by Daniel John Sobieski
There is no understudy prosecutor to be employed when one party says he’s innocent and the other admits they have no case. Game over.
Which part of United States v. Michael Flynn does Judge Emmet Sullivan not understand? There is no third party in the case title -- only the names of the accuser and the accused. There is no understudy prosecutor to be employed when one party says he’s innocent and the other admits they have no case. Game over. The defendant is a free man unless you are in Judge Sullivan’s court where the signpost up ahead says “The Twilight Zone.”
On our planet, when there is no prosecutor to prosecute, there is no prosecution. Case is dismissed. Not on Judge Sullivan’s planet. For Lt. Gen. Michael Flynn it must have seen like a ruling from a parallel universe when, in an Alice-In-Wonderland meets Groundhog Day moment, for Judge Sullivan’s appointed former Judge John Gleeson to argue against AG Barr and defendant Flynn, and even invent a new charge of perjury for withdrawing his guilty plea entered under severe coercion and duress.
Judge Gleeson resigned from the bench in 2016 to return to private practice. A judicial activist, he was appointed to serve in the Eastern District of New York by President Bill Clinton in 1994. Presumably, the chance to screw President Trump and his former National Security Adviser Michael Flynn was too much to pass up. As the Daily Caller notes:
Gleeson has already argued against dismissal in Flynn’s case, saying in a Monday editorial for the Washington Post that accepting Barr’s recommendation would damage the justice system.Prosecutors dropping a case in the face of overwhelming exculpatory evidence does not damage the justice system -- hiding exculpatory evidence pointing to a defendant’s innocence does, as does one administration conspiring to entrap and frame a defendant chosen to work in a subsequent incoming administration.
“Prosecutors deserve a ‘presumption of regularity’ -- the benefit of the doubt that they are acting honestly and following the rules. But when the facts suggest they have abused their power, that presumption fades. If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request,” Gleeson wrote. “The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.”
This may be the first time you’ve heard of the “presumption of regularity” for prosecutors. It’s the first time I have. I’m more familiar with the presumption of innocence for the defendant and the right to a fair trial. Flynn was denied a fair trial by hiding exculpatory evidence as well as evidence of a conspiracy to entrap. Then he had to stand before a pompous and bloviating judge who suggested that this man who served his country honorably for more than three decades just might be guilty of treason if the prosecutors had thought of it -- a capital offense.
Harvard law Professor Adam Dershowitz suggests it is Sullivan and sorcerer’s apprentice Gleeson who are guilty of impropriety. “Judges Are Umpires, Not Ringmasters; Sullivan invites outsiders to weigh in on the Flynn case -- an unconstitutional judicial power grab,” law professor Dershowitz writes in an op-ed in the Wall Street Journal. Dershowitz notes:
The Constitution limits the jurisdiction of federal judges to actual cases and controversies. They may not offer advisory opinions or intrude on executive or legislative powers, except when the other branches have exercised them in an unconstitutional manner. Federal judges are umpires deciding matters about which litigants disagree. If the litigants come to an agreement, there is no controversy. The case is over…SCOTUS is bound to crack down on this if it gets that far. Sullivan's abuse of amicus curiae (friend of the court) is both contrary to his own precedent, and in violation of a recent SCOTUS ruling. They actually ruled against this a few days ago in a 9-0 decision authored by RBG herself. The judiciary is simply not allowed to come up with new charges, new evidence, or new opinions on the fly. On the website of the National Law Journal, it is detailed how Justice Ruth Bader Ginsburg, writing the majority opinion, read the riot act to an appellate court that distorted amicus curiae beyond all reasonable meaning:
By inviting the irrelevant opinions of outsiders, Judge Sullivan is unconstitutionally encroaching on executive power. Only the executive has the authority to prosecute or not.
Violation of the “party presentation” principle -- central to Thursday’s ruling -- is not often the basis for deciding a high court case. The principle refers to the long-standing feature of the court system that the parties involved in litigation, and not judges, are responsible for raising the legal issues a court must resolve.The case against Michael Flynn should also be vacated and dismissed. Cases should be decided on the merits of the cases presented by the two sides, not third parties with only an ideological agenda to contribute. Judge Sullivan had already dismissed some two dozen pro-Flynn briefs. Now he’s invited an anti-Flynn third party not only to submit a new brief but to actually prosecute a new case with new charges. Double jeopardy, anyone?
That principle rarely appears in a Supreme Court decision, and the ruling was all the more remarkable that its author – Ginsburg -- rebuked a panel of the U.S. Court of Appeals for the Ninth Circuit in accusatory terms that said the court’s “transformation” of a case went “well beyond the pale.”
Ginsburg’s opinion was in the case United States v. Sineneng-Smith. Evelyn Sineneng-Smith, who operated an immigration consulting firm in San Jose, California, was convicted of violating a federal law making it a felony to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”…
“Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: ‘Whether the statute of conviction is overbroad… under the First Amendment,’” Ginsburg wrote…
Although a court is not “hide-bound” by a party’s counsel’s precise arguments, Ginsburg said “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.” The Ninth Circuit’s judgment was vacated and the case remanded “for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.”
A case in Judge Sullivan’s past shows just how wrong he is now,’ As Margot Cleveland writes in the Federalist:
…the government had criminally charged Fokker Services with violations of export control laws. The government and defendant entered a deferred prosecution agreement, under which the government would dismiss the charges in exchange for Fokker Services agreeing to several compliance provisions. But when the parties went before a federal district court judge to formalize the arrangement and a waiver of the Speedy Trial Act, the presiding judge refused to accept the waiver -- which in essence doomed the agreement -- because he believed the agreement was too lenient on the business owners.The original agreement between the two parties was allowed to stand, unencumbered by third-party busybodies and an activist judge. Something like that might happen and should happen in the Flynn case. What Judge Sullivan has done is unconscionable and unconstitutional:
The government filed a “writ of mandamus” with the D.C. Circuit Court. A writ of mandamus is a procedural machination that allows a party to seek to force a lower court to act as required by law.
The Fokker decision was a 2016 decision from the D.C. Circuit Court and, as such, establishes “mandatory precedent,” i.e., precedent that must be followed, by all D.C. district court judges -- including Judge Sullivan. Thus, Judge Sullivan’s directive that Judge Gleeson, as amicus curiae, should “present arguments in opposition to the government’s Motion to Dismiss,” cannot stand: It conflicts with controlling circuit court precedent, and more significantly with the U.S. Constitution.Justice delayed is justice denied, Judge Sullivan. The Constitution was not written on an Etch-a-Sketch. And there is nothing in it that excuses or justifies your judicial tyranny.
Daniel John Sobieski is a former editorial writer for Investor’s Business Daily and freelance writer whose pieces have appeared in Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.
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