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Judge Sullivan must reject Barr’s usurpation of judicial power

The prosecutors brought the case and won it. All that remains is for Judge Sullivan to decide what sentence to impose on Michael Flynn, who pleaded guilty twice.

Retired Army Lt. Gen. Michael Flynn, foreground.SAM HODGSON/NYT

US District Judge Emmett G. Sullivan unquestionably knows that when a federal defendant pleads guilty but then asks to be relieved of his fate, it is up to the court to decide the merit of his argument — no matter who supports it, including a prosecutor who has switched sides.

Sullivan is presiding over the case in which former National Security Adviser Michael Flynn pleaded guilty twice to serious federal crimes and is ready for sentencing. The fly in the ointment is a recent request by Attorney General William Barr that basically says: Never mind. Ignore those guilty pleas; Flynn never should’ve been interviewed about his conversations with Russian Ambassador Sergey Kislyak in the first place, so his admitted lies to the FBI don’t matter. The whole “Russia thing” was a hoax, according to Barr, that we’re now helping President Trump erase from history. Anyone studying the facts would have no doubt this was his message.


The emerging consensus, reflected in these pages and in recent columns, is that Barr’s motion to dismiss the Flynn prosecution, however transparently abusive, leaves Sullivan in a pickle. As Jeffrey Toobin put it, “there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop.” The judge’s options are said to include: examining why the prosecutor in charge of the case for the past several years suddenly withdrew; inquiring whether the Department of Justice’s reasons for treating the entire prosecution as unlawful and the guilty pleas as void were legally sound; granting the request to drop all charges but doing so “without prejudice” so they might be refiled by a future Justice Department; and proceeding to sentence Flynn in a rare and courageous exercise of discretion under the Federal Rules of Criminal Procedure.


That gets it backwards. It proceeds from the premise that Sullivan is being asked to “force prosecutors to bring a case” against their will, something judges clearly lack power to do. But Sullivan is being asked to do no such thing. He isn’t even being asked to consider whether to do it.

The prosecutors brought the case and won it. All that remains is for Sullivan to decide what sentence to impose. The flip side of the proposition that there is no judicial power to direct the executive branch to prosecute (or, for that matter, to direct the legislative branch to legislate) is that there is no political power, legislative or executive, to direct the judicial branch in its disposition of a case that has been fully prosecuted.

An unbroken line of precedent dating to 1792 (Hayburn’s Case), including Chicago & Southern Air Lines v. Waterman (1948), extending through 1992 (Robertson v. Seattle Audubon Society), and 1995 (Plaut v. Spendthrift Farm), and not questioned since, establishes the proposition — which of course both Flynn and Barr have every incentive not to call to the court’s attention — that the political branches have no role to play in overseeing the adjudication of particular cases. Yet that’s exactly the role Barr is trying to play here.

That politicization of the American justice system is, in the words of the Supreme Court case relied on by Barr, “clearly contrary to the public interest.” Indeed, Barr is seeking not only to review and reverse the judgment already made by an Article III court in accepting Flynn’s guilty pleas as well-founded. He’s trying to exercise what amounts to a junior varsity pardon power to spare the president the burden of having to take the political heat for exercising the actual pardon power himself. Neither move by Barr is constitutionally permissible.


Interestingly, one of the cases in the controlling line of precedent, United States v. Klein (1871), involved a legislative attempt to tell a federal court how to treat a presidential pardon when introduced in evidence in a particular case. Whether it is Congress or the president acting through the attorney general who threatens judicial independence, the separation of powers principle is the same: hands off the judicial branch. Because the guilty pleas Judge Sullivan accepted in this case included knowing waivers of any right of appeal, Sullivan should, not as a matter of discretion but as a matter of constitutional obligation, tell Barr it is too late for him to do the president’s bidding.

No need for the judge to dwell on such not-so-coincidental circumstances as the contemporaneous phone conversation in which President Trump reassured President Vladimir Putin of Russia, by Trump’s own account, that he had nearly finished dealing with the “Russia hoax.” No need for the judge to find that Barr’s request was a continuation of an impeachable pattern of obstructing justice and the rule of law that Trump himself began when he fired FBI Director James Comey to cover up his campaign’s involvement in Russia’s effort to help him become president. Those matters could be relevant to the bona fides of the Barr request.


But if the separation of powers means anything, whether Barr is taking this most extraordinary step for a corrupt reason needn’t be established. What matters — regardless of why Barr is attempting to undo a completed judicial determination — is that it should require no act of extraordinary daring for Sullivan to invoke the Constitution in rebuffing this latest attack on the independence and integrity of the federal judiciary under Article III. That is simply his job.

Laurence H. Tribe, the Carl M. Loeb University professor and professor of constitutional law at Harvard Law School, is coauthor, most recently, of “To End A Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw.