Jarrett: Flynn judge – kick him off the case or order him to follow the law

OPINION

By Gregg Jarrett | Fox News

A funny thing happened on the way to the gallows. It was discovered that the condemned man was actually innocent. But the sentence would be carried out, reasoned the hanging judge, because the partisan mob must not be left disappointed. (It would also be a waste of good lumber.)

A metaphorical story, yes. But the underlying facts bear a disturbing resemblance to the treatment of Gen. Michael Flynn, President Trump’s former national security adviser.

In early 2017, the retired three-star general was deviously set up and framed by James Comey’s FBI for a crime he did not commit. Thereafter, he was coerced by special counsel Robert Mueller’s unscrupulous prosecutors into pleading guilty to the charge of lying to the FBI, even though the evidence now shows he did not lie.

The presiding federal judge in the Flynn case, Emmet Sullivan, is utterly unbothered by the newly revealed evidence of the defendant’s innocence. He seems determined to carry out the sentencing to satisfy the partisan media mob and Democrats who agitate for the punishment of a Trump ally. Ready the scaffold.

But wait. On Tuesday, Flynn’s attorneys resorted to a higher court for relief by filing a writ of mandamus before the U.S. Court of Appeals for the District of Columbia Circuit. They correctly argue that Sullivan should be kicked off the case and/or ordered to follow the law by dismissing the criminal charge against Flynn.

It is highly likely that the defense will prevail, notwithstanding the best efforts of Sullivan to turn the law upside down. This is because the trial court judge has no authority whatsoever to usurp the power of the Department of Justice (DOJ), which uncovered the exculpatory evidence of Flynn’s innocence and decided to drop the case entirely.

Judges are impartial and disinterested referees; they resolve disputes that arise at trial. They neither initiate prosecutions nor perpetuate them.

Judge Sullivan might want to revisit Article III, Section 2 of the Constitution. It circumscribes the role of a judge to preside over “controversies to which the United States shall be a party.”

Normally, there are only two parties to a federal controversy — the prosecution, represented by the DOJ, and the defendant, who is charged with an offense. The judge is not a party at all. He or she acts as a neutral arbiter on issues that may arise in court and maintains order.

What happens when, during the course of litigation, there is no longer a “controversy” between the two parties because it is discovered that the case has no merit? Naturally, the charge is dismissed and the case ends. The judge cannot suddenly commandeer the matter and arrogate the role of the prosecutor by pursuing a charge that, in the judgment of the feds, has lost its evidentiary value and proof.

This is true, even if the prosecutor is wrong in his assessment. The unfettered discretion belongs to the prosecutor alone. A judge may disagree with the decision to dismiss but has no legal authority to change it.

It is a simple question of the separation of powers. The judicial branch (judges) may not supplant the authority of the executive branch (prosecutors). To do so would undermine the constitutional constraints imposed by the Framers. Sullivan surely knows this but intends to ignore it.

These fundamental principles are sacrosanct, which makes it especially confounding that Sullivan has taken it upon himself to appoint a retired judge, John Gleeson, to oppose the DOJ’s plan to dismiss the Flynn prosecution. Forget that third parties are not permitted to intervene at the trial court level, Gleeson certainly knows that Sullivan is acting well beyond his judicial authority. Yet, inexplicably, he will argue otherwise.

In a July 1, 2013, memo and order, Gleeson wrote that “The government has near-absolute power to extinguish a case that it has brought.” Citing well-established case law (ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 283, 1987), Gleeson pointed out that “it is entirely clear that the refusal to prosecute cannot be the subject of judicial review.”

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In other words, the decision to drop a case is none of the judge’s business. Period. His written approval is a merely ministerial act.

Read more here.