“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

 

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

  1. In other news, Trump is solidifying his role as the single worst American president, ignoring the CV-19 pandemic, endangering his own followers at his rallies, and giving a reach around to Uncle Vlad even though he was giving bounty cash out for killing American soldiers.

    But wow, Flynn wasn’t really guilty even though he pled. Now that’s the real news.

    1. You would plead guilty too if they threatened to ruin your family or friends. This time they all got caught trying to get rid of a sitting President. I say go after the head honcho and that would be Obama and Joe Biden, you know “the thing.” Ruin their legacy – even more.

      1. That is correct Jay . As for Hellvis, go look up what the democrats were saying when Trump implemented travel restrictions on Jan 31st . They were outraged screaming that the coronavirus was nothing to worry about .

    2. I assume you are a Rooskie troll. No one can be intentional as idiotic as you. Ya know, Ivan, it is not funny anymore.

    3. to Hellvis you write that Trump ignored the CV… clearly it is YOU that has ignored the actions taken by Trump.The left screamed when he shut down travel from china, called him a racist, dems and msm noted constantly there is no threat to Americans from CV, the WHO said the exact same thing… THREE weeks later the WHO says pandemic and now the left says Trump didn’t act fast enough. what else do you need to read to know you and your idiotic lefty looney friends are morons?

    4. “Trump is solidifying his role as the single worst American president, ignoring the CV-19 pandemic”

      Here you go again Hellvis with a big mouth that says very little. Trump did more than anything the Democrats as a group suggested. I can’t believe that you can foolishly believe Covid-19 can’t be transmitted by protesters, violent protesters and looters. You believe they have immunity as long as they are anti-Trump. Gosh that is a pretty low level of intelligence.

      You also are spouting what is likely a new hoax about Russia supporting killing American soldiers.If it turns out like it looks then that is a hoax with a good probability that Democrats were involved. Democrats will get us into a nuclear war just to seize power like the fascists they are. You are a war mongerer.

    5. And you, dear sir, are solidifying yourself as a partisan misspeaker of the more-phony-than-not COVID-19 event.

      Let’s get started.

      1) The average age of COVID-19 deaths you ask? Thanks for caring to ask. Initially, it was around 85 years old but has come down a bit to somewhere in the range of 75-82 years of age.

      When an illness strikes a single age demographic, in particular the elderly demographic, I hope you understand most people roll their eyes when the word pandemic is used. Please go back and study the age ranges of the 1918 pandemic. Now, that was a pandemic. Check out the fatality rate while you’re at it.

      2) 80% or more of all fatalities designated as a COVID-19 fatalities involved individuals that had an existing underlying health issue. And, we aren’t just talking a runny nose here, we are talking COPD, athsma, cancer survivors, etc. In other words, it is impacting those that may well had had the same outcome if they contracted the regular seasonal flu.

      3) More people are dying WITH COVID-19 than FROM COVID-19. Placing both of these classifications of COVID-19 deaths into the same bucket is at the least, disingenuous, and at the most, fraudulent.

      4) All of the above factoids, if course, are dependent on the assumption that reporting is being done honorably and accurately in the medical community. However, many stories have made the press in which deaths that obviously weren’t caused by COVID-19 were classified as such. I’ve read articles and would provide them if I was suing you for all your false projections, but won’t bore those reading this. We all know how to use duckduckgo so I’ll leave that to others. Think traffic accident, drowning.

      5) Guess what? I know it’s a shocker, but seven states (gasp) never locked down and one state (one more gasp) never even had a face mask policy. The data is available now. Looks like they experienced about an equal or LOWER rate of infection and death rate than those states that did lock down.

      What number am I on? Gotta go back and look. Right, 6.

      6) Financial incentive anyone? The very day that it became known that hospitals had been issued pricing guidelines that allowed then to charge a much higher rate for COVID-19 patients, and even more if they died, we saw an almost embarrassing spike in the reported numbers. I mean, seriously, if I was in on the game I would have been able to bump up the phony numbers in a way as to not be so obvious.

      7) Hmm, what else? I don’t have a list in front of me…let me think…. oh, let’s at least give an honorable mention (I’m getting bored, this is too easy, making you look very foolish) about the worthless facemasks, the closing of churches, the concentration of draconian policies in democratic states, the push to use this sham as a reason for ballot harvesting (chain of custody, worth understanding).

