Turley on Latest Twist in Flynn Case: 'Judge Sullivan Is Unlikely to Go Quietly Into the Night'

AP featured image
FILE – In this Dec. 1, 2017 file photo, former national security adviser Michael Flynn leaves federal court in Washington. Flynn has been campaigning to support Republican candidates, as he awaits sentencing after pleading guilty to lying to the FBI. In May 2018, Flynn endorsed Montana Republican Senate candidate Troy Downing in a video message, then followed up with a radio interview. In March, he made a personal appearance in California with Republican Omar Navarro in his primary bid for the chance to run against 14-term Democratic U.S. Rep. Maxine Waters. (AP Photo/Susan Walsh, File)


Last Thursday, we heard the joyous news that the DOJ had filed a motion to dismiss the fraudulent case against Gen. Michael Flynn in light of newly unsealed documents showing top FBI officials debating how they would set him up in a perjury trap.

On Monday, a group of 16 former “Watergate prosecutors” submitted a notice of intent to file arguments in the case. The group wishes to present their legal arguments, asserting that they have a “unique perspective on the need for independent scrutiny and oversight to ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest.”

Additionally, the request said, “The integrity of prosecutorial decision making is a cornerstone of the rule of law. Amici have a special interest in restoring the public trust in prosecutorial decision making and in public confidence in the viability of future independent investigations and prosecutions if the results of such work are likely to be subjected to reversal by transparent political influence.”

The reality is that the members of this highly partisan group harbor tremendous hatred for Trump. Fox News‘ legal analyst Greg Jarrett writes, they “have convinced themselves that since they helped drive the demon Nixon from office 45 years ago they should now be given exalted status as super Trump-slayers.”

The presiding judge in the Michael Flynn case, U.S. District Court Judge Emmet Sullivan, issued an order on Tuesday which states he will accept amicus curiae (friend of the court) submissions in the case. In other words, Sullivan, a Clinton appointee and an activist judge, will continue to do the deep state’s bidding.


Sullivan’s minute order states he is “proceeding under a rule of civil procedure that gives judges sole discretion to accept outside arguments. Although there is no parallel criminal rule, the federal appeals court for Washington has ruled external entities in criminal cases can always ask to file an amicus brief.”

Flynn’s lead attorney, Sidney Powell, immediately filed a motion to express their opposition to the Watergate Prosecutors’ request and Sullivan’s subsequent approval of it (Michael Flynn’s Opposition to and Motion to Deny Intent to File Motion for Leave to File Amicus Brief).

Perhaps the most salient point Powell makes is that Sullivan “rejected 24 previous attempts by parties to intervene in the Flynn case.” In response to one of those, Sullivan wrote, “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in 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.”

Powell explains why “it is no accident that amicus briefs are excluded in criminal cases.” She argues that the acceptance of amicus submissions would amount to allowing another to stand in the place of the government and would violate the separation of powers. She writes, “A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel.” (This subject was discussed in depth by my colleague, Shipwreckedcrew, here.)


Powell cites the case of Morrison v. Olson, 487 U.S. 654 (1988), which was:

A dispute about the constitutionality of the Independent Counsel Act…But the heart of matter was really the dispute over executive authority and the separation of powers. The Supreme Court approved the constitutionality of the Act in an almost unanimous opinion, but Justice Antonin Scalia’s lone dissent on the separation of powers won the day in the long run. Scalia noted that the “prosecution of crimes is a quintessentially executive function,” id. at 706, and that “It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.” Id. at 709. The Morrison mistake was evident almost immediately, and just over a decade later, Attorney General Janet Reno testified against the renewal of the Independent Counsel Act. In the course of that testimony, she adopted Justice Scalia’s foundational point in his Morrison dissent. She testified:

“Our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people. That way,– and here I’m paraphrasing Justice Scalia’s dissent in Morrison v. Olson – whether we’re talking about over prosecuting or under-prosecuting, “the blame can be assigned to someone who can be punished.’” Statement of Janet Reno Att’y Gen. Before the Comm. on Governmental Affairs U.S. S., Concerning the Indep. Couns. Act (Mar. 17, 1999).

Moreover, Eric Holder, then Deputy Attorney General and now partner at Covington and Burling LLP—whose representation underlies many issues in this case, also testified against the Act, noting that it “tilted the constitutional balance of powers,” and there were “fundamental structural flaws with the Act.” Holder noted that to take “from the Attorney General jurisdiction that she has not knowingly ceded to another . . . would trammel upon the Executive’s core prosecution power.” Prepared Remarks for Deputy Attn’y Gen. Eric Holder, House Judiciary Sub comm. (Mar. 2, 1999)

This fundamental principle—that the Constitution vests in the executive all the prosecutorial power and the corresponding accountability—is now universally accepted.


The document states:

The ‘Watergate Prosecutors’ have no special role and no authority whatsoever to insert themselves in this litigation on behalf of anyone. They are no different than all those whose requests and attempts this court has quickly and resoundingly denied.

Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life – and that of his entire family. No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.

George Washington University Law Professor Jonathan Turley weighed in on the new developments Tuesday night on Twitter. (Scroll down for the actual tweets.) Turley wrote:

Interesting development just in the Flynn case. Judge Sullivan just issued an order saying “at the appropriate time, the Court will enter an Order governing the submission of any amicus curiae briefs.” That certainly does not suggest quick order granting an unopposed motion…

…The Court is faced with an unopposed motion where the Justice Department no longer believes the case can be ethically prosecuted. Judge Sullivan appears inclined to bring in third parties to argue against an unopposed motion where the defendant and prosecutors agree…

…It is hard to imagine the court insisting on sentencing a defendant to jail when prosecutors believe he was unjustly charged. Ironically, Judge Sullivan made this motion easier due to the controversy over his prior sentencing hearing…

…due to the controversy, Flynn opted not to be sentenced by Sullivan at that time. That left him unsentenced, which ironically made this motion easier. Otherwise, Flynn would have faced a more difficult post-conviction motion while on appeal. No amicus can change that record…

Amicus can certainly add more heat but not light. More importantly, it is unlikely to change the outcome. I previously stated that I thought Judge Sullivan would call a hearing. This appears to confirm that he is unlikely to go quietly into the night with a ruling on the papers.


So, we’ll witness more drama, waste more time and money, but in the end, the DOJ’s decision to dismiss the case will stand.

This action will only serve to delay the inevitable. Some suggest the left is hoping that Trump will put an end to it by pardoning Flynn, which can then be used against him during the final months of the election season. I think it is far too transparent a political move and will be easily dismissed by all but the most partisan voters.

The FBI documents unsealed several weeks ago quite clearly showed FBI officials plotting how precisely to frame Gen. Flynn. At the time, I wrote, “The documents say what they say. They require no interpretation and cannot be misconstrued.” I stand by those words.



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