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Yost Argues for Separation of Power, Leads Coalition Supporting Dismissal of Case Against Gen. Flynn

5/18/2020

(COLUMBUS, Ohio) — Ohio Attorney General Dave Yost today led a coalition of 15 attorneys general from around the country in filing a brief to the United States District Court for the District of Columbia supporting the federal government’s motion to dismiss the case against Gen. Michael Flynn.

After the federal government decided not to pursue criminal charges against Gen. Flynn, the U.S. District Court for D.C. implied that it may order the prosecution to continue through a court-appointed prosecutor. The district court additionally stated that it would invite other individuals and organizations to file amicus briefs addressing whether the court should grant the government’s motion to dismiss.

“This extraordinary example of judicial activism is the antithesis of our Constitution and the separation of powers,” Yost said. “Our founding fathers designed a system of government precisely to stop a branch of government from undertaking this type of overreach.”

Yost argues that there was no reason for the court to issue this solicitation because it has no say in the federal government’s decision not to prosecute. “Simply put,” the brief reads, “the decision not to pursue a criminal conviction is vested in the executive branch alone — and neither the legislature nor the judiciary has any role in the executive’s making of that decision.”

The coalition contends that the district court should grant the motion “without commentary on the decision to charge or not to charge, because such punditry disrobes the judiciary of its cloak of impartiality.”

According to the brief, “the Court’s desire to assume the role of a prosecutor evinces a total lack of regard for the role that the separation of powers plays in our system. Before the federal government may deprive a citizen of his freedom, it must navigate a number of hurdles. It must find a law that the citizen violated, a prosecutor willing to press charges, a jury of other citizens willing to convict, and a court to uphold the legality of the prosecution. In other words, the judiciary is supposed to function as a constitutional check on deprivations of liberty — it is not supposed to remove constitutional checks on deprivations of liberty. But that is exactly what the Court would do by second-guessing the prosecutors’ decision not to continue pursuing this case.”

Ohio was joined by attorneys general in Alabama; Alaska; Arkansas; Florida; Georgia; Indiana; Louisiana; Mississippi; Missouri; Oklahoma; South Carolina; Texas; Utah; and West Virginia.

An accessible version of the linked file is available by request.

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