Retired Harvard law professor Alan Dershowitz on Tuesday claimed a federal district court judge is violating judicial ethics and rules of ethical conduct by the bar by conducting a hearing on whether charges against former National Security Adviser Michael Flynn should be dismissed.
Speaking to Newsmax TV, Dershowitz was reacting to the D.C. Circuit Court of Appeals ruling on Monday that Judge Emmet Sullivan – appointed to the bench by President Bill Clinton – should hold the hearing despite Sullivan being the one that brought the matter before the Appeals Court.
"This is not justice when a person has to be judged by somebody who has a stake in the outcome of the case," Dershowitz told Tuesday's "Spicer & Co." "I believe it violates the rules of judicial conduct. I believe it violates the rules of ethical conduct of the bar. You can't wear two hats. You can't be a prosecutor in robes, which is what Judge Sullivan has become."
Sullivan will hold a hearing to decide if the Justice Department can drop charges against Flynn, who already has pleaded guilty to lying to the FBI but in January sought to withdraw the plea. The Justice Department filed a motion to withdraw the charges after revelations from declassified documents indicated to some that investigators in the Obama administration used unscrupulous tactics.
But Sullivan has claimed he is not a "rubber stamp" and also appointed a judge to argue against the withdrawal and consider if Flynn was guilty of perjury by pleading guilty. Regardless, Dershowitz said Sullivan cannot reasonably hear the matter.
"He's a litigant in this case,” he said. "He's the one who brought it to the United States Court of Appeals for the D.C. Circuit. He has a stake in the outcome of this case. I'll tell you, I've been practicing law for 55 years, I've never seen a situation where a judge is both a litigant in the case and a judge in the case.”
The 82-year-old Dershowitz, who celebrated his birthday Tuesday, was incredulous the appeals court, by an 8-2 vote in an unsigned opinion, sent the matter back before Sullivan.
"They made the wrong decision when they sent it back to Judge Sullivan," Dershowitz said. "They should have sent it to an unbiased, objective judge. The judge has his own lawyer in this case. The judge has asked for amicus briefs to come in and support him. Everybody is trying to suck up to this judge and do what he wants to do because they have future cases in front of him."
Flynn, a retired three-star Army general, pleaded guilty to lying to the FBI about conversations he had with then-Russian Amb. Sergey Kislyak between the 2016 presidential election and the time the Trump administration took office.
Flynn was ensnared in the FBI's counterintelligence investigation – which became a probe by special prosecutor Robert Mueller – into whether the Trump campaign conspired with Russian government officials to influence the 2016 election.
He pleaded guilty to lying to the FBI in December 2017 but sought to withdraw his plea in January. The Department of Justice filed a motion in May to dismiss the case saying the questioning of Flynn in the case was "unjustified. However, Sullivan, refused to accept the motion. Flynn's lawyers appealed to the Court of Appeals and won a ruling by a three-judge panel that Sullivan had to dismiss the charges.
Sullivan appealed that decision to full Court of Appeals, resulting in Monday's decision.
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