“Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation

440px-Michael_T_FlynnBelow is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn.  After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column.  Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call to the Russian diplomat “appear legit.”  Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic.  Comey of course was the one who later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.

If all of that seems “illegitimate” and “irregular,” it pales in comparison to how two judges on the D.C. panel viewed the handling of the Flynn case by Judge Emmet Sullivan.  It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn.  That will now hopefully end though many questions still remain.

It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.

Here is the column:

 

The dismissal of the case against former National Security Adviser Michael Flynn sent shock waves across Washington, including Congress which was hours away from a hearing addressing the case. Any appellate decision taking unprecedented measures to stop “irreparable harms” and “irregular” conduct is newsworthy. However, those admonishments were not describing Flynn’s conduct but that of his trial judge, U.S. District Judge Emmet Sullivan. The D.C. Circuit panel took the exceptionally rare step of ordering Sullivan to stop further proceedings and dismiss the case to avoid further damage caused by his prior orders.

The case should have been dismissed

One month ago, I wrote a column criticizing the handling of the Flynn case by Judge Sullivan after the government moved to dismiss its own prosecution.

1280px-Emmet_G._Sullivan_2012The law in this case is clear and the case should have been dismissed. Instead, Sullivan took the extraordinary action of appointing a retired judge, John Gleeson, to argue positions that neither of the actual parties supported. Gleeson not only had publicly denounced the administration over its handling of the case but, as a judge, was reversed for “irregular” conduct in usurping the authority of prosecutors. In addition, Sullivan suggested that he might charge Flynn with perjury for alleging that he was wrongly charged despite the support of the Justice Department in finding abuses in his case.

Criticizing Sullivan, who I have appeared before for years as counsel and previously complimented for his demeanor, was not popular. Legal analysts in The Washington Post, CNN and other outlets insisted that his actions were entirely appropriate and justified. Yet, another letter from “former prosecutors” was given unquestioning media coverage to show that Sullivan should deny the motion in the case.

In an opinion piece, UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman even explained how Sullivan could “make trouble” for the Trump administration in these hearings. Litman insisted that I was “a very lonely voice in the wilderness” of academia in contesting the use of an outside lawyer to make arguments in a criminal trial case that neither the defense nor the prosecution supported.

John_GleesonThe wilderness now appears to include at least two other voices from the D.C. Circuit. The panel specifically denounced the “irregular” use of Gleeson and his hyperbolic arguments in the case. Gleeson suggested that the court should actually send Flynn to jail despite prosecutors raising evidence of misconduct and abuse as the basis for dismissal. He also argued that, rather than give Flynn a trial on a new charge from Sullivan of perjury, Flynn should just be sentenced in light of such perjury as part of his prior non-perjury charge.

Even for those of us who believed that Sullivan was operating well outside of the navigational beacons for a court in such case, the decision was breathtaking. Most of us expected that the appellate court would remand the case to allow Sullivan a face-saving hearing with an inevitable order to dismiss. The panel, however, clearly had little trust in the plans for this hearing or any true judicial purpose. Indeed, it may have been convinced that the primary purpose was indeed to “make trouble” for the administration.

As some of us wrote previously, the appellate court was particularly alarmed by the implications of Sullivan’s orders, including noting that the “invitation to members of the general public to appear as amici…” The panel said that such an invitation by Sullivan “suggests anything but a circumscribed review.” Moreover, it noted that the Justice Department had submitted troubling evidence of possible misconduct. And that “each of our three coequal branches should be encouraged to self-correct when it errs.”

Gleeson, wrong appointment

The greatest irony is that Sullivan’s unwise decision to appoint Gleeson to make the case was perhaps too successful. Gleeson ultimately proved not the case against Flynn but against Sullivan. In reviewing Gleeson’s brief, the panel declared “we need not guess if this irregular and searching scrutiny will continue; it already has.”  The panel noted that Sullivan’s appointed counsel “relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases.”

