Wednesday, May 13, 2020

More Good Commentary On The Flynn Case: Brett Tolman And Andy McCarthy

Both Brett Tolman--a former US Attorney--and Andy McCarthy--a former federal prosecutor express the outrage that any decent person who cares about our constitutional order feels at Sullivan's frankly revolutionary ruling. However, they go a bit beyond that. Tolman offers a suggestion of a possible response that Sidney Powell could take, and both Tolman and McCarthy have some insightful comments that place this in legal and constitutional context--to show just how revolutionary Sullivan's usurpation is. The implication of his action is the claim that the Judiciary is empowered to usurp the Constitutional authoritiy of the Executive Branch. This is why I believe representatives of the Judiciary need to speak out. Now.

First I have a transcript of Tolman's relatively brief remarks, taken from a Fox and Friends video:

Brett Tolman: 'Outrageous decision' by Flynn judge is 'politically motivated'
Former US attorney on judge's 'outrageous' decision in Flynn case: I thought I'd 'seen everything'

Brett Tolman: I thought I'd seen everything in 20 plus years in the Federal criminal justice system, but this is a first. I mean, this is an outrageous decision by a judge who's now placed himself into that awful category of an activist who's willing to set aside rules, set aside ethics, set aside precedent, and just go in a direction because he is politically motivated to do so. 
Q: [Does Sullivan's inconsistency in his rulings in the Flynn case--rejecting amicus briefs 24 times, now issuing a call for amicus briefs--"open up a legal challenge?"] 
Brett Tolman: Well yeah, there's a couple issues there. I mean, Sidney Powell is correct that this court is now going against its own rulings, which is sacrosanct in the judiciary. You follow your rulings so that there is consistency in cases. In this instance, allowing, with all due respect, the 'Watergate Prosecutors'? I mean, I don't assume that I can step in as a former US Attorney and second guess the decisions of those that are in the actual seat, that have the authority and hafta make the decision on this case. But for some reason this judge wants to invite them in. So Sidney Powell is gonna hafta do some quick acting. She may file, for example, a Writ of Mandamus. That would allow her to immediately appeal this decision and this approach by this judge to the Circuit. And let's face it, if it looks like this is what's going on--there's strategy, then, that's at the heart of what this trying to accomplish. And that strategy is offensive to anyone that practices, because it's the United States Attorney's office that brings a case, it's the United States against Michael Flynn, and when the United States says, 'We're no longer gonna pursue it because we don't have the evidence,' the audacity of somebody else outside of that coming in, who has no authority, is outrageous.

Andy McCarthy weighed in at his customary length. Below are some of his most incisive comments--plucked out of context for the most part because they don't really require context to make their point:

The Politicized Order Inviting Amicus Briefs against the Flynn Case’s Dismissal

Barr can’t stop Sullivan from turning the dismissal into anti-Trump group therapy

There is no complex legal issue to be resolved. DOJ’s dismissal motion may be politically controversial, but legally it is pro forma. The only branch of government constitutionally authorized to proceed with a criminal prosecution is the executive.

Lest we forget, the primary function of the federal judiciary is to protect the accused from overbearing government action, not to agitate for the prosecution of Americans.

Those are the kinds of questions a responsible judge would be posing, not, “How do I sentence this guy if DOJ won’t prosecute?” 
If there is anything legally dubious here, it is the proposition that a judge may deny a dismissal motion filed by the Justice Department. Rule 48 of the Federal Rules of Criminal Procedure purports to require “leave of the court” before prosecutors may dismiss an indictment. Yet a statutorily enacted rule cannot amend the Constitution, which vests solely in the executive the power to prosecute.

In the federal system, the Justice Department’s discretion to charge or proceed with a criminal case is unreviewable. The judiciary has no more power to compel the executive branch to prosecute an indicted case than it has to force the executive to indict the case in the first place. ... But a judge has no authority to order the executive to investigate, indict, or try a criminal case. None. 
Moreover, Congress prescribed Rule 48 to protect defendants — exactly the opposite of what Sullivan is doing.

Rather than just doing his job and dismissing the case, he invites amicus briefs. He can’t compel the Justice Department to further hound Flynn, but he figures he can encourage the legal establishment to trumpet the political theme that Trump’s Justice Department is undermining the rule of law.  
In criminal cases, the accused is already pitted against the awesome resources of the government. Forcing the accused to bear the additional burden of defending against amicus briefs is unfair.

“I’m not hiding my disgust, my disdain, for this criminal offense,” he railed in his first appearance in the case. “This criminal offense” was actually a relatively low-level process crime: a false-statements charge against a career military officer, brought even though the FBI did not think Flynn made intentional misstatements, the bureau was not obstructed in any way, and the prosecutors originally recommended no jail time.


  1. In addition to Sullivan's outburst quoted above on "disdain", recall the bit about "“Arguably, you sold your country out".
    In light of such "interested" comments, can Ms. Powell make hay, with a demand that he recuse himself?

    1. There is no proof that he lied at all, because the original 302 is missing. The statement that he lied came from proven liars.

      Rob S

  2. Well, Flynn did enter a guilty plea — granted it was a result of coercion, demonstrably ineffective counsel (to put it mildly), Brady violations, etc — but murder convictions have been thrown out on a lot less. I think Sullivan gets grabbed by the scruff at some point from above, possibly sooner rather than later.