U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.
The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.
Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Wednesday, May 13, 2020
Washington Post opinion piece on Michael Flynn
I wrote this editorial for the Washington Post today. It was going up on the website just as the news broke that Judge Sullivan appointed Judge Gleeson to argue against DOJ's motion to dismiss. Really interesting. I'd love to hear your thoughts. Here's the introduction:
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34 comments:
Could they seek a writ of prohibition to the DC Circuit?
Great article by the way; kind of along the lines of what Turley tweeted this evening:
"These extraordinary moves by the court are increasingly discomforting. This is a single charge where significant jail time was neither warranted nor expected. The Court's effort to import arguments and explore new charges could be raised on appeal given the prior record.. There comes a point where the Court appears too invested in the punishment of a defendant and too active in creating alternatives to dismissal. As a criminal defense attorney, I find these moves unnerving, particularly when prosecutorial abuse has been raised by DOJ and others."
I care about our system, you are turning it into a zero sum game of win or lose. Forget the parties and worry about the system.
Flynn pled guilty twice; under oath. Now, he says that he lied under oath to the court, in which he was being prosecuted for lying to the FBI. I am all in favor of ethics charges against the prosecutors for their Brady/Giglio failures. But I care enough for where we all work to not want to see a guy get away with saying, under oath, whatever suits him on a given day. Nor am I in favor of DOJ substituting in to award what should be a presidential pardon, so as to provide trump with cover.
Withdrawing a guilty plea is now Perjury? There’s the ineffective assistance/conflict angle..
How about pleading guilty in the eve of trial? Criminalize that too?
This needs to end.
I'm with 9:19. Doesn't the perception that the Attorney General is carrying water for the President of the United States, and reaching out to help his friends bother you even a little?
No, it won't until they prosecute somebody David thinks is being prosecuted because of politics, then it will be political overreaching and a witch Hunt. Do you think for a moment that if Bar is willing to drop cases and obfuscate for trump, that he won't go full bore prosecuting for him too? Just wait till trump wins again and then see what Bar and DOJ do.
Nobody should be prosecuted for political purposes, but how else do you describe the Russia investigation and subsequent SCO 2 year case when there was never any “there” there in the first place besides Russian fed and DNC paid oppo-research.
The only non-process crime uncovered by the Muller team was some tax evasion by Manafort, 10 years earlier!
A few were bold enough to lie under oath to congress, how do you not hold them responsible when you want Michael Cohen & Roger Stone to hang for the same crime?
On Judge Sullivan, the DC Cir needs to step in soon and stop this nonsense.
Im amazed that he is so obsessed with Flynn that he can overlook his well documented Brady/Giglio precedent from USvStevens.
Didn't realize this was a Fox News site.
I wish there was even 10% of this type of debate as to how people of color are treated by the criminal justice system here in SDFL.
will you ever offer an opinion on any issue that surprises your readers?
you are as intellectually consistent as religious fundamentalist
816
You post on this blog all the time. You post either: (1) what about people of color?, and (2) sarcastic comments about white people / white men on ***practically every single post on this blog.***
Have you considered starting your own blog where all the posts are about people of color?
Have you considered offering your own thoughts here on this blog about a compelling recent case of a person of color in the southern district of florida?
Why dont you give it a try right now. Post a thoughtful piece about a person of color, in a case here in the southern district of Florida, that we all have overlooked.
Looking forward to your response.
Pull the cases in front of sullivan were defendants sought to withdraw a plea. Wonder if he threatened to hold any of them in criminal contempt for perjury.
800
Caring about brady violations doesnt make u fox news.
For the haters, DOJ lets liars go all the time. Barr himself let McCabe go. Now he wants to let Flynn go, in a case with clear prosecutorial misconduct.
And everyone is now suddenly of the view that liars should be crucified? And the guy we want crucified is a 3 star general who devoted his life to this country?
Get a grip libs
I agree with your article. Judges should have no interest in whether the Justice Department continues a prosecution or not. Just whether the adversarial proceeding is fair and comports with the Federal Constitution and the law. Otherwise, our adversarial system turns into an inquisitorial system, where judge and prosecutor are the same person. Whatever one thinks of Flynn is irrelevant.
8:57: "... a 3 star general who devoted his life to this country"? Hah. When he wasn't selling out his country to Turkey and Russia.
Dave & Bob, I understand where you are coming from. But I am not sure it's legally right. A few years back, I came across this case: United States v. Brayboy, 806 F. Supp. 1576 (S.D. Fla. 1992). Not 100% on point, but kind of close. There, Judge Zloch denied the government's Rule 48 motion to set aside a conviction and dismiss the indictment. In doing so, he discussed that allowing the government to dismiss an indictment after conviction and before sentencing violates the separation of powers between the judiciary and executive. He, however, granted the Def.'s motion for a new trial.
I don't know what the right answer is. If there is one. This area of the law is so murky because it's such a rare situation.
David,
You treat this just the same as if the government had moved to dismiss before a plea or trial. It is not. The government charged a federal crime. The defendant entered a plea of guilty to that federal crime and the judge adjudicated him guilty. Whether you, a high priced white collar criminal defense attorney, would do something different, des not mean that what the judge is doing is wrong. I think the judge is making sure that the criminal justice system isn't being abused for political gain. I am not naïve, I know that there are many ways that it can and is so abused. But given the posture of the case, the judge has an absolute duty to fully consider all arguments before simply doing whatever the government wants him to do.
