Michael Flynn Judge Argues Against Dismissal; DOJ Blasts on Constitutional Grounds

Michael Flynn (Manuel Balce Ceneta / Associated Press)
Manuel Balce Ceneta / Associated Press

Judge Emmet G. Sullivan filed his response to former National Security Advisor Michael Flynn’s effort to force the dismissal of charges against him — and the Department of Justice, which wants to drop the case, also filed a brief.

Sullivan, who hired the attorney who once represented Supreme Court Justice Brett Kavanaugh’s in his confirmation fight, told the U.S. Court of Appeals for the District Columbia Circuit on Monday :

It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he commit-ted the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.

For now, it suffices to say that the unusual developments in this case provide at least a plausible “reason to question” the “bona fides” of the government’s motion.

The DOJ also submitted a brief, signed by U.S. Solicitor General Noel Francisco, not only explains the reasons that the department dropped the charges against Flynn, but cites a threat to the constitutional separation of powers in the judge’s attempt to keep the case alive (citations omitted):

Under Articles II and III of the Constitution, the power to prosecute belongs to the Executive, not the Judiciary.

Article III, meanwhile, provides that the federal courts may exercise only “judicial Power” over “Cases” and “Controversies.” A case or controversy is a “dispute between parties who face each other in an adversary proceeding.” It follows that, if the dispute between the parties comes to an end, the court’s exercise of judicial power must end as well.

Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges.

Flynn’s attorney, Sidney Powell, filed a motion for a writ of mandamus last month asking the D.C. Circuit to order the case against Flynn dismissed. Judge Sullivan instead asked for amicus curiae (“Friend of the court”) briefs arguing for the case to be retained. As Sean Davis and Mollie Hemingway reported at the Federalist on Monday, seven Republican Senators took the opportunity to file their own amicus briefs arguing for the immediate dismissal of the charges.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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