What does Judge Sullivan hope to accomplish?

Yesterday, Judge Emmet Sullivan invited parties with no legal interest in the Michael Flynn prosecution to file briefs in response to the Department of Justice’s motion to dismiss that case. I criticized Sullivan’s decision to do so in this post.

Andy McCarthy presents a more detailed critique. He finds Sullivan’s order “bizarre” and “blatantly political.”

As McCarthy sees it:

The cantankerous jurist is stoking opposition to the dismissal. He knows the law calls for him to accede to attorney general Bill Barr’s decision. But Barr can’t stop Sullivan from turning the dismissal into anti-Trump group therapy — and who knows, maybe the grieving Legal Left will figure out some way for the judge to convict Flynn despite DOJ’s retreat.

Sullivan already has a way to nail Flynn, I think. Given Flynn’s guilty plea, he could sentence General FLynn without the DOJ’s participation.

The problem for Sullivan is avoiding reversal on appeal. I imagine that Sullivan, in addition to wanting to give the Legal Left a means of venting, wants to see and assess the best legal arguments for avoiding reversal if he decides to nail Flynn.

McCarthy concludes that there are no legally sufficient arguments for refusing to accede to the Justice Department’s decision to dismiss the case against Flynn. He states:

DOJ’s dismissal motion may be politically controversial, but legally it is pro forma. The only branch of government constitutionally authorized to proceed with a criminal prosecution is the executive. The Justice Department has declined to prosecute. There is nothing for the judge to do besides the ministerial task of ending the case on the court’s records.

Flynn’s guilty plea doesn’t change this. As I understand it, sentencing is simply another phase of a prosecution.

It’s true that Rule 48 of the Federal Rules of Criminal Procedure requires “leave of the court” before prosecutors may dismiss an indictment. But, as McCarthy says, “a statutorily enacted rule cannot amend the Constitution, which vests solely in the executive the power to prosecute.”

Moreover, the purpose of Rule 48 is to protect defendants against prosecutorial misconduct. As McCarthy explains, Congress feared that prosecutors might pull the plug on cases that aren’t going well for the government, only to recharge later. The idea behind Rule 48 is to prevent repeatedly charging then dismissing an indictment, exhausting an accused’s resources and capacity to defend himself.

There is no danger of this abuse in Flynn’s case. The government seeks dismissal “with prejudice,” such that Flynn can’t be recharged for the same alleged offense.

Sullivan, then, has no legal basis for refusing to dismiss the government’s case against Flynn. The Legal Left can help him formulate an argument for doing so, but not a meritorious one.

Remember, though, that if Sullivan rejects the DOJ’s motion, Flynn’s appeal will be to the U.S. Court of Appeals for the District of Columbia. President Obama packed that court with left-wing judges. It’s possible that more than a few judges on the D.C. Circuit would like to nail Michael Flynn as much as Judge Sullivan seems to, and almost as much as the Obama FBI did.

Thus, Sullivan may not need a meritorious, or even a plausible, legal argument to stick it to Flynn. In a worst case scenario, it will take a pardon to bring down the curtain on this farce.

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