The panel was also aware of past concerns raised in the case, including the rather bizarre first sentencing hearing held in December 2018. In that hearing, Sullivan suggested that Flynn might be guilty of treason in a case involving comparatively minor charges of false statements to federal investigators. Sullivan dramatically used the flag in the courtroom as a prop and accused Flynn of being “an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.” (He later apologized for his comments.)

The irony, however, is that Sullivan proved the best thing that could have happened to Flynn. After that unnerving exchange, Sullivan asked if Flynn still wanted him to sentence him or wait. He indicated that he might go substantially beyond what Special Counsel Robert Mueller’s team had demanded. Flynn wisely decided to wait. The resulting delay allowed the damaging evidence from his case to be review and released. Had Sullivan simply sentenced Flynn last December, it would have been much more difficult for Flynn to have raised these issues.

Sullivan then handed down his novel orders including appointing his own counsel to argue for prosecution against the actual prosecutors.

This record proved too much for the appellate court. Rather than order Sullivan off the case, it decided to order Sullivan to dismiss the case. Short of an order of actual recusal of a judge, a mandamus order is the most stinging indictment of the handling of a case that can come from an appellate court.

The ruling in this case is unlikely to force any real circumspection by legal analysts or the media in the prior coverage. Nuanced legal questions quickly evaporate in this age of rage. Conflicting case law is dismissed in favor of the clarity demanded by echo journalism. The law however brings its own clarity and the message of this opinion could not be clearer. Sullivan’s actions in the case did not spell “trouble” for the Trump administration, but rather, they spelled trouble for the administration of justice in our court system.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

 

334 thoughts on ““Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation”

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  2. ‘What MSNBC & other Russiagate propagandists are doing now — exploiting the deaths of US soldiers in Afghanistan to push their latest round of evidence-free Russiagate chauvinism & innuendo — brings their cynicism to a new low.’ -Aaron Mate

    Rachel Maddow, Lawrence O’Donnel, all of the trash on MSNBC, Adam Schiff, Nancy Pelosi, Chuck Schumer, Nadler, CNN, Chris Cuomo (is he anything more than a joke?) –are all shameless liars. None of them are “ethical” none of them are “journalists” and none of them are “public servants” deserving of respect b/c none of them are working for the “good” of the country and our citizens. Make no mistake. These people are the very faces of the evil that is dividing and destroying the fabric of our country.

  3. How does one turn to evil? Not in the ways great Western literary writers suggest. According to Alexsandr Solzhenitsyn, a survivor of Stalin’s gulag system which most likely killed over 60 million of its citizens, writes in the Gulag Archipelago, page 57, “..to do evil a human being must first of all believe that what he’s doing is good, or else that it’s a well-considered act in conformity with natural law. Fortunately, it is in the nature of the human being to seek a justification for his actions. …ideology – that is what gives evildoing its long-sought justification and gives the evildoer the necessary steadfastness and determination. That is the social theory which helps to make his acts seem good instead of bad in his own and others’ eyes, so that he won’t hear reproaches and curses but will receive praise and honors.”

    How our ignorance of history and our distraction of life dooms us all to repeat hell on earth. Wake up America!

    1. he also said in this book words to the effect that “if we had only met the secret police in an ambush as they came to arrest our neighbors and families then we could have stopped them”

      right now as the left and the mobs have increased their violence and intimidation we must remember that the great Alexsandr Solzhenitsyn told us what good people must do

      at times we must turn to violence to protect ourselves.

