Shipwreckedcrew has a provocative article today: My Take on Yesterday’s Hearing on DOJ Motion to Dismiss Prosecution of Gen. Michael Flynn. He doesn't offer much analysis of the actual hearing--which dragged on for an almost unconscionable span of time. However, he offers a prediction as to how he believes Sullivan will rule on the DoJ motion to dismiss.
He believes that Sullivan will ultimately grant the motion to dismiss--but with a twist. DoJ is asking that the case be dismissed with prejudice, meaning that DoJ would not be able to reinstitute prosecution of Flynn on the same charges. SWC believes that Sullivan will follow the advice of Andrew Weissmann, and dismiss the case without prejudice. And that would mean that DoJ could--at least theoretically--reinstitute the prosecution.
I'm treading on ground here that I freely admit is well beyond my experience. SWC doesn't seem to see much problem with this outcome, but I'm not so sure.
SWC sees this outcome as protecting the interests of US district courts generally and, to that extent, as justifiable.
First, you need to understand the “equities” of Judge Sullivan in this dispute. He’s fighting against the idea that a district court judge like himself does not have the authority to “check” what he might see as “abuses” in the decision-making process of the Executive branch AFTER they bring matters into his court. On this issue, I suspect he’d have broad support from district court judges all over the country. They are the gatekeepers to the federal court system. By asserting a strong role for the trial judge under Rule 48, Judge Sullivan — aided by Judge Gleeson — is saying to DOJ:
“You brought this case, you occupied my time, you made representations and arguments on the record to me and asked me to do certain things in my role as a district court judge, and you don’t get to just walk away from all that without an explanation that is to my satisfaction.”
He is defending institutional turf that he believes belongs to the Judiciary once a case is filed — and in this case a guilty plea is entered.
My problem with this line of argument is that it seems to me to ignore the whole reason for having courts to begin with--to see that justice is done. There is no mention here of the one person in the process with by far the most at stake: the defendant, in this case Michael Flynn. If we grant for the sake of argument that Sullivan may feel his time has been wasted and that DoJ's feet should be held to the fire, does the bankrupted Michael Flynn have no equities in this? What about his good name? This result--dismissal without prejudice--would mean that Flynn would not "get to just walk away."
Consider this further line of argumentation by SWC:
But in the end, I think he will say he’s deeply skeptical of reasons and motives offered by DOJ, and he believes their legal analysis on “materiality” is not correct or persuasive. ...
So my prediction is he will grant the motion but do so without prejudice in an “over-the-top” Opinion that declares the effort by DOJ to be a political favor to Pres. Trump.
According to SWC this move--dismissal with prejudice--will prevent Sidney Powell from pursuing her motion to withdraw Flynn's guilty plea. What this smacks of to me is a judicial vendetta. Flynn gets a dismissal with an asterisk next to it. Here's what I mean.
The nub of this is that Sullivan obviously wants Michael Flynn to be held guilty. Failing that, he will, in effect and on the record, counter DoJ's judgment of the case with his own judgment--he will maintain that DoJ is wrong and that Flynn did make materially false statements. He will see to it that Flynn's name will forever be tarnished.
But Sullivan will also be attempting to circumvent Flynn's effort to withdraw his plea and to argue his case to a jury--that he did NOT make materially false statements. What happened to the right to a trial by jury? And, indeed, several legal commentators did express astonishment that Gleeson--at Sullivan's invitation--appeared to argue that it was somehow illegitimate for a defendant to withdraw a guilty plea, even when--as here--there is overwhelming evidence of egregious government misconduct. By countering DoJ's judgment in this way it appears that Sullivan is, in a sense, pursuing his own desire to penalize the defendant, Flynn, independently of the prosecutorial arm of the government in a way that was never envisioned by the legal precedents or by Rule 48.
Further, I wonder whether this dismissal without prejudice will have the effect of prejudicing Flynn's attempts to gain redress via a civil action--a Bivens lawsuit--for the government's misconduct. If there is a judicial opinion on the record that maintains in effect that Flynn was guilty, will that not at the very least present a significant extra obstacle to any redress that Flynn may seek--if not render it impossible? This strikes me as justice denied for Flynn and I seriously wonder whether this is part of Sullivan's calculus, if he chooses this path.
My hope is that if Sullivan does go down this devious road then DoJ will join with Sidney Powell in appealing such a ruling directly to the Supreme Court. There needs to be an end to this outrageous political persecution of Flynn by the Judicial Branch.
All this may be so, but for the prospect that SparkleFarts still needs Flynn tied up 'til near election day, to (I gather) preclude Flynn speaking out vs. the DS perps.ReplyDelete
I thought I remembered that the one specific exception to a judge's using Rule 48 to deny leave of court would be when DOJ was trying to dismiss without prejudice so that it could come back and get multiple bites at the apple and torment the defendant indefinitely. (I think it's from Fokker, but wherever it comes from, I know I heard it brought up multiple times.)ReplyDelete
I mean, isn't there an obvious problem here?
You're exactly right, Brad. The whole point of Rule 48, in that sense, is to protect the defendant. Sullivan, if he does this, will be turning it on its head and using it as a sword against the defendant--not really against the DoJ attorneys. He will, in effect, be making a substantive judgment that should be reserved for a trial before a jury.Delete
On twitter, SWC is arguing, if I understand correctly, that Flynn wouldn't have much chance on appeal because this is a "discretionary" decision of the judge. My argument is that by taking action against the defendant in this way he is still injecting himself into what should be an executive branch decision. So, IMO, DoJ should appeal on those grounds and Powell should appeal on some sort of due process argument, perhaps.
