Judge Sullivan, the judge in the Flynn case, is running amok
Attorney General Bill Barr's review of the Michael Flynn case revealed that the FBI had set General Flynn up, violating myriad rights along the way. Flynn's compromised attorneys then worked with the DOJ to bully him into accepting a procedurally defective plea bargain in exchange for a promise not to persecute his son.
As is often true for plea bargains, Flynn admitted to a crime he hadn't committed to end the matter. Fortunately, he finally got himself a real attorney who exposed the government's substantive and procedural wrongdoings. It was this information that led the DOJ to conclude that justice required dismissing a clear case of prosecutorial misconduct.
In the motion to dismiss, instead of relying on complicated legal and constitutional arguments, the DOJ opted for a simple argument: even accepting the premise of the DOJ's original case, which was that Flynn lied to the FBI (he hadn't), the lie was immaterial and therefore could not support a criminal action.
A federal judge reviewing a motion to dismiss has limited discretion. The Executive Branch has the sole right and power to prosecute a case. If it refuses to prosecute, no one else has standing to do so. The judge's job is to ensure that the government isn't using the dismissal as a ruse — that is, it isn't backing out of a weak case only to bide its time and then again prosecute the defendant. Mike Cernovich links to the relevant case authority:
I see that you're a law professor. Are you aware of U.S. v. Fokker Serv. (D.C. Cir. 2016) which is binding authority?— Cernovich (@Cernovich) May 13, 2020
Judge Sullivan has no discretion here, and it's not even a close call. pic.twitter.com/KnDXR8xags
On Wednesday, though, Judge Emmet Sullivan issued an order appointing a third party — retired district court judge John Gleeson, a Clinton appointee — to oppose the Department of Justice's request for dismissal and to consider holding Flynn in contempt for perjury.
Sullivan almost certainly chose Gleeson to oppose the motion to dismiss because Gleeson co-authored a May 11, 2020 opinion piece at the Washington Post arguing that Flynn's situation is so unique that the judge's discretion extends beyond protecting the defendant from prosecutorial overreach. Instead, Gleeson and his team asserted, the judge has a responsibility to police the new prosecution team for corruption favoring the defendant. Interestingly, when Gleeson was on the bench, he was known for "challenging both government plea deals and harsh mandatory sentences." It seems that corrupt plea deals are okay if they affect a Republican.
When it comes to motions to dismiss, Sullivan should know better. In 2008, he threw out a corruption charge against Alaska Republican Sen. Ted Stevens based on prosecutorial misconduct. "For 25 years I've told defendants they'd receive a fair trial ... I've never seen such mishandling or misconduct."
Sullivan also agreed to accept other briefs about Flynn from third parties. He did so even though third parties do not have a legal right to second-guess the DOJ's decision to dismiss. Moreover, in a December 20, 2017 order, Sullivan refused to accept an amicus brief in the Flynn case, saying, "Options exist for a private citizen to express his views about matters of public interest, but the Court's docket is not an available option."
Sullivan has been muddled about and angry at Flynn before. During a 2018 hearing, Sullivan bizarrely attacked Flynn for treason: "I'm not hiding my disgust, my disdain for this criminal offense." Sullivan even asked the prosecution to bring treason charges (which carry the death penalty) against Flynn.
For more information about Sullivan's strange, heavily politicized behavior, Andrew McCarthy has written the go-to article:
Lest we forget, the primary function of the federal judiciary is to protect the accused from overbearing government action, not to agitate for the prosecution of Americans. Even if he's convinced Flynn is as guilty as the day is long, one might expect Judge Sullivan to be disturbed by the FBI's perjury trap, by its editing of and misrepresentations about the "302 report" of Flynn's interview. By the prosecution's withholding of exculpatory evidence and concealment from the court of its threat to prosecute Flynn's son. By the derelictions of Flynn's original counsel, who took the case notwithstanding a deep conflict-of-interest, and who appear to have counseled Flynn to plead guilty without ever reviewing rudimentary discovery — we know they never inspected the 302 (which is mind-boggling in a false-statements case); did they ever demand that Mueller's prosecutors produce the recording of the Flynn–Kislyak "sanctions" conversation that is the heart of the case?
Those are the kinds of questions a responsible judge would be posing, not, "How do I sentence this guy if DOJ won't prosecute?" Regardless of what the DNC and CNN have to say on the matter, Flynn is supposed to be presumed innocent as far as Judge Sullivan is concerned.
Without a hint of irony, Sullivan's blatantly political directive is designed to frame the Justice Department as politicized.
Read the rest here.