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May 21 — Setting the Judiciary Straight

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Checks and Balances

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Finally, an activist judge is being made to explain himself.

Today, the U.S. Court of Appeals for the D.C. Circuit, on its own motion, ordered Judge Emmet Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. This comes after Flynn lawyer Sidney Powell filed a petition asking the appellate court to instruct Sullivan to grant the Justice Department’s motion to dismiss the case against Flynn.

Powell went above Sullivan’s head, so to speak, after he not only declined to grant the prosecution’s motion, but invited non-parties to intervene in the case by filing amicus briefs. Sullivan asked a partisan judge to come up with a fancy argument explaining why he suddenly had the power to veto the prosecutorial discretion of the executive branch. Sullivan also appointed one amicus, former federal judge John Gleeson, as a quasi-prosecutor to make arguments in favor of prosecuting Flynn. These were rather curious moves for the judge, considering Sullivan himself declined some two dozen times to permit amicus briefs in Flynn’s case, probably because he knows them to be not authorized in criminal cases. Somehow between then and now, Sullivan gained a different understanding of the law that permits him to ignore the separation of powers and keep Flynn on the hook.

Sullivan’s appointment of Gleeson to play fake prosecutor in this case is especially egregious to anyone who values impartial justice. Gleeson, who worked at the U.S. attorney’s office for the Eastern District of New York with Loretta Lynch and Mueller pitbull/Biden fundraiser Andrew Weissmann, has co-written a Washington ComPost op-ed hysterically ranting that the Flynn dismissal was an abuse of power. I’m guessing Judge Sullivan was impressed by the piece.

The three-judge appellate panel who ordered Judge Sullivan to respond notes that there is case law covering this sort of thing, of which Sullivan should be well aware. The panel cited the case United States v. Fokker Services B.V. In that 2016 ruling, the D.C. Circuit granted a writ of mandamus against a district judge who refused to dismiss a case because the judge thought the Justice Department was letting the defendant off too easily. The Fokker Court explained that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a judge has no power to deny a motion to dismiss charges. The D.C. Circuit there elaborated that decisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion,” and that judges may not usurp the Justice Department regardless of whatever disagreements may arise.

If the appellate panel’s order could be summed up in a single statement, it would be: “Tell us, in writing, exactly what about the Fokker case you don’t understand.”

The panel’s order invites the Justice Department to weigh in, but does not require it to do so, further reinforcing their view that Sullivan is the only one with explaining to do.

For once, an activist judge will have to defend his actions on legal grounds. It’s about time.

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