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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.

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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 FlynnKislyak "sanctions" conversation that is the heart of the case?

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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.

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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.

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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.

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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.

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Judge Sullivan's order inviting amicus briefs is a travesty. Sad to say, it is not a surprise.

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will25u said:

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texaggierm said:

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Biden is there.

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And President Obama's COS.

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Rep. Devin Nunes, R-Calif., the top Republican on the House Intelligence Committee, vowed to pursue multiple new criminal referrals amid the ongoing fallout of bombshell revelations in the Justice Department's handling of the Russia probe.

Referring to former special counsel Robert Mueller, Nunes said: "We're looking at doing criminal referrals on the Mueller team, the Mueller dossier team, the Mueller witch hunt, whatever you want to call it. That's where we are now in our investigation." Nunes made his remarks in a special new episode of Fox Nation's "Witch Hunt," hosted by Fox News legal analyst Gregg Jarrett.

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drcrinum said:

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At least they couldn't have released the names without Grenell.

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texaggierm said:

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Ambassador to Italy which makes sense given the Mifsud links.

Why the Treasury dept requests?

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