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Anonymous ID: 6a05fe June 1, 2020, 4:36 a.m. No.9410144   🗄️.is đź”—kun

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Judge Sullivan’s refusal to immediately dismiss Flynn’s case raises novel questions about the limits of judicial power

The pitched legal battle over the fate of President Trump’s former national security adviser Michael Flynn raises unsettled, novel questions about what happens when a judge refuses to go along when prosecutors no longer want to pursue their case.

Judge Emmet G. Sullivan’s decision not to immediately dismiss Flynn’s case has led to an extraordinary situation in which the district judge in Washington is under orders from his colleagues on the appeals court to quickly defend his actions. Sullivan himself has taken the unusual step of enlisting a high-powered trial attorney to respond by Monday after Flynn’s lawyers asked the U.S. Court of Appeals for the D.C. Circuit to order the judge to drop the case and accused him of bias.

Some of the rules of the road are clear. Prosecutors can drop charges against a criminal defendant only with permission from the presiding judge, and Sullivan has the power to decide whether tossing Flynn’s case is in the public interest.

But legal experts and former judges disagree on the limits of Sullivan’s authority and how he should make that call. In practice, judges typically defer to prosecutors, and it would be difficult for a judge to go forward with sentencing, for instance, if the prosecutor has had a change of heart.

“The standard tilts heavily in the direction of saying that a judge should grant dismissal unless there’s some reason to think that dismissal would violate an important public interest,” said Stanford law professor Robert Weisberg, who teaches criminal law and procedure. “The customary and very strong presumption is that a judge will and should agree to the dismissal. But it’s not a requirement.”

And there is nothing customary about Flynn’s case, which has sparked dramatic debate over the Constitution’s separation of powers, judicial independence and allegations that Justice Department leaders are protecting the president’s friends.

Earlier this month, the department moved to abandon its long-running prosecution of the retired three-star general, who admitted to lying to the FBI in 2017 about his contacts with Russia’s ambassador to the United States. The reversal came after political appointees at the department determined that the FBI had no valid basis to question Flynn, so any lies he told were irrelevant to the investigation into Russian interference in the 2016 election. The remaining member of former special counsel Robert S. Mueller III’s team who was working on the case withdrew before the dismissal motion was filed.

The decision prompted intense criticism, including from law enforcement officials and Democrats, who said the department had given in to political pressure. Trump’s supporters and Flynn’s lawyers argued the retired general was a victim of FBI overreach. The day the decision was announced, Trump called Flynn “an even greater warrior.”

Flynn’s lawyers tried last week to circumvent Sullivan’s plan to assess the Justice Department’s move and asked the appeals court to quickly put an end to the matter. The defense team objected to Sullivan’s appointment of retired federal judge John Gleeson to argue against the department’s position and examine whether Flynn should face a criminal contempt hearing for perjury after pleading guilty to a crime he and the Justice Department now say didn’t happen. The judge also invited independent groups to comment.

The appeals court agreed to review Sullivan’s actions, but there is also disagreement over whether it should get involved at this time.

Former appeals court judge Michael Luttig wrote in a recent column in The Washington Post that in most cases, one would expect the appeals court to wait and give Sullivan an opportunity to rule before stepping in. But Luttig said the appeals court would be justified to intervene now. He characterized Sullivan’s invitation to Gleeson and outside groups as “troubling” and said it would “make a circus of the solemn judicial proceeding.”