Anybody look at Justice Ginsberg's opinion last week where she excoriated the Ninth Circuit for having three amici file papers upon which it decided its case. This is not Spain. Judge Sullivan is not a prosecuting/investigating magistrate. It is very upsetting to see how many of us allow our political biases to interfere with our sense of justice. Do we really think that some please are not bludgeoned. The chief judge of the D.C. District Court or of the D.C. Circuit should re-assign this case by blind filing. This is an embarrassment all the way around.
Dear 930 aka msnbc stooge:
You are a moron. Flynn didnt sell out to anyone. You just repeat nonsense you hear that has no factual basis.
Yes he pled. But pleas must be knowing and intelligent. Here the goverment suppressed brady/giglio, the plea was not intellgently entered. Thats basic stuff people. You dont trick a guy into a plea, and when your suppression of exculpatory evidence is exposed, cry "but u pled guilty." That is nonsensical.
Consider a guy who pleads to a murder and is exonerated by dna evidence. We say "but you pled" and the guy is supposed to rot in jail? And then we say "charge him with perjury because he pled when innocent" ?
Get a grip people
Very well written article on controlling precedent only, forget right and wrong or politics for a moment.
https://www.forbes.com/sites/markchenoweth/2020/05/14/judge-sullivan-disregards-two-controlling-precedents-by-appointing-amicus-in-flynn-case
Omar,
A DC District example identical to Bradboy exists.. USvStevens 2008, before Judge Sullivan himself. He reversed the Trial conviction on the even of sentencing and dismissed the indictment at the goverment’s request.
He also did something else.. appointed a Special Prosecutor to consider contempt charges against the 4 prosecutors on the case for concealing Brady/Giglio. One killed himself, the other 3 were let go be cause the SDO wasnt considered a ‘real’ order for contempt purpose.
Since then, J.Sullivan issues a Brady/Giglio order at the onset of each case to close that loophole.
This case is well gone, Sullivan even referenced a mandamus-reversed Fokker local ruling as his basis.
The question I have is what if there is an indication that there was malfeasance on the part of the Government, such as happened in the Jeffrey Epstein case? While I am loath to go down that slippery slope of having judges reject plea deals or the outright dismissal of the case, what if there is a smell of impropriety in the air?
That’s just my thought. I may be wrong (just ask my wife).
Sullivan is a real piece of work. Suppose you find him in criminal contempt for perjury, for falsely stating under oath that he was guilty, when in fact, he was innocent. First of all, that would require a court factual finding that Flynn was innocent all along, something Sullivan will never do. Even if he did that, what is the appropriate punishment for perjury in such a scenario, where he lied about being guilty only because because he was worried about a conviction in a jury pool in DC infected with both political bias and Russia hysteria, or because he wanted to spare his son? Jail time? In a case where the parties originally wanted probation as to the underlying offense? And having thrown the book at "liars", you simultaneously IGNORE the line prosecutor's statements that all Brady/Giglio was turned over? I say have a circus. Hold Flynn and the line prosecutor in criminal contempt together, give Flynn a fine and disbar the line prosecutor. Or just dismiss the case and move on. either way gotta be consistent...
To the Trumpanista at 11:05. Like your master you think if you just lie, you are going to win. "Flynn didnt sell out to anyone." What nonsense. The man is a whore. Not only did he sell out, but, he conspired to kidnap an old man so that a corrupt middle-eastern potentate could torture him.
1216
LOLOLOLOLOL
Yeah, but he does have all those colorful ribbons and is a great "lock her up" cheerleader!
The fact that Sullivan feels the need to outsource the advocacy of the anti-dismissal position is pathetic. He could simply write his own order right now denying the motion, explaining why and citing relevant precedent. But he doesn't believe he's competent enough to do so so he brings Gleeson in to research and basically draft his order for him. Shit Gleeson's already done the work and reached his conclusion, he wrote an op-ed on the Flynn motion for the Washington Post last week. Guess what his position was?
Cheering "Lock her up!" = BAD
Law enforcement violating multiple rules, regulations, protocols and constitutional rights to convict a political enemy = No Problem
Research? Gleeson didn't lay down any research but an opinion piece about how ‘Prosecutors deserve a “presumption of regularity” — the benefit of the doubt that they are acting honestly and following the rule.’
Expect a Writ of Mandamus to be filed with the DC Cir. by friday at the latest.
This is an unfortunate end to an otherwise respectful career.
Your opinion piece in the Washington Post is a joke. You defend politicians and CEO's in white collar crimes. How much are Republicans/Flynn/Trump paying you for your "opinion" on the Flynn case?
Please let me know the rule of procedure or statute that permits instant dismissal, post-conviction, without any oversight from the judge. Shit, the judge even gets involved and has discretion on rule 35s, how is this any different, other than the guy hasn't been sentenced yet?
This blog is on faiiiiierrrr!
Listen who really cares abt due process precedent Brady etc ..we gotta get Trump and we can get back to civil liberties later. Or not..either way as long as trump out who cares.
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