The case against Micheal Flynn is abusive and should be dismissed, as the Justice Department requests. But Judge Emmet Sullivan has other ideas.
The case of former national security adviser Michael Flynn is rapidly moving from the dubious to the preposterous. U.S. District Judge Emmet Sullivan is being widely applauded for resisting the dismissal of a case that the Department of Justice insists cannot be ethically maintained.
Faced with no dispute between the parties, Sullivan decided to create a contested case by inviting in third parties to create a conflict and now is suggesting that he may substitute his own criminal charge rather than let Flynn walk free. In the past, I have publicly praised Sullivan. However, this is fast becoming a case of gross judicial overreach as the court appears to assume both judicial and executive powers. Sullivan can disagree with the exercise of prosecutorial discretion, but he cannot substitute his own judgment for it.
“At the appropriate time, the court will enter a scheduling order governing the submission of any amicus curiae briefs,” Sullivan wrote. Never has a more innocuous line left a more ominous meaning. After that order, the judge proceeded to appoint retired Judge John Gleeson to argue against dismissal in the absence of a dispute between the parties. He is effectively outsourcing the argument to introduce a dispute. This move is nothing to celebrate.
A punishment by plebiscite
Amicus briefs are allowed by courts when outside parties want to be heard on some contested issue facing a court. Such filings are common in civil cases. This, however, is a criminal case. There are serious questions about the propriety of such third parties being asked to brief uncontested motions in a criminal case. The lives and liberty of individuals generally are protected from public demands for punishment. We do not do punishment by plebiscite in this country.
While courts have discretion to grant amicus or third-party arguments in civil cases, there is no counterpart under the Federal Rules of Criminal Procedure. In fact, Judge Sullivan rejected such a request on Dec. 20, 2017, stating that “the Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. … Options exist for a private citizen to express his views about matters of public interest, but the court’s docket is not an available option.”
Sullivan’s earlier order was the correct one. It is dangerous to open up criminal cases for citizens to argue for convictions or enhanced punishments, particularly when prosecutors seek dismissal in light of prosecutorial error or abuse.
Indeed, former President Bill Clinton’s attorney general, Janet Reno, warned Congress against courts intruding on Justice Department decisions, stressing that “our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.”
That is particularly the case where the motion benefits a criminal defendant. Indeed, it is difficult to imagine any basis that Sullivan could deny this motion without facing a rapid reversal. [ … ]
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