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.

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

  1. The enemy is engaged.

    The battle is on.

    President Trump will now lead…

    or retreat from the enemy and abandon the Constitution, his country and his fellow patriots.

    It is time to lead, Mr. President.

    1. But what if Sullivan saw stuff in camera that s really makes ppl traitors?…so we got the dia dude who didn’t help us….until he got caught..im kinda inclined to side with sullivan….for the simple reason
      …hes going out on a limb…
      For no reason….hes fine life wise….so why would he do this? No reason
      Except he knows something we peons don’t. That might be problem enough. Let’s be done with the deep state….lets be transparent…americans can decide. Like Hunter…so what you For him with a crack pipe…
      Joe doesn’t care…
      Why should we….big tongue.

      1. What if? What if? What if you killed Seth Thomas? What if you still beat your wife?

        What a mindless parrot you are.

        Everything Sullivan saw, the prosecution saw. The prosecution dropped the charges because the entire investigation leading to Flynn’s persecution was treasonous from the outset. Only Sullivan continues to be treasonous – as are the mindless bigots like you who continue to parrot his nonsense.

  2. If reinstated into Common Law, the Code Duello would solve many problems before they occurred. Accuse me of lying and threaten my son with prison and I will challenge you to defend yourself with deadly force. Then I will kill you. Problem solved. Sullivan needs consequences.

    1. More likely: Flynn lied (to everyone) and his son got caught up on charges that could put his butt in jail.

  3. NATIONAL SECURITY LAW – HERE IT COMES!

    China, having successfully deployed COVID-19, a weapon of mass destruction, and won WWIII, now proceeds to brutal imposition of NATIONAL SECURITY LAW on a global basis as it begins its move on Taiwan.

    The U.S. is now a Chinese satellite state.

    The Constitution, free speech and freedom in general are dead.
    __________________________________________________

    “FBI subpoenas Texas AG Ken Paxton for bribery, abuse of office probe”

    – Business Insider
    ______________

    “The FBI has served subpoenas to the office of Texas’ attorney general, Ken Paxton, as part of its investigation into abuse of office and bribery allegations…”

    – KHOU
    ______

    “Hong Kong: Anti-Communist Media Mogul Jimmy Lai Facing Decade in Prison”

    The owner of Hong Kong anti-communist newspaper Apple Daily, Jimmy Lai, is facing a minimum of a decade in prison after being charged on Friday with violating the city’s new, and illegal, law against “NATIONAL SECURITY” trespasses.”

    – Frances Martel
    _____________

    AG William Barr and FBI Director Christopher Wray have done nothing in response to four years of the Obama Coup D’etat in America, which has concluded with massive, colossal and historic election tampering and corruption and the conquest of America by Deep Deep State communism.

    President Trump must fire Barr, Wray et al.

    As did George Washington, Jefferson, Adams, Franklin, Paine, Hamilton, Madison et al., President Trump must now lead.

    1. the CHICOMS are smart. they lock up the Chinese billionaires who presume to control government.
      no, they take sovereignty seriously over there.

      actually we should consider doing the same. lock up geo soros for starters.

      but our government is owned by the 700 billionaires who use it to control us. of course our government never lays a finger on them.

      Saloth Sar

      1. Not sure the billionaires care about ‘us’, Saloth. They care about separating us from our money, and have many vehicles available to them through greater access to Congress and the Senate than we do. Much as what you suggest needs a background symphony to add the proper degree of earnestness, basically it would just get our asses thrown in jail and our assets seized (if we even have them).

        Elvis Bug

  4. Imagine if you will
    A white judge issuing a lecture from the bench after President Obama has pardoned a black man… oh, but then that scenario would be marked as ” racism”.
    When are blacks to be held at the same standards they demand of whitey?

  5. Judge Emmet Sullivan, acting at Obama’s behest, did not execute a racist act, but one of an entirely objective and juridical nature.

    Yep.

