The American system of government requires each of the three co-equal branches to check the powers of the others. One of the least used of these checks and balances is the oversight of Congress over the judicial branch, including the removal of a federal judge who has abused his power.
Because Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia has far exceeded his authority in Lt. Gen. Michael Flynn's case, I will be introducing a resolution in the House of Representatives to initiate an impeachment investigation into the conduct of Judge Sullivan.
I take this action because: 1) I swore an oath to defend the Constitution of the United States; and, 2) Judge Sullivan failed to fulfill his. His latest intemperate and arrogant orders encroach on the power to enforce the laws of the United States granted solely to the Executive Branch by the Constitution.
In their sole and unquestionable discretion, the Department of Justice (DOJ) dropped the charges against General Flynn due to substantial evidence of misconduct by FBI investigators and a few rogue prosecutors. As is his obligation, when neither party to a case wants to proceed, Judge Sullivan should dismiss the case.
Instead, he ordered friends of the court – some would say enemies of the president – to argue against dismissing General Flynn's case, and to show Judge Sullivan how to keep a sunk case afloat. The judge has hinted that he plans to somehow hold Gen. Flynn in contempt for perjury, a serious display of unchecked government power that is rarely, if ever, used by courts in situations like this.
The Constitution says the federal courts have the power to hear "cases and controversies." It does not say the judicial branch can create or prolong them.
Judge Sullivan is smart enough to know he must dismiss this case. Just this month, the U.S. Supreme Court unanimously reversed a Ninth Circuit Court of Appeals panel that appointed friends of the court and ordered them to brief questions of law. The lower court made a mistake because, as Justice Ruth Bader Ginsburg wrote, courts act as "passive instruments" that "decide only the questions presented by the parties."
Judge Sullivan is ignoring this and other precedents by appointing a former judge and a fellow Democrat party appointee, John Gleeson, as a special helper to argue against dismissal. But even Mr. Gleeson wrote in one of his own court opinions in 2013, the DOJ "has absolute discretion to decide not to prosecute."
Hiding behind a court rule that requires a judge's approval before dismissal of charges during trial does not work either. That rule was designed to protect defendants from repeat charges before final conviction, not to prolong legal proceedings when prosecutors want to dismiss.
Judge Sullivan's refusal to dismiss also smacks of impropriety and political partisanship. Defendants deserve a presumption of innocence until proven guilty. Yet, Judge Sullivan presumed just the opposite, calling General Flynn a traitor and suggesting he committed treason even before his case went to trial.
Given that a charge of treason was never even filed, Judge Sullivan's conduct is totally contrary to the roles and responsibilities of the federal courts. He should have recused himself right then and he owes Lieutenant General Flynn an apology.
At a time when the public is cynical and distrusting about our government and judicial system, allowing partisan politics to enter into the court through solicitation of opinions from friends of the court is deeply troubling, especially given Judge Sullivan's refusal to allow such input on 24 previous occasions in this case. Inconsistencies like these show Judge Sullivan's order is nothing more than a political sideshow.
Amazingly, Judge Sullivan's friend of the court Mr. Gleeson recently wrote an op-ed that called for Judge Sullivan to proceed with the case. Based on speculative evidence, Mr. Gleeson claimed it was the Justice Department, not the court, acting from a partisan perspective, and was improperly influenced by political actors.
With all due respect to Mr. Gleeson, his obvious partisan bias should disqualify him from any role in this case.
When an Ohio judge abuses power, Ohioans can vote that judge out. However, as a federal judge, Judge Sullivan cannot be voted out for his improprieties. But, Congress, the voice of the American people, can impeach and remove him.
The impeachment power constitutionally given to Congress is one of the few checks against the judiciary. It is necessary because judges, like politicians, can abuse discretion, misuse power, and encroach on the rights of citizens and the authorities of other branches. Federal judges are not appointed for life, only for terms of "good behavior." To date, dozens of federal judges have been investigated in impeachment proceedings. It is time to add Judge Sullivan to that list to ensure that judicial impropriety does not go unchecked.
I do not seek to initiate an impeachment inquiry into Judge Sullivan's conduct because I disagree with how he decided a case. For example, while I disagree with the opinions that Justice Ginsburg has written on abortion, I would never seek to impeach her for these rulings because – even though I believe she got the law wrong – she was acting within her authority.
Playing by the rules is fair game. Making your own rules, as Judge Sullivan is doing, is tyranny.
Judge Sullivan gets to interpret the law; but he does not get to say how to enforce the law. Motivated by partisanship, he is attempting to act as both prosecutor and judge. The Constitution does not permit this – but it does permit the Congress to remedy such an abuse of power. With these grave concerns in mind, I will introduce a resolution to initiate an impeachment inquiry.
Rep. Bill Johnson, R-Ohio, represents the state's 6th Congressional District.
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