Pardon?

My @GlobeOpinion piece on why the standard views of what Barr is asking Judge Sullivan to do in the Flynn case get things backwards— and why his motion isn’t just outlandish but downright unconstitutional. He’s trying to usurp judicial power. No way!!https://t.co/nsn7z83Mz9

— Laurence Tribe (@tribelaw) May 11, 2020

An unbroken line of precedent dating to 1792 (Hayburn’s Case), including Chicago & Southern Air Lines v. Waterman (1948), extending through 1992 (Robertson v. Seattle Audubon Society), and 1995 (Plaut v. Spendthrift Farm), and not questioned since, establishes the proposition — which of course both Flynn and Barr have every incentive not to call to the court’s attention — that the political branches have no role to play in overseeing the adjudication of particular cases. Yet that’s exactly the role Barr is trying to play here.

That politicization of the American justice system is, in the words of the Supreme Court case relied on by Barr, “clearly contrary to the public interest.” Indeed, Barr is seeking not only to review and reverse the judgment already made by an Article III court in accepting Flynn’s guilty pleas as well-founded. He’s trying to exercise what amounts to a junior varsity pardon power to spare the president the burden of having to take the political heat for exercising the actual pardon power himself. Neither move by Barr is constitutionally permissible.

Interestingly, one of the cases in the controlling line of precedent, United States v. Klein (1871), involved a legislative attempt to tell a federal court how to treat a presidential pardon when introduced in evidence in a particular case. Whether it is Congress or the president acting through the attorney general who threatens judicial independence, the separation of powers principle is the same: hands off the judicial branch. Because the guilty pleas Judge Sullivan accepted in this case included knowing waivers of any right of appeal, Sullivan should, not as a matter of discretion but as a matter of constitutional obligation, tell Barr it is too late for him to do the president’s bidding.

No need for the judge to dwell on such not-so-coincidental circumstances as the contemporaneous phone conversation in which President Trump reassured President Vladimir Putin of Russia, by Trump’s own account, that he had nearly finished dealing with the “Russia hoax.” No need for the judge to find that Barr’s request was a continuation of an impeachable pattern of obstructing justice and the rule of law that Trump himself began when he fired FBI Director James Comey to cover up his campaign’s involvement in Russia’s effort to help him become president. Those matters could be relevant to the bona fides of the Barr request.

But if the separation of powers means anything, whether Barr is taking this most extraordinary step for a corrupt reason needn’t be established. What matters — regardless of why Barr is attempting to undo a completed judicial determination — is that it should require no act of extraordinary daring for Sullivan to invoke the Constitution in rebuffing this latest attack on the independence and integrity of the federal judiciary under Article III. That is simply his job.

The highlighted portions point to my own conclusion:  Sullivan should reject this motion and sentence Flynn.  At which point Trump will have to fish or cut bait.  But this nonsense cannot stand and if it cannot be prosecuted in the next Administration, it at least needs to be rejected by the electorate in November.

What happens to Flynn in the end is, frankly, irrelevant.  He's the McGuffin here.  What matters now  is what Trump wants to do, and what the judge decides is the proper role of an Art. III court.  And what we can do to soundly rebuke and prevent this nonsense so that it never happens again (I propose a Constitutional amendment changing the relevant language of Art. II, sec. 2, clause 1.)