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In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court wasn’t just signed by the line attorney managing the government’s case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ’s entire criminal division; ....“The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,†DOJ argued in its brief. Rules of federal criminal procedure, cited by Sullivan in support of his gambit to appoint himself both judge and prosecutor in the inquisition against Flynn, “do[] not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of [those rules] would violate both Article II and Article III†of the constitution, DOJ wrote.“Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own,†the brief continued. “Instead of inviting further proceedings the court should have granted the government’s motion to dismiss.â€
