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THREAD: A quick thread on United States v. Sineneng-Smith which many have been highlighting concerning Judge Sullivan's appointment of Gleeson as an amicus and also his docket order opening up possibility of other amicus. I understand why folks are highlighting that. 1/
2/ This great @Forbes piece explains that S.Ct. case and also Fokker. https://www.forbes.com/sites/markchenoweth/2020/05/14/judge-sullivan-disregards-two-controlling-precedents-by-appointing-amicus-in-flynn-case/#1e5257fe6f0a
3/ I didn't mention that case in my piece today @FDRLST https://thefederalist.com/2020/05/14/the-constitution-requires-judge-emmet-sullivans-lawless-amicus-order-against-michael-flynn-be-overturned/ And there is a very good reason why.
4/ The Supreme Court was addressing the situation where an amicus supplants the parties, while recognizing the appropriate use of amicus. But in the Flynn case the issue isn't that the amicus Sullivan appointed & suggests he will allow are overtaking parties' arguments.
5/ The problem is Sullivan lacks ANY authority to deny motion to dismiss w/ prejudice and as a corollary lacks authority to investigation the DOJ's rationale. What he cannot do directly he cannot do via an amicus. The Fokker case makes clear Sullivan cannot do that.
6/ And while Fokker isn't a S.Ct. case, as the other case is, it doesn't matter. D.Ct. are BOUND to follow the precedent of the circuit in which they sit. The D.C. D.Ct. is in the D.C. Circuit and MUST follow Fokker.
7/ So, in short, the problem is not that Sullivan appointed/allows amicus; the problem is that sullivan is acting beyond his powers in violation of the constitutional separation of powers by intruding in the Executive Branch's function.
8/8 Sullivan has made this a case much bigger than Flynn. Sullivan has thrown the gauntlet down on the DOJ. Barr must act. END
