Out Like Flynn

Gen. Flynn deserves vindication - but the Left is exacting a heavy price for justice.

The Deep State is fortunate that the most spectacular revelations of their malfeasance came out while the entire MSM was fixated on praising looters whom they claim are legitimately protesting the death of another innocent, totally virtuous black man at the hand of a rabidly racist white cop.

We won't go into that; the incident and its aftermath confirm once again our assertion that cities which have freely chosen the misfortune to be ruled by Democrat politicians can't function properly.

What caught our recent attention was a series of actions that show how thoroughly the Deep State looks after its own.  We see the opening few moves in a ploy that will result in none, that is, not one of the deep state crooks who abused our intelligence agencies and the FBI to try to overthrow the Trump administration ever seeing the inside of a prison cell, no matter what the proof.

To understand how they're working this out, consider what happened to ex-National Security Adviser General Michael Flynn.  The Federalist gives a longer summary, but here's the gist of what happened:

Two FBI agents questioned Gen. Flynn, the incoming National Security Adviser, on Jan. 24, 2017, just days after President Trump's inauguration.

Although the FBI believed they had no cause to pursue the General and the FBI agents who'd interviewed him did not believe he'd lied to them, Special Counsel Robert Mueller's inquisitorial team bankrupted him by forcing him to hire lawyers to defend himself and threatened to target his son.  Gen. Flynn pled guilty on Dec. 1, 2017, to making false statements to the FBI.

Despite his guilty plea, his fight wasn't over.  Gen. Flynn hired a new lawyer, Sidney Powell, after the Mueller investigation wound down.  She filed motions asserting that the government had withheld evidence that would show that Gen. Flynn was innocent.  She uncovered enough misconduct by the FBI that on May 7, 2020, prosecutor Van Grack withdrew from the case and the U.S. attorney decided to dismiss the case against Gen. Flynn.

It Ain't Over 'til The Fat Lady Sings

It's been a solid legal principle since the early days of our Constitution that judges can only rule on disputes between parties in front of them.  They cannot rule on issues which the parties have not raised, and if both parties agree that a case has been settled, there is nothing the judge is permitted to do to continue the matter.

This lets prosecutors shape the law by deciding which cases to bring and which cases to ignore, but we needn't go into that just now.

Given that both Gen. Flynn and the DOJ agreed that the matter should be dropped, everyone expected Judge Emmet Sullivan to drop the case as precedent and the law required.  Instead, on May 12, 2020, he wrote an order stating that "at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs."

That was passing strange: there is no amicus procedure in a criminal court.

During civil legal matters, interested parties may file amicus briefs which the court may or may not consider. The term means "friend of the court."  An amicus seeks to influence the outcome by bringing up points which haven't been considered.  Getting your amicus brief cited by the Supreme Court earns you bragging rights and higher fees.

Instead of dropping the case, Judge Sullivan invited interested parties to weigh in on whether the case should be dismissed or not.  That's not only out of bounds, Judge Sullivan made the matter worse by appointing former federal Judge John Gleeson "as amicus curiae to present arguments in opposition to the government's Motion to Dismiss."

Judge Gleason is well-known for his anti-Flynn views.  In other words, when the prosecutor had asked for the case to be dismissed, the judge instead hired a known enemy of the accused to present arguments as to why he was still guilty!  Does this sound like blind justice and a level playing field?

To most observers, Judge Sullivan's actions seemed bizarre.  It's legally inconceivable that he would win the day; most legal experts considered it inevitable that a higher court would smack him down so hard he'd bounce.  The only reason they could come up with for why he'd perform this embarrassing charade was out of a forlorn hope that he could drag the matter out through the coming election, after which a Biden-appointed DOJ might decide Gen. Flynn should continue to be persecuted and carry on the case.

Curiouser and Curiouser

After Judge Sullivan turned his courtroom into a three-ring circus, defense attorney Powell filed an "emergency petition for a writ of mandamus," with the D.C. Circuit Court of Appeals, which is one level above Judge Sullivan. A writ of mandamus is an order that directs a lower court or government official to act according to law.

This writ directly challenged Judge Sullivan's conduct - in effect, it's saying that the judge is so far out of line he isn't being a judge, and another, higher-level judge needs to force him to do what's right.  As with any group of elitists, judges look after their own and seldom grant such motions.

However, as legal experts predicted, this rare argument received at least the first step to a favorable response.  The appellate court issued an order directing Judge Sullivan to, "within ten days," "file a response addressing [Flynn's] request that this court order the district judge to grant the government's motion to dismiss filed on May 7, 2020."

The appellate court cited United States v. Fokker Services in which the court had ruled, "decisions to dismiss pending criminal charges - no less than decisions to initiate charges and to identify which charges to bring - lie squarely within the ken of prosecutorial discretion."  In other words, "The law is crystal clear on this, Judge - what on earth are you thinking?"

Judge Sullivan is is an experienced jurist who previously won our admiration by coming down hard on the Federal prosecutorial misconduct in the case which convicted Sen. Stephens of Alaska of criminal fraud.  With Gen. Flynn, though, he's taking the opposite stance, and crawling far, far out on a legal limb to do so.  Why on earth would he take such an untenable position?

The Deep State Looks After Its own

It is generally expected that, indeed, Judge Sullivan's position will be struck down hard and Gen. Flynn's charges will be dropped.  He will have won, and Judge Sullivan will look a fool.  All that will have been accomplished is that the appellate court will strengthen the precedent that a judge must dismiss any criminal charge when the prosecutor decides that there's no case.

