Long before the riots that are taking over our cities and even before the quickly spreading coronavirus that threatens our economy, the most significant piece of news was anything related to the curious case against former National Security Adviser Michael Flynn.
If you have following the case at all, you know that after newly-declassified documents were released in April, evidence was found that the FBI may have set Flynn up to “get him to lie, so we can prosecute him or get him fired,” according to a memo from then-FBI counterintelligence head Bill Priestap.
Naturally, with this news, questions of Flynn’s guilt were asked both the prosecution, in the form of the Department of Justice, and the defense filed a motion to dismiss the case and charges entirely.
However, the presiding District Court Judge Emmett Sullivan has been reluctant to do so.
You will likely also know that since Sullivan has thus far refused to agree to dismiss the case, the D.C. Circuit Court of Appeals ordered that he explain why. Why would a judge, who is supposed to be an unbiased third party, not agree to dismiss a case that both sides no longer wanted to pursue? The Appeals court gave him until June 1 to give his answer.
It should have a rather simple response. If Sullivan was actually on the side of justice and was seeing something that both sides were apparently missing, he should have no problem letting the court know. However, instead of writing it himself, Sullivan hired one of the most expensive and high-profile attorneys around to do it for him.
And on Monday, that attorney, Beth Wilkinson, who represented Brett Kavanaugh in his justice nomination trials, issued a response to the court on Judge Sullivan’s behalf.
To put it simply, Wilkinson wrote that Sullivan was questioning the Justice Departments’ motives to dismiss the case. “For now, it suffices to say that the unusual developments in this case provide at least a plausible ‘reason to question’ the ‘bona fides’ of the government’s motion.”
According to Wilkinson, it is very odd for prosecution, especially the government’s Justice Department, to suddenly choose to dismiss a case after charges have been made, a plea is given, and in the sentencing phase. Therefore, she argues that it is acceptable for the judge to take on an equally unique role.
However, both the DOJ and several other experts disagree.
In fact, only moments after the judge’s response was submitted to the court, the DOJ filed its own response, as the court had invited them to do so.
“Under Articles II and III of the Constitution, the power to prosecute belongs to the Executive, not the Judiciary. Federal Rule of Criminal Procedure 48, read against the backdrop of that constitutional principle, required the district court to grant the government’s motion to dismiss the indictment with prejudice because that motion was unopposed.”
Procedure 48 states, “The government may, with leave of court, dismiss the indictment, information, or complaint.”
Therefore, the DOJ argues, “That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of the Rule would violate both Article II and Article III.”
They continued, saying, “Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own.”
Furthermore, the DOJ wrote that the court and Judge Sullivan didn’t have the right or “authority” to “subject the Executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement.”
Flynn’s attorney, Sidney Powell, had previously argued the same reasoning, claiming that Sullivan must dismiss the case and cannot simply extend an investigation because he holds a different view. Powell pointed to a semi-similar case, ‘United States v. Fokker Services’ that ruled that “a district court cannot deny the Government’s motion to dismiss because the judge has a ‘disagreement with the prosecution’s exercise of charging authority,’ such as ‘a view that the defendant should stand trial’ or ‘that more serious charges should be brought.’”
According to these statements, it doesn’t seem like Sullivan has much of a leg to stand on anymore. Then again, he never really did. And he had to have known it, which is why many assume this is nothing more than a last-ditch effort to save face after he all but called Flynn a liar and traitor to his country.
In either case, Flynn is walking free.