It is true that Rule 48(a) of the Federal Rules of Criminal Procedure requires leave of court for the government to dismiss an indictment, information, or complaint—or, we add, a single count of such a charging document. United States v. Delagarza, 650 F.2d 1166, 1167 (10th Cir. 1981) (per curiam); 3A Charles Alan Wright, Federal Practice and Procedure § 811 (2d ed.1982). But the purpose, at least the principal purpose, is to protect a defendant from the government's harassing him by repeatedly filing charges and then dismissing them before they are adjudicated. Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam); In re Richards, supra, 213 F.3d at 787; United States v. Palomares, 119 F.3d 556, 558 (7th Cir. 1997); United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995); United States v. Hamm, 659 F.2d 624, 628 (5th Cir. Oct. 1981) (en banc). In such a case the judge might rightly condition dismissal on its being with prejudice. United States v. Derr, 726 F.2d 617, 619 (10th Cir. 1984); United States v. Towill, 548 F.2d 1363, 1369-70 (9th Cir. 1977). There is no issue of that sort here. The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department's exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: "the evidence was strong and conviction extremely likely." The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person. We add that this is not a case (not that it would make a difference to our analysis) in which a federal prosecutor is operating without supervision. The filing of a petition for mandamus on behalf of the federal government requires authorization by the Solicitor General of the United States.We are mindful of speculations in some judicial opinions that a district judge could properly deny a motion to dismiss a criminal charge even though the defendant had agreed to it. These opinions say that such a motion should be denied if it is in bad faith or contrary to the public interest, as where "the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial." In re Richards, supra, 213 F.3d at 787. The "bad faith or contrary to the public interest" formula is also found, though not necessarily in those words, in Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam); United States v. Martin, supra, 287 F.3d at 623; United States v. Jacobo-Zavala, supra, 241 F.3d at 1012-13; United States v. Garcia-Valenzuela, supra, 232 F.3d at 1007-08; United States v. Palomares, supra, 119 F.3d at 558; United States v. Smith, supra, 55 F.3d at 158-59; United States v. Hamm, supra, 659 F.2d at 630; United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), and United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). We are unaware, however, of any appellate decision that actually upholds a denial of a motion to dismiss a charge on such a basis. That is not surprising. The Constitution's "take Care" clause (art. II, § 3) places the power to prosecute in the executive branch, just as Article I places the power to legislate in Congress. A judge could not properly refuse to enforce a statute because he thought the legislators were acting in bad faith or that the statute disserved the public interest; it is hard to see, therefore, how he could properly refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting in bad faith or contrary to the public interest.
The Constitution does place judicially enforceable limits on the powers of the nonjudicial branches of the government—for example, the government may not make its prosecutorial decisions on racially discriminatory grounds—but they are the limits found in the Constitution and thus do not include "bad faith" and "against the public interest." Custom, limited prosecutorial resources that compel prioritizing prosecutions, federal criminal statutes that overlap with each other and with state criminal statutes, plea bargaining, and the federal sentencing guidelines themselves combine to lodge enormous charging discretion in the Justice Department, to the occasional frustration of judges—yet without giving rise to any judicial remedy. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L. Ed. 196 (1868).
Paradoxically, the plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches (again, criminal contempt of judicial orders constitutes a limited exception). When a judge assumes the power to prosecute, the number shrinks to two.
Even if a federal judge could properly deny, on the basis of bad faith or contravention of the public interest, a motion to dismiss a criminal charge, it would not follow that he could appoint a prosecutor. Presumably an assistant U.S. attorney who accepts a bribe, wants to go on vacation rather than conduct a trial, etc., is acting alone rather than at the direction or with the approval of the Justice Department, and a different assistant U.S. attorney would continue with the prosecution. In any event, a judge could not possibly win a confrontation with the executive branch over its refusal to prosecute, since the President has plenary power to pardon a federal offender, U.S. Const. art. II, § 2, cl. 1—even before trial or conviction. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L. Ed. 366 (1866).