Pages

Saturday, October 31, 2020

Highly Recommended: Why Sullivan MUST Disqualify Himself From The Flynn Case

I wish I could simply paste in the entire article by Leslie McAdoo Gordon:


Here’s Why Judge Sullivan Must Disqualify Himself From Michael Flynn’s Case

Sullivan’s apparent animus toward Flynn's attorney and his fixation on Flynn being punished demonstrate bias in this case — sufficient to require his disqualification.


It's really well reasoned and expressed. As the subtitle indicates, the author focuses on two primary issues. 

First, Sullivan has exhibited extreme and improper bias against Flynn's attorney, Sidney Powell. McAdoo Gordon begins this section by pointing out disparities in Sullivan's treatment of Powell, as compared to the other attorneys involved--a manifest lack of respect. But she then moves on to an even more serious issue demonstrating Sullivan's animus against Powell--his unfounded and, really, rather unhinged attempt to paint Powell as in some way unethical. I say unhinged because this attempt follows a pattern of conduct by Sullivan--beginning with his accusation of "treason" leveled against Flynn, that appear to demonstrate appalling ignorance of basic matters both of law as well as of legal ethics. That, to me, is most easily explained not by ignorance per se but by an animus that is so consuming as to lead Sullivan to make grossly unfounded accusations in open court:


... during the hearing, Sullivan improperly accused Powell of unethical conduct. He said she acted unethically in writing a letter to Attorney General William Barr asking for a review of Flynn’s case before she had entered her appearance in court as Flynn’s attorney. Sullivan not only confronted Powell about this, but he asked government counsel to comment on whether it was ethical and threatened to file a complaint with attorney disciplinary authorities about it.

First, nothing about Powell’s conduct was wrong. It is not unethical for a defense counsel to ask a senior official to review a case; lawyers do this all the time. It is entirely proper to seek review on the merits by officials empowered to overrule or alter the decisions of subordinate personnel. Powell’s letter is 100 percent ethical behavior.

Second, nor was it unethical for Powell to write the letter before entering her appearance as Flynn’s attorney in the pending court case. There is no requirement that an attorney must enter an appearance in court before acting as counsel for a defendant outside of court, even if the attorney’s actions relate to the court proceeding. Clients are entitled to engage as many lawyers as they please — some for court, others for outside-of-court assistance, others perhaps to negotiate a plea or settlement. This is routine and completely ethical.

Third, Sullivan’s fixation at the hearing on whether Powell’s letter was ethical clearly demonstrates bias against her because that issue had absolutely nothing to do with the DOJ motion to dismiss. ...


Secondly, McAdoo Gordon demonstrates that Sullivan clearly is focused on attempting to ensure that Flynn is punished--no matter what. Call it the "dog with a bone" syndrome--he won't let go and has continuing seeking legal mechanisms to allow him to continue gnawing on this particular bone. McAdoo Gordon breaks this issue down into two points. First, just as with Sullivan's much earlier, and totally unhinged, effort to accuse Flynn of "treason"--Constitution be damned--Sullivan has also attempted to accuse Flynn of "perjury". For maintaining his innocence:


When Sullivan appointed an amicus to advise him about whether to grant the DOJ’s motion to dismiss, he also directed the amicus to give advice as to whether he should issue a show-cause order to hold Flynn in criminal contempt for perjury because Flynn had disavowed his guilty plea.

This second request was extraordinary. First, it displayed ignorance of the law; the Supreme Court decided 100 years ago that perjury does not constitute contempt of court. Second, and significantly for disqualification purposes, trial judges never seek to punish a defendant for filing a motion to withdraw a guilty plea.


Patently, Sullivan's animus and bias against not only Flynn's attorney but against Flynn personally is such that he is openly seeking to evade the requirements of long settled Supreme Court precedents. Yes, that's "extraordinary."

The second point under this general heading is one that I have focused on previously--Sullivan's urge to somehow do an end run on DoJ's motion to dismiss and maintain the Flynn case in a sort of legal limbo, awaiting the right political moment when charges could be reinstated against Flynn. McAdoo Gordon explains:


... Although DOJ has moved to dismiss the case against Flynn “with prejudice,” meaning Flynn could not be prosecuted again, Sullivan asked whether he can instead dismiss without prejudice, noting that a new administration at DOJ might decide to pursue the case. Similarly, Sullivan inquired into whether Flynn could still be charged for violating the Foreign Agents Registration Act — to which Flynn did not plead but which was included as additional “relevant conduct” for purposes of his plea — if he dismisses the current case.

It might be argued that Sullivan was “just asking” these questions and that posing questions does not necessarily demonstrate bias. The clear import of these lines of questions, however, was not an academic inquiry but to determine if there is still a path for punishing Flynn even if the current case has to be dismissed.

