Judge Sullivan knows this. He is a highly experienced judge. He knows he has no authority to stop the Justice Department from dropping the case. He knows if he tried to do that, he would be reversed by the Court of Appeals. He knows he could not force prosecutors to participate in the sentencing of Flynn, or in any other proceedings in a case that the Justice Department has decided is not worthy of prosecution. The judge knows the question of whether the case should be prosecuted is not his call.
So what does he do? Rather than just doing his job and dismissing the case, he invites amicus briefs. He can’t compel the Justice Department to further hound Flynn, but he figures he can encourage the legal establishment to trumpet the political theme that Trump’s Justice Department is undermining the rule of law. Without a hint of irony, Sullivan’s blatantly political directive is designed to frame the Justice Department as politicized.
In criminal cases, the accused is already pitted against the awesome resources of the government. Forcing the accused to bear the additional burden of defending against amicus briefs is unfair. A good judge would never encourage such a thing. A good judge would assume he could figure out what the law requires, without fear or favor. And if leave to file a brief were sought by an unsolicited amicus curiae — i.e., a true “friend of the court,” a non-party who might help the court do justice in a complex case — a good judge would at that point weigh whether such a brief might be helpful. A good judge never signals: I just don’t know what to do here — help!