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Before examining the “separation of powers” argument, there is one point made in the DOJ Brief that has been made only by DOJ – and can only be made by DOJ, not by Gen. Flynn. This argument is not set forth as an independent basis for the motion to dismiss, but is incorporated into the “separation of powers” analysis. I think the issue is significant enough that it warrants separate treatment.
At the top of p.22, the Brief states:
“The Executive Branch is entitled to determine that, based on the circumstances surrounding the interview, it can no longer make the “policy judgement” that continued prosecution serves a substantial federal interest, referring to U.S. Dept. of Justice, Justice Manual § 9-27.001. //
A bit further down the page, the Brief returns to this issue:
“Although petitioner previously pleaded guilty, it is Justice Department policy that prosecutions should not be initiated – and thus should not be continued – “unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” //
§ 9-27.220 states:
The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,… //
These are all INTERNAL self-enforcement policies that belong solely to DOJ to consider. //
So apart from the issues involving “separation of powers” claims, DOJ’s opposition to what Judge Sullivan proposes to do is based on the principle that DOJ has an obligation unto itself to “keep its own house in order,” and to address matters involving internal policy violations when they become known. The SCO was not “independent.” The SCO was bound by all DOJ policies that apply to all other federal prosecutors.
Whether there exists an internal policy violation that requires a response in the form or a dismissal or something else, are matters beyond a discretionary review by the judicial branch.
