UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
MICHAEL T. FLYNN,
Defendant.

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Crim Number 17-232 (EGS)

AMICUS BRIEF FOR THE STATES OF OHIO, ALABAMA, ALASKA, ARKANSAS,
FLORIDA, GEORGIA, INDIANA, LOUISIANA, MISSISSIPPI, MISSOURI, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WEST VIRGINIA
IN SUPPORT OF THE UNITED STATES
DAVE YOST
Attorney General of Ohio
BENJAMIN M. FLOWERS
Ohio Solicitor General
30 E. Broad St., Floor 17
Columbus, OH 43215
Tel: 614.466-43215
Email: bflowers@ohioattorneygeneral.gov

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii
STATEMENT OF AMICI INTEREST AND SUMMARY OF ARGUMENT ........................... 1
ARGUMENT ................................................................................................................................. 2
I.

The decision to charge a crime is a critically important function, deliberately left to
the executive branch alone. ........................................................................................... 2

II.

The Court lacks authority to exercise judgment over a decision that constitutionally
belongs to the executive branch. ................................................................................... 4

III.

The Court ought not offer personal comment on the wisdom of the United States’
decision not to continue prosecuting General Flynn. ....................................................7

CONCLUSION .............................................................................................................................. 8
CERTIFICATE OF SERVICE .....................................................................................................10

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 TABLE OF AUTHORITIES
Cases

Page(s)

In re Aiken Cty.,
725 F.3d 255 (D.C. Cir. 2013) ............................................................................................ 3, 4, 5
Alderson v. State,
273 S.W.3d 533 (Mo. 2009) .......................................................................................................4
City of Norwood v. Horney,
110 Ohio St. 3d 353 (Ohio 2006) ................................................................................................4
Confiscation Cases, 7 Wall. 454 (1869) .............................................................................................. 5
DOC v. New York,
139 S. Ct. 2551 (2019).................................................................................................................8
In re: Donald J. Trump,
— F.3d. —, No. 18-2486 (4th Cir. May 14, 2020) ....................................................................8
Morrison v. Olson,
487 U.S. 654 (1988)................................................................................................................ 1, 9
Rinaldi v. United States,
434 U.S. 22 (1977) ......................................................................................................................6
Steen v. Appellate Div. of Superior Court,
59 Cal. 4th 1045 (Cal. 2014) .......................................................................................................4
United States v. Abushaar,
761 F.2d 954 (3d Cir. 1985) ........................................................................................................ 5
United States v. Armstrong,
517 U.S. 456 (1996) .................................................................................................................... 1
United States v. Nixon,
418 U.S. 683 (1974) .................................................................................................................... 5
United States v. Pimentel,
932 F.2d 1029 (2d Cir. 1991) ......................................................................................................6
United States v. Sineneng-Smith,
590 U.S. ___ (U.S. May 7, 2020) ............................................................................................. 5
Williams v. Pennsylvania,
136 S. Ct. 1899 (2016) ................................................................................................................ 7
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 Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) ....................................................................................................................8
Rules and Constitutional Provisions
U.S. Const., art. II, §1 ...................................................................................................................... 1
U.S. Const., art. III, §1 ................................................................................................................. 1, 4
U.S. Const., art. III, §2 .................................................................................................................... 5
Fed. R. Crim. P. 48 ...................................................................................................................... 6, 7
Other Authorities
The Federalist No. 74, 501 (A. Hamilton) (Cooke, ed., 1961) .........................................................2
Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3
(1940) ..................................................................................................................................... 2, 3

