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Welcome to the Michael Flynn merry-go-round. Several years ago, we heard how the Flynn case would help prove President Trump conspired with the Russians. However, what we’ve learned lately is the judicial process was manipulated and still the Feds managed to botch the case to such an extent Attorney General Barr dismissed the charges against him. There’s evidence that Peter Strzok manipulated the investigation, keeping it going even after others in the FBI concluded there was not enough evidence to charge Flynn. Then the prosecution failed to hand over exculpatory evidence. Yet Flynn’s former attorneys advised him his only hope to keep from going to prison was to plead guilty. Now, even though the Department of Justice has filed to dismiss the charges against him, the judge in the case has delayed ruling to allow interested parties the chance to file “friend of the court” briefs. And, yes, this is the same judge who asked the prosecutors during the sentencing phase if Flynn could be charged with treason.
From the beginning, something has felt wrong about the case against Flynn. Whether you believe he lied to the FBI as charged or not, the misconduct by the FBI and by the Justice Department’s prosecutors tainted the case to the extent that his guilty plea should not stand.
U.S. District Judge Emmet G. Sullivan is a Clinton appointee. According to that bastion of leftist journalism, the Washington Post, he has a “national reputation for advocating defendants’ rights to full government disclosure of evidence.” Yet, he seems to stand for the exact opposite in this case.
Here is the docket entry from Sullivan.
The highlighted parts say it all.
In his carefully selected definition of what an amicus brief is, Sullivan notes that the “friend of the court” doesn’t represent the parties but “participates only for the benefit of the Court.” Hmm. Why does a seasoned federal judge need help in determining if justice would be served by accepting the prosecution’s motion to dismiss in the face of evidence of prosecutorial misconduct, misconduct on the part of the investigating agents and possibly even ineffective defense counsel?
Before that quote, Sullivan wrote that he anticipates third parties will want to file briefs in the case. They “may” want to file. Sounds like he hopes they will, doesn’t it. Oh, and let’s not forget he has used much of this same reasoning in the Roger Stone case. Are we seeing a pattern here? Judge Powell apparently doesn’t like it when the prosecution admits it screwed up and charges against a Trump supporter should be dismissed.
So much for being a supporter of defendants’ rights.
From the record: “An amicus brief should normally be allowed when a party is not represented competently, or is not represented at all.” Flynn is represented and there is no question that his current counsel is more than competently handling his case. In fact, she has argued for some time to convince the judge and the prosecution that her client should be allowed to withdraw his guilty plea. The fact the Department of Justice filed to dismiss the case would seem to imply she did her job.
[W]hen the amicus has an interest in some other case that may be affected by the in the present case. . . .”
That would be the Justice Department, wouldn’t it? And it wouldn’t qualify as an amicus because it is a party to the case. Who else could it be? Roger Stone? Other Trump supporters or former members of his staff who have been prosecuted by Justice? Somehow, I have a hard time thinking those are the ones Judge Sullivan is hoping will file a brief.
[O]r when the amicus has unique information or perspective that can help the court beyond the help the lawyers for the parties are able to provide.”
How can anyone not a party help in this situation? We aren’t talking about an issue where specific knowledge is needed to understand the facts before the court. This is a cut and dry situation where the Attorney General filed to dismiss charges against Flynn in the interest of justice because the investigators and prosecutors involved in the case broke the rules.
Something else to consider. According to Flynn’s attorney, Sidney Powell, there has already been at least one notice of intent to file an amicus brief submitted. This occurred prior to the court’s decision. It is also, again allegedly, from a group calling itself “Watergate Prosecutors”. Gee, that doesn’t sound like it will be in support of Flynn, does it?
Powell goes on to say, ““This Court has consistently — on twenty-four (24) previous occasions — summarily refused to permit any third party to inject themselves or their views into this case.”
So why suddenly decide that this is the right time to allow amicus briefs? Could it be because Powell is on a fishing trip to find any reason, no matter how reasonable, to deny the motion to dismiss?
Judge Sullivan, who denied leave to file amicus briefs when he knew third parties would have spoken favorably of Flynn, now solicits briefs critical of Flynn. This is a violation of the judicial oath and applicable ethical rules. We will be filing a complaint against Sullivan.
— Cernovich (@Cernovich) May 13, 2020
It has been clear since the moment when Sullivan asked the prosecution “whether they had considered charging Flynn with treason” that he was biased against Flynn. Add that to the actions by the FBI and by members of the Department of Justice and you have the perfect storm for overturning a conviction. Because Flynn plead guilty, that made things a bit more difficult for him when the misdeeds began coming to light. But, with AG Barr dismissing the charges against him, this court has decided to throw up roadblocks in an attempt to subvert justice.
Flynn may be many things but, just like anyone else in this country, he is guaranteed a fair trial. He did not get one. There were members of the Department of Justice who conspired against him to deny him his rights. That cannot be allowed to stand. Like the man or not, believe him guilty or not, his rights were violated and he should be afforded the same protections and remedies as anyone else, no matter what their crime or what their station in life.
It saddens me, even if it doesn’t surprise me, to see certain members of our judiciary twisting the law to fit their political agendas. For a jurist who supposedly advocates for defendants’ rights, Powell has stepped far away from that goal with the Flynn case. It is hard not to think his personal bias is driving his actions. Justice is supposed to be blind. Justice is supposed to be fair. Justice is not supposed to have one set of rules for Democrats and another for Republicans.
Perhaps it is time for Justice Sullivan to take a crash course on judicial ethics. Based on his actions in this case, it might just be too late. If so, we are all losers for it.
