The US Department of Justice (DOJ) filed a brief in the US Court of Appeals for the District of Columbia Circuit on Monday, asking the court to order the dismissal of the case against Michael Flynn, President Donald Trump’s former national security advisor

The DOJ is urging the appeals court to direct Judge Emmet Sullivan of the US District Court for the District of Columbia to grant the government’s Rule 48(a) motion to dismiss the indictment against Flynn. The DOJ argued that even though Flynn pleaded guilty to charges of making false statements to the FBI, the department, acting in an executive capacity, may still drop the charges. The brief relied on the famous case US v. Nixon, noting that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

Thus, the DOJ argued that Sullivan, having judicial and not executive power, erred in allowing amicus curiae, rather than granting the DOJ’s unopposed motion. The amicus briefs were invited to argue against the dismissal of the Flynn case and to “address whether the court ‘should issue an Order to Show Cause why [petitioner] should not be held in criminal contempt for perjury.'” The DOJ contended that neither Flynn’s guilty plea nor his withdrawal of the guilty plea, regardless of whether either statement was false, were grounds for contempt.

Oral arguments for the petition for the writ of mandamus have been scheduled for June 12.