        1. two people in our social circles who were elderly with comorbidities died this past week from covid

          i wonder if they received any therapeutics at all. i suspect not.

          the modus operandi for old people who get it is, let them die, don’t bother trying these things like ivermectin that are shown and proven to inhibit sars cov 2 increase. and have valid therapeutic use.

          the billionaires want us to die. here is bill gates telling us that we need depopulation because of global warming and vacccines will help. really, he says that. just listen

          https://www.youtube.com/watch?v=Gc16H3uHKOA&feature=emb_title

          deny this evil wicked regime your taxes. it is now a moral imperative to resist. our lives may depend on it

          Saloth Sar

      1. To keep their germs off patients. They can stop things like boogers, sneezes, coughs and larger aerosols from reaching wounds.

        Higher quality masks offer them some protection but they are more expensive and require fitting and are not needed for ordinary surgery.

    1. In civil court, certainly. Clearly Flynn was harmed by this baseless persecution. He might well impoverish Sullivan.

      Perhaps in criminal court, as well. He should press “wrongful imprisonment” and any other charge imaginable for his treatment AFTER charges were dropped.

          1. He wasn’t arrested either, “Jonathan.”

            Perhaps if you weren’t ignorant, you’d know that. He was indicted, and he chose to plead out rather than have a trial. No arrest. He’d already been interviewed a couple more times and was cooperating before the plea.

            1. You are the expert in ignorant. A life accomplishment, I’d say. Your blathering here would make Tokyo Rose blush in embarrassment for propagandists everywhere.

              Quibble all you want, you sad excuse of a human. The man’s life was ruined, his freedom impaired, all because of an illegal and mock investigation. He was coerced into a false confession.

              Joe Stalin would be so proud of you Dimocrazis.

              1. You’re not even honest enough to admit you were wrong that he was imprisoned or arrested, you sad excuse for a human.

    1. This should prove, to even the dumbest American, that Flynn would NEVER have gotten any fairness in that court. This “judge” had determined Flynn guilty before even the first piece of evidence was presented. This should send shudders down the spines of any Americans who believe in truth, justice, and the American Way.

        1. Thanks for posting, CTHD.

          “I cannot recall any incident in which the Court has ever
          accepted a plea of guilty from someone who maintained that he was
          not guilty, and I don’t intend to start today. So I’m going to
          invite Mr. Flynn and his attorney or attorneys to come to the
          podium, and I’m going to ask the courtroom deputy to administer
          the oath to Mr. Flynn.”

          Looks very clear. Also looks very clear that playing games around the plea (like has since occured) would’ve put Flynn squarely in perjury territory.

          Elvis Bug

            1. Who blackmailed Flynn?
              What did they use as blackmail?
              Why didn’t he tell Sullivan that he was being blackmailed?

              No one belongs at the end of a noose, and people who advocate it only demonstrate their own vileness.

        2. CTHD- : “Flynn chose to plead guilty.”
          ****

          So did Galileo.

          Under the circumstances so would you have done even knowing you were innocent.

          You know it. This is another example of how your posts are subtly dishonest.

          You imply the plea was genuine rather than coerced, yet you know the plea was made under duress.

          Dishonest.

          1. Dude, no one pleads guilty except under duress, or maybe on rare occasions following a religious experience..

              1. So should we expect you to actually read the transcript CTHD posted or just to continue living in ignorance?

                Elvis Bug

            1. ah sure joe in a sense that is true.

              but they threatened to throw the book at his son too, a dirty trick

              of course those of us who have been privy to how federal prosecutors operate, know they use dirty tricks like that too, when it pleases them, to intimidate people into false pleas. a rotten dirty trick worthy of any corrupt government, but a shocker when it’s our own.

              this time, they used it on a guy who wouldn’t be intimidated forever by it. he told on them. people didn’t like it.
              i mean the judge was ok with it obviously, since he’s a corrupt tyrant too

              but in the end, they got stuffed

              but they keep on doing it to little people every day anyways
              this is why the corrupt feds have got to get a haircut, and soon, when the infamies are fresh in the minds of the people
              the old wrongs are soon forgotten

              Saloth Sar

        3. This two-bit response hides this two-bit’s mendacity. The claim of (hat tip George) Needs to be Committed was that Flynn was guilty of the initial primary charge. Two-bit bit off more than he could chew stating that Flynn’s own words were in the FBI file released at the time. He lied but that didn’t stop him from sending people to research the FBI files to find the quote. No one found the quote because it didn’t exist and tow-bit got in a huff.

