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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.

388 thoughts on “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse”

  2. That’s crazy about Cromwell and Formosus – didn’t know that. Nice to be reminded that irrational, vindictive people aren’t new. Sullivan needs to be impeached. Not much worse than a crooked judge.

  3. Judge Sullivan’s is today’s version of Captain Ahab.

    I hope General Flynn’s attorneys file ethics complaint with the Circuit Court of Appeals, and sue him for slander/libel and possible malicious “prosecution”.

  4. Civil libertarians do not exist on the left. Very few Democrats remain that are still civil libertarians. Those that were are afraid of their own party. Fear is now running the Democrats.

    1. It is clear Sullivan was executing a personal vendetta against General Flynn from the start of this case. When a judge is a “trespasser of the law” himself, he should be removed from the bench. Sullivan provides a classic example of judicial misconduct that should not be allowed to continue.

      1. This wasn’t a “personal” vendetta…it was our corrupt system being used to target political opponents. Sullivan played along like many others inside and outside of government.

        The beautiful thing about this ham handed political persecution of multiple US citizens including the President is that there’s little that is hidden. At least 1/2 the population sees what has happened and that’s not something you can ever forget. The stain is there for all who care to see and it’s permanent.

    2. Allan, why do you keep projecting fear onto people you disagree with? Are YOU afraid?

      1. Are you talking to yourself again? What did Ivan say that you didn’t like? I hope your mom slaps you in the face for your bad behavior.

        1. I wasn’t responding to Ivan, jackass, I was responding to the December 10, 2020 at 11:55 AM comment from “Anonymous” who is posting with one of Allan’s icons. Are you unable to track the indentations in the responses, so you stupidly think that a comment is always a reply to the one immediately above it?

          Did your mom abuse you as a kid? Is that why you’re so abusive to others?

          1. You are a lunatic. You used the name Allan and there was none. Ivan’s name appears above. You do not sound normal. Maybe Obama was right and your mother should have slapped ” you in the face for your bad behavior.” Maybe then you would have grown up normal.

              1. Anonymous, do you think everyone is as daft as you make yourself appear? Are you actually spending that much time tracing and documenting list members? Is that what you do when you come home from work? I say that because of the numbers of messages of similar nature at that time. There is a good chance you are jousting with people that may be retired and kept at home because of covid and they are jesting with you. If so they have the last laugh and it’s a big one.

                What have you proven? That icons might have the name Allan attached? So what? That he had two icons? So what? Do you know who is the author of the response? No. Except for the icon can you be sure who is who on this blog? No. Not if people are playing with you.

                So what if you do? Do you have in depth discussions with them or do you only throw make believe spears that even you must recognize are meaningless.

                Much ado about nothing.

  5. Do the judges actions rise to the level needed for impeachment ? One or two removed from office would put the fear into the rest of them.

    1. Absolutely, but it will never happen because many Republicans are in on the game. At least Sri Srinivasan will never get on the Supreme Court.

        1. The list is too long. Summary: He continued to prosecute a man after the prosecution submitted evidence conclusively proving him innocent. He continued to prosecute a man after the prosecution moved to dismiss because of (1) proven actual innocence and (2) flagrant prosecutorial misconduct by the Mueller team. He continued to prosecute a man even though he is a judge, not a prosecutor. He ignored an order from a superior court. He displayed crude partiality. .

          1. What evidence conclusively proved Flynn innocent?
            What are you characterizing as flagrant prosecutorial misconduct?

            Sullivan wasn’t prosecuting anyone. He did not ignore an order from a superior court. The DC Circuit vacated the panel’s ruling and reversed it in their en banc ruling.

            1. What? The DC Circuit ordered him to proceed with dispatch. He ignored that order.

              ‘The fact that there was no investigation made 18 USC 1001 inapplicable. Any false statements would not have been material for that reason and for the reason that they would be contradicted by the transcript of the call. The transcript of the phone call also proved he didn’t lie to the FBI when he said he didn’t discuss sanctions with Kisylak.

              .Flagrant prosecutorial misconduct consisted of withholding essentially all the relevant evidence from the defense. The recording and transcript of the phone call. Video of the interview. Audio of the interview. Agents’ notes from the interview. FBI notes saying the interview was not part of Crossfire Hurricane and therefore not part of any open investigation. Threats of prosecution against Flynn Jr. to pressure a guilty plea.

              1. You don’t know enough details. The DC Circuit’s rules gave Sullivan 21 days to act, and the full court stayed the panel’s ruling before that and then vacated it after choosing to rehear the case en banc. There was an open investigation, and 18 USC 1001 applies to “any matter within the jurisdiction of the executive, legislative, or judicial branch,” so it would have applied to that FBI interview even if there weren’t an open investigation. They were trying to understand why he lied to Pence and what the transition team communications had been before the conversations with Kislyak, neither of which could be known with the call transcripts, so it was material. They did discuss the sanctions. Some of what you bring up wasn’t withheld from Flynn, only from the public. FBI interviews aren’t recorded so there was no audio or video of the interview to give him. If Flynn Jr. broke the law, threatening to prosecute him isn’t misconduct.

