The case of former national security adviser Michael Flynn is\u00a0rapidly moving from the dubious to the preposterous.<\/strong>\u00a0U.S. District Judge Emmet Sullivan is being widely applauded\u00a0for\u00a0resisting the dismissal of a case<\/a>\u00a0that the\u00a0Department of Justice insists<\/a>\u00a0cannot be ethically maintained.<\/p>\n Faced with no dispute between the parties, Sullivan decided to create a contested case by\u00a0inviting\u00a0in third parties<\/a>\u00a0to create a conflict and now is suggesting that he may\u00a0substitute his own criminal charge<\/a>\u00a0rather than let Flynn walk free.\u00a0<\/strong>In the past, I have\u00a0publicly praised<\/a>\u00a0Sullivan. However, this is fast becoming a case of gross judicial overreach as the court appears to assume both judicial and executive powers. Sullivan can disagree with the exercise of prosecutorial discretion, but he cannot substitute his own judgment for it.<\/p>\n \u201cAt the appropriate time, the court will enter a scheduling order governing the\u00a0submission of any amicus curiae briefs<\/a>,\u201d Sullivan wrote.\u00a0Never has a more innocuous line left a more ominous meaning<\/strong><\/em><\/u>.\u00a0After that order, the judge\u00a0proceeded to appoint retired Judge\u00a0John Gleeson to argue against dismissal<\/a>\u00a0in the absence of a dispute between the parties. He is effectively outsourcing the argument to introduce a dispute. This move\u00a0is nothing to celebrate.<\/p>\n Amicus briefs are allowed by courts when outside parties want to be heard on some contested issue facing a court. Such filings are common\u00a0in civil cases.\u00a0This, however, is a criminal case. There are serious questions about the propriety of such third parties being asked to brief uncontested motions in a criminal case.<\/strong>\u00a0The lives and liberty of individuals generally are protected from public demands for punishment. We do not do punishment by plebiscite in this country.<\/p>\n While courts have discretion to grant amicus or third-party arguments in civil cases, there is no counterpart under the Federal Rules of Criminal Procedure.<\/strong>\u00a0In fact, Judge\u00a0Sullivan\u00a0rejected such a request on Dec. 20, 2017, stating that\u00a0\u201cthe Federal Rules of Criminal Procedure\u00a0do not provide for intervention by third parties<\/a>\u00a0in criminal cases. … Options exist for a private citizen to express his views about matters of public interest, but the court’s docket is not an available option.\u201d<\/p>\n Sullivan\u2019s earlier order was the correct one. It is dangerous to open up criminal cases for citizens to argue for convictions or enhanced punishments, particularly when prosecutors seek dismissal in light of prosecutorial error or abuse.<\/p>\n Indeed, former President Bill Clinton\u2019s attorney general, Janet Reno,\u00a0warned Congress against courts<\/a>\u00a0intruding on Justice Department decisions, stressing that \u201cour Founders believed that the enormity of the prosecutorial power \u2014\u00a0and all the decisions about who, what, and whether to prosecute \u2014\u00a0should be vested in one who is responsible to the people.\u201d<\/p>\n That is particularly the case where the motion benefits a criminal defendant. Indeed, it is difficult to imagine any basis that Sullivan could deny this motion without facing a rapid reversal.<\/strong><\/p>\n However, the Flynn case has proved\u00a0to be the defining temptation for many in discarding constitutional protections and values in their crusade against President Donald Trump. Experts are asking a court to consider sending a man to prison after the Justice Department concluded it can no longer stand behind his prosecution. Under this same logic, any defendant could face public outrage over an unopposed motion to dismiss, and a court could invite third parties to make arguments against him. Rather than protecting an unpopular criminal defendant from those outside clamoring for his head, the court is inviting them inside to replace the prosecutors.