Dershowitz: Judge in Flynn case a 'prosecutor in robes'

Harvard Law professor Alan Dershowitz

Longtime liberal Harvard Law professor Alan Dershowitz contends the judge in the Michael Flynn case has become a "prosecutor in robes," exceeding his authority by appointing a retired federal judge to argue against the Justice Department's decision to drop the case.

In a column published by the Gatestone Institute, Dershowitz said Judge Emmet Sullivan's refusal to sign off on the Justice Department's motion to drop the case circumvents the constitutional limitation on the jurisdiction of federal judges.

"The Constitution limits this jurisdiction to actual cases and controversies. There must be disagreement between the parties that requires resolution by a judge. If the parties agree, there is nothing for the judge to decide," Dershowitz argues.

The DOJ filed the motion last Thursday after the unsealing of evidence confirming Flynn's claim that he was coerced into pleading guilty to lying. Investigators already had a transcript of the telephone conversation with the Russian ambassador that was at the center of the case. That means there was no justification for the "ambush" interview at the White House that led to the charges.

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Dershowitz pointed out that according to precedent, there is no case when prosecutors drop charges, meaning Sullivan is clearly exceeding his authority.

"There is a joke lawyers who practice in federal court like to tell. Angel Gabriel summons Sigmund Freud in heaven and tells him God is having delusions of grandeur," Dershowitz wrote. "Freud asks how God can have delusions of grandeur: There is no one grander than Him. To which the Angel Gabriel responded, 'he thinks he's a federal judge.'

"But what Judge Sullivan is doing is no joke. He is endangering our system of separation of powers and he should be stopped by a writ of mandamus or a motion to recuse. Judges, too, are not above the law or the Constitution."

He explained that the Flynn case, the prosecution and defense both agree that the case should be dropped.

"Because there is no longer any controversy between the parties to be resolved, there is no longer any case properly before the judge," he wrote. "His only job is to enter an order vacating the guilty plea and dismissing the case with prejudice."

He noted Sullivan has his own preferences.

"He apparently thinks Flynn belongs in prison. He has as much as said that. So, he has manufactured a fake controversy by appointing a new prosecutor because evidently he does not like what the constitutionally authorized prosecutor — the attorney general — has decided."

Dershowitz said the new prosecutor "has been tasked to argue for the result that Judge Sullivan prefers."

"But under our constitutional system of separation of powers, the new prosecutor has no standing to make such an argument," he said. "He is not a member of the executive branch, which is the only branch authorized to make prosecutorial decisions. He was appointed by a member of the judicial branch to perform an executive function — a clear violation of the separation of powers, which allocates the power to prosecute to the executive, not judicial, branch."

He warned the rule of law is threatened.

"Judge Sullivan is exceeding his authority by turning his courtroom into a three-ring partisan circus, designed to allow him to get his way despite the agreement of the actual parties before him. He is taking judicial activism to a new and grossly improper level, to the disadvantage of a defendant he does not like."