  6. So while Trump seeks to intervene at the Supreme Court & fast track Texas Republicans’ lawsuit to invalidate election results in Michigan, Georgia, Pennsylvania & Wisconsin, Turley once again devotes himself to attacking Judge Sullivan. Yep, Flynn is very much alive. Trump’s former national security adviser wants Trump to declare martial law & “temporarily suspend the Constitution” until a new election is called. Flynn’s attorney, Sidney Powell, insists Trump won in a landslide & claims election results were manipulated by Communists, Germany & Hugo Chavez.

    Yet Turley singles out Judge Sullivan for gratuitous & controversial court actions. No big deal that Trump & 19 Republican State Attorney Generals are lobbying the Supreme Court to overturn election results, right JT?

      1. “Sullivan is a horrible disgusting POS, period.”

        A Cady, you should have included this anonymous. He truly fits that description. Someone needs to cancel anonymous.

  9. Judge Sullivan should be removed and censored for his lack of Judicial temperament. I have seen some pretty bad decisions and behavior by Judges, but the actions of Sullivan are off the chart. He is clearly not a person who can be impartial and fair, and should not sit in judgement of others……. When we allow Judges to become emperors, we destroy the best judicial system the world have ever known.

  10. Put the shoe on the other foot. Judge Sullivan should be a Political Prisoner and tried for misuse of his Judicial power, his blindness (even though Justice is NOT), his abuse of Authority, and let’s not forget Russian Collusion.
    When you stop laughing, consider this: Isn’t this exactly out of the Russian playbook? To remove quite effective individuals who would be severely against the goals of Russia?
    This sounds like Russian Collusion from the beginning when the the prosecutors used false Russian propaganda to go after their opponents, using stooges wearing black robes!
    I BET your life that a lot of fake confessions were extracted from ‘detainees’ in Russian Gulags. They also would be under thread of killing family members, and other forms of torture.
    And now there is another stooge, only this one is a Chinese Stooge. Swalwell is not smart enough to get out of this one. Ah, fry em like bacon!!

  11. Sullivan is unhinged, but his ability to get away with such bizarre, openly biased conduct towards a defendant reveals what many have suspected for a long time: that the judiciary is corrupt and politicized. Congress should consider defunding and reforming the federal court system and placing more limits on the power of judges to abuse their authority.

    1. TIN, The justice system in America affords the right of appeal. That is the check & balance of the system used in America. Sullivan is not just unhinged, I believe firmly that he is a Russian operative, who is used to rid Americans with enormous and stinging evidence against their country. Sullivan didn’t even follow what a Paralegal would have done in this case. It would be most interesting to have a formal complaint filed against him with the Bar. Let him then defend his misconduct.

  12. He’s a military man who was just trying to be of service to Mr. Trump. The judge must harbor ill will towards Army generals that lie.

    1. I’m going to wager no business being in a responsible job, period. I bet if you looked under the rock, you’d discover his record since he’s been on the bench has been embarrassing. We need avenues to discipline the judiciary and prosecutors as well.

  15. Don’t tell me there aren’t Obama judges. This clown Sullivan is a stooge for the Nazi left of the rag head’s party.

          1. Which was long before the Democratic party was *exclusively* a front for a socialist/communist takeover of the United States.Your point is moot; we are dealing with the situation as it is *now*, in the present tense, a present in which I will never support a dem candidate again. I could give a toss what the media, social or otherwise, are saying about it. Trust me: there are a great many more than 70 million in this country that feel similarly.

  16. Except for the fact that Flynn pled guilty, this case makes zero sense. I wonder if Judge Sullivan just could not let go a man that pled guilty. I will not go into the larger issue of whether is was either a good or fair prosecution. Once Justice dropped the case, Judge Sullivan should have dismissed the case. Did this one case get under his skin or is there more not in the public realm that he knows? Maybe he is just wrapped around the axle on this particular case. With the way he ended the case, I wonder if he can face disciplinary action.

      1. Does not matter. It was still a guilty plea. It is no different than taking a plea to a lesser charge even though you did not commit that particular crime. I am not saying he did anything wrong or was not railroaded. I am saying he pled guilty. It is the only thing that makes sense to keep at Flynn.

