The actions of the rogue federal judge in the Michael Flynn criminal case are an unprecedented and unconstitutional abuse of power that represent a “recipe for tyranny,” seven top senators, including the Senate Majority leader, told a federal court on Monday. In an amicus brief filed with the U.S. Court of Appeals for the District of Columbia, Sen. Tom Cotton (R-Ark.) blasted the refusal of Judge Emmet G. Sullivan to grant the Department of Justice’s motion to dismiss charges against Flynn. Sens. Mike Braun (R-Indiana), Kevin Cramer (R-North Dakota), Ted Cruz (R-Texas), Chuck Grassley (R-Iowa), Rick Scott (R-Florida), and Mitch McConnell (R-Kentucky) also signed the brief.
Sullivan’s actions violate the Constitution’s clear separation of powers on which branch of government may prosecute American citizens, the senators assert, citing the U.S. Constitution, quotes from Founding Fathers, and longstanding federal court precedent. According to the U.S. Constitution, the Executive Branch that houses the Department of Justice has the exclusive discretion to begin and to end a prosecution while the Judiciary has the power to decide cases or controversies. Just as the Executive cannot direct the Judiciary’s rulings, the Judiciary cannot direct the Executive’s prosecutorial decisions, the senators write.
No less than the former Chief Justice John Marshall described prosecutorial discretion as “‘an indubitable and a Constitutional power’ which permitted [the President] alone to determine . . . when to pursue and when to forego prosecutions,” the senators note, quoting the former chief justice from his time as a congressman. The senators reminded the court that Alexander Hamilton wrote in Federalist No. 78 that “while the Executive ‘holds the sword of the community,’ the Judiciary ‘can take no active resolution whatever’ because it has ‘neither Force nor Will, but merely judgment.'” They quote James Madison in Federalist No. 47 that “[a]lthough individual liberty has ‘nothing to fear from the judiciary alone,’ it has ‘everything to fear’ from the union of the judicial and executive powers—which is a recipe for ‘tyranny.'”
The amicus filed on behalf of the Republican senators provided a stark contrast to efforts from Democrat senators to threaten and intimidate federal judges into doing their bidding on politically sensitive cases. (See, e.g., “Senate Democrats’ unprecedented threat against the Supreme Court,” Washington Post, Sept. 3, 2019)
Sullivan’s refusal to dismiss the charges and instead appoint a shadow prosecutor stunned legal observers. Former federal prosecutor Andrew McCarthy described Sullivan’s actions “perverse,” “legally dubious,” and “unjust.”
Constitutional law professor Jonathan Turley wrote, “The Flynn case is fast becoming a case of gross judicial overreach as the court appears to assume both judicial and executive powers. Sullivan can disagree with the exercise of prosecutorial discretion, but he cannot substitute his own judgment for it.”
Judge Sullivan himself admitted in 2015 that judges were “ill-suited to review prosecutorial decisions.”
Sullivan took over the court’s handling of the Flynn matter in December 2017 after Judge Randolph Contreras recused himself from the case. Since then, Sullivan’s behavior has alarmed Flynn defenders as well as civil libertarians. Sullivan had previously referred to Flynn, a decorated military combat veteran, as a traitor who “sold out his country,” bizarrely accused Flynn’s attorney of plagiarism, and refused amicus briefs to be filed on Flynn’s behalf. Once the Department of Justice moved to dismiss charges due to government abuse and unlawful targeting of Flynn, Sullivan directed a shadow private prosecutor to file as an amicus against Flynn, despite the fact that the motion to dismiss Flynn’s case was supported by all parties to the case.
Many of these outside observers have noted United States v. Fokker Services, a unanimous ruling of the U.S. Court of Appeals that found a lower court has “no authority” to deny the Government’s motion to dismiss even if it disagrees with it. The senators’ amicus brief further notes “the Judiciary’s authority is ‘at its most limited’ when reviewing charging decisions, which by their nature involve judgment calls that the courts are ‘not competent to undertake.’”
The results of not failing to uphold the separation of powers, they say, would be disastrous and “entail systemic costs.” If the courts could intrude on this core prosecutorial function, they might also intrude on other prosecutorial decisions such as whether to grant immunity or trigger mandatory minimum sentences.
“[T]he extraordinary sequence of events that would ensue from those actions only underscore the need for immediate appellate intervention. To allow the possibility of such an experiment to proceed below would have grave consequences, which this Court should halt now,” they write.
If the case were allowed to proceed to sentencing, that “would raise the unconstitutional specter of a criminal defendant being sentenced with the judge assuming the dual role as court and prosecutor.”
The federal appeals court ordered the judge to respond to the writ of mandamus petition ordering dismissal of charges by close of business on June 1.
