Remember stare decisis? It was all the rage in late 2018, and again in early 2017, when two Republican nominees got confirmed to the Supreme Court. Senate Democrats made them pledge fealty to the principle of stare decisis, which requires that previous Supreme Court precedent must be followed and upheld in all but the most unusual circumstances for the stability of the law.

Over at Forbes, Mark Chenowith labors under the impression that this principle still applies. He notes that Judge Emmet Sullivan’s attempts to appoint a prosecutor to look for crimes that Michael Flynn might have committed by accepting a plea deal violates not one but two controlling precedents. One such precedent was delivered just a week ago in US v Sineneng-Smith, on a 9-0 Supreme Court vote and an opinion :

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.” …

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.”

If Sullivan somehow missed the news on Sineneng-Smith, he surely couldn’t have missed US v Fokker Servs BV, Chenowith assumes. That DC Circuit appellate precedent got delivered four years ago and is “even more squarely on point,” he writes:

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[.]”

Both of these are controlling precedents. Both essentially say the same thing — judges can’t replace prosecutors in criminal cases just because they want to find ways to punish a defendant. Judge Sullivan is mocking stare decisis and flouting precedent in the Flynn case.

Shouldn’t that outrage the same media outlets that insisted on defending stare decisis when it comes to nominees to the Supreme Court, which actually does have the authority to rethink its own precedent? You’d think so, but don’t look for consistency at the New York Times. They’re too busy celebrating Sullivan’s “independent streak”:

The case cemented Judge Sullivan’s reputation for fierce independence and low tolerance for government misconduct — a reputation in the spotlight again now that he is entertaining a challenge to the Justice Department’s extraordinary motion to dismiss its criminal case against Michael T. Flynn, President Trump’s former national security adviser.

On Tuesday night, less than a week after prosecutors filed a motion to drop the case against Mr. Flynn, who had pleaded guilty to a felony charge of making false statements to federal authorities, Judge Sullivan indicated he was willing to hear from outside legal experts before he decides how to rule.

That appears to leave the door open for critics who claim that the motion is politically motivated. The department’s reversal followed months of pressure from Mr. Trump and his allies.

Judge Sullivan showed the extent of his concern on Wednesday when he appointed a retired federal judge, John Gleeson, to present arguments against the government’s decision to drop the case, and to address whether Mr. Flynn may have committed perjury by seeking in January to withdraw his 2017 guilty plea.

A search through Michael Crowley’s hagiographic treatment of Sullivan fails to find any mention of Sineneng-Smith. Ditto that for Fokker, too. In fact, the New York Times article fails to mention stare decisis in any context, never informing its readers that Sullivan’s actions violate both Supreme Court and DC appellate precedent, which both explicitly forbid what Sullivan is attempting to do here. The Gray Lady certainly seemed a little more animated about that principle in the Brett Kavanaugh hearings, as well as in relation to Neil Gorsuch.

Even worse, Jonathan Turley points out, Sullivan appears to want to usurp the executive branch authority to prosecute. His threat to try Flynn for perjury over his guilty plea has Turley particularly concerned about the aftermath of exposed prosecutorial misconduct in other cases:

My concerns have deepened with the latest order:

“Upon consideration of the entire record in this case, it is hereby ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss,” the judge wrote. “[I]t is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.”

The suggestion that Flynn could be charged with perjury for seeking to withdraw a plea is highly disconcerting. As a criminal defense attorney, my concern is that such a claim could be made in thousands of cases where defendants have sought to withdraw such pleas or allegations of prosecutorial abuse have been raised for dismissal. …

Such an extraordinary action would occur in the context of an already troubling record. Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason, including an earlier blog column here. He is now allowing third parties to make arguments in a criminal case on an unopposed motion and exploring a charge that he might be able to bring against Flynn. Judge Sullivan would not only ignore the agreement of the parties, the judgment of the Department of Justice, but effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions. A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge.

Or, as attorney Jay Marshall Wolman put it more succinctly:

The whole case is a bad look, and Sullivan wants to keep expanding it. He’s not the only entity disregarding precedent, either. Where is the media’s obsession with stare decisis now?