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As I understand it, Judge Sullivan has a conflict with the executive branch and appointed an attorney to plead his case. But how can one delegate power one doesn’t have? Either the power is delegated and this is a member of the judicial branch challenging the executive branch’s use of its authority or it is not a delegation, in which case it is a random attorney with a general grievance.

If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, why didn’t a judge prosecute the banks guilty of criminal fraud leading to the 2008 financial crisis when Obama ordered the DOJ to not prosecute?

Edit: Just realized a third option, that there exists, as in Superman comics, an unelected bizarro executive branch that can be summoned by the judiciary to battle the elected executive branch for supremacy and the one who determines the winner is... the judicial branch.

Edit 2: (In response to people claiming that this is just how things work) Frank v. Gaos affirmed that standing is required at all stages of a case. Courts do not give advisory opinions. Courts do not entertain oral argument between one side that has standing and some arbitrarily selected neutral observer.

Maybe answerers are confused and think that a traditional appeal, where a judge sends it to a higher court has a case and controversy due to a judge wanting the opinion of the higher court rather than the parties themselves having real injury in fact. That is not the reasoning applied by the Supreme Court when it comes to determining standing.

So, I would like someone to reconcile (if possible) the traditional requirements for standing with the facts in the Flynn case before I select an answer.

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    You are presupposing stuff that isn't obvious. Sullivan's appeal was controversial but the full panel mooted the propriety by granting a full-panel re-hearing. What motion are you referring to?
    – user6726
    Aug 6, 2020 at 21:08
  • I am curious as to how Frank (or Spokeo, the case the Court relied on in Frank) is relevant to In re Flynn. Those are about what plaintiffs need to do to establish standing in cases based on violations of a statute. That is not even remotely close to the standing issues in this case.
    – Just a guy
    Aug 7, 2020 at 7:53
  • @user6726 The details of the motion don't matter. The relevant question is standing. People said Judge Sullivan does not have standing (in another question). OK, so then the person on his side (lawyer whoever), why does he have standing? You cannot have a party with standing on one side and a random party on the other. Either this is Sullivan v. DOJ or it is... what? lawyer v. DOJ? or Sullivan v. order (maybe a higher court?). There is no case or controversy here. But I guess I'll have to select some answer.
    – Oliver
    Aug 9, 2020 at 0:26

3 Answers 3

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Either the power is delegated and this is a member of the judicial branch challenging the executive branch’s use of its authority or it is not a delegation, in which case it is a random attorney with a general grievance.

The member of the judicial branch is just challenging an order from another judicial officer. This is part of how the judicial branch internally does its internal business.

If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, ...

The attorney is only challenging a judicial action, specifically a writ of mandamus.

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  • I feel this answer dodges the issue of standing and says there is no standing requirement for inter-judicial branch conflicts. But at least it’s better than the other answers that seem to imply Sullivan has personal standing. So I will choose it as correct.
    – Oliver
    Aug 13, 2020 at 18:36
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If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, why didn’t a judge prosecute the banks guilty of criminal fraud leading to the 2008 financial crisis when Obama ordered the DOJ to not prosecute?

This is a misunderstanding of the issue.

Judge Sullivan is not "prosecuting" Mr. Flynn. Judges do not have the power to prosecute people.

Instead, Sullivan (argues that he) is trying to decide whether or not to grant the government's motion to dismiss. Normally, this is a very open and shut question: If the government doesn't want to prosecute someone, then it would make no sense to try and keep the case in court, so it's typical for these dismissals to be rubber stamped. The complication in this particular case is that Mr. Flynn has already pleaded guilty. Because he was in federal court, on a federal charge, pleading guilty is a rather involved process. His plea included very explicit statements under oath about the specific conduct he allegedly committed, and that conduct directly matches up with specific required elements of the alleged crime.

After Mr. Flynn had already made those statements under oath, the government told Judge Sullivan that it did not believe it had enough evidence to prove the case beyond a reasonable doubt. Judge Sullivan now wants to hold a hearing to determine whether he can or should believe the government, and if not, what if anything he can or should do about it.

Finally, the DC Circuit issued a writ of mandamus ordering Judge Sullivan to immediately grant the dismissal. Sullivan is now appealing that order. In this sense, then, the dispute is not directly about Mr. Flynn's case, but rather about the level of discretion to which Judge Sullivan is entitled in performing his official duties. By issuing the writ, the DC Circuit necessarily determined that Judge Sullivan was not legally entitled to hold the hearing which he wanted to hold. That is what the en banc re-hearing is about.

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  • Well if it is Sullivan v. A higher court then he has no injury. Judges do not have real injury in fact when cases turn out a way they don’t like. In fact, they shouldn’t care what a result is. And appointing some random attorney doesn’t get around the problem.
    – Oliver
    Aug 6, 2020 at 21:50
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    @Oliver: Since the DC Circuit has already granted an en-banc rehearing, that doesn't really matter. The original order no longer exists, and would have to be reissued by the full court.
    – Kevin
    Aug 6, 2020 at 22:02
  • This answer is claiming that Sullivan has personal standing against a higher court order. That was addressed in another question about why Sullivan cannot have personal standing. A higher court order does not injure a lower court judge.
    – Oliver
    Aug 13, 2020 at 18:33
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Attorneys are not delegates

Keeping things very simple:

  1. Judge Sulivan has standing because he is the person named in the writ. Everyone has standing to challenge an order made on them personally.
  2. Judge Sullivan’s lawyer does not have standing. They are acting on behalf of the Judge as the Judge’s representative or agent - they are not acting on their own behalf.
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    It's possible that OP is confusing "Judge Sullivan's lawyer" (i.e. Beth Wilkinson) with the amicus who was appointed to argue against the motion to dismiss (i.e. John Gleeson). To be clear, the latter person cannot, in any respect, be called "Judge Sullivan's lawyer" because the whole point of an amicus is to advocate as a disinterested party. But I do believe this is what OP means by "a random attorney" and various other references.
    – Kevin
    Aug 7, 2020 at 7:26
  • I cannot select this as the correct answer. The issue of Sullivan’s standing was discussed (and dismissed) in another question on this forum. The answer that Sullivan has standing because the writ was “against him” (judges are impartial so this cannot be correct in any hypothetical) was addressed in the “why does Judge Sullivan have standing” question.
    – Oliver
    Aug 13, 2020 at 18:28

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