(Photo by Alex Wroblewski/Getty Images)
For months, former federal prosecutors have expressed shock and horror at Bill Barr’s nakedly political use of the Justice Department as a partisan weapon. From cutting the legs out from under the prosecutions of Michael Flynn and Roger Stone, to promising that U.S. Attorney for Connecticut John Durham will be recommending criminal prosecutions, to re-investigating Hillary Clinton’s staff for the umpteenth time for possible email violations, the Attorney General has been roundly criticized by experienced federal practitioners for gross impropriety.
Aside from creepy, old has-beens like Fred Fleitz and Joe diGenova, there’s no one to carry water for Barr and pretend that weaponizing the Justice Department is natural and appropriate, nothing to see here.
Enter the Republican State AGs: elected politicians and apparently the only lawyers on earth willing to vouch for Bill Barr. A consortium of state attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia have filed an amicus brief in the Flynn case instructing U.S. District Judge Emmet Sullivan to quit accepting amicus briefs — right after he reads theirs, natch — and instructing His Honor to dismiss the case immediately and “without irrelevant or personal comment.”
“The Court should immediately grant the federal government’s motion to dismiss the information against General Flynn because the federal judiciary has no authority to make the executive branch pursue (or continue to pursue) a criminal conviction,” the officials argue, conveniently eliding the fact that prosecutors already secured a conviction. Because Michael Flynn pled guilty in 2017 and allocuted to his crime multiple times in open court. All that remained was the sentencing, before the Justice Department blew up the case with some laughable arglebargle about it being illegal for the FBI to go talk to Michael Flynn and force him to lie about his conversation with the Russian ambassador.
The AGs are incensed that Judge Sullivan appointed John Gleeson, an experienced federal practitioner and retired judge, to figure out what the hell is going on with the Justice Department, since all of the line attorneys withdrew and there’s every appearance that Main Justice substituted its political discretion for the prosecutorial discretion of the attorneys on the case. And the state AGs are very concerned about prosecutorial discretion, calling it “a bulwark of liberty.”
“The discretion to not pursue a charge serves as a vital check on legislative authority,” shout the very attorneys whose states sued the Obama administration for failing to enforce immigration laws in 2014.
Then they wagged their fingers at Judge Sullivan and explained to him that actually the Federal Rules make it illegal for him to do anything but rubber stamp the government’s motion to dismiss.
It is true that Criminal Rule 48(a) requires a prosecutor to seek leave of the court when dismissing a case, but that does not change the analysis. In the context of a case like this — one where the government has decided not to prosecute a defendant — the rule gives courts the merely ministerial role of granting leave and dismissing the case.
Judge Sullivan can’t make the government present its case, they argue, once again ignoring the inconvenient fact that the government already did present its case and secured a guilty plea.
The amici conclude by telling His Honor to STFU because questioning the motives of the sacred DOJ “erodes public confidence in the courts’
ability to serve as neutral arbiters in politically sensitive cases.” As one does in a federal amicus brief.
“The frequent commentary on the wisdom of this administration’s decisions leaves the public, however unfairly, with the perception that the judiciary is just another political combatant whose decisions are entitled to no special respect.” Which is big talk for a group of political combatants whose exhortations are entitled to no special respect in Judge Sullivan’s courtroom.
“The Court should leave the commentary to the commentariat. It should grant the United States’ motion without elaboration,” they conclude.
No doubt Judge Sullivan will take due notice thereof and govern himself accordingly.
AMICUS BRIEF FOR THE STATES OF OHIO, ALABAMA, ALASKA, ARKANSAS,FLORIDA, GEORGIA, INDIANA, LOUISIANA, MISSISSIPPI, MISSOURI, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WEST VIRGINIA IN SUPPORT OF THE UNITED STATES [Scribd via Law and Crime]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.