<\/p>\n If Sullivan\u2019s invitation for third parties to argue in a criminal case is unnerving, his suggestion that he might\u00a0substitute a perjury charge<\/a>\u00a0is positively terrifying. Sullivan has compounded this judicial overreach by\u00a0asking Gleeson to explore the issue<\/a>, despite his\u00a0public criticism<\/a>\u00a0of the administration’s\u00a0handling of the Flynn case.<\/p>\n Under Sullivan\u2019s theory, any time a defendant seeks such a dismissal (even with the support of the prosecutors) he\u00a0could face a judicially mandated perjury charge.<\/strong>\u00a0Faced with evidence of prosecutorial wrongdoing (which often arises after a trial), defense counsel (like myself) would have to warn clients that the court might just swap one crime for another.<\/p>\n The chilling implications of such a theory are\u00a0being brushed aside by those eager to see Sullivan mete out his own form of justice.\u00a0However, such an unsustainable decision would quickly careen out of control.\u00a0<\/strong><\/p>\n Consider the scenario. Sullivan knows that such a charge would not be prosecuted by the Justice Department. However,\u00a0Criminal Procedure Rule 42<\/a>\u00a0states that such cases are to be prosecuted by the government, but \u201cif the government declines the request, the court must appoint another attorney to prosecute the contempt.\u201d<\/p>\n So what is Sullivan going to do?<\/strong><\/em><\/u>\u00a0He cannot force the Justice Department to prosecute a case that it considers to be unethical.\u00a0He would have to enlist his own outside prosecutor after creating his own dispute with outside parties. If Flynn is convicted, Sullivan\u00a0will\u00a0have to order the Bureau of Prisons to incarcerate someone who was convicted by judicial design.Ironically, Sullivan\u00a0is largely responsible for the current posture of the case.\u00a0Flynn was supposed to be sentenced in December 2018 before the hearing took a bizarre turn. Using the flag in the courtroom as a prop,\u00a0Sullivan incorrectly accused Flynn<\/a>\u00a0of being\u00a0\u201can unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.\u201d He then questioned whether Flynn should have been charged with treason.<\/p>\n Flynn faced a relatively minor\u00a0single count of false statements\u00a0<\/a>with the likelihood of no jail time \u2014\u00a0but\u00a0Sullivan\u00a0was suggesting that he could have been charged with treason, subject to the death penalty.<\/p>\n Sullivan\u00a0then gave Flynn a menacing choice: \u201cI cannot assure you that if you proceed today,\u00a0you will not receive a sentence of incarceration<\/a>.\u00a0… I\u2019m not hiding my disgust, my disdain.\u201d<\/strong><\/p>\n Flynn, unsurprisingly, opted to wait. Had\u00a0Sullivan\u00a0simply sentenced him, Flynn would have been formally convicted and sentenced \u2014\u00a0making any later motion more difficult while the case was on appeal.<\/p>\n Fortunately, while H. L. Mencken once\u00a0described\u00a0<\/a>a judge as \u201ca law student who marks his own examination papers,\u201d our system allows for appellate review, and few judges would give such decisions a\u00a0passing grade.<\/strong>\u00a0The fact is, such a judicially constructed case would be effectively dead before it could be properly captioned for docketing.\u00a0The problem is that Flynn would be left twisting in the wind as others use his case to make extraneous points.<\/p>\n Michael Flynn has the curse of being useful.<\/strong><\/em><\/u>\u00a0He was useful to investigate for officials like FBI special agent Peter Strzok, former FBI Deputy Director Andrew McCabe and former FBI Director James Comey, though investigators found\u00a0no underlying criminal conduct<\/a>.\u00a0He was useful to\u00a0special counsel Robert Mueller<\/a>, even though the same investigators apparently\u00a0did not believe he intentionally lied to them<\/a>.\u00a0He now is useful to a court that seems intent on staging a criminal case of its own making.<\/p>\n![\"\"](\"https:\/\/zh-prod-1cc738ca-7d3b-4a72-b792-20bd8d8fa069.storage.googleapis.com\/s3fs-public\/styles\/inline_image_desktop\/public\/inline-images\/2020-05-19_9-25-09.jpg?itok=EX5smD_z)
<\/picture><\/a><\/p>\nA punishment by plebiscite<\/h2>\n
Judges are not\u00a0prosecutors<\/h2>\n