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 STATEMENT OF AMICI INTEREST AND SUMMARY OF ARGUMENT
“If to describe this case is not to decide it, the concept of a government of separate and
coordinate powers no longer has meaning.” Morrison v. Olson, 487 U.S. 654, 703 (1988) (Scalia,
J., dissenting). Our Constitution vests the “executive power … in a President of the United
States.” U.S. Const., art. II, §1. That power includes the power to prosecute. But, just as important, it includes the power not to prosecute. United States v. Armstrong, 517 U.S. 456, 464
(1996). The judiciary has only the “judicial [p]ower,” U.S. Const., art. III, §1, which includes only
the power to resolve cases and controversies. Judges have no share of the executive power, and
thus no say in the decision whether to prosecute.
What the Constitution has put asunder, let no judge join together. Here, the President,
through his agents, has decided not to prosecute. Yet this Court has appointed an amicus curiae
“to present arguments in opposition to the government’s Motion to Dismiss”—implying that the
Court may order the prosecution to continue. Order Appointing Amicus Curiae, Doc. 205 (May
13, 2020). This Court may not order the commencement of any prosecution, and therefore may
not order the continuation of what it could not initiate. The Court should grant the United States’
motion without delay and without irrelevant or personal comment.
The State Attorneys General who signed this brief are executive officers, who—like the
United States Attorney General—oversee all or some of their States’ prosecutorial functions.
Some have significant experience prosecuting cases in court. Each understands the complex nature of the decision to pursue, or not to pursue, a criminal conviction. And each understands the
importance of allowing prosecutors to make this decision—a decision that may well be immensely
unpopular—free from judicial interference. This short brief will elaborate on the problems this

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 Court has created by inserting itself into the Justice Department’s exercise of prosecutorial discretion.
ARGUMENT
The Court should immediately grant the federal government’s motion to dismiss the information against General Flynn because the federal judiciary has no authority to make the executive
branch pursue (or continue to pursue) a criminal conviction. And the Court should grant the motion without commentary on the decision to charge or not to charge, because such punditry disrobes the judiciary of its cloak of impartiality.
I.

The decision to charge a crime is a critically important function, deliberately left to
the executive branch alone.
State and federal prosecutors have an awesome responsibility: to decide whether to charge

their fellow citizens with crimes, initiating a process that, if successful, will deprive another human
being of his liberty. The decision to charge is often a prosecutor’s most-noticed act, but the mostconsequential decision is often the decision not to pursue charges. Our system depends on prosecutors’ ability to make this decision unimpeded.
Consider first a practical point. Every prosecutor swears an oath to uphold the law, but
that cannot mean charging every criminal act. “With the law books filled with a great assortment
of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on
the part of almost anyone.” Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. &
Criminology 3, 5 (1940). Even technical or seemingly minor violations may carry severe penalties.
Thus, “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel.” The Federalist No. 74, at 501 (A. Hamilton) (Cooke, ed.,
1961).

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 One such exception comes in the form of prosecutorial discretion. In making the decision
not to charge a crime, prosecutors may account for innumerable considerations. For example, and
relevant here, a prosecutor might validly decline to pursue a conviction if investigators, instead of
“discovering the commission of a crime and then looking for the man who has committed it,” set
about “picking the man and then searching the law books … to pin some offense on him.” Jackson,
The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology at 5. More typically, a prosecutor will
consider the deterrent effect a conviction would send; the community’s legitimate interest in retribution; the harms a prison sentence would impose on the accused’s family or community; and so
on. In all cases, the prosecutor can account for case-specific factors—factors unknowable to a legislature promulgating generally applicable laws—that justify turning the other cheek.
The discretion not to charge a crime, in addition to being a practical necessity, is also a
bulwark of liberty. Indeed, it is just as important to protecting liberty as the many procedural protections secured by the Bill of Rights and by state constitutions. As the D.C. Circuit recognized in
speaking of the federal system (in an opinion by then-Judge Kavanaugh), one of the “greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the
power to protect individual liberty by essentially under-enforcing federal statutes regulating private
behavior—more precisely, the power either not to seek charges against violators of a federal law or
to pardon violators of a federal law.” In re Aiken Cty., 725 F.3d 255, 264 (D.C. Cir. 2013). The
discretion to not pursue a charge serves as a vital check on legislative authority. Before the government may take a citizen’s liberty, it must identify an executive officer willing to bring charges.
Prosecutorial discretion thus “operate[s] as an independent protection for individual citizens
against the enforcement of oppressive laws that Congress may have passed (and still further

