Late Tuesday, federal district judge Emmet Sullivan issued a bizarre order, inviting third-party groups with no legal interests in the case to file amicus briefs addressing the Justice Department’s motion to dismiss the false-statements charge against Michael Flynn, President Trump’s former national-security adviser.
The cantankerous jurist is stoking opposition to the dismissal. He knows the law calls for him to accede to attorney general Bill Barr’s decision. But Barr can’t stop Sullivan from turning the dismissal into anti-Trump group therapy — and who knows, maybe the grieving Legal Left will figure out some way for the judge to convict Flynn despite DOJ’s retreat.
Flynn’s counsel relates that on 24 prior occasions, Judge Sullivan has summarily refused to entertain input from non-parties to the case. No federal criminal rule authorizes such interventions. Yet Sullivan now encourages them.
There is no complex legal issue to be resolved. DOJ’s dismissal motion may be politically controversial, but legally it is pro forma. The only branch of government constitutionally authorized to proceed with a criminal prosecution is the executive. The Justice Department has declined to prosecute. There is nothing for the judge to do besides the ministerial task of ending the case on the court’s records.
Lest we forget, the primary function of the federal judiciary is to protect the accused from overbearing government action, not to agitate for the prosecution of Americans. Even if he’s convinced Flynn is as guilty as the day is long, one might expect Judge Sullivan to be disturbed by the FBI’s perjury trap, by its editing of and misrepresentations about the “302 report” of Flynn’s interview. By the prosecution’s withholding of exculpatory evidence and concealment from the court of its threat to prosecute Flynn’s son. By the derelictions of Flynn’s original counsel, who took the case notwithstanding a deep conflict-of-interest, and who appear to have counseled Flynn to plead guilty without ever reviewing rudimentary discovery — we know they never inspected the 302 (which is mind-boggling in a false-statements case); did they ever demand that Mueller’s prosecutors produce the recording of the Flynn–Kislyak “sanctions” conversation that is the heart of the case?
Those are the kinds of questions a responsible judge would be posing, not, “How do I sentence this guy if DOJ won’t prosecute?” Regardless of what the DNC and CNN have to say on the matter, Flynn is supposed to be presumed innocent as far as Judge Sullivan is concerned.
If there is anything legally dubious here, it is the proposition that a judge may deny a dismissal motion filed by the Justice Department. Rule 48 of the Federal Rules of Criminal Procedure purports to require “leave of the court” before prosecutors may dismiss an indictment. Yet a statutorily enacted rule cannot amend the Constitution, which vests solely in the executive the power to prosecute.
In the federal system, the Justice Department’s discretion to charge or proceed with a criminal case is unreviewable. The judiciary has no more power to compel the executive branch to prosecute an indicted case than it has to force the executive to indict the case in the first place. If the public believes the Trump administration is abusing prosecutorial discretion, it may vote the president out of office. But a judge has no authority to order the executive to investigate, indict, or try a criminal case. None.
Moreover, Congress prescribed Rule 48 to protect defendants — exactly the opposite of what Sullivan is doing. Lawmakers were concerned about the potential for prosecutorial misconduct: They wanted to prevent strategic dismissals, where a prosecutor pulled the plug on a case that was not going well for the government, only to recharge it later; they wanted to forbid such abuses as repeatedly charging then dismissing an indictment, exhausting an accused’s resources and capacity to defend himself.
The objective to protect defendants is elucidated by Rule 48’s requirement that, after a trial has started, the prosecutor must obtain the defendant’s consent before dismissing the case. Once a criminal trial starts, a defendant’s double-jeopardy protection is triggered. The rule thus ensures that, if the trial is going badly for the government, the prosecutor cannot get a do-over unless the accused agrees. Most defendants would prefer to continue a trial that appears headed to acquittal rather than to risk a retrial at which prosecutors can shore up their case.
How perverse, then, that Judge Sullivan sees Rule 48 not as a safeguard for defendants but an artifice to pressure the executive against dropping a case.
