`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
`
`
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`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,
`
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`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.
`
`
`
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`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
`
`
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`

`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).
`
`
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`

`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.
`
`the
`legal principles and
`These clearly established
`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
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`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,
`
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`

`10
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`
`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.”).
`
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`11
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`
`[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
`
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`

`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
`
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`

`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.
`
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`14
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`
`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
`
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`

`15
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`
`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 all