Judge = Prosecutor?



  • https://www.politico.com/news/2020/05/13/judge-appoints-retired-judge-to-represent-flynn-prosecution-256509

    A federal judge is signaling that he may pursue perjury or contempt charges against former national security adviser Michael Flynn over his effort to abandon an earlier guilty plea to a charge of lying to the FBI.

    The Justice Department moved last week to drop the prosecution of Flynn launched by Special Counsel Robert Mueller, but U.S. District Court Judge Emmet Sullivan threw a major stumbling block in front of that effort by announcing that he is appointing a former federal judge to advise the court on how to respond to the government’s motion.

    Sullivan said he’s also asking the retired judge, John Gleeson, to recommend whether Flynn should face a criminal contempt charge for perjury—apparently for declaring under oath at two different court proceedings that he was guilty of lying to the FBI, before he reversed course an January and claimed he had never lied.

    What?

    A judge's responsibility is to...judge. He should have no authority to decide whether a case should be brought before him. He's seeking amicus briefs on the case, and now "appointing" (does he have that authority?) a 'former' federal judge to advise and recommend.

    Wow.



  • This will get (more) interesting. The defendant and the prosecution (DOJ) are saying the same thing - no prosecution.

    By whose authority does a judge override this?



  • The idea that he was committing perjury in his plea is absurd. He had no choice. Many if not most pleas in big cases require allocution.



  • Weird.



  • @Mik said in Judge = Prosecutor?:

    The idea that he was committing perjury in his plea is absurd. He had no choice. Many if not most pleas in big cases require allocution.

    He didn't admit to perjury. He plead to "lying to a federal agent." There's a difference. You'd think that Obama a lawyer would understand that.

    Also, the claims that he did it twice are false on their face. He was charged once, and he (under duress) said that he did. On the second occasion, he was asked if he wanted to change his plea, and he said no.

    Saying "no" twice to the same thing is different from saying that he admitted to two different charges.



  • The prosecution and defense has walked away, leaving only the judge. I don't think he has the power to do anything, other than to let Flynn walk, declare Flynn guilty based on his guilty plea or find Flynn guilty of perjury for lying about being guilty.

    Either way, a Clinton appointed judge should have no power to bring in another Clinton appointed judge.



  • @Jolly said in Judge = Prosecutor?:

    declare Flynn guilty based on his guilty plea or find Flynn guilty of perjury for lying about being guilty.

    Can a judge do that without the prosecution charging him? The judicial system is supposed to be responsive to the executive branch (DOJ). No charge, no crime, I would think.

    I would love to be proved wrong on this, but the judicial system has no authority to bring charges. That smells like a banana to me.



  • Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....

    The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”- Ruth Bader Ginsburg, 9-0 opinion just a few days ago.

    Better yet, what Ginsburg wrote in Greenlaw:

    [o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:

    “[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.

    And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)



  • @Jolly said in Judge = Prosecutor?:

    Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....

    The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”- Ruth Bader Ginsburg, 9-0 opinion just a few days ago.

    Better yet, what Ginsburg wrote in Greenlaw:

    [o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:

    “[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.

    And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)

    BTW, that's 90% lifted from somewhere else...



  • @Jolly said in Judge = Prosecutor?:

    “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)

    That's sort of what I said, isn't it?



  • @George-K said in Judge = Prosecutor?:

    @Jolly said in Judge = Prosecutor?:

    “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)

    That's sort of what I said, isn't it?

    Yep, with a case law cite.



  • U.S. District Court Judge Emmet Sullivan owes somebody something.



  • Seems that there was a scathing editorial in the WaPo condemning the DOJ's decision to drop the prosecution of Flynn. It was written by Judge John Gleeson.

    Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, as another federal judge recently did when the Trump administration attempted to replace a trial team litigating the politicization of the census. It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.

    Guess whom Sullivan appointed to write the amicus brief?



  • @George-K said in Judge = Prosecutor?:

    Seems that there was a scathing editorial in the WaPo condemning the DOJ's decision to drop the prosecution of Flynn. It was written by Judge John Gleeson.

    Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, as another federal judge recently did when the Trump administration attempted to replace a trial team litigating the politicization of the census. It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.

    Guess whom Sullivan appointed to write the amicus brief?

    No bias there.😄. BTW, saw a piece on NBC this morning about the Gleeson appointment. For the person who knows nothing about this, it was presented as a rational, thorough response from Judge Sullivan, who did not agree with the withdrawal by the Justice Department.



  • Someone forward this unanimous decision from SCOTUS from last week:

    Forbes: (emphases mine)

    One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” …

    Justice Ginsburg’s decision castigated the Ninth Circuit’s conduct as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion” and “remand[ed] the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.” J. Ginsburg faulted the panel’s “redirection” and “takeover” of the appeal and chastised that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”



  • Seems applicable.


Log in to reply