Note that Justice Department’s motion seeks to dismiss the charge against Flynn with prejudice. That means once the case is dismissed, the government would be prohibited from re-indicting Flynn on the same charge. There is no possibility of the gamesmanship Rule 48 was enacted to prevent.
Judge Sullivan knows this. He is a highly experienced judge. He knows he has no authority to stop the Justice Department from dropping the case. He knows if he tried to do that, he would be reversed by the Court of Appeals. He knows he could not force prosecutors to participate in the sentencing of Flynn, or in any other proceedings in a case that the Justice Department has decided is not worthy of prosecution. The judge knows the question of whether the case should be prosecuted is not his call.
So what does he do? Rather than just doing his job and dismissing the case, he invites amicus briefs. He can’t compel the Justice Department to further hound Flynn, but he figures he can encourage the legal establishment to trumpet the political theme that Trump’s Justice Department is undermining the rule of law. Without a hint of irony, Sullivan’s blatantly political directive is designed to frame the Justice Department as politicized.
In criminal cases, the accused is already pitted against the awesome resources of the government. Forcing the accused to bear the additional burden of defending against amicus briefs is unfair. A good judge would never encourage such a thing. A good judge would assume he could figure out what the law requires, without fear or favor. And if leave to file a brief were sought by an unsolicited amicus curiae — i.e., a true “friend of the court,” a non-party who might help the court do justice in a complex case — a good judge would at that point weigh whether such a brief might be helpful. A good judge never signals: I just don’t know what to do here — help!
Alas, in the Flynn case, we are dealing with a judge who prefers bloviation to preparation.
Without lies, prejudice and bias there would be no cases against any of the people Mueller went after.
For a long time I thought that Schiff was just dragging out the inevitable since he couldn’t have had anything.
Now, seeing a liberal judge do the same thing makes me wonder why.
Why drag it all out so long?
Do they really still believe Obama and his minions can be shielded from prosecution as long as the other side can be even wrongly accused?
They are wrong.
The Trump Admin can “walk & chew gum” at the same time.
Dragging out losing positions like this is not stopping anything.
The DoJ has become blatantly politicized. What you’re seeing is a judicial response, which is entirely lawful and entirely appropriate. Trump and Barr may view it as political push-back; their supporting media will certainly try to sell it as such; but it’s actually a manifestation of our constitutional checks and balances system. What we have here is a judge who is conscious of the fact that arbitrarily dismissing this particular case will set a precedent that could have the effect of diminishing the rule of law.
You got that right, buckaroo. Only now are we reversing the politicized weaponization Obama instilled in the DOJ, IC and FBI. They try to game the system to make their actions appear lawful and proper but when cornered they throw all pretense to the wind and go full Soviet.
Sullivan should be disbarred.
Barr’s appointment should have gotten no further than the Senate confirmation hearing. It was known from public statements he had made that he considers a president to be above the law. Witnesses who Trump blocked from testifying in the House should have been called to testify in the Senate. They had direct, first-hand knowledge of what went on in connection with the Ukraine scheme. Evidence and earlier testimony that was held back at Trump’s order by the DoJ should have been demanded. McConnell should have honored his sworn oath to provide a fair and impartial trial. Trump should have been removed from office. Instead, he has been emboldened. He thinks he has been given the green light to use the DoJ as a political tool.
Judge Sullivan has done nothing nothing unlawful or improper.
@Greg: Barr is doing a great job. Trump has nothing wrong (proven dozens of times) Sullivan is a partisan hack.
And you know, that’s fair to say. But remember that the Trump era is a push-back to Democrat corruption, and the installation of party loyalists inside a politically neutral law-enforcement agency.
Blah blah blah…
Reps didn’t like Holder, you don’t like Barr. Your dislike is partisan bias and easily dismissed. Obama’s AG used his power to shield, hide, and strong-arm Dem opponents. Barr is just righting the equation.
What goes around…