Thursday, May 21, 2020

Flynn’s latest move directly attacks rogue judge Emmet Sullivan - Andrea Widburg

by Andrea Widburg

Recognizing that Judge Emmet Sullivan has abandoned ordinary judicial principles, Flynn is trying a different, risky tactic.

When the Department of Justice (“DOJ”) reviewed General Michael Flynn’s case, it discovered that both the FBI and the DOJ had engaged in egregious misconduct. Therefore, it exercised its discretion to move to dismiss Flynn’s case. Judge Emmett Sullivan, who ought to have rubber-stamped the motion, instead appointed a retired judge as a “friend of the court” specifically to oppose the motion. He also announced that he would entertain other third party briefs.

In this face of this unrelenting bias, Flynn’s attorney, Sidney Powell, took the somewhat risky step of going over Sullivan’s head. On Monday, she filed an “Emergency Petition for a Writ of Mandamus” with the United States Court of Appeals for the District of Columbia Circuit. It’s a beautifully written brief, but seven of the eleven D.C. Circuit judges are Clinton and Obama appointees, making it famously hostile to Republicans. If this packed appellate court rules against the petition, that will embolden Sullivan.

The basis for the petition is that Judge Sullivan has exceeded his authority, which requires an appellate order mandating that Sullivan (1) grant the motion to dismiss and (2) vacate the order appointing a “friend of the court.” The petition also asks the appellate court to kick Sullivan off the case and appoint a new judge for any remaining ministerial matters.

The petition, while lucid, is long, so here’s the quick version:
Judge Sullivan has long been hostile to Flynn. In December 2018, in open court, he went on a rant against Flynn, saying that Flynn’s actions in matters unrelated to the proceedings before the court might constitute “treason” and that he had “sold [his] country out.” Flynn also used the words “disdain” and “disgust” for Flynn’s conduct.

Sullivan’s statements were based upon an embarrassing ignorance about facts. On another occasion, he said of the lost original 302 – the core document supporting the charges against Flynn – that “things happen and documents are lost. I mean, it just happens….”

When Sidney Powell took on Flynn’s case, she requested documents that the DOJ improperly failed to produce, only to have Sullivan deny that request. It was only because Attorney General Barr appointed someone with experience both in the FBI and the DOJ to review the files that the DOJ finally produced documents proving definitively that the government had railroaded Flynn. It was this new information that led the DOJ to file the motion to dismiss.

Under the law, which I’ll get to in a minute, the judge has almost no discretion when the prosecution files such a motion. Sullivan, however, went rogue. He announced that he was appointing retired Judge John Gleeson to file a brief as an “amicus curiae” (friend of the court) opposing the motion. Gleeson had just published an opinion piece in the Washington Post calling the motion to dismiss a pleading “reek[ing] of improper political influence.” Additionally, although Sullivan had previously (and properly) rejected other amicus curiae briefs, he now invited them.

The law is uncomplicated. First, trial court judges cannot invite amicus curiae briefs in criminal cases. Those are the rules, and the U.S. Supreme Court has affirmed them. Right up until he was about to lose control of the case, Sullivan abided by these rules. He has abused his discretion by ignoring them now.

Second, United States v. Fokker Servs., a case out of the D.C. Circuit, is unambiguous: Under Art. II, § 3 of the Constitution, it is the prosecutor who decides whether to bring a case and whether to dismiss it. The judge cannot second guess that decision.

Moreover, the presumption is that the prosecution is behaving correctly when it seeks to dismiss a case. In this case, the DOJ’s review showed repeated instances of irregular, biased, and unethical behavior on the part of both the FBI and the DOJ. These facts support the presumption.

Under the circumstances, there is no reason to deny the motion to dismiss and every reason to grant it. Besides, because Judge Sullivan has repeatedly shown hostility to Flynn, the latter is entitled to an impartial judge – or one who at least makes an effort to appear so.

Immediately after Flynn filed the petition for writ of mandate, Judge Sullivan made known his hostility to and disrespect for Flynn. He issued an order granting Judge Gleeson’s request for a briefing schedule that pushes oral argument to July 16th, almost two months from today. That’s an unusually long briefing schedule by any standards. Moreover, it gives Sullivan the chance to push his decision out for yet another few months, maybe until after the election, with the hope that Biden wins.

What we see here is a judge so inflamed with passion that he is willingly abandoning the rule of law to imprison an innocent man. This is how leftist judges always operate on matters that ping their political antennae. The behavior isn’t rare. The only difference here is how openly a leftist judge shows his disdain for the law.

Andrea Widburg


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