Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse

Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court.  Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.

Here is the column:

Gen. Michael Flynn‘s three-year odyssey in the criminal justice system finally came to an end this week with the long-delayed dismissal of his case in federal court. Ultimately, it took a presidential pardon to compel Judge Emmet Sullivan to release Flynn from the seemingly inescapable vortex of his docket. Yet Sullivan still decided to effectively declare Flynn guilty to the whole world — a final gratuitous act from a court long criticized for using Flynn to criticize President Trump and his administration.

It did not matter that this case has been effectively dead for months. The judge issued an opinion that seemed intent on clearing his reputation by trashing what reputation remains for Flynn. Such a decision ordinarily would outrage civil libertarians. But principles of judicial restraint seem suspended when dealing with anyone associated with Trump.

When prosecutors drop charges, most judges are careful not to offer their own views on an individual’s guilt or innocence. After all, a defendant has no appeal or recourse from such a declaration from the bench. Even in live cases, judges refrain from such commentary until sentencing a defendant. In this case, Sullivan publicly condemned Flynn in a long opinion that should have been one sentence in length. No matter that the case was dead: Judge Sullivan would still render a verdict.

His action in this case has long been controversial and was expressly criticized by appellate judges. It is not, however, unprecedented. Some 360 years ago in England, the body of Oliver Cromwell was exhumed from Westminster Abbey and posthumously chained, thrown into a pit, and then decapitated. Cromwell’s head was put on display and not reburied until 1960. By that measure, Sullivan’s three-year treatment of Flynn seems like a virtual “rocket docket” of justice.

After Flynn’s presidential pardon, Sullivan again was reminded that he was clinging to a dead case. Even with a presidential intervention, Sullivan kept the case open — but he was not the only judge raising eyebrows over it. On Friday, a colleague, Judge Reggie Walton, unexpectedly discussed the merits of the Flynn case in a Freedom of Information Act hearing about releasing documents from special counsel Robert Mueller’s office. Walton held forth on how Sullivan did not have “a lot of options” but could possibly challenge the pardon as “too broad.” That discussion of a pending case before another judge was highly irregular.

Of course, nothing is “regular” about Flynn’s prosecution. For the record, I have been a longtime critic of the Flynn prosecution for various reasons. I will not repeat those reasons here because, frankly, they are immaterial given the status of the case. What is relevant is Sullivan’s record in the case, which has been strikingly improvisational and controversial.

When Flynn first came before Sullivan for sentencing two years ago, it should have been a simple matter for a relatively minor federal crime. While there was tension with Mueller’s staff, Flynn cooperated with federal prosecutors. He was not expected to receive jail time — after all, uncooperative witnesses like Alex Van Der Zwaan received only 30 days in prison on a similar charge. However, Sullivan held a hearing that could best be described as bewildering. He used the courtroom flag as a prop to accuse Flynn of being an “unregistered agent of a foreign country while serving as the national security adviser” and to suggest that Flynn could be charged with treason — crimes not brought against him. Sullivan then declared: “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. I am not hiding my disgust and my disdain.”

Sullivan apologized for some of his comments but, in two additional sentencing hearings, he continued to refuse to sentence Flynn. Flynn must have felt like Gollum’s “precious” ring. Sullivan simply refused to part with the case. When the Justice Department dropped the charges, the case should have been immediately dismissed. Instead, Sullivan took the extraordinary step of appointing an outside lawyer, John Gleeson, to argue against dismissal of the case. Gleeson is a former federal judge who not only had made public remarks on the case critical of the Trump administration but, as a judge, was reversed for usurping the role of prosecutors.

Sullivan’s conduct led to an extremely rare rebuke from a D.C. appellate panel, ordering him to dismiss the case. At the time, I wrote that the panel should be reversed simply because Sullivan had not issued a final decision. Later the D.C. Circuit reached the same conclusion and, without endorsing Sullivan’s conduct, sent the case back for a final decision. Sullivan then proved the original panel correct and many of us wrong: He again refused to dismiss the case.

In September, Sullivan not only declared that he “still has questions” but asked whether a Biden Justice Department might be able to reinstate the prosecution of Flynn. It was a chilling statement that left the impression of a court delaying justice to “shop” for new prosecutors. He simply was not going to allow Flynn to go free. As when he brought in his own lawyer, Sullivan seemed to many to be turning into a self-contained legal system as accuser, prosecutor and presiding judge.

Months then passed; Sullivan seemed to be awaiting a new administration and a new chance to prosecute Flynn, post-election. In response, Trump pardoned Flynn.

So, on Tuesday, Sullivan decided to skip a trial and just declare Flynn guilty. Claiming, bizarrely, that dismissing the case after charges were dropped by prosecutors was a “close question,” he reluctantly accepted that the pardon meant there literally was no crime to prosecute. Yet, he proceeded to prove the case against Flynn and declared “a pardon does not necessarily render ‘innocent’ a defendant of any alleged violation of the law.” Of course, it also does not mean he is guilty.

Sullivan faced certain reversal if he did not dismiss the case after charges were dropped. While he acknowledged that he is not supposed to “second-guess” charging decisions, he not only substituted his own judgment but issued an effective decision on the merits.

Sullivan’s quasi-verdict is as close to a posthumous execution as we have ever come in this county.

The problem is that Flynn is still very much alive.

At least when Pope Stephen pulled out the dead body of Pope Formosus in the year 897, he gave his predecessor a trial — the “Cadaver Synod.” After being found guilty, three of Formosus’s fingers were severed before his corpse was thrown into the Tiber River.

Judge Sullivan’s modern version of the “Cadaver Synod” thankfully left Flynn’s fingers intact — but I cannot say the same for our judicial system.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

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