My understanding is that when the government moves to dismiss an indictment the judge's discretion is extremely limited. Basically--again, in my understanding--as long as the government doesn't appear intent on abusing a defendant then the judge has to grant the motion. How would the government abuse a defendant by dismissing the indictment? This is how: by re-indicting and then dismissing again, and repeating the process indefinitely. In this case the government is asking to dismiss with prejudice--meaning, the charges can never, ever, be brought again. Therefore, the judge ultimately must dismiss. As I understand it.
The judge doesn't get to play prosecutor and second guess the government. So why would a judge invite dumb ass briefs from people who hate Trump and therefore hate Flynn? Those briefs can't possibly have anything sensible to say. And yet, it appears that Sullivan is more or less inviting an outpouring of briefs to create a public outcry. Unless I'm misunderstanding something.
Looking at the docket entries (#201 not present), we suspect an amicus brief has already been filed.— Techno Fog (@Techno_Fog) May 12, 2020
Perhaps by the former DOJ employees who want Sullivan to improperly proceed to sentencing.
Judge Sullivan risks turning this into a circus. pic.twitter.com/hJpxForsdS
Sean Davis just jumped to the conclusion that I tiptoed around:
Sean Davis
@seanmdav
Judge Emmet G. Sullivan just signaled he’s not interested in the law, due process, equal rights, or justice. He already called Flynn a traitor in open court, and now he’s going to invite left-wing lawyers write his final order against Flynn for him.

5:26 PM · May 12, 2020
There is no legitimate legal reason for this. https://t.co/YXarGq7ZbD— Jenna Ellis (@JennaEllisEsq) May 12, 2020
If I didn't know better, I'd guess he's buying time for Van Grack to flee the country and find some place with non-extradition country that will take him.
ReplyDeleteMore time allows more discovery of Covington...
ReplyDeleteAgain I say, the battlefield is political. They have to be sure their slack jaw rage mob doesn't have a moment to reflect and they need to confuse as many low information voters as possible. So some idiot excuse will be distilled from the Leftist drivel that this will elicit, Sullivan will drop the gavel, sentence Flynn, and Trump will be forced to pardon. Then it is an uphill battle getting the message across that this is not proof of Russian collusion, much less an actual criminal act by the Deep State. Many will only see that Flynn pleaded guilty, was sentenced, and Trump tried to cover it up with a pardon. Optics/politics.
ReplyDeleteTom S.
Risking or seeking...an out.
ReplyDeleteHe has already made up his mind, he just wants to know there will be laud and honor from certain folks before he defies the DoJ motion to dismiss.
Too bad about that TDS. If you thought the Stevens case was special, this was the case of a generation, where you could make your mark in history.
Instead, if a rule-of-law society somehow emerges from this charade, you'll just be a footnote in its founding documents.
I hear you Tom. I expect them to stop at nothing and I have little faith in Judge Sullivan's legal judgment at this point. As I keep reminding (myself), the Kavanaugh hearings persuaded me that there are no limits to where they will go and what they will do.
ReplyDeleteI would suppose, however, that after conviction and sentence (if they actually eventuate) and before pardon there would be an opportunity for appeal, including all the way to the Supreme Court, if need be. Which appeal I am going to continue to believe Flynn would win.
This would be another huge burden on Flynn, but ultimately nothing good is going to result for the Resistance. More discovery, more motions, more papers will only make Flynn's case stronger.
Or so I would argue.
That's why I believe Flynn's case will be dismissed. This is probably a last ditch effort to smear.
DeleteI have seen it happen small time in municipal court. I am not sure why federal court would be any different.
ReplyDeleteAlso, I thought he ordered no new submissions.
It appears some law researchers have been scouring the rules.
While Judge Sullivan notes this is cvil rules, the rules themselves declare to be both about civil and criminal cases “acting in harmony.”
Odd thing is ...
the rule he cites, 7(o), refers to “ 1) The United States or its officer or agency or a state may file an amicus curiae brief without the consent of the parties or leave of Court.”
It in 7(0)(2) the rules states “ ... why the movant’s position is not adequately represented by a party, ...”
