RUTHFULLY YOURS

On Wednesday Judge Sullivan appointed an ex-judge to explore whether former Mr. Flynn should be held in criminal contempt for perjury even though prosecutors have sought to drop the charges against the former national security adviser. The relevant case is U.S. v. Sineneng-Smith, in which the Supreme Court reversed a Ninth Circuit ruling striking down a criminal statute involving immigration as unconstitutionally overbroad. The case was overturned because instead of adjudicating the issues raised by the parties, the Ninth Circuit panel invited outside groups to brief them about a defense the defendant never raised.

This is akin to what Judge Sullivan is trying to do with Mr. Flynn by asking outside parties to make new arguments for prosecution—and even appointing former judge John Gleeson, who has shown clear public bias (in an op-ed) against Mr. Flynn, to make the case. Judge Sullivan’s abuse is more egregious given that the real prosecutors now say they don’t believe they can honestly prosecute Mr. Flynn.

Justice Ginsburg’s argument is that the job of judges is to judge, not to substitute for prosecutors. As she wrote in a 2008 case, in our system of justice “courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present.” Last week in Sineneng-Smith, she wrote that “the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”

The 9-0 ruling doesn’t bode well for Judge Sullivan on appeal, and it makes us wonder if in his rage at the prosecution he has lost his legal, and maybe emotional, bearings. Judge Sullivan is acting like Justice Ginsburg said the Ninth Circuit judges did: “beyond the pale.”