Judge Sullivan: A Prosecutor in Robes

by Alan M. Dershowitz, GATESTONE INSTITUTE  •  May 14, 2020

Judge Emmet 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. Pictured: Michael Flynn, former National Security Advisor, departs the E. Barrett Prettyman United States Courthouse following a pre-sentencing hearing on July 10, 2018 in Washington, DC. (Photo by Aaron P. Bernstein/Getty Images)

• 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.
• Under our constitutional system of separation of powers, the new prosecutor has no standing…. the separation of powers…. 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.
• [Sullivan] 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.

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.

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