DOJ: Court Is Threatening the Constitution

DOJ: Court Is Threatening the Constitution

( – There is more drama surrounding the case of former National Security Adviser Michael Flynn. Before getting into the new developments, it’s important to know the context of how and why this high-profile court case is unfolding.

In May, US District Court Judge Emmet Sullivan refused to dismiss charges against Flynn despite the recommendation from the Department of Justice (DOJ). The DOJ determined that misconduct by senior FBI officials to trap the former general into a plea deal was sufficient reason to dismiss the case after Flynn withdrew his plea deal.

Judge Sullivan is trying to force the DOJ to continue the prosecution of Flynn. He has accused Flynn of being a traitor from the bench and showed open hostility towards the defense team. The DOJ refused to withdraw its motion to dismiss.

As a result, Sullivan ordered the creation of a “kangaroo court” to determine if he could impanel his own prosecutor in the case who is not part of the DOJ. That’s when the DOJ and Flynn’s attorney asked the DC Circuit Court of Appeals to get involved.

For more background details about this case, click here.

In June, a three-member panel of the appeals court ordered Sullivan to dismiss the case. Buckling down, the judge filed a brief immediately after the ruling requesting the entire group of judges on the court hear his case.

DOJ Responds to Sullivan’s Request for Full Court Hearing

In the DOJ’s filing with the full appeals court, it argued that a hearing with the entire court was not necessary and the three-member panel properly sided with the Constitution. The DOJ’s brief also said Judge Sullivan was pursuing a “full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position… and [that he was] second-guessing core prosecutorial judgments.”

The DOJ’s argument was threefold to the full court. In short form, it says Judge Sullivan is behaving in a threatening manner towards the Constitution.

Specifically, the DOJ stated:

  1. The full court should only review cases under very narrow circumstances.
  1. Judge Sullivan did not have the authority to continue the case as the Constitution only provides that power to the executive branch.
  1. The parties all agree the matter should come to an end, except for Judge Sullivan. The judge, through his “kangaroo court” and now full appeal to the DC Circuit Court of Appeals, “insists on keeping the legislation going.”

The DOJ stressed that the judge does not have legal standing. He is not involved in the case and has no personal stake in its outcome. In fact, under the Due Process Clause, he cannot have a “stake,” and therefore, the court should refuse to hear the case any further.

Finally, the DOJ asserted that the court did not have the permission of the solicitor general to file a petition for a rehearing, as required by federal statute and Supreme Court precedent.

There is no set time for a vote by the court as to whether or not they will hear the case. However, they should rule by July 31.

Stay tuned as this is an evolving story.

By Don Purdum, Freelance Contributor

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