May 19, 2024
Judge Sullivan: A Prosecutor in Robes
There is a joke lawyers who practice in Federal Court like to tell. Angel Gabriel summons Sigmund Freud in heaven and tells him God is having delusions of grandeur. Freud asks how God can have delusions of grandeur: There is no one grander than Him. To which the Angel Gabriel responded, "he thinks he's a federal judge." But what Judge Sullivan is doing is no joke.
There is a joke lawyers who practice in Federal Court like to tell. Angel Gabriel summons Sigmund Freud in heaven and tells him God is having delusions of grandeur. Freud asks how God can have delusions of grandeur: There is no one grander than Him. To which the Angel Gabriel responded, “he thinks he’s a federal judge.” But what Judge Sullivan is doing is no joke.

Judge Emmet Sullivan’s decision to appoint a retired federal judge to argue against the Justice Department’s entirely proper decision to end the criminal prosecution of General Michael Flynn is designed to circumvent the constitutional limitation on the jurisdiction of federal judges. The Constitution limits this jurisdiction to actual cases and controversies. There must be disagreement between the parties that requires resolution by a judge. If the parties agree, there is nothing for the judge to decide.

In the Flynn case, the prosecution and defense both agree that the case should be dropped. Because there is no longer any controversy between the parties to be resolved, there is no longer any case properly before the judge. His only job is to enter an order vacating the guilty plea and dismissing the case with prejudice.

But Judge Sullivan does not want to do that. He apparently thinks Flynn belongs in prison. He has as much as said that. So, he has manufactured a fake controversy by appointing a new prosecutor because evidently he does not like what the constitutionally authorized prosecutor — the Attorney General — has decided. The new prosecutor has been tasked to argue for the result that Judge Sullivan prefers. But under our constitutional system of separation of powers, the new prosecutor has no standing to make such an argument. He is not a member of the executive branch, which is the only branch authorized to make prosecutorial decisions. He was appointed by a member of the judicial branch to perform an executive function — a clear violation of the separation of powers, which allocates the power to prosecute to the executive, not judicial, branch.

It makes no constitutional difference that Flynn pleaded guilty — even if his plea was voluntary, which is questionable in light of the threats against his son.

[Read It All]

See Also:

(1) Dershowitz rips judge’s unusual move in Flynn case: He has become ‘the most partisan’

(2) Is This Why the Judge Presiding Over the Flynn Case Is Allowing Amicus Briefs from Anti-Trump Lawyers?

(3) Mark Levin shreds ‘arrogant’ Michael Flynn case judge: ‘Get him the hell off this case’

(4) Cooking Up a Criminal Investigation, the Obama Way

(5) List of officials who sought to ‘unmask’ Flynn released: Biden, Comey, Obama chief of staff among them

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