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June 05th, 2020
L&T Opinions Page

earl watt mugL&T Publisher Earl Watt

 

The most basic lesson we ever learn about the structure of the American government system involves the differences between the three branches of government — executive, legislative and judicial.

Apparently  Judge Emmet Sullivan was absent for that lesson, or the modern education system has attempted to rewrite what those differences are.

Quite simply, the legislative branch writes the laws, the executive branch executes those laws, and the judicial branch interprets the laws and their constitutionality.

Every criminal court case has two sides — the prosecution an the defense.

The prosecutor is the government, either federal or state, and the defendant is the person or agency accused by the government of violating the law.

Simple stuff, right?

Sometimes there is confusion that the prosecutors, like the county attorney, for example, are part of the judicial branch. They aren’t. Prosecutors are part of the executive branch.

Judges are not associated with the prosecution. They are bound to be the neutral party in a case, to listen to all the evidence and interpret how that evidence applies to the actions of the accused.

They are neither supportive of the prosecution or the defense. 

Likewise, they can only rule on the laws that were passed by the Legislature.

Thats what makes them a co-equal branch of government. They don’t write the laws and they don’t prosecute. They interpret.

That’s it.

The Constitution also says in Article 3 Section 2, “The judicial power shall extend to all Cases, in law and equity, arising under this Constitution ...”

The judicial power requires a case to even enact their authority.

No case, no judicial power.

Sometimes, even when it appears there may have been wrongdoing, the government does not believe it can get a conviction and chooses not to prosecute.

An example of this was the illegal use of Hillary Clinton’s eail server in her home. While this appeared to violate the law, the investigators in the case, the FBI, opted not to seek charges from the Department of Justice.

Without charges, there is no case, and therefore, no judge can get involved in the case.

Sometimes, prosecutors may originally seek charges, for a variety of reasons, they sometimes withdraw those charges.

Again, if the prosecution has opted not to prosecute, there is no case.

Recently, Michael Flynn was charged with lying to the FBI, and under threat of the FBI going after his son, Flynn originally pleaded guilty to protect his family.

But as more evidence unfolded, and the unethical tactics used by then-FBI Director James Comey, it became clear that the prosecution had overstepped its bounds. Flynn changed his plea. This is not the first time in history a person charges with a crime has changed his plea, especially after changing his legal team.

Additional evidence continued to unfold, including high ranking government officials unmasking Flynn in his discussions with Russians in preparation for the Trump Administration’s first days in office.

Vice President Joe Biden was one of the many to request the unmasking of Flynn.

With the Department of Justice holding a very weak hand that would potentially embarrass the government, they opted to drop the charges.

With no charges there is no case, and therefore no role for the judiciary as defined by the Constitution.

But Judge Emmet Sullivan didn’t interpret the law so plainly.

Instead, he sought additional information from others not involved in the case.

He alone would decide if the prosecution could withdraw its case even though that is completely within the power of the executive branch to do so.

Sullivan, an Obama appointee, wanted a conviction and decided to take on the role of the prosecution himself.

Imagine if a defendant not only had the government breathing down his neck but the very court that was supposed to be the arbiter of fairness was aggressively seeking conviction as well. Our entire system of justice would be shattered.

Come to think of it, it would be exactly how the judicial system works in Kansas with a Supreme Court acting as the legislature.

And that’s why Sullivan, and the Kansas Supreme Court, have to go.

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