That is a fact not in evidence.
Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....
The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243
Even more damning in this case is what Ginsburg wrote in Greenlaw where she said:
“[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:
“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.
And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)
So holdeth Ginsburg and her colleagues.
In this case, the United States has withdrawn from prosecution and sought to dismiss.
The judge may sentence Flynn to prison on the basis of the guilty plea he won't allow him to withdraw, figuring that if Trump pardons Flynn that will hurt Trump politically.