Yesterday, I posted a letter from a reader theorizing that the judge in the Michael Flynn case, D.C. District Court Judge Emmet Sullivan, might be behaving so strangely in his courtroom because he’s under intense pressure from powerful people, especially now that Obama seems to be implicated. You can read his letter and my answer here.
Also yesterday, Margot Cleveland wrote about Judge Sullivan, in an outstanding piece called “Michael Flynn judge is destroying a man’s reputation: his own.” Cleveland has written some magnificent analyses of “Spygate” and the Flynn case, and this one is no exception.
She first briefly outlines what was done to Flynn to trap him and coerce his guilty plea, which all my readers surely know. Let’s cut to the chase: the point at which U.S. attorney Jeff Jensen has completed his independent examination of the case and the DOJ files a motion to dismiss, with prejudice, the case against Flynn. (“With prejudice” means the case cannot be taken up again.) The motion highlights the various problems with the case, which we’ve also gone through. Indeed, there was no legitimate reason for the FBI even to interview Flynn in the first place, as they already knew what he and Kislyak had talked about and he had already been investigated and cleared.
"Surely Sullivan saw the truth now!” Cleveland writes of the motion to drop the case. “Powell had been right all along. The Flynn case was the Stevens case –- the public corruption case against then-Sen. Ted Stevens that Sullivan presided over in 2008.” And Cleveland is right; the two cases really are similar, in that after Sen. Stevens was convicted by a jury on charges of corruption, new prosecutors handling the appeal discovered the original prosecutors had withheld evidence supporting Stevens’ claim of innocence.
When federal prosecutors in the Stevens case informed the court of this, the attorney general moved to dismiss the charges against Stevens with prejudice, which Judge Sullivan –- in that case –- DID. I guess the one huge difference in these cases that immediately stands out to me is that the attorney general in the Stevens case was Obama appointee Eric Holder, and the one in the Flynn case is Trump appointee William Barr. It’s possible that Sullivan is not being pressured at all but simply has it in for President Trump and his attorney general. That would explain the inconsistency. The “x” in the equation may just be that Sullivan is a partisan hack; no intimidation necessary.
Incidentally, Judge Sullivan didn’t just dismiss the Stevens case when Eric Holder said to. He went on a 14-minute tirade, chastising the prosecution for their mishandling of the case. He scolded, he fumed, he ranted. “In nearly 25 years on the bench,” he raved, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” For when you have time (it's quite long), here’s the dramatic and detailed contemporaneous account.
Judge Sullivan had for months warned prosecutors in the Stevens case about their repeated failure to turn over evidence. After the conviction and the revelation that “Brady” evidence had still been withheld, he executed Holder’s recommendation to dismiss charges and went even further, to order an inquiry into the prosecutors’ handling of the case, a rare move.
At the time, Jonathan Turley described Judge Sullivan as “smart and courteous and even-keeled. To get Judge Sullivan that irate, it takes monumental misconduct.” All right then, why did Judge Sullivan NOT treat prosecutors in the Flynn case the same way, when their misconduct has been egregious as well? And why DID he save his verbal abuse for Flynn himself, telling him he sold out his country, accusing him of things for which he hadn’t been charged and even suggesting that he was a traitor? That's not "even-keeled"; it's outrageously biased.
In the Flynn case, Judge Sullivan is not only siding with the prosecution but even, in effect, becoming a prosecutor all by himself. To that end, he has called for “outside groups” to submit “friend of the court” briefs to oppose the attorney general’s motion to drop the case. He has even enlisted retired Judge John Gleeson to write one himself, no doubt after he saw on Monday the WASHINGTON POST op-ed Gleeson had co-authored, “The Flynn case isn’t over until the judge says it’s over.” At least it shouldn’t take Sullivan long to get it; Gleeson could just hand him a copy of the op-ed he’s already written and say, “Here, use this.”
"With this later order,” Cleveland writes, “Sullivan has destroyed any possible semblance of impartiality --- and his reputation.” Though Gleeson defended him by painting Barr’s decision to drop the case as politically motivated, Cleveland says that, given the misconduct in this case, it’s not the decision but Sullivan's response to it that obviously was.
"The Sullivan who presided over the Stevens case would care about that [the coercion of Flynn and the secret “side agreement” not to prosecute Flynn’s son],” Cleveland says. “But politics and pride have destroyed that man. The long-respected jurist is now a shriveled shadow of the defender of liberty and the rights of the accused. In trying to destroy Flynn, Sullivan has instead destroyed himself.”
Whew. Cleveland has another new piece at THE FEDERALIST on what the Justice Department’s response needs to be to Judge Sullivan’s actions. “To preserve the rule of law,” she writes, “and our constitutional separation of powers, the Department of Justice has no choice now but to seek a writ of mandamus from the D.C. Circuit Court ordering the criminal charge against Flynn dismissed and reassigning the case to another judge.”
Cleveland describes a writ of mandamus as a procedural machination that allows a party to seek to force a lower court to act as required by law. It’s considered an extraordinary remedy, but she thinks it's appropriate, “as the Executive’s primacy in criminal charging decisions is long settled.” Cleveland believes that even though Judge Sullivan hasn’t yet ruled on Barr’s motion to dismiss, “his mere attempt to usurp the executive branch’s authority must be addressed.” The case must go to a different judge because Judge Sullivan, with his clear bias, “has crossed the threshold of fairness.”
(NOTE: According to Mark Levin, the legal remedy for this situation is called a "writ of prohibition," to be filed with the D.C. Circuit Court, prohibiting the lower court from acting "because it lacks jurisdiction." You lawyers can fight this one out; just use something.)
Here’s one more piece of spectacular reading to send you into the weekend. Flynn attorney Sidney Powell, who says she’s “disappointed and saddened” that the same rules don’t apply to Flynn as did to Ted Stevens, has written an open letter to President Obama in which she reacts to his (deliberately) leaked call in which he said “there is no precedent...for someone who is charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that...our basic understanding of the rule of law is at risk.”
Where to start, right? Powell's response is great. She shows Obama's observation to be “entirely false,” schools him in Law 101, shows the legal precedent for guilty pleas being vacated, and points him to further reading: WHY INNOCENT PEOPLE PLEAD GUILTY, by federal judge Jed Rakoff, a Clinton appointee. This is a magnificent smack-down.