Who died and made Emmet G. Sullivan Chief Justice of the Supreme Court…and four other members as well, so he could be a one-person majority and rule that he can continue a court case even after the Department of Justice dropped all charges?

Personally, I don’t think anyone did.  But, by stubbornly, and apparently  illegally, refusing to dismiss charges against General Michael Flynn, Judge Sullivan seems to think it happened.  And a group of Republican Senators is now reminding him that he is living in a dream world.

Want the particulars?  Please read these excerpts from Sean Davis and Mollie Hemingway’s article at thefederalist.com.  Then we’ll discuss:

The actions of the rogue federal judge in the Michael Flynn criminal case are an unprecedented and unconstitutional abuse of power that represent a “recipe for tyranny,” seven top senators, including the Senate Majority leader, told a federal court on Monday. In an amicus brief filed with the U.S. Court of Appeals for the District of Columbia, Sen. Tom Cotton (R-Ark.) blasted the refusal of Judge Emmet G. Sullivan to grant the Department of Justice’s motion to dismiss charges against Flynn. Sens. Mike Braun (R-Indiana), Kevin Cramer (R-North Dakota), Ted Cruz (R-Texas), Chuck Grassley (R-Iowa), Rick Scott (R-Florida), and Mitch McConnell (R-Kentucky) also signed the brief.

Sullivan’s actions violate the Constitution’s clear separation of powers on which branch of government may prosecute American citizens, the senators assert, citing the U.S. Constitution, quotes from Founding Fathers, and longstanding federal court precedent. According to the U.S. Constitution, the Executive Branch that houses the Department of Justice has the exclusive discretion to begin and to end a prosecution while the Judiciary has the power to decide cases or controversies. Just as the Executive cannot direct the Judiciary’s rulings, the Judiciary cannot direct the Executive’s prosecutorial decisions, the senators write.

Sullivan’s refusal to dismiss the charges and instead appoint a shadow prosecutor stunned legal observers. Former federal prosecutor Andrew McCarthy described Sullivan’s actions “perverse,” “legally dubious,” and “unjust.”

Constitutional law professor Jonathan Turley wrote, “The Flynn case is fast becoming a case of gross judicial overreach as the court appears to assume both judicial and executive powers. Sullivan can disagree with the exercise of prosecutorial discretion, but he cannot substitute his own judgment for it.”

Judge Sullivan himself admitted in 2015 that judges were “ill-suited to review prosecutorial decisions.”

… United States v. Fokker Services, a unanimous ruling of the U.S. Court of Appeals that found a lower court has “no authority” to deny the Government’s motion to dismiss even if it disagrees with it. 

Is it just me, or is Judge Sullivan on shaky ground – i.e. about as shaky as dangling from the edge of a 1,000 foot crater at the epicenter of an active earthquake?

Maybe, just maybe, it is time for the judge, who was appointed 26 years ago by Bill Clinton, to rethink this clearly untenable position.

The “victory” in not doing so is that it will keep the screws on General Flynn a little while longer.  Vengeful Democrats everywhere will be thrilled.  But the payment for that short-term “victory” is the humiliation of being overruled by a higher court’s decision that he acted at best incompetently, and at worst illegally.

That’s way too steep a price to pay, Judge Sullivan.  My advice, for whatever it’s worth, is to give it up now and retrieve what dignity you have left.

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