RUTHFULLY YOURS

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.

The Justice Department has the constitutional authority to dismiss a prosecution that it has brought at any time and for any reason, without being second-guessed by the judicial branch.

Judge Sullivan is basing his unconstitutional actions on Rule 48(a) of the Federal Rules of Criminal Procedure which provides that: “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” This judge-written rule was designed to protect the defendant against manipulation by the government to circumvent the protection against double jeopardy. It is not properly employed to hurt the defendant by empowering the judge to act as both prosecutor and decision-maker. It rarely if ever results in a judge denying leave to the government to drop a prosecution that it believes is unjustified.

Judge Sullivan is exceeding his authority by turning his courtroom into a three-ring partisan circus, designed to allow him to get his way despite the agreement of the actual parties before him. He is taking judicial activism to a new and grossly improper level, to the disadvantage of a defendant he does not like.

As Justice Ruth Bader Ginsberg recently wrote for a unanimous Court: “Courts are essentially passive instruments…” It is not within their legitimate authority to “sally forth each day looking for wrongs to right.” Their role is to “decide only questions presented by the parties.” Judge Sullivan is improperly exceeding that role in the Flynn case and should be chastised for it, whether one agrees or disagrees with the Justice Department’s decision on its merits.

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. He is endangering our system of separation of powers and he should be stopped by a writ of mandamus or a motion to recuse. Judges, too, are not above the law or the Constitution.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.