Dayna Zolle is appellate counsel at Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text, history and values.

As the full federal appeals court in D.C. considers whether to order dismissal of the criminal case against former national security adviser Michael Flynn, it should bear in mind a far more obscure prosecution: that of a Montana-based federal tax collector named Franklin Woody in the 1920s.

Woody was accused of embezzling federal funds. He was also extraordinarily well connected. His grandfather was Missoula’s first mayor and a district judge, while Woody’s father was close friends with the governor and had served as Montana’s assistant attorney general. After Woody’s indictment, the federal prosecutor argued that the case against him should be dismissed, noting that the defendant “is of a prominent pioneer family, is young, … [and] is studying law in a California university,” that “his ‘career as a lawyer will be spoiled,’ ” and “that the government’s losses have been reimbursed.”

The judge deciding whether to grant the government’s motion to dismiss the prosecution found his hands tied. The government’s reasons for dropping the case, he said in a 1924 ruling, “savor altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity.”

Nonetheless, he acknowledged, “the district attorney has absolute control over criminal prosecutions.” Thus, despite the judge’s assessment that dismissal of the case was “abhorrent to justice,” he had no choice but to grant the motion to dismiss, “albeit reluctantly.”

That case helped lead to the federal rule that is at issue in Flynn’s case, Rule 48(a) of the Federal Rules of Criminal Procedure. As Thomas Ward Frampton explains in the Stanford Law Review, the committee tasked with drafting the federal rules “focused on the possibility that improper political influence might spur a prosecutor’s decision to drop a case.” Ultimately, the Supreme Court adopted the requirement currently found in Rule 48(a) — that the government obtain “leave of court” for a dismissal. That change, as Frampton observes, “armed the district judge with a powerful tool to halt corrupt or politically motivated dismissals of cases.”

Understanding this background is critical to finding the right approach in Flynn’s case. Flynn, who pleaded guilty to lying to the FBI, is seeking something extraordinary from the appeals court: an order that the judge overseeing the criminal case against him immediately grant the government’s motion to dismiss the case, before that judge has even had an opportunity to consider the government’s motion.

A three-judge panel of the appeals court voted, 2-1, to order the immediate dismissal of the case; on Tuesday, the full appeals court will reconsider that ruling. The outcome should be clear. The “leave of court” requirement in Rule 48(a) was designed to protect against corrupt or politically motivated dismissals that could undermine our nation’s criminal justice system — arguably the very kind of dismissal sought here. Flynn has no right to have his case dismissed — let alone the “clear and indisputable” right the law requires for dismissal before the district court has even had an opportunity to weigh in.

In its motion to dismiss, the government mischaracterized Rule 48(a), stating that the rule’s “leave of court” provision “serves ‘primarily to guard against the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the defendant’ through repeated prosecutions” — a prospect that, the government emphasized, is not at issue here. Accordingly, the government indicated that in this case, the court’s role is “ ‘narrow’ and circumscribed,” and it should merely rubber-stamp the motion.

The government cited language from the only Supreme Court decision interpreting Rule 48(a), the 1977 per curiam opinion in Rinaldi v. United States. In language not central to the holding, the Rinaldi court had said the rule was adopted “without explanation” but that “apparently” its “principal object … [was] to protect a defendant against prosecutorial harassment.” Unfortunately for the government, and for Flynn, this is “simply wrong,” as Frampton explains.

The rule “was drafted precisely to deal with the situation that has arisen in United States v. Flynn: Its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors’ attempt to abandon a case.”

The D.C. Circuit should deny Flynn’s request to order the automatic dismissal of his case and should instead allow the district court to consider the public interest in determining whether dismissal is appropriate. That would serve the interests of justice, if not of this Justice Department.

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