U.S. District Court Judge Emmet Sullivan disregarded two controlling precedents from higher courts with his decision to appoint John Gleeson as amicus curiae in the U.S. v. Michael Flynn case this week. Judicial conduct similar to J. Sullivan’s in these prior, far less politically charged cases was roundly and unanimously condemned by Justice Ruth Bader Ginsburg, D.C. Circuit Judge Sri Srinivasan, and their colleagues across the ideological spectrum. So, whether or not one agrees with the Department of Justice’s call to drop its charges against President Trump’s former National Security Advisor, Gen. Michael Flynn, there should be widespread agreement that J. Sullivan has veered way out of line.

One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

Instead, in Sineneng-Smith, a Ninth Circuit panel comprised of JJ. Stephen Reinhardt, Wallace Tashima and Marsha Berzon took highly irregular steps in an appeal of a criminal immigration case. The defendant was found guilty at trial of bilking Filipino home health care workers out of more than $3.3 million by promising to file immigration paperwork for them (at nearly $6k a pop) that had no chance of succeeding because the relevant program under which they could become lawful U.S. residents had expired. Undaunted by this conduct, and apparently in search of a rationale to overturn her conviction, the panel ordered up a new round of amicus briefs after party briefing and oral argument concluded. The panel sought briefs from a few court-selected pro-immigration sources, including the Federal Defender Organizations of the Ninth Circuit, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild. Further, the court directed these amici to brief three specific points, including “whether the statute of conviction is overbroad or likely overbroad under the First Amendment[.]”

The Ninth Circuit allowed the parties to file briefs responding to the new amici. The court also scheduled new oral argument, giving amici twice as much argument time as Sineneng-Smith’s counsel. She, in turn, latched onto the First Amendment overbreadth argument suggested by the Court and articulated in the court-solicited amicus briefs. As J. Ginsburg wisely noted, “How could she do otherwise? Understandably, she rode with an argument suggested by the panel.” Although J. Reinhardt died about six weeks after the second oral argument, a reconstituted panel (adding J. Andrew Hurwitz) held that the facially overbroad statute violated the First Amendment and was not subject to a limiting construction.

Justice Ginsburg’s decision castigated the Ninth Circuit’s conduct as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion” and “remand[ed] the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.” J. Ginsburg faulted the panel’s “redirection” and “takeover” of the appeal and chastised that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Judge Sullivan’s actions this week raise serious doubt whether he paid attention to this recent, unanimous decision. Let’s rehearse. First, the Ninth Circuit solicited specific amici. So too, J. Sullivan has now appointed former prosecutor and judge John Gleeson to oppose DOJ’s effort to drop the case and essentially represent DOJ’s former view of the case. And he has opened the door to a flood of amicus curiae briefs from special-interest groups hostile to Flynn. Second, the Ninth Circuit suggested particular arguments for amici to make. Likewise, J. Sullivan has instructed Mr. Gleason to explore a possible perjury charge. Last, the Sineneng-Smith panel decided the case on an issue not presented by the parties. J. Sullivan has not issued a ruling yet, but if he does anything other than accept dismissal of the charges, he will duplicate the Ninth Circuit’s violation of the party presentation principle. Hence, he is coming perilously close to completing the very trifecta that drew the Supreme Court’s wrath against the Ninth Circuit.

Arguably, J. Sullivan has one-upped the Ninth Circuit’s antics. They intervened on the side of the criminal defendant, but he has asked amicus to intervene against the criminal defendant. It’s bad enough for any judge to presume to take over the Attorney General’s responsibility to decide whether to bring charges against a federal criminal defendant (or what charges to bring). Such behavior is a clear-cut violation of the separation of powers. But by abusing his Article III perch to second-guess decision-making the Constitution exclusively reserves to Article II—and to do so to the defendant’s disadvantage—J. Sullivan’s conduct implicates Flynn’s constitutional right to the due process of law.

Four years ago, in a precedent even more squarely on point, the U.S. Court of Appeals for the District of Columbia Circuit (per J. Srinivasan) granted mandamus against a different D.C. district court judge for refusing a government charging decision. J. Sullivan seems poised to ignore the lessons from that higher court ruling, too.

In U.S. v. Fokker Servs. B.V., which I first wrote about for Forbes.com here, the district judge was overturned via an extraordinary writ of mandamus. That means that the government (and Fokker) went directly to the court of appeals and persuaded it to intervene and put a stop to the unlawful conduct of the trial judge. Oddly, J. Sullivan’s Minute Order on amicus briefs in Flynn cites the Fokker precedent to support appointing amicus curiae in a criminal case. But he neglects to mention that mandamus was granted against the district court judge in that case! Moreover, appointing amicus to represent a lower court’s view that neither party will defend (as happened on appeal in Fokker) is far different from appointing amicus in trial court to represent an alternative prosecutor’s view of the case.

The Fokker case arose in the context of a Deferred Prosecution Agreement (DPA) the Department of Justice entered into with a Dutch company that disclosed violating U.S. sanctions and export control laws. In such deals, defendants plead guilty to a charge, but the government does not prosecute the case right away. In exchange, for a certain agreed-to period of time, the defendant demonstrates that it has reformed its conduct and put more effective compliance protocols in place. If the government is satisfied at the end of the time period, it will dismiss the charge and the defendant will avert criminal punishment. District judges primarily have to approve these deals to ensure that DOJ is not using them to defeat a defendant’s right to a speedy trial. In Fokker, however, the district judge refused to enter the DPA because he felt that the company was getting off too easily and should have to pay a higher fine, hire an independent monitor, and that individuals at the company should have to face prosecution.

As the Court of Appeals explained though, such considerations are outside the judge’s role: “The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.” Indeed, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.” J. Srinivasan explained that the Constitution’s delegation of “take Care” duties and the pardon power undergird the Executive’s primacy. As a result, “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.”

With specific regard to Rule 48(a) of the Federal Rules of Criminal Procedure, which requires “leave of court” to dismiss criminal charges against a defendant, J. Srinivasan said, “[D]ecisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion.” And the leave of court language “gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges[.]”

Judge Srinivasan concluded, “[A]uthority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.” “In vacating the district court order, we have no occasion to disagree (or agree) with that court’s concerns about the government’s charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. We therefore grant the government’s petition for a writ of mandamus[.]” The Flynn case arose in a different context, but the issue whether a trial judge may refuse to dismiss charges is identical, and Fokker’s discussion of Rule 48(a) fully anticipated it—and answered it decisively.

Combining the worst aspects of Sineneng-Smith with the worst aspects of the Fokker case is hardly a winning recipe for the administration of justice. Given the current posture of the case, DOJ and/or Flynn may well seek and receive a mandamus judgment against J. Sullivan from the D.C. Circuit Court of Appeals. Such a course of action will seem quite appropriate if J. Sullivan follows through, given how extreme and indefensible his actions will appear in light of the contrary Ginsburg and Srinivasan precedents. If J. Sullivan does not come to his senses (and mandamus does not happen for some reason), Gen. Flynn will have to incur additional, unjustified expense responding to a slew of amicus briefs making novel arguments against him—in a case DOJ has already asked to dismiss. Whatever else happened in Flynn’s case, this injustice is still entirely avoidable.

Originally published in Forbes on May 14, 2020