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 protection comes from later review by an independent jury and Judiciary in those prosecutions
brought by the Executive).” Id.
The same could be said about state prosecutors all around the country. State constitutions,
like the federal constitution, protect liberty by dividing governmental power between co-equal
branches and equipping each to check overreach by the others. See, e.g., Steen v. Appellate Div. of
Superior Court, 59 Cal. 4th 1045, 1059–60 (Cal. 2014) (Liu, J., concurring); Alderson v. State, 273
S.W.3d 533, 539 (Mo. 2009); City of Norwood v. Horney, 110 Ohio St. 3d 353, 386 (Ohio 2006). In
these systems, as in the federal system, the power not to charge a crime is an important check that
the executive branch may wield to protect against the legislature’s excesses.
II.

The Court lacks authority to exercise judgment over a decision that constitutionally
belongs to the executive branch.
In this case, the federal government has exercised prosecutorial discretion, opting not to

continue pursuing charges against General Flynn. Rather than simply granting the United States’
motion to dismiss the information against General Flynn, this Court delayed a ruling in an order
that solicited amicus briefs from “individuals and organizations.” Order of May 12, 2020. It then
took the further step of appointing an amicus curiae “to present arguments in opposition to the
government’s Motion to Dismiss.” Order Appointing Amicus Curiae, Doc. 205 (May 13, 2020).
There was no reason to issue these orders because this Court has no say in the federal government’s decision not to prosecute. Simply put, the decision not to pursue a criminal conviction
is vested in the executive branch alone—and neither the legislature nor the judiciary has any role
in the executive’s making of that decision. “After enacting a statute, Congress may not mandate
the prosecution of violators of that statute.” Aiken Cty., 725 F.3d at 264. And nothing in the
judicial power—the power to decide concrete cases and controversies, see U.S. Const., Art. III,

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 §§1, 2—permits courts to second-guess the executive branch’s decision not to pursue a conviction.
See United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation Cases, 7 Wall. 454, 458–59 (1869).
Courts decide cases; they do not litigate them, as the Supreme Court reminded lower courts just a
couple of weeks ago. See United States v. Sineneng-Smith, 590 U.S. ___, slip op. 3 (U.S. May 7,
2020).
The Court’s desire to assume the role of a prosecutor evinces a total lack of regard for the
role that the separation of powers plays in our system. Before the federal government may deprive
a citizen of his freedom, it must navigate a number of hurdles. It must find a law that the citizen
violated, a prosecutor willing to press charges, a jury of other citizens willing to convict, and a court
to uphold the legality of the prosecution. In other words, the judiciary is supposed to function as a
constitutional check on deprivations of liberty—it is not supposed to remove constitutional checks
on deprivations of liberty. But that is exactly what the Court would do by second-guessing the
prosecutors’ decision not to continue pursuing this case.
Worse still, the Court’s order calls for the views of private “individuals and organizations.”
The Ancient Greeks, to be sure, sometimes put to a vote the question whether a citizen ought to
be ostracized, or banished from society. United States v. Abushaar, 761 F.2d 954, 959 (3d Cir. 1985).
But our Framers opted against the Greek model. They put space between the People and the criminal process, including by vesting in the executive branch alone the power to decide whether to
pursue state-sanctioned punishment. The People, no doubt, will still have their say at the ballot
box—they can vote out of office the President or the State Attorney General whose prosecutorial
decisions they disagree with. See Aiken, 725 F.3d at 266. But the question of what the public thinks

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 about the prosecution of General Flynn has no bearing on this Court’s decision whether to grant
leave to dismiss this case.
It is true that Criminal Rule 48(a) requires a prosecutor to seek leave of the court when
dismissing a case, but that does not change the analysis. In the context of a case like this—one
where the government has decided not to prosecute a defendant—the rule gives courts the merely
ministerial role of granting leave and dismissing the case. The rule provides:
The government may, with leave of court, dismiss an indictment, information, or
complaint. The government may not dismiss the prosecution during trial without
the defendant’s consent.
This rule is unconstitutional if it is applied to mandate the continued prosecution of a defendant
the federal government has chosen not to prosecute. When applied in that manner, the ruling court
exercises executive power, and thus exceeds the limits of Article III, which permits courts to exercise only the judicial power. So it is perhaps unsurprising that the Supreme Court, in describing
the purpose of the leave-of-court requirement, explained that the requirement was never intended
to be used to override the government’s decision not to prosecute. “The principal object of the
‘leave of court’ requirement,” the Court explained, was “apparently to protect a defendant against
prosecutorial harassment, e.g., charging, dismissing, and recharging, 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). In other words, the rule exists to stop the government from prosecuting a defendant
in an abusive manner. Applied that way, the rule is consistent with the judicial role: it gives courts
a negative power to stop abusive prosecutions that are “clearly contrary to manifest public interest,” United States v. Pimentel, 932 F.2d 1029, 1033 n.5 (2d Cir. 1991) (quoting United States v.
Cowan, 524 F.2d 504, 513 (5th Cir. 1975)), but it does not confer a positive power to compel prosecutions. The judicial power includes the power to ensure that prosecutions comport with law; it
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 does not, however, include the power to ensure that prosecutions occur in the first place. Here,
the only reason to deny the government’s motion would be to compel the prosecution of General
Flynn. The Court has no power to do that.
Even aside from the separation-of-powers issues, there are insurmountable practical problems with using Rule 48(a) to mandate the continued prosecution of a defendant the government
has decided not to pursue. First, suppose a court were to deny the prosecution’s request. What
would the prosecution, at that point, do? Presumably, if forced to litigate, it would stand up at trial
and immediately rest its case without putting on evidence. Could the court avoid this outcome by
appointing a special prosecutor and ordering the special prosecutor to continue the case? No; once
a court orders the prosecution, it aligns itself with the prosecution and can no longer serve as a
neutral arbiter. “The due process guarantee that ‘no man can be a judge in his own case’ would
have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision,” including the decision to charge. Williams
v. Pennsylvania, 136 S. Ct. 1899, 1906 (2016). By ordering a court-appointed prosecutor to carry
on with the prosecution of General Flynn, this Court would, in essence, make the critical decision
to charge a crime, disqualifying itself from presiding over this case.
III.

The Court ought not offer personal comment on the wisdom of the United States’
decision not to continue prosecuting General Flynn.
Perhaps the Court is soliciting the views of amici so that it may chastise or praise the De-

partment of Justice’s decision in this case. It should refrain from doing so. It has become trendy
in recent years for courts to weigh in on the wisdom of this administration’s policy decisions. Too
often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial
opinion. These opinions leave the public with the impression that courts apply “administration-

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 specific standard[s]” in deciding what this President may do and what may permissibly be said
about this President’s policies. DOC v. New York, 139 S. Ct. 2551, 2576 (2019) (Thomas, J., dissenting). “When partisan fevers grip the national government, the judiciary must operate as a nonpartisan counterweight and discourage suits whose inevitable denouement will make [the courts]
part of the political scrum.” In re: Donald J. Trump, — F.3d. —, No. 18-2486, slip op. 29 (4th Cir.
May 14, 2020) (Wilkinson, J., dissenting). The steady stream of overwrought commentary encourages such suits, and further inserts the judiciary into the partisan scrum.
This trend is disastrous for the Judiciary, because it erodes public confidence in the courts’
ability to serve as neutral arbiters in politically sensitive cases. “The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike
the executive or the legislature, the judiciary ‘has no influence over either the sword or the purse;
… neither force nor will but merely judgment.’” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445–46
(2015) (quoting The Federalist No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961)). “The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow
its decisions.” Id. The frequent commentary on the wisdom of this administration’s decisions
leaves the public, however unfairly, with the perception that the judiciary is just another political
combatant whose decisions are entitled to no special respect.
The Court should leave the commentary to the commentariat. It should grant the United
States’ motion without elaboration.
CONCLUSION
Decisions to grant leave are routinely granted, and this one should be as well, without needless comment. A judge who abandons the bench for the prosecutor’s table can serve credibly in
neither role. Just as the executive must respect the decisions the Constitution leaves to the
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 judiciary, so must the judiciary respect the decisions the Constitution leaves to the executive—
that is what gives meaning to the “concept of a government of separate and coordinate powers.”
Morrison v. Olson, 487 U.S. 654, 703 (1988) (Scalia, J., dissenting).
May 18, 2020