Moreover, judges simply do not pose these questions when the government moves to dismiss a criminal case because it is none of their concern under the separation-of-powers principles. The only reasonable conclusion to draw from Sullivan’s “inquiries” is that he is far too interested in determining if there’s “some way, any way” that Flynn can still be punished for something.


McAdoo Gordon's conclusion is that this case is far from over. My suspicion, however, is that post-election, there could be a major smackdown of Sullivan in the offing:


... Sullivan need not rule on disqualification if he simply grants the DOJ’s pending motion to dismiss the case with prejudice. While normally a motion to disqualify should be resolved before any other substantive matter, clearly an order to dismiss the case with prejudice would be entirely in Flynn’s favor and thus not realistically subject to a claim of improper bias. That is not the outcome we will probably see.

If Sullivan denies the motion to disqualify, Powell will likely file a second request for a writ of mandamus and ask the court of appeals to disqualify him. The saga is probably far from finished.


I suspect that not only will Powell aggressively pursue all options, but that DoJ will also adopt an even more aggressive stance than they have to this point, in light of Sullivan's outrageously provocations. Certainly, Sullivan has also flaunted the DC Circuit's instruction to him to handle the case with "dispatch." The legal establishment may quickly grow tired of this.


40 comments:

  1. If it's animus, then it will proceed as you describe.

    If it's a delaying move, then the case will be dismissed with prejudice shortly after the election.

    ReplyDelete
  2. "there could be a major smackdown of Sullivan in the offing ..."

    By this point, half of America is thinking "Yes, sure, and Adam Schiff could go five minutes without telling a major lie."

    We can hope. History is full of surprises.

    ReplyDelete
  3. The Judiciary is broken, not least because of Sullivan's crusade to persecute Flynn, but also the dozens of Federal District Court judges who have invented new laws and regulations from the bench during Trump's first term in office, a truly unprecedented wave of activism never before seen in US history.

    If Roberts were a real man and ethical jurist, he would have nipped this crime wave in the bud before it trashed the reputation of the Third Branch of our government. Luckily, we now have a new addition to the Supreme Court who just may have the stones that Roberts is missing and hopefully be able to re-introduce honor and integrity back into this institution.

    November 4th can't come quick enough.

    ReplyDelete
    Replies
    1. For "broken" you could substitute "heavily politicized." State courts can often be policed by the citizenry through voting. Not so with federal courts. With the federal courts the only truly effective remedy is impeachment, and unfortunately that tends also to be highly politicized.

      Delete
    2. The Supreme Court could go a long way to restoring some common sense to the system by using their considerable legal acumen to eliminate nationwide injunctions by district judges!

      Delete
    3. I'm afraid that "broken" is accurate, not only with respect to the judicial branch, but with respect to the entire government. The left's strategic goal has always been to de-legitimize American institutions. They have succeeded. It's easier to break things than it is to maintain or build them.

      Regardless of who is elected president, half of American citizens will see it as illegitimate. As for the barbarians, terrorists, and welfare cases who have been brought to our shores at taxpayer expense, they *already* hold that opinion.

      Diocletian had serious faults, but he did win the Roman Empire an extra century of life. An American Diocletian might be the least-bad path for us, certainly better than what's now on offer and the only slim chance to see our country's saboteurs face any kind of justice. Donald Trump does not seem to be that man, regardless of how fervently leftists paint him as being so. That man has yet to appear.

      Delete
    4. N.S.

      I would up vote you if I could!๐Ÿ‘

      Delete
    5. "An American Diocletian might be the least-bad path for us...."
      Sounds right, NS. ๐Ÿ‘
      Recall, Diocletian faced some tough music, that the Empire had become to unwieldy to be governed as one unit, and thus he mapped-up a Tetrarchy.
      We'll likely need a similar arrangement.

      Delete
    6. "...the Empire had become to unwieldy..."

      I bet you meant to say *too* unwieldy.

      Delete
    7. "you meant to say *too* unwieldy."
      Yes, thanx.

      Delete
  4. I'm aghast, that Sidney didn't appeal any of this to SCotUS before the election, when it may've done some lasting good.
    Whoever advised Flynn, to stay off of the campaign trail, did the country a huge disservice.
    His story (of being railroaded by the DS), even if not accompanied by Ultimate Vindication, is still a story which the country quite needs to know.

    If Biden wins, any wins Sidney gets anywhere will be short-lived, esp. once the Dems make SCotUS into a group of pimples upon their asses.

    ReplyDelete
    Replies
    1. It's a question of timing. Sullivan was cagey and has sought to avoid final orders that could be effectively appealed. It's abusive.

      Delete
    2. Can Flynn sue him?

      Sullivan should be liable for all of Powell's fees since the motion to dismiss.

      Delete
    3. Even so, advising Flynn to stay off of the campaign trail did the country a huge disservice.

      Delete
    4. @ mistcr No. A judge can't be sued for getting ruling wrong. Nor for not knowing the law.