        1. I’m sorry but it appears that many who say … but Flynn plead guilty twice… doesn’t understand the context of the case and why the charges should have been dropped. When there is malicious prosecution, and the Brady material wasn’t disclosed, any plea would be invalid. Flynn was charged with the crime of lying to the FBI. However, the initial 302s indicated that the FBI felt that there was no intent. Add to this the fact that they already had the transcript from the call. So the interview was more to entrap Flynn and wasn’t material. No intent, not material omission or lie.. no crime.

          Flynn has ample grounds to sue his first lawyers and claw back his payments due to the not waived conflict of interest.

          I’m not sure if he can still use the government w the pardon in place, but due to the massive Brady violations and the secret side deals… Flynn should be able to sue the US Government for malicious prosecution.

          As Turley writes … this is not new and has already been covered.

          W.R.T Sullivan… Flynn should file a complaint against Sullivan for violating his judicial cannons.
          Nothing will happen of course… and even if it did… it would happen in secret.

          Sullivan should be forced off the bench for his outrageous actions.

          1. “the initial 302s indicated that the FBI felt that there was no intent.”

            What “initial 302s” are you talking about? The 302 from Flynn’s 1/24/17 interview is Exhibit 6 here: https://assets.documentcloud.org/documents/6883959/Flynn-Govt-Motion-to-Dismiss.pdf
            Are you saying something in that “indicated that the FBI felt that there was no intent,” and if so, what?
            (My guess is that you’re not talking about Flynn’s 302, but are instead talking about a 302 from an interview with Agent Strzok months later, but I don’t know unless you say.)

            Regardless, the FBI gathered more evidence, like the texts and emails that Flynn exchanged with Trump Transition team members prior to talking with Kislyak and the interviews with K.T. McFarland, and they concluded that Flynn’s false statements were knowingly false. The DOJ argued that the false statements were material, and Sullivan had ruled that they were material: https://www.courtlistener.com/docket/6234142/144/united-states-v-flynn/

            “the interview was more to entrap Flynn and wasn’t material. ”

            No, the interview was to find out why Flynn had lied to Pence about his conversations with Kislyak, and his answers clearly *were* material to the investigation (see above).

            “Flynn has ample grounds to sue his first lawyers and claw back his payments due to the not waived conflict of interest.”

            He filed a suit against them. Is he going to pursue it? Should be interesting if he does.

            “Flynn should be able to sue the US Government for malicious prosecution.”

            That would be great. The government could call him as a witness, and since he’s been pardoned, he can’t invoke the 5th Amendment to refuse to answer questions.

            “Sullivan should be forced off the bench for his outrageous actions.”

            What outrageous actions?

  17. “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.”

    Wait, I thought Flynn pled guilty twice in his plea arrangement…

    but whatever, just glad the whole massively failed Flynn experiment is finally getting off the screen. Obama warned trump not to appoint him. So did Yates. Not two of your favorite people I know, JT. But it doesn’t take away from the Flynn wreckage being just about the most predictable thing in the world.

    Elvis Bug

      1. Which were what?

        I tend to go more with Flynn’s fraternization with the Russians and the fact he was working for Turkey while being named to his cabinet post. And then he lied his ass off to everyone in the trump administration as well as the FBI.

        Elvis Bug

        2. To back you up, you have the testimony of Strzok, McCabe, and Clinesmith. One thing we can reasonably assume is that if Biden’s incoming national security advisor was to talk with an ambassador of a foreign nation you would declare it an outstanding act of diplomacy. A perfect instruction manual for the actions of the FBI can be found in the interrogation methods revealed in Solzhenitsyn’s “The Gulag Achipelago”. You are signing off on these methods. You should pick up a copy to help with your argument. “They pled guilty didn’t they?”

    2. Anonymous:

      “Wait, I thought Flynn pled guilty twice in his plea arrangement…”

      Consider the pressure that Flynn was under (financially ruined; many months of psychological pressure, and then his son threatened with the same vortex).

      Torquemada style persuasion – and that persuasion achieved Torquemada like results.

      The law does not recognize confessions made under torture.

      I suspect that few of us would have held out.

      But maybe you are tougher than that and can rightfully express your contempt for a weak man who broke.

      1. I seem to remember Flynn broadcasting he’d tell all for immunity. And Flynn’s son got caught up in his own thing.

        Elvis Bug

      2. Did Flynn discuss sanctions with Kislyack or not? He told the feds he didn’t. Maybe he pled guilty for multiple reasons but the fact remains that he discussed sanctions at length, tried to hide it & is getting off based on a technicality.
        You and Turley admonish the judge for making mention of that not because he’s lying. Is it unusual? Sure. It’s also unusual for the president to pardon someone he was warned not to hire for fears of his mixed loyalties who was convicted due to lying about evidence that he actually did have said mixed loyalties…

        1. Good to know that you take the work of a lying president. Not the first one, nor the last one. I especially like FDR who wouldn’t answer any questions whether or not he knew that he was forcing Japan to strike back at the US for blockading oil to Japan?
          FDR did that to get the US into WWII. No other reason, but he lied when questioned about it. Wahoo, another Dem President who lied? Perish the thought.

