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Michael Flynn’s sentencing on Tuesday took a turn that no one expected — not the special counsel, not the defense lawyers, not the public. Judge Emmet Sullivan — who was initially appointed as a judge by President Ronald Reagan and promoted by Presidents George H.W. Bush and George W. Bush — announced that he would not give Flynn the sentence the parties agreed upon. Flynn’s cooperation, which special counsel Robert Mueller said deserved probation, would not outweigh the seriousness of his crimes, both charged and uncharged, which the judge believed required prison. The judge even asked whether Flynn’s actions might have amounted to treason, a question many found perplexing. It was a question that could take on a different complexion in light of the redacted material available to the judge but not to the public, given Flynn’s role as Turkey’s secret agent during the Trump transition. Judge Sullivan retracted the treason charge later in the proceeding, but then put off the sentencing until next year. The message was clear: Flynn would have to do more to cooperate with the special counsel if he hoped to change the balance in the judge’s mind.

One can disagree with the judge’s decision, even criticize him for the comments he made. But nothing about what he did was unlawful. That didn’t stop Alan Dershowitz, writing on the Fox News blog. Wearing the mantle of a constitutional and criminal law scholar, he announced that the Constitution limited Sullivan’s jurisdiction to reject the party’s agreement.

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The argument was extraordinary: Since the Constitution limits federal court jurisdiction to “actual cases and controversies” and since the parties agreed to the sentence, there was no controversy here, and the judge had no power to act. Professor Dershowitz acknowledged that there was an “exception” to this “constitutional restriction of jurisdiction when it comes to sentencing,” but most judges “abided by the spirit of the constitutional restriction” by imposing the sentence the parties wanted.

One of us (Nancy Gertner) was a federal district court judge for 17 years, and is an expert on sentencing law. The other (Laurence Tribe) has been a constitutional scholar and professor for 45 years and a Supreme Court advocate nearly as long. We can say without equivocation: There is no such constitutional restriction on the jurisdiction of a judge to sentence. There is no such rule or restriction — actual or “in spirit” — and surely no exception. Dershowitz is simply wrong.

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The claim that Judge Sullivan crossed some constitutional boundary, visible to Dershowitz alone, by second-guessing the agreement between Flynn’s attorneys and the special counsel, profoundly misunderstands the operation of Article III, which sets up the judicial branch and of the Constitution as a whole. The federal judicial system presupposes that the judges nominated by the president and confirmed by the Senate will referee disputes and then mete out justice within boundaries set by the Constitution and laws. The task of formulating and enforcing remedies is entrusted to those judges and committed, within legal constraints, to their discretion. In fact, the Constitution would forbid a requirement that a judge defer to the wishes of the disputing parties once they come to an agreement. It would be an abdication of the “judicial power of the United States” entrusted by Article III to the Supreme Court and the lower federal courts, and flatly incompatible with the Constitution’s text, structure, and history.

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More surprising for a prominent criminal defense lawyer, Dershowitz’s claim also misrepresents the way the federal criminal justice system works. Virtually every single federal plea agreement — including the one Flynn signed — says: “Your client understands that the sentence to be imposed is a matter solely within the discretion of the Court,” and further, that “the Court is not obligated to follow any recommendation of the government.” In fact, Flynn agreed that he has no right to withdraw his guilty plea “if the Court should not follow the government’s sentencing recommendation.”

The notion that a federal judge has no constitutional jurisdiction to impose anything other than the agreed-upon sentence because there is no “case or controversy” is absurd. The “case or controversy” limitation on judicial power means that the federal courts can’t render an advisory opinion about the law. Matters must involve real, not hypothetical, conflicts. When the government brings criminal charges against a citizen, threatening the coercive power of the state to take away someone’s liberty, there is always a “case or controversy,” even if the defendant subsequently pleads guilty and accepts the prosecutor’s deal.

While it is unusual for a court not to follow the government’s recommendation in the case of a cooperating witness, there is nothing improper or unconstitutional about it. Sentencing judges are supposed to evaluate the offense and the offender. They may be persuaded by the recommendations of the parties, but they make their own decisions. When a defendant cooperates with the government, the sentencing calculus is different. A cooperator’s sentence is less about the defendant and the crime, and more about the needs of the criminal justice system. Getting one defendant to roll on someone else is necessary — so the government says — to enable prosecution of higher-ups. Typically, courts rely on the prosecutor’s recommendation for cooperators more than in the ordinary case because the prosecutor is in a better position to evaluate the cooperation than is the judge.

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One might say that it is important to go along with the special counsel so that other cooperating witnesses can rely on his promise of leniency, especially in an investigation as high-stakes as this one. And one might take issue with what the judge said and the vehemence with which he apparently said it. But “unconstitutional,” as Dershowitz stated with such certainty? Inconsistent with the “spirit of the Constitution”? Not at all.


Nancy Gertner, a retired federal judge, is a professor at Harvard Law School. Laurence H. Tribe, 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.