Respectfully submitted,

STEVE MARSHALL
Attorney General of Alabama
KEVIN G. CLARKSON
Attorney General of Alaska
LESLIE RUTLEDGE
Attorney General of Arkansas

DAVE YOST
Attorney General of Ohio

ASHLEY MOODY
Attorney General of Florida

/s/ Benjamin M. Flowers
BENJAMIN M. FLOWERS
Ohio Solicitor General
30 E. Broad St., Floor 17
Columbus, OH 43215
Tel: 614.466-43215
Email: bflowers@ohioattorneygeneral.gov

CHRISTOPHER M. CARR
Attorney General of Georgia
AARON NEGANGARD
Chief Deputy Attorney General of
Indiana
JEFF LANDRY
Attorney General of Louisiana

ALAN WILSON
Attorney General of South Carolina

LYNN FITCH
Attorney General of Mississippi

KEN PAXTON
Attorney General of Texas

ERIC SCHMITT
Attorney General of Missouri

SEAN D. REYES
Attorney General of Utah

MIKE HUNTER
Attorney General of Oklahoma

PATRICK MORRISEY
Attorney General of West Virginia

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 CERTIFICATE OF SERVICE
I hereby certify that, on May 18, 2020, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF email system and copied parties to the case.
Jesse R. Binnall
HARVEY & BINNALL, PLLC
717 King Street
Suite 300
Alexandria, VA 22314
(703) 888-1943
Email: jbinnall@harveybinnall.com

Zainab Naeem Ahmad
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue NW
Room B-103
Washington, DC 20530
(202) 616-0800
Email: zna@usdoj.gov

Robert K. Kelner
COVINGTON & BURLING LLP
850 Tenth Street, NW
One City Center
Washington, DC 20001
(202) 662-5503
Fax: (202) 778-5503
Email: rkelner@cov.com

Deborah A. Curtis
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC 20530
(202) 252-6920
Email: deborah.curtis@usdoj.gov
Jocelyn S. Ballantine
U.S, ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 4th Street, NW
Suite 11-445
Washington, DC 20001
(202) 252-7252
Email: jocelyn.ballantine2@usdoj.gov

W. William Hodes
THE WILLIAM HODES LAW FIRM
3658 Conservation Trail
The Villages, FL 32163
(352) 399-0531
Fax: (352) 240-3489
Email: wwh@hodeslaw.com
Lindsay R. McKasson
HARVEY & BINNALL, PLLC
717 King Street
Suite 300
Alexandria, VA 22314
(703)888-1943
Email: lmckasson@harveybinnall.com

John Edward Hall
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, DC 20001
202-662-5104
Fax: 202-778-5104
Email: jhall@cov.com

Molly McCann
SIDNEY POWELL, PC
2911 Turtle Creek Boulevard
Suite 300
Dallas, TX 75219
(214)707-1775
10

 Email: mccann.mol@gmail.com
Sidney Powell
SIDNEY POWELL, P.C.
2911 Turtle Creek Blvd
Ste 300
Dallas, TX 75219
214-707-1775
Email: sidney@federalappeals.com

/s/ Benjamin M. Flowers
BENJAMIN M. FLOWERS
Ohio Solicitor General
30 E. Broad St., Floor 17
Columbus, OH 43215
Tel: 614.466-43215
Email: bflowers@ohioattorneygeneral.gov

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