Checking in on the back and forth between the DOJ and Judge Nicholas Garaufis (E.D.N.Y.).
In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).
In mid-August, Judge Nicholas Garaufis (E.D.N.Y.) – after much back and forth with the DOJ – granted the DOJ’s motion to dismiss various non-FCPA fraud charges against certain defendants.
However, Judge Garaufis denied the motion to dismiss FCPA and obstruction charges against certain other defendants (see here for the prior post) while noting “the court’s conclusion does not mean that additional evidence to support […] proffered reason to dismiss does not exist. It means only that the factual support that McCotter has provided is not sufficient.”
The back and forth continued (see here) and on September 3rd Judge Garaufis again denied the DOJ’s motion to dismiss FCPA and obstruction charges against certain other defendants. (See here).
Yesterday, the DOJ filed a petition in the Second Circuit requesting “that the Court swiftly issue a writ of mandamus directing [Judge Garaufis] to grant the government’s motion to dismiss the remaining counts of the indictment with prejudice.”
The petition presents the following issue: “Whether the district court exceeded its authority under the Constitution and Federal Rule of Criminal Procedure 48(a) by denying the government’s unopposed motion to dismiss with prejudice the indictment against five defendants.”
In summary fashion, the DOJ argues:
“This case was indicted in 2024, but no defendant has ever appeared. Exercising its power under Article II of the Constitution, the Executive Branch decided not to prosecute this case further and thus moved to dismiss the pending charges with prejudice under Federal Rule of Criminal Procedure 48(a), which requires only “leave of court.” The defendants consented to that relief.
Ordinarily, that would be the end of the matter. Given that the Executive’s prosecutorial power arises from the Constitution, only another provision of the Constitution could limit it—e.g., a defendant’s due process rights—but here all defendants readily consented, and thus there could be no countervailing constitutional interest. In such cases, courts lack discretion to force the government to proceed on charges it does not wish to pursue, nor can the courts demand that the government waive applicable privileges and disclose its confidential decisionmaking to justify dismissal.
Over a period of months, however, the district court in this case has repeatedly disregarded those limitations. At the outset, it refused to grant the Rule 48(a) motion unless the government provided detailed reasons the court deemed sufficient to justify dismissal. Although the government was under no obligation to provide this privileged information, it nonetheless did so: it explained, in a lengthy filing, that a senior Justice Department official—after consulting with colleagues across the Department—determined that the prosecution was not consistent with Department policy and presented factual, diplomatic, legal, and practical problems that warranted dismissal.
In a lengthy order, the district court agreed those were the actual, bona fide reasons for seeking dismissal—but then effectively appointed itself a super-prosecutor and proceeded to disagree with almost every single basis, even ones founded on prosecutorial discretion and concerns about international relations. The court ultimately, and very grudgingly, dismissed three charges—but refused to grant the Rule 48(a) motion as to five defendants and two counts, insisting that even more internal, confidential information was necessary. The court also peppered its order with unfounded attacks on the Department, which in truth had given extraordinary process to the determination to drop this case.
The government then repeatedly filed detailed explanations, including a sworn statement from the number-two-ranking official in the entire Department of Justice interpreting the Department’s own pre-existing prosecutorial priorities memorandum—yet the district court proceeded to reject those bases, too.
As a result, after months of efforts by the government, the district court ultimately issued an order denying the motion to dismiss the remaining charges. The district court went so far as to suggest that the government would have to provide “expert reports” to justify an unopposed motion dismissing these criminal charges. The government and the district court have profoundly different views on the nature of Rule 48 and the constitutional role of a district judge, leading to this impasse that can be resolved only by a higher court.
It appears that no appellate court has ever upheld a district court’s refusal to grant a Rule 48(a) motion. This Court should not be the first. As other circuits have ruled in similar circumstances, mandamus is necessary to remedy the district court’s dangerous and unconstitutional arrogation of executive power.”
