Emmet Sullivan vs. the D.C. Circuit Another precedent that rebuts the judge’s ruling in the Flynn case.
https://www.wsj.com/articles/emmet-sullivan-vs-the-d-c-circuit-11589583144?cx_testId=3&cx_testVariant=cx_4&cx_artPos=1#cxrecs_s
“Who wrote that opinion? None other than Sri Srinivasan, a Barack Obama appointee and now chief judge of the D.C. Circuit. He was joined by conservative giants Laurence Silberman and David Sentelle. The court didn’t dismiss Judge Leon from the case, but it did overrule his objections to the deal and remanded the case back to him with those instructions.”
Federal Judge Emmet Sullivan has refused to accept the prosecution and defense agreement to drop the charges against Michael Flynn for lying to the FBI, despite a mountain of law saying he doesn’t have the authority. We wrote Friday about Justice Ruth Bader Ginsburg’s recent ruling that cuts against his decision to solicit outside briefs. And now we’re reminded of another precedent that is even more on point about the judge’s wayward logic.
The 2016 ruling in the D.C. Circuit Court of Appeals concerned another judge’s challenge to a prosecution and defense agreement. In U.S. v. Fokker Services, Judge Richard Leon refused to accept a deferred prosecution agreement between the Obama Justice Department and a Dutch aerospace services company. He thought it was too lenient.
Unable to persuade the judge to budge, the parties filed a writ of mandamus for relief with the D.C. Circuit. The ruling by a three-judge panel wasn’t gentle in rebuking Judge Leon’s decision as contrary to law and constitutional understanding—and for reasons that bear directly on Judge Sullivan’s misguided attempt to supplant the executive power of prosecution with his own judicial authority.
“[D]ecisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion,” said the court. It quoted the court’s 1967 precedent, Newman v. U.S.: “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.”
Who wrote that opinion? None other than Sri Srinivasan, a Barack Obama appointee and now chief judge of the D.C. Circuit. He was joined by conservative giants Laurence Silberman and David Sentelle. The court didn’t dismiss Judge Leon from the case, but it did overrule his objections to the deal and remanded the case back to him with those instructions.
Here’s the kicker: If the Justice Department files a writ of mandamus to remove Judge Sullivan from the case, it would go to the D.C. Circuit. A different panel might get the case but the judges would have to consider Judge Srinivasan’s precedent. It’s true the Flynn case is politically charged, but on the legal merits Judge Sullivan would be wise to stand down before he does further harm to his reputation.
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