So, some agency or state of the United States has decided to invoke a local, federal rule (weird, I know) in which it has to justify why the movant‘s, the US, request is valid, associated, and has not been adequately represented.
https://www.dcd.uscourts.gov/sites/dcd/files/LocalRulesJuly_2019.pdf
It may not be, but it appears to be another deep state ploy.
- TexasDude
Judge Emmet Sullivan Likely Committed Reversible Error In Taking The Guilty Plea of General Michael Flynn
Deletehttps://www.redstate.com/shipwreckedcrew/2020/05/12/very-likely-judge-emmet-sullivan-committed-error-in-connection-with-flynn-sentencing/
Is there a "separation of powers" aspect to this event? Surely, the Judge cannot become the prosecutor.
ReplyDeleteArticle III, Section 3 defines treason as levying war against the US or giving aid and comfort to the enemy and needs 2 or more witnesses.
ReplyDeleteWhat is war? Didn’t General George Washington use spies, espionage, and intelligence to help wage war? Does waging war always mean physical force exclusively? When a force (group/association definition) attempts to overthrow the US without force (physical definition) why is that not treason or sedition?
- TexasDude
I thought that Sullivan was a decent man, but I may have to reevaluate this position. Until then, I'm going with Ray's answer that it allows more time for discovery of Covington and Burling wrongdoing.
ReplyDelete>> Catherine Herridge
ReplyDelete@CBS_Herridge
#FLYNN defense cites AG Holder, and Judge Sullivan track record “..proposed amicus brief has no place in this Court.. It is no accident that amicus briefs are excluded in criminal cases.. this Court, on 24 specific occasions has rejected all prior attempts..to intervene” <<
Sure sounds like Judge Sullivan is "coloring outside the lines."
I was about to comment earlier that granting leave for amicus in this case is downright bizarre, not to mention outside Sullivan's discretion.
DeleteIt's almost as if an esteemed representative of the DS apprised him of some past indiscretions while lamenting the harm that could be done to his career and reputation if certain things surfaced.
"Former Judge Gleeson, tapped by Judge Sullivan to help the court go after Flynn, in a previous case said denial of move to dismiss charges would be 'abuse of discretion'."
Deletehttps://twitter.com/MZHemingway/status/1261039557576994817
Sidney Powell: "I don't know, I am mystified by the entire thing ... It's not like the Judge Sullivan I knew ... at all. I can’t explain it."
DeleteHmmm.
Eric Holder and Wapo Threaten U.S. Attorney John Durham for Looking into Spygate
DeleteDecember 27, 2019
We’ve all heard the joke. A thuggish looking guy walks into a business he is trying to shakedown and says, “Nice little store you have here. It’d be a shame if something happened to it.” Wink, wink. The message is crystal clear; do what the bully wants or else something really bad is going to happen.
This scene has now played out in real life. In a so-called “news” article in the Washington Post recently, “Experts fear Durham’s Reputation at Risk in FBI Probe,” the newsletter for the deep state openly threatened U.S. Attorney John Durham...
https://tennesseestar.com/2019/12/27/commentary-eric-holder-and-wapo-threaten-u-s-attorney-john-durham-for-looking-into-spygate/
Durham: "OMG, my reputation!" Clutches pearls.
DeleteThey really think they can intimidate anybody right up until they try it on the dude who says "Tell them I'm coming, and Hell's coming with me".
DeleteA whistleblower friend once said several years ago that he soon realized they were more afraid of him than he was of them. I told him "they" are just a fragile little guy hiding behind a curtain and he screams and cries every time I go back there and smack him around.
Wow:
ReplyDelete>> https://pbs.twimg.com/media/EX3GwhHWsAEybe_?format=jpg&name=large <<
Brutal.
ReplyDeleteFor starters, see https://www.RedState.com/shipwreckedcrew/2020/05/12/very-likely-Judge-emmet-Sullivan-committed-ERROR-in-connection-with-flynn-sentencing/ .
So far, nothing but briefest mention of this ruling, on Hannity or Laura.
DJT should lay back, and let Ms. Powell try to get the Supremes to expedite Certiorari, or some such.
If she is thwarted, the down stream upshot of this ruling will compare to the Dred Scott ruling.
