Last week the DOJ filed a motion in the Michael Flynn case to dismiss the charges against Flynn “with prejudice.” This would mean that the long nightmare would be over for LTG Flynn. Certainly part of the reason the dismissal request was made was the Brady material that a US Attorney from Missouri found that had never been given to the Flynn defense. This material was exculpatory and also demonstrated that Flynn had been framed by the FBI. Other declassified material also demonstrated egregious prosecutorial misconduct.
AG Barr recognized that such material would continue to be presented to the court by Flynn’s attorney Sidney Powell. Barr also recognized that there had been a witch hunt to get Flynn. Rather than air all this dirty laundry out in a public courtroom, Barr decided to right an injustice and filed to dismiss the charges.
On Friday night last week former President Obama, who is now within the crosshairs of a criminal conspiracy investigation, sent out a call for people to “defend the rule of law.” This would be funny if it wasn’t so tragic. As is becoming more and more apparent, the Obama administration was a law unto itself. The law was “anything goes.”
On Tuesday Judge Sullivan appears to have answered Obama’s call. Instead of agreeing to dismiss the case, Sullivan made the almost unheard of move in a criminal case to grant outside parties time to file amicus briefs (friend of the court). This is done despite the fact that Sullivan had denied amicus briefs 24 times previously in this case.
Flynn Update –
Looks like Judge Sullivan will allow for public comment.
Judge Sullivan a minute order anticipating that "individuals and organizations" will seek leave to file briefs "for the benefit of the Court."
A briefing scheduling order will follow. pic.twitter.com/7Ot9T8SgzH
— Techno Fog (@Techno_Fog) May 12, 2020
Flynn’s attorney, Sidney Powell, quickly filed a motion in opposition to this outrageous move by Sullivan. See the entire motion here.
Powell notes Sullivan’s earlier ruling of December 20,2017 that disallowed amicus briefs in this case.
Had an amicus brief already been filed (under seal)? The sequence number 201 is missing from the Twitter list above. Rumors abound and are referenced in Powell’s opposition motion that a group of “Watergate Prosecutors” were ready to file such a brief to “guide the court.” The transparent motive here is to try to create a political narrative that undermines the DOJ and AG Barr.
Legal experts on both sides of the aisle weighed in on this stunningly political move by Judge Sullivan.
Gregg Jarrett noted the lack of impartiality and possible cognitive decline.
This kind of prejudicial interference from outside forces has no place in a court of law. It makes a mockery of both fairness and impartiality.
Sadly, Judge Sullivan appears to have taken leave of his senses and decided to entertain the notion of allowing the former Watergate prosecutors to usurp the role of federal prosecutors. This resulted in his order Tuesday indicating he would permit “individuals and organizations” to file “amicus curiae” submissions.
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Sullivan’s ruling may be a reflection of his own abiding prejudice. In a hearing last year, he all but accused Flynn of treason, only to retract his words after a recess. He seems to have a feeble grasp of the facts in this important case.
Brett Tolman said this was first for him.
I thought I’d seen everything in 20 plus years in the Federal criminal justice system, but this is a first. I mean, this is an outrageous decision by a judge who’s now placed himself into that awful category of an activist who’s willing to set aside rules, set aside ethics, set aside precedent, and just go in a direction because he is politically motivated to do so.
Andrew McCarthy weighed in over at National Review with legal arguments.
There is no complex legal issue to be resolved. DOJ’s dismissal motion may be politically controversial, but legally it is pro forma. The only branch of government constitutionally authorized to proceed with a criminal prosecution is the executive. The Justice Department has declined to prosecute. There is nothing for the judge to do besides the ministerial task of ending the case on the court’s records.
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.
If there is anything legally dubious here, it is the proposition that a judge may deny a dismissal motion filed by the Justice Department. Rule 48 of the Federal Rules of Criminal Procedure purports to require “leave of the court” before prosecutors may dismiss an indictment. Yet a statutorily enacted rule cannot amend the Constitution, which vests solely in the executive the power to prosecute. In the federal system, the Justice Department’s discretion to charge or proceed with a criminal case is unreviewable. The judiciary has no more power to compel the executive branch to prosecute an indicted case than it has to force the executive to indict the case in the first place. If the public believes the Trump administration is abusing prosecutorial discretion, it may vote the president out of office. But a judge has no authority to order the executive to investigate, indict, or try a criminal case. None.
Moreover, Congress prescribed Rule 48 to protect defendants — exactly the opposite of what Sullivan is doing. Lawmakers were concerned about the potential for prosecutorial misconduct: They wanted to prevent strategic dismissals, where a prosecutor pulled the plug on a case that was not going well for the government, only to recharge it later; they wanted to forbid such abuses as repeatedly charging then dismissing an indictment, exhausting an accused’s resources and capacity to defend himself.
The objective to protect defendants is elucidated by Rule 48’s requirement that, after a trial has started, the prosecutor must obtain the defendant’s consent before dismissing the case. Once a criminal trial starts, a defendant’s double-jeopardy protection is triggered. The rule thus ensures that, if the trial is going badly for the government, the prosecutor cannot get a do-over unless the accused agrees. Most defendants would prefer to continue a trial that appears headed to acquittal rather than to risk a retrial at which prosecutors can shore up their case.
How perverse, then, that Judge Sullivan sees Rule 48 not as a safeguard for defendants but an artifice to pressure the executive against dropping a case.
Note that Justice Department’s motion seeks to dismiss the charge against Flynn with prejudice. That means once the case is dismissed, the government would be prohibited from re-indicting Flynn on the same charge. There is no possibility of the gamesmanship Rule 48 was enacted to prevent.
The blowback was so severe that Sullivan pivoted. Sullivan denied the Watergate prosecutors their opportunity to submit a brief (already submitted under seal?). Sullivan declared Powell’s motion in opposition as moot. This means that he was no longer soliciting friend of the court briefs.
This was clearly a political attempt to frame the DOJ as politicized. Just who is pulling Sullivan’s strings? When did Sullivan become part of the conspiracy? What do they have on him that would cause him to do this? Is this why he stopped Powell from filing documents in the case (May 1st) when the DOJ was exposing the corrupt nature of what happened?
A judge in a criminal case is supposed to be neutral. Sullivan betrayed his bias in December when he suggested that the prosecution should be charging Flynn with treason.
So would Sullivan now proceed to accepting the government’s motion to dismiss? Not so fast.
Judge Sullivan has requested retired judge John Gleeson to file an amicus brief outlining why: (a) the charge against Flynn should not be dropped; and (b) frame the argument about how to prosecute Flynn for perjury.
Once again outrageous is not a strong enough word to describe what is going on here. Liberal Law professor Alan Dershowitz says that Sullivan should dismiss the case or be impeached. It is now clear that Sullivan is trying to smear Flynn and politicize the case. The head of the DC Circuit Court needs to remove Sullivan from the case and demand his resignation. This kind of political grandstanding from the bench displays just how corrupt our system of justice has become.
Sidney Powell was interviewed by Lou Dobbs about this. Lou Dobbs is enraged by what happened.
Powell noted,
“God works in mysterious way. People are getting a real education, a very strong eye-opening experience and the more this goes on, the more they learn.”
While I agree with Ms. Powell, it would be nice if God could work a little quicker.