Attorney General Dave Yost led an effort of 15 Republican state attorneys general to file an amicus brief Monday that supports the federal government’s position of dismissing its case against Gen. Michael Flynn.
In early May, the Department of Justice (DOJ) dropped all charges against the former National Security Advisor.
“After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings …. the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” the DOJ’s motion said.
After the DOJ dismissed the case, Emmet Sullivan, a district court judge in Washington D.C., said he would let organizations and individuals submit amicus briefs determining whether the court should grant the government’s motion to dismiss.
Yost said what Sullivan did was an example of judicial activism.
“Our founding fathers designed a system of government precisely to stop a branch of government from undertaking this type of overreach,” the Ohio Attorney General said in a statement.
The amicus brief said there was “no reason for the court to issue this solicitation because it has no say in the federal government’s decision not to prosecute.”
“Simply put,” Yost’s brief said, “the decision not to pursue a criminal conviction is vested in the executive branch alone — and neither the legislature nor the judiciary has any role in the executive’s making of that decision.”
Furthermore, the brief argued that the district court should grant the motion “without commentary on the decision to charge or not to charge, because such punditry disrobes the judiciary of its cloak of impartiality.”
“The Court’s desire to assume the role of a prosecutor evinces a total lack of regard for the role that the separation of powers plays in our system. Before the federal government may deprive a citizen of his freedom, it must navigate a number of hurdles,” the brief said. “It must find a law that the citizen violated, a prosecutor willing to press charges, a jury of other citizens willing to convict, and a court to uphold the legality of the prosecution.”
“In other words, the judiciary is supposed to function as a constitutional check on deprivations of liberty — it is not supposed to remove constitutional checks on deprivations of liberty,” the brief added. “But that is exactly what the Court would do by second-guessing the prosecutors’ decision not to continue pursuing this case.”
The attorneys general in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia joined Yost in the amicus brief.
– – –
Zachery Schmidt is the digital editor of Star News Digital Media. If you have any tips, email Zachery at [email protected]