Predictably, the lawyers for Michael Flynn, President Donald Trump’s former national security adviser, are unhappy about the refusal of U.S. District Judge Emmet G. Sullivan to immediately green-light dropping his prosecution. The Federal Rules of Criminal Procedure permit the Justice Department to withdraw the Flynn indictment only “with leave of court.” In considering such leave, Sullivan has decided to allow independent groups and legal experts to submit briefs on the issue. Presumably yet more upsetting to Flynn and his counsel, Sullivan has appointed a former federal judge, John Gleeson, to oppose the Justice Department’s request and to examine whether Flynn may have committed perjury.
In a court filing from before the Gleeson appointment, Flynn’s lawyers assert that the intervention of third parties would be unconstitutional. They write: “A criminal case is a dispute between the United States and a criminal defendant … For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.”
This is constitutional nonsense. Neither the parties filing briefs, nor the retired judge advising Sullivan, are “stand[ing] in the place of the government.” They are, rather, providing information and counsel. But there is more here at stake: In monitoring the integrity of Flynn’s prosecution, Sullivan is also working to preserve the integrity of the court system he represents. In doing so, Sullivan’s effort to protect the integrity of the prosecution is an important reminder that prosecution is an executive function, but it’s a judicial one too.