      Do you really need me to explain all those on detail?

      If you do, after the above, not only do I think you are just ignorant, I actually feel sorry for you for not bring able to assemble together verified pieces of information and arrive at a conclusion that is supported by that information.

      1. Excellent Jacob. You have made only one mistake. You assume that Hellvis has the intelligence to read what you have written. I think that is above his ability because after every discussion where facts are produced Hellvis runs away only to repeat his same ignorant generalities. After awhile he gets flustered and embarrassed so he changes his alias to a new one and starts repeating the same dumb arguments.

    1. “Michael Flynn is a political prisoner.”
      ~+~
      That argument is difficult to honestly and realistically argue against. It is probably the most fitting description given what has come to light recently.

        1. “Is there a spot on this site to better use the site? Thks”
          ~+~
          I don’t know what you mean. Are you having trouble with the display or something?

          1. I don’t know of a way to tell if someone replied to me later if I stopped watching a thread. I try not to ignore posters if I’ve got the time.

            Btw: Is it wrong of me to chuckle that people & LEO are sick of the Rioters?

            I don’t think I can blame this officer, in Tulsa this morning 2 officers were shot, last heard critical condition.

            So no pause in reacting in the best manner to insure a person’s/friends safety.

            I think Rioters better back the hell off with their violence.

            https://dailycaller.com/2020/06/29/detroit-police-car-drives-protesters-surround/

          2. IE: looking at my screen, at the top I have a tool bar. One tool is a drop down menu of options, another tool is a favorite list.

            Does WP have a menu button?

            I guess I could do a search on how to use WP’s like button & other functions.

            It could be because of the operating system or the browser I’m using this word press site doesn’t display correctly so I don’t see everything?

            I might find out this week when I switch to updated versions of both OS& browser.

            1. OK1

              Late reply, I had had to leave my office for a few.

              WP has a “reader” ability for those having a wordpress or gravatar account to log in to sites. It is of very limited functionality and generally it redirects to a member’s website for things such as comments and others. Three or so months ago, WordPress’ developers made a change that broke Internet Explorer and my impression was that they never fully implemented a true fix. I believe it might have been also compounded by a Windows Update via Microsoft. Since IE is deprecated, there is little motivation among other sites and software engineers to continue to accomodate it since MSFT essentially wants to move on to another platform, such as Edge. From this point and thereafter the incopatibilities and problems will only grow. I do recommend that if you elect to go with Edge that you do a bit of research and look at these privacy advocacy websites that provide instructions on how to turn off some of the spyware that is reportedly integrated into Edge. The browser in its default state spends a lot of time phoning home with data on your browsing history and user specific settings. Of course MSFT states that this is strictly for user experience and bug trapping but I have to call foul on much of that.

              I wish we could just go back to the days when web browsers and other software just cost money and not your privacy. I don’t have a problem with paying forty or fifty dollars for a web browser that doesn’t spy on you. (Like Netscape Navigator did in the early days). But it takes a lot of time, expenses, and resources to develop and release software so the company needs to make money somehow. But since the consumer was conditioned into paying nothing for software, they won’t do it now, and pay for it with their privacy.

              Sorry I couldn’t offer you more, but this is what I suspect is the case for you presently.

              1. Thks Darren.

                i try to stay away from signing up as a member if I can because of hacking.

                We didn’t lose money but our bank accts were hacked the last couple of years & some state records recently… lol just like the neighbor’s kid & some friends

                I’ve been staying away from anything MSFT I can since multiple pc’s crashed. Windows was nothing but hacker bait. None have crashed since I went to Linux, but this PC is to old up handle the updates.

                The new one is supposed to be big enough.

                My son is 1st using Linux again, then see if Bitchute works out. Something like that?

                Because of all the censorship new platforms are opening up. One was Parlor, twitter type site.

                1. I can understand your strategy with regard to going to Linux since it is of lower home user base and thus less attractive to hackers who are interested in numbers. In that case there are some Linux distributions that have privacy issues as well. It returns to the same complaint I made earlier where some business ventures can’t get many consumers to purchase their OS–in this case–so they integrate spyware into their system to earn revenue. Many people do not relize this happens with some flavors of Linux since their marketing people play the “we’re the innocent small guy” schtick. It does cost extrordinarily high amounts of money to make a released version of an OS, especially when it comes to driver integration for various computer platforms, microprocessors, and accessories. Some companies have put up the effort to make their own distro of Linux for little or no cost to the consumer with the goal of making their income off the hardware and servers.

                  believe it or not I sometimes use a text based web browser to read some websites. It loads instantly and lacks all the ability to launch popups and superfluous bells and whistles that aggravate sites. 95% of the time, I am only interested in plain text wording, not pretty pictures or animations so it is nice to go old school and read noting but green text on a black background. Kind of like the old days with the Gopher protocol or using Lynx via telnet.