      Delete
    5. I get it, of course, but if he can be accused of animus then Flynn should be able to go after him.

      The shield of immunity has certainly contributed to his outrageous behavior toward Flynn.

      Delete
    6. There is no doubt that the President will issue a pardon. But the real story is why is the judge so hostile. This is the judge who stepped in and stopped the Andy Weissmann type DOJ abuse. The only judge apparently who has a standing Brady order which favors defendants. Maybe there is anti Trump animus for some reason. While a terrific President, he is easy to dislike.

      Delete
    7. I disagree very much. I don't believe Trump will pardon Flynn--Powell has specifically communicated to Trump, Please do NOT pardon Flynn. Flynn will, at the end of the day, be exonerated rather than pardoned for a non-crime.

      Delete
    8. I don't believe Trump will pardon Flynn, unless Biden wins (in which case, the winners will likely delight, in throwing buckets of legal sh*t at Flynn).

      Delete
    9. "There is no doubt that the President will issue a pardon."

      Despite the rather presumptuous calls for a pardon by many who didn't seem to give any thought whatsoever about what Flynn wanted, and contrary to your assertion, his attorney specifically asked that the President not do that.

      Delete
  5. Mr Wauck - is Sullivan looking @ any disciplinary action whatsoever?

    ReplyDelete
    Replies
    1. Unlikely. Sad to say. You can do a search on something like "can federal judges be disciplined" and find out how rarely it occurs and how egregious the misconduct has to be.

      Delete
  6. Sad that Sullivan couldn't be Borked for misplaced judgement.
    Or someone can say something...

    ReplyDelete
  7. Somewhat O/T, but whatever happened to the GOP's plan, to re-appeal the PA Court's ruling on mail-ballots, once ACB got her seat onto SCotUS?

    ReplyDelete
    Replies
    1. The scotus blew off addressing or readdressing PA and NC.

      The ballots are being segregated and the ballots in question become a issue after the election them they will hear it.

      Delete
    2. Right. The good news in that is that Barrett will then be involved. She didn't get involved in the rehearing on PA and NC because she hadn't had time to read the briefs. That was her decision. Next time will be different.

      Delete
    3. Will "next time" be the day after the election, before the PA brass get to give SCotUS a fait accompli, by unsegregating the ballots?

      Delete
  8. All rather egregious acts of judicial misconduct that the DC Circuit should have rectified. If we had a healthy judiciary, it would have. It would also make an example of Sullivan. A head on a pike as a warning to other judges who might similarly lose sight of their constitutional duties and limits, and mistake themselves for something they're not, entirely at the expense of those seeking justice.

    ReplyDelete
  9. I've had my noise in the Flynn case since it's inception. I've read every filing up until September of this year and most probably 2-3 times.

    I never understood Flynn's choice of defense in the beginning.

    For a while I really thought Sullivan was going to be the good guy in this.

    Now I think this case is so far off the rails it will be required curriculum 200+ years into the future.

    ReplyDelete
  10. Sullivan thinks his actions will help the Democrats/Deep State.

    No one is talking about the Flynn case in this election. To the extent they are, Sullivan is hurting the Democrat cause.

    ReplyDelete
    Replies
    1. Sullivan knows that his actions helped the Democrats/Deep State, because these actions guaranteed, that virtually no one is talking about the Flynn case in this election.

      Delete
    2. I'd have to agree with Mouse. Sullivan's deliberate malfeasance succeeded in keeping Flynn off the campaign trail and talking about what the Obama-Biden administration did to him in order to cover up their criminal conduct.

      Delete
    3. Interestingly, Flynn spoke out today.

      Delete
    4. If Flynn spoke out in a way that mattered, it didn't catch the attn. of Fox, see
      https://www.foxnews.com/category/person/michael-flynn .

      Delete
    5. Fox was too busy publishing an anti-Trump opinion piece by one of their raging liberal #Resistance contributors titled "Conman in Chief".

      Delete
    6. And, Fox was also busy showing Luntz talking to NPVs whining about how they're beset w/ Trump Intensity Fatigue, and a hope that a Biden win would bring things close to "back to normal".

      Delete
    7. Rumor has it that organized crime would like things brought back to "normal" too.

      Delete
  11. Sullivan will not quit. The only way to get an acquittal from him is to, "pry it from his cold dead hand." Otherwise he has to be fired from the case outright. He is that dedicated to destroying Flynn, for whatever reason he thinks it necessary. He has burned his credibility/reputation to the ground and poured his soul into it. He intends to, "git're done," come hell or high water.
    Tom S.

    ReplyDelete
  12. No, Sullivan must keep on prosecuting Flynn. His bosses insist. He is just following instructions from above.

    ReplyDelete
  13. FLASH TRAFFIC:

    Flynn has been pardoned.

    I find the timing of the pardon somewhat odd.

    ReplyDelete