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Mon May 11, 2020, 08:04 PM

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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Reply Judge Sullivan must reject Barr's usurpation of judicial power (Original post)
Yo_Mama_Been_Loggin May 2020 OP
BigmanPigman May 2020 #1
dlk May 2020 #2
Igel May 2020 #3
dlk May 2020 #4

Response to Yo_Mama_Been_Loggin (Original post)

Mon May 11, 2020, 08:32 PM

1. This is so confusing for me to understand.

And I have tried.

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Response to Yo_Mama_Been_Loggin (Original post)

Mon May 11, 2020, 09:02 PM

2. Barr is essentially making up authority he doesn't have

The case has been prosecuted and decided. The law doesn’t provide for any take backs. The DOJ made the decision to pursue the case and bring it to trial. The trial is over, except for the sentencing. Trump will, no doubt, pardon Flynn but he will forever have the guilty plea and conviction. (Just as Trump is forever impeached.)

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Response to dlk (Reply #2)

Mon May 11, 2020, 10:41 PM

3. There's no sentencing.


Notice the bit that says
Particularly given that the government is seeking to dismiss the charge with prejudice (so that no future Justice Department could refile the case), Sullivan could not reasonably conclude that the dismissal is part of any broad pattern designed to harass the defendant. Instead, he would have to read into the Rule 48(a) standard some broader exception for bad faith dismissals. In the alternative, he could perhaps grant the motion but convert it into a motion to dismiss without prejudice. Ruling on a Rule 48(a) motion in 2019 in United States v. Pitts, Sullivan recognized that “there is a strong presumption in favor of a dismissal without prejudice.”

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Response to Igel (Reply #3)

Mon May 11, 2020, 11:30 PM

4. In his piece, Lawrence Tribe appeared to think otherwise

We will all know soon enough.

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