By: Alan M. Dershowitz – wsj.com – May 13, 2020
The Constitution limits the jurisdiction of federal judges to actual cases and controversies. They may not offer advisory opinions or intrude on executive or legislative powers, except when the other branches have exercised them in an unconstitutional manner. Federal judges are umpires deciding matters about which litigants disagree. If the litigants come to an agreement, there is no controversy. The case is over.
Many judges disapprove of this limitation on their power. Not happy being umpires, they want to be commissioner of baseball. Thus courts have arrogated to themselves powers the Constitution explicitly denies them. They have invented exceptions to give themselves jurisdiction over cases in which there is no longer any controversy between the litigants.
It is against this constitutional background that we should evaluate Judge Emmet Sullivan’s Tuesday order inviting friend-of-the-court briefs advising him whether to accept the prosecution’s motion to dismiss the case against Mike Flynn—a motion to which the defense consents.
By inviting the irrelevant opinions of outsiders, Judge Sullivan is unconstitutionally encroaching on executive power. Only the executive has the authority to prosecute or not. Implicit in that exclusive power is the sole discretion to decide whether to drop a prosecution, even if, as in this case, the court has accepted the defendant’s guilty plea. Once prosecutors have agreed with the defendant that the case should be dropped, the court loses its constitutional authority to do anything but formally enter an order ending the case, because there is no longer any controversy for it to decide. There is case law, and a judge-written procedural rule, supporting Judge Sullivan’s order, but that doesn’t make it constitutional.
Federal judges don’t have “roving commissions” to do justice as they see fit. Judge Sullivan’s role doesn’t include inviting outsiders with no standing or cognizable interest in the case to advise him how to decide a matter over which he has no constitutional jurisdiction. Outsiders can write op-eds criticizing the decision to drop the case. Congress can hold hearings. Professors can conduct seminars or sign open letters. But judges may not turn courtrooms into political platforms from which partisans can espouse their criticism of the administration. And that’s what these briefs will be. They will be written by academics for whom the Trump administration can do no right, even when its actions further civil liberties, as in this case.
The government should strongly object to the show Judge Sullivan has decided to produce. His order goes beyond the Flynn case. It risks setting a precedent that would weaken the separation of powers by usurping the prosecutorial discretion the Constitution explicitly assigns to the executive branch.
As Justice Louis Brandeis reminded us in proposing rules of restraint on the judicial branch: “One branch of the government cannot encroach upon the domain of another, without danger.” Judge Sullivan should get back to the business of deciding actual controversies and get out of the business of producing political shows.
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