      si vis pacem para bellum

  4. OT

    Election Postponement – Not A Vote By Survey Monkey

    President Trump must postpone the November election due to COVID-19, understanding that a fair and equitable election is impossible and that all other economic and social activities have been modified and/or suspended for reasons of the pandemic. To conduct a legitimate election, voters must appear and have their identity confirmed at a polling place. Democrats have already cancelled their convention. Communists (liberals, progressives, socialists, democrats, RINOs) are promoting “vote-by-mail” knowing that they will be afforded an historic opportunity to manipulate and defraud the vulnerable voting system. Communists (liberals, progressives, socialists, democrats, RINOs), in order to seize unfair advantages, absurdly propose that America surrender its self-governance to Survey Monkey. Communists (liberals, progressives, socialists, democrats, RINOs) employed our South Korean “allies,” K-pop, to enlist and encourage Tik Tok users to crash President Trump’s Tulsa rally. Communists (liberals, progressives, socialists, democrats, RINOs) “harvested” ballots to conquer Orange County, CA and other districts. Lincoln won 1860 with 38.9% and 1864 with brute military force. Joe Kennedy erased a Nixon victory and bought the presidency for JFK through Mob purchases in Chicago. Is it conceivable that the communists will not maximally corrupt and manipulate “vote-by-mail” to obtain a November victory? Of course they will. To communists (liberals, progressives, socialists, democrats, RINOs), the ends justify the means. No ethic, regulation, law, promise, duty or point of honor will ever prevent them from attempting to steal power. The essence of the Republic must be preserved at all costs, as Lincoln would say. President Trump must postpone the election due to COVID-19 until such time as the pandemic is in sufficient and quantifiable decline.

    Conditions of fair weather, health, peace and tranquility must be presumed for the holding of elections. The hazard to the public of the chaos of civil unrest and a pandemic must require postponement of elections to preserve their legitimacy and accuracy. President Lincoln issued executive orders to override the authority of Congress with regard to the denial of secession, the prosecution of an undeclared war, suspension of Habeas Corpus, etc. President Obama issued an executive order to override the authority of Congress with regard to immigration and DACA, etc. The precedent has been set. President Trump must act similarly under current inimical and adverse conditions to preserve the integrity of U.S. elections.

  5. Outstanding piece. The Flynn matter is not about politics. It is about justice for a man wrongly accused, wrongly prosecuted, and wrongly judged.

    Doug Santo
    Pasadena, CA

    1. But real justice requires that all who participated in his persecution be made to answer under oath and that will never happen. Real justice requires that the entire sordid saga known as the Russia hoax be exposed, but that will never happen. It will be a limited hangout as usual.

      Flynn will be free of all these charges, but he will never receive proper justice.

    2. My understanding is that the whole purpose of going after General Flynn was to keep Flynn from Exposing the crooked Obama administration and in particular CIA’s Brennan running “Billion$ Off the Books”, and Sec of State HildeBeast’s ‘activities’.
      I think THAT’s why Clinton appointee Sullivan is Dragging This Out… even as the next election approaches.
      Biden gets in, old US Attorneys are Fired, New Leftist Attorneys Bury the pile of Feces. Media goes along, and the great dull bulk of the Population are never the wiser.
      All-Out Effort to Steal the election, and Bury whatever Evil the HildeBeast was up to.
      Anyone ever figure out just WHAT was going on that caused the Benghazi attack?
      Were Clinton and Obama running guns to one group or another, and a rival group decided to stop it?
      Anyone KNOW?

  6. May 23, 2020

    I am somewhat more pessimistic.

    Sullivan would not have taken this stand in the first place if he did not have the assurance of the Democrats, including their Nomenklatura that something more was up.

    His appointments outside the normal criminal law procedures implies a strong possibility that the Left has decided to split and discredit the entire Judicial branch.

    At which point, disputes will depend on which side’s judge has the case regardless of law, precedence, or anything approximating justice.

    We have a duly elected President who the Democrats are trying to unconstitutionally overthrow.

    We have the Democrats and part of the Republicans joining in the overthrow.

    We have the entire electoral system under attack with the validity of votes and voters, the chain of custody of votes, and the counting being placed into question.

    In Democrat controlled states, the governments are trying to claim the right to and to factually suppress the Constitution and the Bill of Rights at will.

    They are doing that in no small part by ignoring judicial rulings against them.

    The creation of functionally a separate judicial system subservient to the Democrats leaves not much in the way of peaceful due process to resolve differences.

    Der Krieg ist eine bloße Fortsetzung der Politik mit anderen Mitteln.

    It might be reasonable to prepare for interesting times.

    https://legalinsurrection.com/2020/05/report-judge-in-michael-flynn-case-hires-a-lawyer-for-the-judge/

    Subotai Bahadur

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