on, the dismissal motion.
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