Emmet Sullivan, the U.S. District Court judge presiding over the Michael Flynn criminal trial, has delayed ruling on the Justice Department’s motion to dismiss all charges against Flynn in order to get a third party’s views.
Sullivan’s action is unconstitutional, cruel, and an enormous abuse of his judicial power.
A federal criminal case has only two parties, the defendant and the federal prosecutors, for very fundamental reasons. The enforcement of federal law is a function of only the executive branch under Article 2 of the Constitution. The Federal Rules of Civil Procedure enable some interested parties to intervene to protect their interests in civil cases. There is no analogous provision in the Federal Rules of Criminal Procedure, again, because the prosecutor stands for all the public and its interests.
Sullivan has appointed former U.S. district court judge John Gleeson to oppose the Justice Department’s motion to dismiss and, reportedly, to argue that Sullivan should hold Flynn guilty of perjury for falsely confessing to crimes he didn’t commit. That is unconstitutional under the controlling precedents because it violates the Separation of Powers doctrine of constitutional law, which mandates that the power of one branch of government cannot be seized and used by another branch.
The failure of the prosecutors to disclose Brady material, alone, could have been the basis to dismiss the charges against Flynn but, in Sullivan’s court, it wasn’t.
Thus, the Article 3 courts, such as the one on which Sullivan sits, cannot exercise an Article 2 power. In other words, it is unconstitutional — and, thus, illegal — for Sullivan to appoint Gleeson to stand in the place of the federal prosecutors in the Flynn case and pursue Flynn for alleged perjury.
The injustice and the cruelty of Sullivan’s action is all too clear. Former three-star general Michael Flynn’s only crime was to serve President Trump as his first national security adviser. Flynn and his family have been subjected to a three-year marathon during which the government has tried to destroy his reputation and he has had to spend untold hundreds of thousands of dollars to defend himself in a case that should never have been brought against him.
It’s of more than passing interest that Gleeson, in 2012 when he was a federal judge, ruled that when a prosecutor brings a motion to dismiss charges against a defendant — exactly as the Department of Justice did with respect to Flynn — a failure of a judge to do so is an abuse of discretion.
But that is of no solace to Flynn. Gleeson will do as Sullivan has asked if he gets the chance. He should not be given that chance.
The law doesn’t provide a remedy for every wrong, but there is a remedy available to the Justice Department — not to Flynn — to correct Sullivan’s outrageous conduct. It’s called a writ of mandamus and should be filed by DoJ forthwith to block Gleeson’s participation and compel dismissal of the charges against Flynn.
(The mandamus remedy is unavailable to Flynn because he has an adequate remedy at law. He could go to trial on the “false confession perjury,” get convicted, and appeal the decision to the D.C. Circuit.)
A writ of mandamus is described under Title 28 U.S. Code Section 1651. According to the Department of Justice’s manual,
Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance. LaBuy v. Howes Leather Co., 352 U.S. 249 (1957); United States v. McGarr, 461 F.2d 1 (7th Cir. 1972). The All Writs Act, 28 U.S.C. § 1651(a), confers the power of mandamus on federal appellate courts. LaBuy v. Howes Leather Co., supra. Mandamus may be appropriately issued to confine an inferior court to a lawful exercise of prescribed jurisdiction, or when there is an usurpation of judicial power.
The Oxford English Dictionary defines the verb “usurp” to mean taking a position or a power illegally or by force. By refusing to dismiss immediately the charges against Flynn and appointing Gleeson to take the place of the federal prosecutor, Sullivan is guilty of a usurpation of judicial power. The proper remedy is for DoJ to file a writ of mandamus against Sullivan with the U.S. Court of Appeals for the D.C. Circuit.
Sullivan’s conduct throughout the Flynn case has been enormously tainted by bias. Sullivan has, on about two dozen occasions, ruled that third parties could not participate in the case. In another example, Sullivan at one point accused Flynn of betraying his country.
Sullivan has, in many other cases, been noted for his tough stand on “Brady material,” the documents and other evidence that prosecutors are required to disclose to the defense because it may be evidence that might exonerate the defendant.
In the prosecution of former Alaska Sen. Ted Stevens, Sullivan dismissed the charges against Stevens, vacating his conviction after a long trial that was heavily laden with prosecutorial misconduct in withholding Brady material from Stevens’s lawyers. Stevens lost his final election, probably because of the criminal case against him.
Sullivan’s action in delaying the dismissal of the charges against Flynn is further evidence of his significant bias. But, as we’ve already seen, Sullivan’s conduct in the Flynn case goes far beyond bias in its seriousness.
There is so much other action on the Flynn matter — including the revelation of more than a dozen Obama administration officials, including then–Vice President Biden, having Flynn’s identity “unmasked” — that we can’t overlook one of the fundamental pieces of Brady material that wasn’t disclosed to Flynn’s defense.
Whenever the FBI interviews someone who is a witness or a prospective defendant, the agents interviewing the person fill out a Form 302, which records the raw information obtained in the interview. Flynn was interviewed by the FBI (having been told by the FBI that he didn’t need a lawyer) in mid-January 2017. The original 302 reportedly said that the interviewing agents didn’t think Flynn was lying. But the original 302 has disappeared.
The failure of the prosecutors to disclose Brady material, alone, could have been the basis to dismiss the charges against Flynn, but, in Sullivan’s court, it wasn’t. The record of Flynn’s name being unmasked by Obama administration officials isn’t Brady material, but it is evidence of the Obama team’s intent to prevent Flynn from serving as Trump’s national security adviser.
On May 13, Acting Director of National Intelligence Richard Grenell declassified and released the names of more than three dozen Obama administration officials who asked that Flynn’s name be revealed to them — unmasked — from NSA recordings of Flynn’s conversations with then–Russian ambassador Sergey Kislyak.
Among those requesting the unmasking were dozens of people who aren’t usually intelligence consumers such as then–UN Ambassador Samantha Power, then–Treasury Secretary Jacob Lew and four of his assistants, and then–Deputy Energy Secretary Elizabeth Sherwood.
There were five people on the list whose names weren’t disclosed.
Those among the unmasking crowd who were intelligence consumers were then–Director of National Intelligence James Clapper, then–CIA Director John Brennan, Joe Biden, and Obama’s White House Chief of Staff Denis McDonough.
If McDonough was interested, we have to impute his interest to Obama, his direct boss.
There is an awful stench rising from all this interest in Flynn, the FBI’s misconduct in pursuing him, and the actions of the Mueller prosecutors who pursued Flynn and blackmailed him into confessing crimes he didn’t commit. That stench now also rises from Sullivan’s action in delaying the dismissal of all charges against Flynn.
This has gone on far too long, and at far too great a cost to Flynn and his family. The DoJ should slap Sullivan with a writ of mandamus to the D.C. Circuit immediately. There is no reason for the toll of this injustice to continue to mount.