                  One strategy I’ve seen that has some merit is to keep all one’s financial and important information as a stand-alone computer that is not physically connected to any network and anther computer that is strictly used for internet based transactions, the latter effectively being a dumb terminal. Of course one might use a bank’s website to access their online accounts, but nothing locally at home can be compromised since it is not online. The dumb terminal visible to the net is firewalled like a fortress and runs only under a severely restricted user account. A third option would be to have a tertiary computer that only is able to access designated bank account and financial websites and is firewalled and restricted to only use a limited web browser and has all other functionality disabled. That way if a hacker or spyware attempts to phone home with personal data, the firewall nixes it. Under this scenario you only use the tertiary computer for financial institutions, a secondary dumb terminal type of computer for general internet use/social media and the last computer that is stand-alone that keeps only important files and never touches the internet. You would also use the stand-alone for your personal business, etc.

                  1. Thks Darren I will be thinking on your suggest.

                    I know I should have already turned off credit lines.

                    One interesting thing about this last hack was they left clues as to where they might be found.

                    I don’t to say much more.

                    And everyone has Contact Tracing now, great. LOL;) What could possible go wrong.

                  1. What was it I seen today, ret Lt Gen Flynn’s lawyer was kicked off twitter, & that piece O’crap reddit killed the Real Donald?

                    There have been people attempt to get Trump to use some of these new site like Parlor/Gab, etc.

                    Lots of people want off all those shown to be America haters.

                    1. what’s going to happen next — possibly — is that the provocations will get even more fierce as the silicon valley keeps on banning more and more regular Americans and shuts down the voices of law and order.

                      at some point law and order will decide they might as well get in their licks before it’s too late. it may be cops that hit back, it may be private people, it may be a hidden hand. who knows.

                      but the spark will be easy to predict, it’s amazing nobody has reacted much yet. the endless violent rioting and provocations from protesters will finally spark a reaction. they have been sparking into the tinder now for 6 weeks and the fire is right around ther corner.

                      the BLM riot mobs will attack police or some white homeowners or who knows who will cut loose and the real lead bullets not the pepper ones, will let fly.

                      there will be a massacre and there will be counter-massacres.

                      there are going to be reprisals and it will spin out of control.

                      there will be a lot less rioters when the smoke clears

                      be prepared for the government to literally unlug the internet if it gets bad enough, they can flip a switch and make it happen. better have your local tribal protection group ready before the weekend. some friends are better than none. approach neigbhors gingerly with modest offers of mutual aid in time of crisis. don’t get political. you will easily see who is wearing your same uniform when it all jumps off.

                      survive the chaos and there may be light on the other side.

                      In the Field Manuals on Low intensity conflict and counterinsurgency they state that major holidays are often an inflection point.

                      Right now all the public fireworks displays that we patriotic americans have enjoyed since youth are cancelled “Due to Covid”

                      but the authorities NEVER cancel a BLM protest-riot. Because white folks are always bad, right?

                      Wrong. But if you tell Dennis the Menace he’s a bad boy every day, one day, he gives up trying to be good and embraces being bad. If he’s going to be punished, no matter what, then he might as well cut some corners, right?

                      Here’s how all this denoucning of white folks as racists will turn out.

                      Kind of like a harridan wife who often accuses her faithful husband of having a secret girlfriend and abuses him over it.

                      Guess what he does?

                      one day– he gets a girlfriend

                      White folks been told they’re racist and so many times they were not- but pretty soon they may not care anymore.

                      Then, watch out. The real programming begins, and it’s a whole new look. Roll call and burpees before dawn.

                    2. Oky1` – the current story is that Parler is not ready to handle the President and his followers. They need more infrastructure.

                    3. The last couple of years I was thinking about moving further out, but remembered a story of a guy became concerned about the civil war so he loaded up the family & moved to Gettysburg.

