Jonathan Turley is no conservative judicial mind. The professor at George Washington University Law School has been featured for his opposition to the impeachment proceedings against President Donald Trump. He saw the partisan nonsense behind it. Everyone could, but the Democrats had promised their base impeachment. Something had to be done.
With the case against ex-National Security Adviser Michael Flynn coming apart, Turley has noted that the former general may have grounds to launch a malicious prosecution lawsuit against the FBI. The motion to dismiss the case from the Department of Justice is damning. It outlines what many considered conspiracy theory talk: there was a plot to entrap Flynn. There was no evidence to prove Russian collusion. Even the agents who interviewed Flynn said he didn’t lie to them. Flynn has spoken with then-Russian Ambassador Sergey Kislyak, which was part of his job. The FBI and its Trump-deranged officials thought this was a Logan Act violation, which is utterly laughable. They were weaponizing a phone call to take down a top Trump official. It’s madness.
With such a history of prosecutorial overreach and misconduct, Judge Emmet Sullivan had to toss the case, right? There is no case. There is no prosecutor; he resigned. No one has opposed the motion to dismiss, but Sullivan screwed himself here. He’s totally biased against Flynn, calling him a traitor. He decided to double-down and appoint retired Judge John Gleeson, whose law firm represented DOJ resister Sally Yates, to combat the DOJ motion and possibly seek perjury charges against Flynn.
Yeah, they want to nab Flynn for his coerced guilty plea to “lying to the FBI” charges. Commenters have noted that Sullivan allowing amicus briefs from anti-Trump lawyers outsources the prosecution. In an op-ed for USA Today, Turley called out Sullivan, saying he made a mess of this Flynn case and that his overreach presiding over this case is perverting justice. It’s mob rule in his court whether he wants to admit it or not with his decisions (via USA Today):
Amicus briefs are allowed by courts when outside parties want to be heard on some contested issue facing a court. Such filings are common in civil cases. This, however, is a criminal case. There are serious questions about the propriety of such third parties being asked to brief uncontested motions in a criminal case. The lives and liberty of individuals generally are protected from public demands for punishment. We do not do punishment by plebiscite in this country.
While courts have discretion to grant amicus or third-party arguments in civil cases, there is no counterpart under the Federal Rules of Criminal Procedure. In fact, Judge Sullivan rejected such a request on Dec. 20, 2017, stating that “the Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. ... 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’s earlier order was the correct one. It is dangerous to open up criminal cases for citizens to argue for convictions or enhanced punishments, particularly when prosecutors seek dismissal in light of prosecutorial error or abuse.
Indeed, former President Bill Clinton’s attorney general, Janet Reno, warned Congress against courts intruding on Justice Department decisions, stressing that “our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.”
If Sullivan’s invitation for third parties to argue in a criminal case is unnerving, his suggestion that he might substitute a perjury charge is positively terrifying. Sullivan has compounded this judicial overreach by asking Gleeson to explore the issue, despite his public criticism of the administration's handling of the Flynn case.
Under Sullivan’s theory, any time a defendant seeks such a dismissal (even with the support of the prosecutors) he could face a judicially mandated perjury charge. Faced with evidence of prosecutorial wrongdoing (which often arises after a trial), defense counsel (like myself) would have to warn clients that the court might just swap one crime for another.
Sullivan is largely responsible for the current posture of the case. Flynn was supposed to be sentenced in December 2018 before the hearing took a bizarre turn. Using the flag in the courtroom as a prop, Sullivan incorrectly accused Flynn of being “an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.” He then questioned whether Flynn should have been charged with treason.
Flynn faced a relatively minor single count of false statements with the likelihood of no jail time — but Sullivan was suggesting that he could have been charged with treason, subject to the death penalty.
Sullivan then gave Flynn a menacing choice: “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. ... I’m not hiding my disgust, my disdain.”
Flynn, unsurprisingly, opted to wait.
And alas, here we are. Flynn is left to tread water in the legal pool while every left-wing wingnut takes a swipe out of him in court. Flynn is a victim. For years, the nation was engulfed in the Russian collusion myth peddling by Democrats and their allies in the media. It was fanned by the anti-Trump deep state actors that are still working to inflict damage onto this administration as we speak. But with no evidence and with what’s left of the manufactured narrative blown to bits with the collapse of the Flynn case, you cannot polish a turd. Flynn deserves to have thus put in his rearview mirror. It’s time, but it seems this judge wants to keep this dragging through the election cycle, perhaps in the hopes that a Biden-led DOJ will drop the motion to dismiss. Is this crazy talk? Gleeson will file his briefs on June 10, and you know it won’t be settled by then.
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