Ohio Attorney General Dave Yost is leading colleagues from 15 states in saying a federal judge is exceeding his authority by attempting to keep alive the prosecution of Michael Flynn, Donald Trump’s former national security adviser.
“This extraordinary example of judicial activism is the antithesis of our Constitution and the separation of powers,” Yost said in a statement. “Our founding fathers designed a system of government precisely to stop a branch of government from undertaking this type of overreach.”
Earlier this month the U.S. Department of Justice said it would end the prosecution of Flynn launched by special counsel Robert Mueller. However, in an unusual move last week, U.S. District Court Judge Emmet G. Sullivan appointed a former federal judge to consider whether the justice department should be allowed to dismiss the case — or whether Flynn should be prosecuted for perjury or possible contempt of court.
The former general said twice under oath in court he had lied to the FBI, then sought to withdraw his guilty pleas. U.S. Attorney General William Barr said Flynn should’ve never been prosecuted in the first place, so the case should be tossed.
In an interview, Yost said the matter of Flynn’s guilt or innocence is not the issue.
“This is just about a separation of powers question,” he said. “You can imagine the havoc that would occur if a court system, or a legislature for that matter, decides who gets investigated and who gets prosecuted.”
The former Delaware County prosecutor said he was greatly influenced in 1991 by a book about the abuse of power by the judiciary. Then last week he heard about the rare move by the federal judge in the District of Columbia.
“When I read that I called one of my staff guys, and I said ‘look I think this is a violation of the separation of powers.’ And we did some research and concluded it is really problematic,” Yost said.
He rounded up 14 other attorneys general, all fellow Republicans, who agreed to join his court filing — a friend-of-the-court brief backing the justice department.
“A judge who abandons the bench for the prosecutor’s table can serve credibly in neither role,” the group’s nine-page brief says. “Just as the executive must respect the decisions the Constitution leaves to the judiciary, so must the judiciary respect the decisions the Constitution leaves to the executive — that is what gives meaning to the ‘concept of a government of separate and coordinate powers.’”
The attorneys general added: “The judicial power includes the power to ensure that prosecutions comport with law; it does not, however, include the power to ensure that prosecutions occur in the first place. Here, the only reason to deny the government’s motion would be to compel the prosecution of General Flynn. The court has no power to do that.”
Ohio was joined by attorneys general in Alabama; Alaska; Arkansas; Florida; Georgia; Indiana; Louisiana; Mississippi; Missouri; Oklahoma; South Carolina; Texas; Utah; and West Virginia.