This is beyond my pay grade, but it seems very wrong to me and I wanted to be on the record here.
I'm with you, BradDelete
A dismissal without prejudice would seem totally unfair to Gen Flynn, given recent disclosures and the political nature of the prosecution.
No DOJ would dare bring a case against him after the admissions of wrongdoing on the record--and I'm sure more are forthcoming as Grenell forces DNI and wray to quit playing hide the knish. It would be meaningless.ReplyDelete
Agreed--as to prosecution. But could this nevertheless have a negative impact on a Bivens action? The "without prejudice" would represent a judicial opinion that there were grounds to prosecute him, despite everything DoJ said in their motion.Delete
"No DOJ would dare...."Delete
To the contrary, a Dem DoJ could well love to smash him into little pieces, to rub our noses in their power, which is what makes their lives worth living.
I agree with aNanyMouse.anonymous. If one thing has been made crystal clear over the last 4 years it is that the scent of power, and the sense of grievance over power denied, vastly overpowers any semblance of decency or fair play DS players possess.Delete
They will never allow Flynn to rest if they possess the power to strike him.
Sullivan might deny.ReplyDelete
Would not surprise me if it this happens
"DoJ should appeal on those grounds and Powell should appeal...."ReplyDelete
How would any such appeals impact the "gag" upon Flynn?
There was a little exchange between Sullivan and one of the DoJ lawyers near the end of the hearing in which there was a question of with or without prejudice, and the DoJ lawyer said something like they had asked for dismissal with prejudice, but (paraphrased) would be OK with either one.ReplyDelete
That is a highly simplified account of what this non-lawyer, seriously above her pay grade, remembers hearing yesterday.
As for which DoJ lawyer had that exchange with Sullivan. I was listening to Tore’s audio and the voices were not identified unless one got in at the beginning, which I did not.
I seem to recall that too. If so, I have a problem with that.Delete
Found one news account of that exchange, but there was more to it than this:ReplyDelete
In questions to the Justice Department, Sullivan inquired about the options he has in considering the government's motion to dismiss -- and what the government might do if he were to accept it but "without prejudice," which would leave open the possibility that a future DOJ could bring charges against Flynn for his lies to the FBI.
Deputy Assistant Attorney General Hashim Mooppan answered that the DOJ was requesting he dismiss "with prejudice," which would prevent such an effort. He separately acknowledged that it's possible Flynn could face prosecution in the future for uncharged criminal conduct he admitted in his initial guilty pleas.
I know that I was surprised that the male attorney would weaken a little and mention “with or without prejudice” in that same exchange.
I think we are missing the forest for the trees in this analysis. This prolonged legal debacle is no longer about Defendant Flynn or the particulars of the FBI conduct in investigating him or the DOJ conduct in prosecuting him.ReplyDelete
The big picture is that DOJ/FBI and the Federal Court system is seriously broken, and that is no trivial matter. This reality has become abundantly clear to most of Middle America, and the attempt to sweep it all under the rug with some fufu rationalizations or faux fixes is not going to sell in Peoria. Trust in these Federal institutions is going to plunge into dangerous territory. It's bad enough that we have rogue organizations like Antifa/BLM burning down our cities, but once all trust has evaporated, there won't be much left holding this country together.
Roberts is playing with fire by letting this travesty play out as a slow motion train wreck. Trust is easily lost and very very difficult to regain.
I agree that the disconnect of our justice system from Middle America and its increased politicization is reaching crisis proportions.Delete
"politicization is reaching crisis proportions."Delete
Most likely, the Dems know this, and plan to use the high-tech tools of the DS to make all such considerations moot.
If Biden wins, what's to stop them from turning the US into a One Party State, forever (other than secession)?
That was Obama’s goal.Delete
The Soviet Union’s Constitution (multiple) had the communist party as the only legal political party in the nation. The communist party had the constitutional right to overrule the extensive and explicit rights in the constitution.
This is the change Obama wanted.
"politicization is reaching crisis proportions."Delete
Yes, very much so. 2 years ago I had a federal agent accuse me of all sorts of things, including being a Russian agent. This happened in an open bar. I believe had something to do with what is going on in DC today.
And up pops Gina, according to Sean Davis (The Federalist):ReplyDelete
Davis: CIA Director Gina Haspel Is Blocking Declassification Of Remaining Russigate Documents
"You brought this case, you occupied [the Court's time -- not Sullivan's time], you made representations and arguments on the record to me and asked me to do certain things in my role as a district court judge, and you don’t get to just walk away from all that without an explanation that is to my satisfaction."ReplyDelete
Such could be said of any case in which concealed evidence and prosecutorial misconduct came to light and the government then sought to reverse an unjust persecution. E.g. see every wrongly convicted prisoner released from prison with fat financial compensation from the state.
In my opinion, the scenario SWC describes, while plausible considering what Sullivan has shown of himself, is frankly stupid. Further, it seems to me that if Sullivan held such an asinine position, his argument would be with a different group of people who, due precisely to the interests of justice, are no longer party to the case.
Another way to look at it. Sullivan got paid for his time. The prosecutors and defense attorneys got paid for their time. Flynn? Not so much. And then to pretend that miscarriages of justice never occur?Delete
Sullivan is paid to seek justice. The judicial system serves no other purpose. He should feel his paycheck earned when Justice is served, period.Delete
If he feels his time is being purchased for some other purpose perhaps he should elucidate.