Unless she prevails, or unless it gets obvious that DJT will win in Nov., I'll wager that army and USMC sergeants etc. will become much closer, to giving up on the system.
No way will they stand, for such a decorated Veteran to be railroaded/smeared like this.
It all will only await a repeat of the Sotelo murder, before opening the floodgates.
The Sotelo murder in July 1936 was the last Leftist straw for Franco, who only then joined the coup plot which led to Spain's Civil War.
DeleteWill this Flynn ruling have equivalent impact, or will it take a crime comparable to the Sotelo one, to spur the U.S. military to say "enough!"?
No, you're correct, Mark.
ReplyDeleteEthics charges filed against Sullivan:
ReplyDelete>> D.C. District Court Judge Emmet Sullivan issued an order Tuesday indicating he'll soon accept "amicus curiae," or "friend of the court" submissions, in the case of former national security adviser Michael Flynn -- drawing immediate scrutiny and a planned ethics complaint against Sullivan, who had previously refused to hear amicus briefs in the case. <<
>> https://www.foxnews.com/politics/judge-in-flynn-case-to-open-up-case-for-amicus-submissions <<
While she's at it, she should also seek emergency Certiorari on the monstrous gag order.
ReplyDeleteSince when did this (or any other) judge in a criminal case, solicit amici curiae?
ReplyDelete"*solicit* amici curiae, in District court?"
DeleteI gather, that such briefs only are allowed in Circuit court.
Question for MW:
ReplyDeleteif Sullivan has ethics charges filed against by Flynn's attorney (which has already happened,) how can he continue as judge in the Flynn case? Appears to be a conflict/bias issue that would require he be recused and replaced?
Please refrain from posting false information. As of last night when you posted Powell had not filed nor stated an intention to file an ethics complaint. That was raised by Mike Cernovich.
DeleteSorry about that; I thought it had been filed.
DeleteBelay the previous reply I sent: I just realized the source I posted upthread last night was Fox News. Did they get it wrong?
DeleteNo. YOU got it wrong by not reading the article. The article correctly states that Cernovich is considering an ethics complaint. Not Powell. At this time.
DeleteOops; my bad; I hadn't read the Fox News article carefully to realize it was Cernovich who was planning to file the ethics complaint. I wrongly thought it was from Powell.
DeleteRight now there's a lot of speculation on where Sullivan thinks he's going with this. On the law he should clearly lose if he opposes the government motion. If he insists on some sort of evidentiary hearing, as Paul Mirengoff, has speculated, IMO that would raise major problems because many of the witnesses would have to take the 5th. I wonder whether he has thought this through. The attorney behind the amicus brief is described as a Russia Hoax nutter. Could well lead to massive public revulsion.
ReplyDeletehttps://twitter.com/JohnWHuber/status/1260338672555167750
Deletehttps://twitter.com/JohnWHuber/status/1260345963404820482
My guess is that Sullivan is part of the get Trump brigade. It proably isn't an accident the case ended up in his court in the first place. I will predict he tries to refuse to allow the DoJ to withdraw the case and will try to sentence Flynn at the next hearing. We are in full Banana Republic mode at this point in time.
ReplyDeleteIt seems to me that a higher court needs to step in or, as you say, we will descend to full BR mode.
DeleteIndeed. Beuller, Beuller, Buelleroberts, Roberts, Roberts.... Paging "No Obama judges," Roberts. Dr. Ernst Janning left a message for John Roberts at the front desk.
DeleteTom S.
The dems can scream, holler and have a cow over the Flynn case, however, one thing they will not do is resort to violence. Those folks would not stand a chance and they know it.
ReplyDeleteI would beg to differ. What would come out the other end would not resemble our Republic, and that they would consider a feature.
DeleteIntrinsic to Leftist tactics is that chaos, especially violent chaos, is a tool to be used at the appropriate time. Never in history have they shied away from using it.
Tom S.
A Bernie Bro tried to kill many House Republicans by shooting them up at a baseball practice.
DeleteAntifa
Paul Ryan
Entertainers calling for Trump’s head to be cut off or Trump and his family being killed or assaulted.
