with whom Mr. Justice White joins, dissenting.
In Watts v. United States, 422 U. S. 1032 (1975), this Court, with three Justices dissenting, remanded a federal criminal case with instructions to dismiss the indictment because of the concession of the Solicitor General that the Justice Department had accidentally violated its own Petite policy. See also Ackerson v. United States, 419 U. S. 1099 (1975); Hayles v. United States, 419 U. S. 892 (1974). Whatever may be the propriety of our assisting in the enforcement of the Justice Department’s internal Petite policy, the Court today places its imprimatur on a quite different and unsettling prosecu-torial policy. Under this new policy, the Government prosecutes under federal laws individuals who have already been tried and convicted of violating similar state laws in order to protect against the possibility of the state convictions’ being reversed on appeal, but the policy contemplates that the federal prosecutions will be dismissed, even after entry of guilty verdicts, if the state convictions are ultimately affirmed. According to the Court of Appeals:
“[T]he Government attorney conceded that a ‘responsible person’ within the Department of Justice . . . was aware *33that the Petite Policy was being violated through its prosecution of defendants, but nevertheless, out of his fear that the state convictions would be reversed on appeal, instructed the trial attorney to proceed with the case; only after a Florida appellate court affirmed the state convictions and after defendants raised the Petite Policy on appeal did the Government move for dismissal. . . . [According to the Government attorney], the position of the Department of Justice is not that the prosecution should never have been brought, but that once the state convictions had been affirmed the Government could properly have moved to dismiss the federal indictment against defendants. Indeed,, he states that had permission to prosecute been sought from an Assistant Attorney General by the ‘responsible person’ in charge of the case, it might well have been given and hence, there would have been no violation of the Petite Policy. Had that event occurred, ... it would have then been absolutely proper, once the Florida appellate court affirmed the state conviction on appeal, for the Department of Justice to rescind, retroactively, its authorization of the prosecution and now, finding the Petite Policy to have been violated by a federal trial for an offense for which a state prosecution was made, to seek a dismissal based on this violation of the policy and the interest against duplicitous prosecutions that it seeks to promote.” In re Washington, 544 F. 2d 203, 207.*
*34Federal Rule Crim. Proc. 48 (a) allows the United States to move to dismiss an indictment only “by leave of court.” This proviso was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment. Cf. United States v. Cowan, 524 F. 2d 504 (CA5 1975). Here, both the District Court and the Court of Appeals concluded that dismissal would not be in the public interest. I cannot find this conclusion an abuse of the discretion given the lower courts by Rule 48 (a). As the Court of Appeals reasoned, “the Government’s attempt to manipulate the use of judicial time and resources through its capricious, inconsistent application of its own policy clearly constitutes bad faith and a violation of the public interest; our sanction of such conduct would invite future misconduct by the Government.” 544 F. 2d, at 209.
In the past, the Court has ordered indictments dismissed upon the Government’s concession that it violated its own Petite policy without discussing the justification for its action. Here, in its first full opinion on the subject, the Court again fails to enunciate why federal courts must reverse a valid conviction because of the Government’s admission of administrative error not going to the guilt or innocence of the defendant. Cf. Watts, supra, at 1032-1038 (Burger, C. J., dissenting). The apparent inability of the Court to agree on a rationale for enforcing the Government’s Petite policy at its request suggests that this case is inappropriate for summary disposition and should be set for full argument.
The Solicitor General does not contradict or repudiate the position of the Government attorney who argued before the Court of Appeals. Under such circumstances, this Court should not casually reject the Court of Appeals’ understanding of the position of the Department of Justice in this case, an understanding that the dissenters there apparently shared. According to the Solicitor General, when the Government’s appellate counsel was informed that the prosecutor had not strictly followed the Justice Department’s Petite policy, further consideration was given to the case within the Department and “it was determined that there were no com*34pelling reasons to justify retroactive authorization of petitioner’s prosecution.” Memorandum for United States 3 (emphasis added). By this time, as the Court of Appeals noted, the state conviction was safely affirmed.