Judge Sullivan must reject Barr's usurpation of judicial power

Laurence H. Tribe

US District Judge Emmett G. Sullivan unquestionably knows that when a federal defendant pleads guilty but then asks to be relieved of his fate, it is up to the court to decide the merit of his argument — no matter who supports it, including a prosecutor who has switched sides.

Sullivan is presiding over the case in which former National Security Adviser Michael Flynn pleaded guilty twice to serious federal crimes and is ready for sentencing. The fly in the ointment is a recent request by Attorney General William Barr that basically says: Never mind. Ignore those guilty pleas; Flynn never should’ve been interviewed about his conversations with Russian Ambassador Sergey Kislyak in the first place, so his admitted lies to the FBI don’t matter. The whole “Russia thing” was a hoax, according to Barr, that we’re now helping President Trump erase from history. Anyone studying the facts would have no doubt this was his message.

The emerging consensus, reflected in these pages and in recent columns, is that Barr’s motion to dismiss the Flynn prosecution, however transparently abusive, leaves Sullivan in a pickle. As Jeffrey Toobin put it, “there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop.” The judge’s options are said to include: examining why the prosecutor in charge of the case for the past several years suddenly withdrew; inquiring whether the Department of Justice’s reasons for treating the entire prosecution as unlawful and the guilty pleas as void were legally sound; granting the request to drop all charges but doing so “without prejudice” so they might be refiled by a future Justice Department; and proceeding to sentence Flynn in a rare and courageous exercise of discretion under the Federal Rules of Criminal Procedure.

That gets it backwards. It proceeds from the premise that Sullivan is being asked to “force prosecutors to bring a case” against their will, something judges clearly lack power to do. But Sullivan is being asked to do no such thing. He isn’t even being asked to consider whether to do it.

The prosecutors brought the case and won it. All that remains is for Sullivan to decide what sentence to impose. The flip side of the proposition that there is no judicial power to direct the executive branch to prosecute (or, for that matter, to direct the legislative branch to legislate) is that there is no political power, legislative or executive, to direct the judicial branch in its disposition of a case that has been fully prosecuted.

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