HisArpy
Loose canon extraordinair
- Joined
- Jul 30, 2016
- Posts
- 43,857
An interesting take on why this is very likely resides in another court finding in the decision in U.S. v. Fokker Services. Which is discussed here in detail:
'https://www.redstate.com/shipwreckedcrew/2020/05/14/recent-decisions-of-the-court-of-appeals-for-dc-circuit-show-sullivan-must-dismiss-flynn-case/
The upshot in the decision against a decision not to allow a rule 48 mpotion to go forth:
"With regard to what authority that language actually gave to the District Court in ruling on a joint motion to exclude time, the DC Court of Appeals wrote:
While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary."
From the article:
"What is important to take away from this language is that the Court of Appeals has already ruled definitively in the D.C. Circuit that it is not proper to elevate language in a statute passed by Congress in such a way as to contravene the longstanding and foundational constitutional understanding of the respective roles of the Executive and Judiciary in the manner by which the criminal justice system operates. The Court of Appeals reversed the district judge for using the “approval of the court” language as a basis to impose his judgment with regard to the charging decisions in the case in place of the government’s judgment on those issues with which he disagreed. Not only did he lack the power to do that — he lacked the power to even entertain the possibility of denying the motion to exclude time on that basis because to do so was to interfere on questions that are uniquely committed to the Executive to decide.
The same limiting principles apply here. The opponents of the motion by DOJ would elevate the language of a RULE of procedure — not even a statute passed by Congress and signed by the President — above the constitutional framework under with the Judiciary and Executive perform different functions."
Sullivan has put himself squarely between a rock and a hard place. His only real option is to reverse his decisions for the "special master" and Amici briefing and then make a decision. It doesn't matter what decision he makes, he just needs to make one.
In essence, he needs to shit or get off the pot because that's his job. Right now he's not doing his job.
