Judge Sullivan has decided to appoint a retired judge to act as de facto prosecutor in the Flynn case, since the Department of Justice refuses to prosecute it. That is not just highly irregular, I think it's unheard of. I've certainly never heard of it being done, although sitting Federal judges have tremendous power.
It certainly will make the appeal interesting if Sullivan decides to sentence Flynn instead of accepting the recommendation to drop the charges.
UPDATE: Apparently he's also appointed a prosecutor to see if Flynn can be charged with perjury for entering a false guilty verdict. That, actually, might be the one crime of which Flynn is really guilty; although a lot of other people are guilty of coercing him and concealing it from the court, which doesn't seem to have sparked the judge's interest.
I'm beginning to think that it will be hard for Flynn to receive a fair trial, even at this late stage.
mafia us inc.deep state
ReplyDeleteUPDATE: Apparently he's also appointed a prosecutor to see if Flynn can be charged with perjury for entering a false guilty verdict. That, actually, might be the one crime of which Flynn is really guilty....
ReplyDeleteIf that's true, then anyone who enters a guilty plea as part of a plea bargain perjures himself, since he's not really pleading guilty, just taking a deal to get a lighter sentence. The extortion nature of the deal wouldn't be relevant.
Other lawyers (not that I'm one)--Dershowitz, for instance--have said that when the defense and the prosecutors agree on a controversy, there is no controversy, and the presiding judge has no option but to dismiss on the prosecutors' request. Sullivan is trying to manufacture a controversy: since there's no one to argue for keeping the case going, Sullivan has appointed a judge explicitly to argue the case for keeping Flynn charged.
This comes on top of the steady drumbeat of animus Sullivan has openly shown toward Flynn. Reagan made a much bigg[er] damned-fool mistake with Sullivan than Eisenhower did with Warren.
Eric Hines
A coerced plea is no plea at all.
ReplyDeleteSullivan should be removed immediately and then forced to retire effective Friday.
This judge's action represents a significant violation of the Constitution's separation of powers. It appears he has assumed the prosecutoirial duties of the executive branch.
ReplyDeleteOn the one occasion when I sensed that a federal district judge was really sympathetic to my client's tale of mistreatment by federal officials (in that case, the FDIC), the judge made some fairly mild comments critical of the feds. The Fifth Circuit quickly took up a demand from the feds to move the case to another judge on the ground of bias. I didn't think he was biased, only outraged by outrageous conduct, but naturally I was biased against the FDIC myself. In any case, the point is: judges aren't supposed to be obvious about their bias, and we have longstanding rules for addressing the problem by appealing to a higher court.
ReplyDeleteIt's hard to imagine a clearer demonstration of bias against a criminal defendant than is being publicly aired here. I'd rather see the charges dismissed immediately than on appeal, but I'll settle for appeal.
Sullivan is way off the reservation - say the 1st and 2nd Circuits.
ReplyDelete"14 July 2017
In its July 12, 2017 decision in United States v. HSBC Bank USA, N.A., the U.S. Court of Appeals for the Second Circuit in New York (“Second Circuit”) sharply limited the scope of judicial review and supervision over deferred prosecution agreements (“DPAs”). In doing so, the Second Circuit agreed with the April 5, 2016 opinion of the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") in United States v. Fokker Services B.V. ("Fokker"), which was the first Circuit Court decision to strictly limit the scope of judicial review of DPAs. Fokker was the first appellate decision to hold that, because of constitutional separation of powers, a U.S. district court may not refuse to approve a DPA because it disagreed with the merits of the DOJ’s charging decisions or the terms of the DPA. As the second appellate decision on this issue, the HSBC opinion extends the reasoning in Fokker beyond the context of initial court approval of a DPA, and clarifies the very limited scope of judicial supervision over a DPA while it remains pending on the court's docket."
https://www.cliffordchance.com/briefings/2017/07/united_states_secondcircuitcourtofappeal.html
I'm a strong believer in the concepts of Natural and Moral Law (a la St. Aquinas).
ReplyDeleteThat means that there is a right and a wrong (even if imperfect humans don't always know 100% which is which), and I'm firmly committed to not doing the wrong, as a mater of principle and regardless of whatever advantages that doing so might afford. That includes not taking it upon myself to correct or punish violations of the moral or legal order when the right or power to do so is not properly within my ambit.
There are officers of the law, officers of the court, and there are judges. As I am not invested with the same authority, it is not my place to take that authority to myself - even when they are wrong. And, ultimately, there is a Final Judge and I am content to wait upon Him. (I dare not steady the ark.)
I say all that in order to note that - despite my deep personal commitments - I am not 100% sure that I would not join a mob that was intent on setting Judge Sullivan straight through some rough justice of its own.
Tar and feathers, perhaps?
ReplyDeleteI don't even have words for this.
ReplyDeleteI'm going to be looking at what Dershowitz and Andy McCarthy have to say.
ReplyDeleteDershowitz has a good piece in the wsj today, go to his twitter page and click the link to beat the paywall. Andy McCarthy also has written but...he's a creature of the system, you know>? Yes he's outraged, but....
ReplyDeleteThere is a school of thought that says Flynn, as a seasoned spook, knew very early on that he was being closely surveilled, and that it was possibly extra-legal. I guess we shall see with time, but this could mean at this point that he might be thinking "I'm surrounded. I've got them right where I want them". It's going to be an interesting 6 months.