A coalition of 15 Republican state attorneys general joined forces Monday in supporting the Department of Justice’s much-maligned decision to drop the criminal charges against retired Lt. Gen. Michael Flynn after he pleaded guilty to lying to federal investigators about his contacts with a Russian government ambassador.
The group, led by Ohio Attorney General Dave Yost, is filing a 15-page amicus brief with the U.S. District Court for the District of Columbia. They argue that U.S. District Judge Emmet Sullivan should immediately grant the DOJ’s motion to dismiss without accepting any other so-called “friend of the court” briefs in opposition.
“The Court should immediately grant the federal government’s motion to dismiss the information against General Flynn because the federal judiciary has no authority to make the executive branch pursue (or continue to pursue) a criminal conviction,” the brief stated. “And the Court should grant the motion without commentary on the decision to charge or not to charge, because such punditry disrobes the judiciary of its cloak of impartiality.”
Yost was joined by the AGs from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia.
The AGs claimed that Sullivan’s decision to appoint former federal prosecutor John Gleeson as “amicus curiae” to present arguments in opposition to the DOJ’s motion was a direct violation of the U.S. Constitution’s separation of powers doctrine.
“The Court’s desire to assume the role of a prosecutor evinces a total lack of regard for the role that the separation of powers plays in our system,” the brief stated, then explained the rationale for the argument:
What the Constitution has put asunder, let no judge join together. Here, the President, through his agents, has decided not to prosecute. Yet this Court has appointed an amicus curiae ‘to present arguments in opposition to the government’s Motion to Dismiss’ — implying that the Court may order the prosecution to continue. [Citation omitted.] This Court may not order the commencement of any prosecution, and therefore may not order the continuation of what it could not initiate.
The AGs also claimed that the court’s decision to solicit amicus briefs was not mere judicial activism, but part of a larger trend of courts commenting on the Trump administration’s policy decisions.
“Perhaps the Court is soliciting the views of amici so that it may chastise or praise the Department of Justice’s decision in this case. It should refrain from doing so,” they wrote. “It has become trendy in recent years for courts to weigh in on the wisdom of this administration’s policy decisions. Too often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial opinion.”
The brief argued that such a trend has led to the judiciary being inserted into the “partisan scrum” and eroded public confidence in the courts which are no longer viewed as neutral arbiters, particularly when deciding on matters of a politically sensitive nature.
The brief concluded with not-so-veiled dig at Sullivan.
“Decisions to grant leave are routinely granted, and this one should be as well, without needless comment,” the AGs wrote. “A judge who abandons the bench for the prosecutor’s table can serve credibly in neither role. Just as the executive must respect the decisions the Constitution leaves to the judiciary, so must the judiciary respect the decisions the Constitution leaves to the executive — that is what gives meaning to the ‘concept of a government of separate and coordinate powers.'” (The quote is from Justice Antonin Scalia’s dissent in Morrison v. Olson.)
Read the full brief below.
(Photo by CHRIS KLEPONIS/AFP via Getty Images)
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