Judge Emmet Sullivan issued a politically motivated order in the Michael Flynn case Tuesday, bizarrely inviting statements from third parties who want to comment on the government's motion to dismiss the case. This order is delaying the legally required and rationally obvious dismissal simply to stoke the political fires.
All manner of commentary has already been written on why this decision is against the rule of law, but a more fundamental question should be asked:
Is Judge Sullivan seriously suggesting that he might deny the government's motion to dismiss and order the government to prosecute?
Because he can't. He's the judge, not the prosecutor.
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Yet Sullivan went further and became a de facto prosecutor Wednesday, considering “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” It’s a blatantly malicious move by Sullivan to consider what criminal charge might be brought by the court itself, after delaying granting an unopposed motion from the actual prosecutors to dismiss the case.
Separation of powers requires that the executive branch is exclusively vested with power of law enforcement, while the judicial branch is constitutionally independent and impartial as to the dispute between the government and the defendant. So, when the government decides they aren’t going to prosecute, the judicial branch has no power to force them to, or even to suggest that they should.
Prosecutorial discretion allows the government to decline to prosecute and the law sometimes requires the government not to or to dismiss pending charges. It’s never the judge’s province to comment on or advise the prosecutor what charges to bring or think of new, creative ways to try to punish the defendant.
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So, what could these Watergate prosecutors and "friends of the court" provide in their amicus filing that would help inform Judge Sullivan on the government's motion to dismiss?
Literally nothing.
It's a clear scam to get political statements into the record in Flynn's case so that after it's dismissed, Democrats can run with their fake narrative smearing the Department of Justice and Attorney General Bill Barr for doing their job within the executive branch’s province of enforcing justice.
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As more of the dark truth of the setup and intentional targeting by the Obama administration and FBI of their political opponent begins to come out, the Democrats and their media cohort will push harder to spin the narrative and say anything to deflect from facing what actually happened.
Since Judge Sullivan appears to be so invested in trying to force the government to prosecute Flynn, he should step off the bench and apply for a job as an assistant U.S. attorney. He clearly wants to be a prosecutor, not a judge, so he's in the wrong branch of government.