Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?

On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump’s former National Security Advisor, Michael T. Flynn. The Government has urged that Judge Sullivan grant the motion based on an argument that judicial meddling is improper where Rule 48(a) dismissal accrues to the benefit of the defendant. This Essay argues that the Government’s position—and the Supreme Court language upon which it is based—is simply wrong in light of Rule 48(a)’s forgotten history. Rather, Rule 48(a) was drafted precisely to empower a district judge to halt a dismissal where the court suspects some impropriety has motivated the dismissal.