— Maggie Haberman (@maggieNYT) June 17, 2020
“Even if a court believes that a refusal to prosecute rests on an improper motive or amounts to a ‘gross abuse,’ it would lack any practical mechanism for forcing the executive to prosecute a case against its will,” prosecutors wrote. They called their motion to dismiss the charge “an unreviewable exercise of prosecutorial discretion.”
Except (and this is without benefit of reading any of the briefs before the court), this is not a question of prosecuting a case. Flynn plead guilty. All that remains is to determine sentence. He didn't cooperate, so he gets no leniency. He goes to jail for what he pled guilty to.
EOD. Prosecution ended when Flynn entered his plea. All that remains is to decide sentence. Accepting that plea was an act of the court, not the prosecution, and it allowed the court to postpone sentencing, another act of the court alone. Had Flynn cooperated, the prosecution could have recommended no further action; but the court still could have decided Flynn needed some prison time. That decision is ALWAYS within the discretion of the court. The DOJ's authority over this case ended when Flynn said "I'm guilty." After that, the DOJ can say "We really don't want him to go to jail, your honor," but the judge can say: "Too bad. He's going anyway."
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