The DOJ has responded to the DC District Court invitation to file a brief in support of intervention by the appellate court. [pdf available here] In an unusual move the response from the Department of Justice comes directly from the office of the United States Solicitor General, Noel Francisco.
The DOJ points out the Judge has no standing to violate Article II and Article III of the U.S. Constitution in an effort to anoint himself as prosecutor, judge and jury of a criminal case outside of his judicial authority. “The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” Francisco argues.
Additionally, rules of criminal procedure “do not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading would violate both Article II and Article III” the DOJ writes.
Here’s the Full Brief: