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Gen. Michael Flynn: Victim of Law, or Sorry Politics?

Gen. Michael Flynn: Victim of Law, or Sorry Politics?
Former U.S.National Security Advisor Gen. Michael Flynn arrives for his sentencing hearing at U.S. District Court in Washington, D.C. on Dec. 18, 2018. (Saul Loeb/AFP via Getty Images)

By Friday, 26 June 2020 11:44 AM Current | Bio | Archive

What can be done when those charged with the administration of justice have no intention of obeying the law?

This must be what Gen. Michael Flynn wonders.

The evidence indicates that the prosecution brought against him, launched by Obama administration officials, and carried on in the first couple of years of the Trump administration, was a disgraceful attempt to persecute him.

Worse, federal prosecutors failed to comply with the requirements, among other things, that exculpatory information be shared with defendant Flynn.

For this, and other reasons, U.S. Atty. Gen. William "Bill" Barr, following an investigation of the prosecution conducted by another U.S. attorney, decided to drop the case, permittng Gen. Flynn to withdraw a guilty plea that the general now argues was wrongly coerced.

Since both the prosecution and the defense now wish to dismiss the case, it should have been a simple ministerial decision for U.S. District Court Judge Emmett Sullivan, who is presiding over the case, to dismiss it.

This is what the law requires, as previous decisions controlling the law in the District of Columbia have made clear.

For whatever reason, however, Judge Sullivan refused to do that, and, indeed, appointed a retired federal judge to argue against dismissal of the case, at a hearing that was to take place next month. This was an extraordinary move on Judge Sullivan’s part. As I have argued here, it is an action that called for either an appeal to the United States Court of Appeals, or — a presidential pardon of Gen. Flynn.

General Flynn’s adept counsel, Sidney Powell, did in fact seek relief from that higher Court. Earlier this week, that relief was granted in the form of what lawyers call a mandamus, an extraordinary action when a higher court issues a direct order to a lower court judge to carry out a particular duty; in this instance to dismiss the case against Gen. Flynn, and to cease further proceedings in the case.

The grant of the mandamus was pursuant to a 2-1 decision by the court of appeals, with judges appointed by presidents George H. W. Bush and Donald Trump voting for the mandamus, and a judge appointed by President Obama voting against it.

A mandamus should only be granted in exceptional circumstances, when it's the only means of securing the rights of the party seeking it.

That the mandamus was necessary was perhaps borne out by the fact that Judge Sullivan, the day the mandamus was granted, apparently refused to comply with it, by issuing an order putting in abeyance his planned July hearing, but failing to issue an order immediately dismissing the case.

As I have previously explained, the problem in this case is that Judge Sullivan has sought to act as prosecutor, legislator, and judge in the case, and his further delay — defying his judicial superiors — is quite possibly the action of a rogue jurist.

Leaning over backwards, to be fair to Judge Sullivan, he might have been seeking to get the full court of appeals (17 judges) to review the action of the three-judge panel, or, it has been speculated, to appeal to the U.S. Supreme Court itself.

There is no clear indication in the rules of the circuit court that this would even be permissible, but we are in uncharted territory here.

Perhaps the most tragic thing about this whole misadventure is the political nature of the prosecution against Flynn (who was, apparently, a severe critic of the foreign policy of the Obama administration), and that the grant of mandamus broke down along Republican/Democratic lines.

If there is a decision by the full circuit court also reflecting partisan divisions, it will further erode the faith of those of us who like to believe that we’re still devoted to an objective rule of law; this would be even further exacerbated by a split on the Supreme Court which may ultimately have to decide this case.

We will know soon whether Judge Sullivan will decide to acknowledge his clear error, and obey the clear order of the circuit court panel. If he continues to refuse, or if he seeks to further delay proceedings by an appeal (or if the dissenting judge on the panel seeks one) this true miscarriage of justice will become even more egregious.

Since the Founding, the proud boast of Americans was that ours was a government of laws, not men, and that no person was above the law.

This sorry episode suggests that Judge Sullivan, and those who have encouraged him, their protestations to the contrary notwithstanding, are acting in a manner betraying the rule of law itself.

There was a radical ideological movement in the law schools in the 1970’s that all law was simply politics. This cannot be permitted to come true.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.

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Since the Founding, the proud boast of Americans was that ours was a government of laws, not men, and that no person was above the law.
barr, court, appeals
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2020-44-26
Friday, 26 June 2020 11:44 AM
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