How is this a bad thing, worth the sacrifice of Judge Sullivan's reputation to accomplish?  Think down the road one step further: Once the legal precedent of absolute prosecutorial discretion to dismiss charges becomes even more ironclad, no deep state miscreant will ever go to jail, no matter what.

Why not?

Well, consider the timeline for a moment.  Even if Attorney General Barr brings Federal charges against the deep state actors who lied to get the Mueller investigation started and lied to get permission to wiretap members of the Trump campaign staff, there's no way that these legal gymnastics will be concluded by November.

If a Democrat wins the White House, a Democrat attorney general will declare that these cases are flawed and request that the charges be dismissed.  Then, based on this rock-solid super-duper precedent established by the case of Gen. Flynn, a judge will dismiss the charges "with prejudice."  Under our Constitutional protections against double jeopardy, "with prejudice" would mean charges cannot be brought against them again for their conduct, ever, no matter what, and that will be that.

If Mr. Trump wins, they'll have to wait a bit longer, but it will still happen.  Does anyone imagine that their court cases cannot be strung out for an additional four years, through how many levels of appeal?  Of course they can.

No matter what, a Democrat will eventually control the Justice Department, at which point, they're home free.

After all, the Obama "justice" department dropped the case against a Democrat who had used physical intimidation to keep white voters from entering a polling place to vote against Mr. Obama, even though the jury had convicted the accused.  If a Democrat-appointed Attorney General can drop charges after a conviction, no deep state perp will ever see the inside of a cell.

Judge Sullivan will have seen to it.

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Law.
Reader Comments

We are SO screwed!

June 11, 2020 8:44 PM

You guys are RIGHT. Look what just happened:

https://townhall.com/tipsheet/mattvespa/2020/06/10/john-gleeson-n2570412

Judge sullivan hired an amicus to argue agaist dropping the case against Gen. Flynn. The amicus he chose is, as you said, very anti-Flynn. The amicus Gleeson calls the DOJ Flynn dismissal "pretextual" and "a gross abuse of prosecutorial power." which is just what Judge Sullivan wanted.

Consider what will happen when the upper-level court tell shim to dismiss. When Mr. Barr brings perfectly valid cases against the deep state actors, the next Democrat AG will engage in "a gross abuse of prosecutorial power" and tell the judge to drop the cases. They will.

You're right, the Deep State will walk. Only cure is to vote against Democrats coast to coast. We need "You're fired" yelled all over the beltway.

June 12, 2020 2:31 AM

I see this as another step toward totalitarianism. Many patriots, especially veterans, may not accept this charade and perversion of justice.

June 13, 2020 7:20 AM

After reading this post, I initially agreed that the deep-state traitors may walk, but consoled myself that at least, like General Flynn, they will be bankrupted. It then occurred to me that due to their treason - and it is treason, since their ultimate aim is the destruction of the Republic - has incidentally rewarded them richly; all are most likely wealthy, and if they are not, their defense will be carried financially by fellow traitors and their deluded, maleducated followers among the public.

No matter how you slice it, another civil war is beginning to look inevitable. I do not wish for a war, because war ALWAYS brings the deaths of MANY innocents, but given the alternatives - a second Evil Empire, far more powerful, yet just as evil, as the first, or a civil war (the favorable conclusion of which is not guaranteed) - it appears to be the lesser of two evils.

June 16, 2020 9:28 AM

You called it for sure. Read the first paragraph about "with prejudice." They can't bring another charge later. This will be used to let all the deep state perps walk.

https://www.nationalreview.com/2020/06/federal-appeals-court-orders-judge-sullivan-to-dismiss-the-flynn-case/

elying on the D.C. Circuit’s 2016 Fokker precedent, the court found that Rule 48(a) does not permit a thoroughgoing inquiry into the executive branch’s reasoning for dismissal — at least in a case in which the accused joins the prosecution in seeking a dismissal with prejudice (such a dismissal stands as a final judgment and bars the government from re-charging the defendant with the same offense at a later date).

The ruling is legally sound, but I confess to being surprised. As I’ve explained, mandamus is a rare remedy because appellate courts do not like to conclude that district judges are in profound error and need to be corrected. My sense, after listening to the oral argument nearly two weeks ago, was that the D.C. Circuit would probably allow Judge Sullivan to go forward with the proceeding he had scheduled for mid-July but would respectfully nudge him to follow settled law and dismiss the case, which he has seemed disinclined to do. The appellate court could then have reversed any further errors he made in the normal course of litigation. Clearly, however, the panel majority decided Sullivan had gone too far and needed more than gentle prodding. Thus, it has issued the extraordinary mandamus writ.

The majority ruled that Judge Sullivan’s recent orders, encouraging the filing of amicus briefs and commissioning such a brief from former federal judge John Gleeson in order to oppose the Justice Department’s dismissal, impermissibly intruded the court into the deliberations of the executive branch, flouting separation-of-powers principles. The panel found that this process was already prejudicing the Justice Department. Judges Rao and Henderson rejected the contention of dissenting Judge Robert L. Wilkins (an Obama appointee) that the Justice Department’s interests were irrelevant since it had not formally joined Flynn in seeking mandamus.

June 24, 2020 9:46 PM
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