A former Navy Admiral declaring Trump must be removed sooner than later with the implied amount threat of a junta.
Oh ... no, Dems are very cool with violence.
TexasDude
All this, as per their pied Piper Foucault.
DeleteAll this, as per their pied Piper Foucault, who was an explicit advocate of sadism and suicide, see
Deletehttps://stream.org/Foucault-intellectuals-Venerate-Sado-masochistic-suicidal-drug-addict/ .
To clarify, I should have written the "Democrat party establishment". On wackos, the one who shot Rep. Scalise for example, I agree there are enough of those, unfortunately. Officially sponsored by the party? Don't believe so.
DeleteSponsored by the party? No.
DeleteImplicitly *encouraged* by the unofficial agitProp organs of the party? Yes!!
Oh, I meant ...
DeleteRand Paul assault, not Paul Ryan
Oops
- TexasDude
Maybe Sullivan wants to make Flynn prosecutors plead the fifth? And didn't the Supreme Court just rule on another case that addressed exactly this issue of third party responses in court? In a 9-0 case with RBJ opinion being rather excoriating towards the 9th allowing this sort of game? I don't recall that case being criminal, but would think the principle would still apply here.
ReplyDeletePrecisely. That's why I said above that it's time for a higher court to step in--but not waiting for an appeal.
DeleteAnd Chief Justice Roberts says that there aren't Trump and Obama judges. Maybe he's right. Maybe there are just judges and hacks?
ReplyDelete"but not waiting for an appeal"
ReplyDeleteHow does that work, Mark?
Looks like I misspoke. I thought the precedent of staying district court injunctions might work, but it seems those had, as best I can tell, all passed through appeals courts at some point.
DeleteNot to worry. There would be an appeal. You can take that to the bank.
DeleteCan her appeal include the views of Dersh, on how a judge issuing such a ruling should be impeached?
DeleteSee
https://twitter.com/BoumtjeBoumtje/status/1260366445004894209 .
"Is Sullivan Risking Or Seeking A Circus?"
ReplyDeleteGood question, Mark, and as you know, either way he gets a circus -- if he doesn't dismiss.
I'm choosing to look at this as a good thing. Maybe 100 million Americans, probably many more, still think Flynn is guilty of being a spy and that Trump is Putin's puppet.
A conviction and sentence by the hapless Sullivan of an innocent 3 star general framed by a corrupt White House would generate enormous national interest and extreme outrage from some quarters of the (probably already about to explode) Right.
An appeal even more. An appeal to the Supreme Court and a hearing, in which Obama's role couldn't be covered up, even more. All along the way, the government's criminal wrong-doing -- and Obama's central role -- would be Exhibit A. Even the NYT and Wapo would be forced to write about it. CNN and MSNBC would be forced to cover it.
Think about it...what better way to bring Obama to justice?
It would be this generation's Watergate, but much worse. The circus would be a disaster for the conspirators and their minions.
See my new post.
DeleteSome have suggested that Sullivan's actions will force Trump to intervene with a pardon. Just as I thought Flynn's plea was a big mistake, I also think going for a pardon would be an even huger mistake.
DeletePersisting through appeal(s), would be tough on Flynn, no question, but an eventual victory in appeals court will (as I've been writing) destroy (is that too strong a word?) Obama. And as long as Trump is in office a pardon is available. Let's call it an "insurance policy".
DeleteI agree. Of all the possible political outcomes a pardon would be the second worst for Flynn (the worst being actually serving the adjudicated sentence (if Sullivan doesn't dismiss I think it will be "in for a penny, in for a pound" and Flynn will receive the max allowed)) and the worst for Trump.
DeleteTom S.
Add my name to the list of those opposing a pardon. Let Flynn prevail in court. He is innocent and needs to be declared so. He also needs a decent judge to APOLOGIZE on behalf of the Nation and the US Government for the abuse that he endured.
ReplyDeleteI am amazed that a judge would show such judicial weakness while trying to appease the partisans.
ReplyDeleteYeah, and I'll bet that any number of Sgts etc. are also amazed, and thinking about emulating Franco, unless somebody (e.g. the Supremes) gives Sullivan the spanking of his life.
Delete