      1. “Michael Flynn is a political prisoner.”
        ~+~
        That argument is difficult to honestly and realistically argue against.
        _________________________________________________________________
        The argument might have some merit if Flynn had ever been imprisoned.

        1. “The argument might have some merit if Flynn had ever been imprisoned.”

          The political prisoner is not solely for those imprisoned behind bars. Look around the world and think. A person could be under house arrest and be a political prisoner. In Flynn’s case he was going to jail and that got held up. That by itself made him a political prisoner if politics was the cause which almost certainly so. If his rights are restricted the term political prisoner can be used beause he is not a free man. Sometimes it is better to keep quiet.

          1. Look around the world and think. A person could be under house arrest and be a political prisoner. In Flynn’s case he was going to jail and that got held up.
            ________________________________________________________________________
            he was headed to probation if the recommendation of the DOJ was followed.

            But the main point is that there was no case against Flynn without Flynn’s help.
            Flynn is now claiming he pled guilty because his lawyers lied to him about the fact that both agents that interviewed him said he was not lying.Flynn claims if he knew the FBI agents were saying he was not lying he would have never been convicted If Flynn is telling the truth he is a victim of the Covington law firm. That is not a political prisoner.

            1. BIGLAW conspired to hang their own client. As they often do. If you want a really good lawyer in a criminal case NEVER HIRE BIGLAW

              about the only thing they’re good for is getting insider trading cases to fail. besides that, forget them, totally worthless hacks that always screw the client

              1. BIGLAW conspired to hang their own client.
                _____________________________________________________________

                That is the song that Flynn is now singing. But if that is true why is Flynn being so helpful in trying to bury this whole affair? You would think that he would want the facts exposed. But Nope, Flynn is still working with the DOJ. And now they are both trying to sweep the whole thing under the rug.

              1. Flynn had his rights abridged by the state for political reasons.
                ___________________________________________________________

                Mr Donald Trump was the head of that state and the guy that prosecuted Flynn was given his job by a Trump appointee.

                But nevertheless the state even though it is run by Trump could not have successfully prosecuted Flynn without the help of Flynn who also has a history of working for Trump.

        2. He’s under a gag order like political prisoners in other nations where they just lock people up at home and tell them to be quiet or else

          Like in Burma, Aung Sung Chu Chi or whatever her name is.. Myanmar

          She’s not a media darling anymore however., Aggrieved minorities and all.,

          1. MK, he’s only under a gag order with respect to the legal case, like lots of other people in legal cases. Do you consider them all political prisoners?

            A court gag order is nothing like being a political prisoner.

          1. “fight the fraud plans to swamp your votes with a bunch of lazy couch potatoes”

            Are you calling the president a couch potato?

            1. no but as much as he has done to quell the lawlessness so far, maybe he is

              nonetheless i take him with all his very many faults over demented joe

    2. Through the brilliant and tireless legal work of Sidney Powell (a true example of what a courageous woman can accomplish), we now know that President Obama, Vice President Joe Biden and FBI Director James Comey conspired to silence General Flynn based on a malignant, blatantly unconstitutional legal theory that has never once been successfully prosecuted in the 250 year history of our republic.

      General Flynn is being persecuted for speaking the truth to power. He is a political prisoner.

      1. We don’t “know” what you claim. You presumably *believe* what you claim, but your belief isn’t knowledge.
        And Flynn is not a prisoner at all, much less a political prisoner.

      2. General Flynn is being persecuted for speaking the truth to power.
        ________________________________________________________________________
        General Flynn says he was prosecuted because his attorneys did not tell him about the exculpatory evidence that cleared him.

    3. General Flynn is a political prisoner who is being persecuted for speaking truth to power. Free Michael Flynn.

    1. So David, using Ostrom’s Theory, we open up all the federal and state held lands in the West and designate them as “common land” and in time they will find their best use. Right?

      1. MofoKnows – you have probably noticed that David is not actually up for debate or discussion. He is NOT to be questioned. 🙂

  2. I find Litman’s reference to “a voice in the wilderness” unintentionally telling. The original text, from Isaiah, refers to John the Baptist foretelling the coming of Jesus: “The voice of one crying in the wilderness: Prepare Ye the way of the Lord, Make His paths straight.” It doesn’t matter what you believe or don’t believe. The point is, the lonely voice crying in the wilderness was right.

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