Under Sullivan’s theory, any time a defendant seeks such a dismissal (even with the support of the prosecutors) he could face a judicially mandated perjury charge. Faced with evidence of prosecutorial wrongdoing (which often arises after a trial), defense counsel (like myself) would have to warn clients that the court might just swap one crime for another.
The chilling implications of such a theory are being brushed aside by those eager to see Sullivan mete out his own form of justice. However, such an unsustainable decision would quickly careen out of control.
Consider the scenario. Sullivan knows that such a charge would not be prosecuted by the Justice Department. However, Criminal Procedure Rule 42 states that such cases are to be prosecuted by the government, but “if the government declines the request, the court must appoint another attorney to prosecute the contempt.”
So what is Sullivan going to do? He cannot force the Justice Department to prosecute a case that it considers to be unethical.