Lt. Gen. Michael Flynn must feel just like Franz Kafka’s unhappy protagonist, Josef K., in his chilling satire, "The Trial."
K has no idea what he has been charged with.
He is met on all sides with arbitrary procedures, while in the grip of forces he not only doesn’t understand but which, he correctly suspects, are governed by irrationality and deadly capriciousness.
Kafka was a subtle master. His work has many levels, but at its simplest, it's a reminder that the rule of law — the notion that we are to be governed by pre-existing, sensible, rational, orderly and benign procedures and mandates — is indispensable, and at the same time, horrifying fragile.
We are only now, after several years, beginning fully to appreciate that in the closing weeks of the Obama administration, the greatest challenge this nation has yet faced to the rule of law was perpetrated.
It now appears that during the Obama regime, a group of plotters in our intelligence services, our Department of Justice (DOJ), and our executive branch set out — to not only remove Gen. Flynn from his post as adviser to the president-elect, and later as national security adviser — but to undermine, and potentially remove Donald Trump from office.
The Russia Collusion Hoax, probably fabricated from Russian disinformation designed to sow chaos in this country; purportedly aided and abetted by operatives from the Clinton campaign, the Democratic National Committee (DNC), Democrats in Congress (and their allies in the mainstream media) effectively sapped confidence in the new president.
In 2018, this quite possibly resulted in the GOP's loss of the U.S. House.
Politics often relies on exaggeration, misrepresentation, and fear-mongering.
But the attempt to use some of the most powerful and clandestine levels of government to accomplish venal partisan ends was corruption of a new and devastatingly effective sort.
To this day, otherwise reasonable people probably still believe that the president of the United States was (or is) a Russian agent, and that his attorney general William "Bill" Barr, is a compliant tool carrying out his boss’s traitorous dictates.
Nothing could be further from the truth.
Barr is, among those who have known him best for decades on both sides of the political aisle, almost unmatched in reputation for honesty, candor, and wisdom.
One has to wonder, however, whether Judge Emmett Sullivan, who is presiding over General Flynn’s case, a jurist who also had something of a reputation as a straight-shooter, has succumbed to feverish delusions of our time,
Precedent in the District of Columbia Circuit, which supervises the District Court on which Sullivan sits, is clear that when the government decides to withdraw a case, it is the judge’s duty to allow it to do so. This is because, in our system, the prosecutor, as an arm of the executive, makes the crucial decisions with regard to executing the law, one part of which is the bringing of enforcement actions through the criminal courts.
Dropping a prosecution is as much of an executive decision within the authority of the executive as is initiating one. A judge has no power to initiate a prosecution in our system, since the judiciary is charged with applying and determining the law — not executing it.
Similarly, once the prosecution decides to withdraw, especially when, as has happened in Flynn’s case, the prosecution realizes that errors have been made by members of the executive branch, and that prosecution was flawed, that decides the matter.
Remarkably, Judge Sullivan not only has apparently declined to follow the relevant prior precedent, but has appointed a former judge to argue against the Justice Department’s attempt to end the case, and has invited third parties (who have no actual standing in the case) to file arguments advising the court what to do.
In doing this, Judge Sullivan has reversed his own earlier decision not to permit the filing of so-called amicus ("friend of the court") briefs. Even more alarming, the judge has hinted that perhaps Flynn should now be seen to have committed perjury because of his former coerced guilty plea which he now seeks to withdraw.
Judge Sullivan appears to be exercising the role of legislator, in making new law in the case; executive, in seeking to continue the prosecution; and also reserving his judicial role eventually to decide the case.
These are the actions of an autocrat — not someone who follows the law.
Judge Sullivan appears to be ignoring separation of powers, as he invokes and reenacts Kafka.
Flynn’s counsel should find a means of restraining further proceedings by appeal to the D.C. Circuit, or President Trump should end this travesty by pardoning Flynn.
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.
© 2021 Newsmax. All rights reserved.