The Dersch: Impeach Sullivan?
Friday night, Professor Alan Dershowitz - who taught criminal law at Harvard Law School for fifty years - said that if Judge Sullivan in the Flynn case “has the gall to not throw this out, he ought to be impeached."
Here’s the full quote:
I taught criminal law at Harvard Law School for fifty years. I taught ten thousand students, and for fifty years I taught that this kind of abuse by the Justice Department, by the FBI, by individuals - look the Justice Department is great, the FBI great - but the abuse that we see here is something I’ve been railing against for fifty years. Every civil libertarian should be applauding the decision by Attorney General Barr to throw this out, and if this judge has the gall to not throw this out, he ought to be impeached. Remember that judges only have jurisdiction for cases and controversies. There’s no controversy here. Both sides agree the case ought to be dismissed. This judge has no power to do anything else and if he asserts that power, he has violated the Constitution.
Alan Dershowitz, Hannity, Fox News, interview from 22:37-23:27, Friday May 8, 2020.
Dershowitz is one hundred percent constitutionally correct. Article III gives judges the power only to decide “cases” and “controversies.” A “case” requires two opposing parties and that no longer exists in General Flynn’s case. The only two parties to the case – the prosecutor and the defendant - agree the case should be dismissed. The judge is not a party and, therefore, has no authority to act as one.
Furthermore, when the constitution refers to “controversies” that does not include ones stirred up by the media or ex-Presidents. A legal “controversy” under Article III is one that exists in a courtroom between two legal parties. Public "smack talk" does not qualify.
So, constitutionally speaking, the Flynn case must be dismissed, and in the words of “The Dersh,” if Judge Sullivan refuses to do so, then he “ought to be impeached.”