Featured Image: Judge Emmet G. Sullivan official photo. “This file is a work of a United States federal court judge or magistrate judge, taken or made as part of that person’s official duties. As a work of the United States Federal Government, the file is in the public domain in the United States.”
CaptDMO says: Judge “asks” for amicus briefs?
Be a shame if the judge was served with some sort of official paper that said DO THE JOB YOU ARE PAID FOR!
Writ of Mandamus comes to mind.
Sorry, your recent request for politically palatable “clerk” assistance, is DENIED !
Amanda Green says: Exactly! Flynn may be “ethically challenged” as some have said, but that doesn’t mean he isn’t entitled to the same protections under the law as anyone else. This judge seems to have forgotten at least some of the oaths he swore upon taking the bench. It is time for a full review of his other cases, especially if they involved Trump-connected defendants. Considering what has already come out, I have a feeling we will see a pattern of judicial acts that are questionable at the very least.
Nicki says: One would think that a seasoned judge would understand the narrow definition of “treason,” instead of speculating from the bench about whether the charge was appropriate in this case. I’m not a lawyer, and even I get it.
As much as I DESPISE Flynn, having worked for him and having known his shenanigans in the Russia matter, there has been SO much misconduct in his prosecution, that even I have to side with dismissing the case.
And because the Obama Justice Department and the FBI stepped on their own dicks, assholes like Flynn and now that moron Ezra Cohen are being rehabilitated and allowed back in government.
Thanks a lot, dumbasses!
Amanda Green says: I have never heard of a judge asking for AC briefs on a criminal case. They are pretty much exclusively the thing of civil cases. The fact the judge seems to be ignoring the facts presented to him in Barr’s motion to dismiss is troubling. It should be simple enough to make his ruling. Prosecutorial misdeeds like failing to turn over exculpatory evidence almost always results in, at the very least, a new trial. Cases have been dismissed with prejudice for this violation. Like the defendant or not, agree with his politics or not, you can’t ignore the law (or try to warp it to fit your needs0–which is what it appears Sullivan is doing.
Nicki says: Exactly. So can a case still be declared a mistrial even though Flynn allocuted?
Amanda Green says: Not that I’m aware of.
On the state level, it is very difficult to overturn a guilty plea. That’s mainly so those who have already allocuted can’t come back later and say they didn’t mean it. It is also why judges take care to make sure the defendant understands what he is pleading to and the consequences. In a number of jurisdictions, there is even a disclaimer on the plea papers the defendant has to acknowledge waiving his right to an appeal.I assume it is basically the same on the federal leve.
In this case, however, Barr acted in “the interests of justice” when he dismissed the case. He didn’t have to and it would have been an uphill battle for Flynn going forward. His best bet would have probably have been to plead ineffective counsel. If he won that, then he might have had an argument for vacating his plea. It is also when he could have brought in the misconduct by the FBI and the prosecutors. By making the problems public, and by the judge actually taking the prosecutors to task on the record for not turning over their files in a timely manner to Flynn’s new attorneys, he had a good paper trail to rely on and something Barr could use to back up his own decision in the case.
And this is what gets me about the judge’s latest move. He has come down hard on the DoJ for not turning over all the files. He has made a name for himself when it comes to protecting a defendant’s right to know the evidence against him — and, conversely, the evidence in his favor. This move to delay his ruling and receive amicus briefs is trouble and I frankly don’t understand why he is doing it other than to keep the liberals happy and hope someone points out something he can use to deny Barr’s motion.
GWB says: I frankly don’t understand why he is doing it
Perhaps to push the resolution into late next January, when a Biden Democrat-politician-to-be-named-later takes the White House and their DoJ drops the dropping of the persecution prosecution.
GWB says: “An amicus brief should normally be allowed when a party is not represented competently, or is not represented at all.”
And that almost entirely applies to the defendant. Because, in our system (well, the system that served us well for a couple of hundred years, anyway), the assumption is that – until proven otherwise by the prosecution – a defendant is innocent. This is why we don’t generally allow appeals of innocent verdicts (in criminal cases). If the prosecution screws up, you don’t get to go after the defendant again just because you think he’s actually guilty. You had better do better next time.
Sullivan asked the prosecution “whether they had considered charging Flynn with treason”
I haven’t dug too deeply into this, but there are ways to interpret that question that do not require believing that Sullivan was wanting them to do so.
He did not get [a fair trial].
Nor was he fairly approached about a plea bargain. He was coerced because he did not know how the deck had been stacked against him. Violating the rules like that means you forfeit the game.
(You should go read Legal Insurrection’s posts about this, too.)
In the end, Sullivan might be piling up the evidence, or he might be setting a trap, or he might just be a political hack who should be disbarred and run out of town on a rail. But Flynn needs to be exonerated (not pardoned) and the judge needs to have his bench proceedings examined for grotesque bias. And those DoJ personnel responsible need to be brought before a federal grand jury.
GWB says: UPDATE:
And now? He’s appointed a retired judge as – essentially – a prosecutor, to present the non-existent side’s case! Oh – and you’ll never believe this – the appointed retired judge? He’s a Clinton appointee. And he penned an op-ed two days ago in the Washington Post arguing for this exact thing, and claiming the gov’t has done unprecedented work in turning over things it normally “jealously guards” but hasn’t turned over the actual evidence (the transcript of the call).
Is this an attempt to get the transcript out there to taint public opinion?
370H55V says: Win or lose, Trump should pardon him on Nov. 4.
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