ALWAYS BET ON THE dEEP sTATE:

To start with, the Trumpian attacks on Sullivan are themselves entirely baseless. Sullivan's appointment of retired U.S. District Court Judge John Gleeson, a widely respected former federal prosecutor, as well as a distinguished former federal trial judge, was well within his Article III powers. Courts routinely appoint "friends of the court," designated amici curiae, to brief and argue positions otherwise unrepresented in the proceedings but intrinsic to their proper resolution.

The amicus has become a "standard feature of litigation." Around once per term, the Supreme Court invites an amicus to argue a position that one party (typically the government) has conceded on appeal. The court does so, in its own words, "to decide the case satisfied that the relevant issues have been fully aired." Attorney Bill Coleman, to give but one important example, was appointed to defend the IRS's policy of not giving tax exemptions to racially discriminatory organizations when the Nixon administration refused to defend that policy. Importantly, this practice supplements but doesn't substitute for the equally standard practice of courts considering the arguments made in amicus briefs filed both on behalf of interested individuals and organizations (over 100 were filed in Obergefell) or on behalf of experts with relevant perspectives to present.

That is exactly what has happened here. When the Department of Justice made the "virtually unheard-of" decision to dismiss two already vetted and accepted guilty pleas on the eve of sentencing, Sullivan rightly suspected that the relevant issues would not be fully aired without the arguments of an amicus. Moreover, Flynn has now arguably told the court things inconsistent with what he had said under oath when pleading guilty, opening himself up to perjury charges--an argument that neither Flynn nor Barr could be expected to make. Nothing about that move ought to be controversial. As Professor Randall D. Eliason notes, once a judge has accepted a guilty plea from a defendant, the ball is squarely in the judge's court to determine sentencing. And at the very least, it is reasonable for Sullivan to seek outside counsel on how to understand such a peculiar move from Barr.

From a separation of powers perspective, there is nothing untoward here. The executive prosecuted its case and won a guilty plea from the defendant. The judiciary must now exercise its independent judgment about how to sentence him. And judges may not bury their heads in the sand when the Department of Justice inexplicably unwinds a guilty plea it had painstakingly developed. As Chief Justice John Roberts wrote just last term in the administrative law context, courts are "not required to exhibit a naiveté from which ordinary citizens are free." So too here. Sullivan is not required to pretend he was born yesterday. The department's move is so unprecedented, so flagrantly indicative of abuse and so downright bizarre that any rational judge would want further briefing before deciding how to proceed. Sullivan has wisely chosen to protect his judicial role by seeking that further briefing, and the law gives him that right.

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.

The idea that federal prosecution is exclusively an executive-branch concern is not accurate. 

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