          1. No, he was not forcing Japan to do anything. And you’ve forgotten that when the embargoes were imposed, Japan had been stomping all over the Far East for nine years.

            1. I accept that the ABCD encirclement forced Japan to war. Moreover, believe the evidence which suggests FDR may have known an attack on Pearl was imminent. That’s debatable, and revisionist, but not without support.

              However later in life, I have repented my dislike for FDR and consider him one of our greatest presidents.

              The Japanese imperialist regime was indeed abusing and murdering civilians wantonly in China, having already enslaved Korea decades before. They needed to be stopped and the war against Japan was just, however it started.

              I most admire FDR for being a very rich man who tamed the plutocratic power of his own class. We need more of that in our Presidents. A lot more.

              Saloth Sar

        2. Flynn did discuss both financial sanctions and expulsions of diplomats with Kislyak. It’s in the transcript.

          1. It’s a matter of no consequence. The FBI had no justification for making inquiries, much less for manufacturing a bogus criminal charge making use of provision of the federal code which have no analogue in state law. That aside from all the other sketchy things they did in this case.

            1. According to Trump and Pence, Flynn lied to Pence about Flynn’s conversations with Kislyak.

              You seriously think that the (incoming) NSA lying to the VP(-elect) isn’t a justification for the FBI to interview the NSA?

              You think the FBI isn’t justified in looking at whether the incoming NSA was an unregistered foreign agent for Turkey and whether he was honest in his FARA application submitted months late?

              That’s crazy. If the (incoming) NSA lies to the VP(-elect) about conversations with a foreign adversary, it’s absolutely relevant for the FBI to find out why. An unregistered foreign agent has no business being the incoming NSA. Someone who makes false statements in their FARA registration has no business being NSA. If the person knowingly made material false statements in a situation where that’s illegal, they deserve to be prosecuted for it. Re: the false statements law not having an analogue in state law, I don’t know whether that’s accurate, but even if it is, so what? We have a federal government. Just as some states have laws that other states don’t have, why do you reject the federal government having laws that states don’t have? There are other laws in that category. Do you reject all of them?

              Flynn claimed that Covington and Burling provided ineffective counsel (including for his false statements in his FARA registration) and he was suing them for it, but that suit has been on hold. Is he going to prove it, or is he going to drop the suit? If it’s their fault rather than Flynn’s, that would be good to know.

        3. You are correct. Flynn did discuss sanctions with Kislyack. You lost me at “discussed sanctions at length”. What we know is that Flynn asked Kislyack to hold off on any actions until the new administration could review the sanctions. No promises were made. They have the tape. You have added the “at length” as an opinion. By your argument you destroy your argument. Thank you.

          1. That is quite common with some of the peripheral writers on the blog. They try their best but they need to listen to the other side which they don’t. The other side provides balance and a lot of correction to the MSM and the left.

        4. No, the transcripts of the call prove that there was no discussion of sanctions. You’re confusing the expulsion of diplomats with sanctions. The expulsion of diplomats is not what “sanctions” consisted of.

            1. Think again Doofus. What did Flynn think. Intent is an important legal issue. Read a book.

    4. Flynn plead guilty to what exactly?
      And when did the Prosecution reveal their violation of the Judges order? (Brady material should be automatic but Sullivan also ordered that the prosecution reveal it…)

      Free clue… after he plead guilty… twice… not to mention he had ineffective counsel who had a secret side agreement and also a conflict that wasn’t waived.

      Turley could give a couple of class sessions on this travesty…

        1. The site and you are running neck to neck in dishonesty. You keep sending people to places but can’t prove your point.

          You can start by producing Flynn’s quote that you said existed.

          The charging documents prove absolutely nothing and that is why the DOJ dismissed the case.

  18. “Sullivan then proved the original panel correct and many of us wrong: He again refused to dismiss the case.”
    ********
    I posted early on that I believed Sullivan had no intention of dismissing the case despite what the Court of Appeals ‘ordered.’

    Anyone who looks at these courts only through a legal lens will be disappointed. Judges like Sullivan have effectively joined Antifa and toppled Lady Justice long ago.

  19. The once Honorable Judge Sullivan let his passions get the better of his judgment. Recusal was his only real option and he failed

  20. Judge Sullivan has done a tremendous disservice to the judiciary.

    More, he has undermined the faith that many Americans have in the judicial system.

    His actions were spiteful, self-indulgent, and destructive.

    Shame that Sullivan decided to end a distinguished career on such a sour note.

    1. “the faith that many Americans have in the judicial system.”
      *****
      Should say ‘had’.

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