          Then two-bit tried to wiggle out of that dilemma along with his dull side kicks by showing that Flynn plead guilty and then reversed the plea. Two bit and her accompanying nincompoops anxious to jail Flynn then kept bringing up FARA, Turkey and all sorts of other things that didn’t matter and weren’t criminal. They are all proven losers and Two-bit leads the pack

          1. “Kayla” (just another of Allan’s new aliases),

            You just keep resorting to some of your go-to strategies for trolling:
            Lie.
            Insult.
            Pretend to read someone’s mind and attack the person on the basis of your made up attribution.
            Attribute your own failings to others.
            Make up claims about what someone did in the past without ever linking to any evidence for your claim. You can’t, since it’s made up.

            1. Remember when Allan would rail on about people using pen names? Back before trump got spanked in november and he had to hide in shame? He thought back then no one could solve his kindergarten rhetorical argumentative style…, but it was obvious and extremely low level. Now he uses a multitude of aliases thinking we won’t know it’s him, but his low skill level is just as obvious. You know, at one point, I thought Allan was actually a Russian playing devils advocate whenever he got the chance. But it’s clear that’s way above his intelligence level.

              Elvis Bug

            2. Anonymous, your mind is again filled with Alan and I am not the first to notice. This time Alan is Kayla and Kayla is Alan. Do you think anyone cares?

              The funny thing is Kayla or Alan was addressing another blogger, not you, yet you got involved. Then you bashed Kayla or Alan, Alan or Kayla or a half a dozen other names, but you didn’t prove Kayla wrong. All you did was demonstrate distemper. What did that prove?

              Kayla had some substantial arguments. Whether or not those arguments are valid is what you should have dealt with instead of providing an entire response filled with vitriol.

              1. Yep, Allan was addressing Commit, but Allan’s rhetorical tics and other tells often give him away, and he knows that Commit ignores him.

                Allan is a troll. I call out his trolling. Why do you object to that, “Obama”?

                Allan didn’t prove himself right. All he did was demonstrate distemper. When Allan proves that Commit said that Flynn’s own words were in the FBI file released at the time, I’ll focus on whether his argument is valid. Until then, I’ll focus on his trolling.

                1. Anonymous, note how Kayla’s response had substance, something I didn’t see in yours. Kayla responded to what appears to be a continuous attack on a General who by all accounts seems to have been railroaded by enemies of Trump. That, however, remains a point of discussion.

                  Note that Commit failed to prove Flynn guilty but wishes to continue to pile on with all sorts of claims that are not related. That type of dishonest indirect attack would be permissible and honest if it was presented as a separate complaint rather than an attack that relies on innuendo. Commit couldn’t prove her initial claim and can continue to make that claim, but not by throwing dirt as has been done on a continuous basis. I think Kayla was correct in calling her out. Whether or not her words were too biting or not is based on personal preference.

                  As far as you are concerned your mind is filled with enemies who you are impelled to battle to the death. To be honest I think Commit can make a better defense for her actions than you can as a defender of Commit since your defense is an attack on an alias absent substance. You are highlighting Committed’s deficiencies while at the same time highlighting your own.

                  1. I think you’re just another incarnation of Allan, trying to defend your earlier trolling under the name “Kayla.” You sound a lot like Allan.

                    Like “Kayla,” you complain “Commit couldn’t prove her initial claim,” but you don’t prove your own claim. Hypocrite.

                    Are you talking about her initial claim on this page, “Flynn chose to plead guilty”? She did prove that, by linking to a transcript where he said it under oath.

          1. Enjoying all y’all right wingers engaging in your special snowflake time around Flynn. The most predictable beforehand garbage fire in early trump time.

            Elvis Bug

        4. You’ve never heard of the term “shotgun wedding” before? That’s where the father or brother of the bride holds a loaded and cocked shotgun to the groom’s back in case he says something wrong!! They had ALREADY threatened Michael Flynn before they got to that point, so don’t you think that he’d lie there to possibly save his son?? If you’re forced into speaking an untruth, it’s not really a lie because your free will to utter those words was taken away from you by some nefarious means. If you had even a nickel’s worth of logic in your thinking, you’d not say stupid crap like this. And whose side are you on anyway? You want an innocent man sent to prison to satisfy a political agenda? How does it feel, to live with out a conscience? Many billions of people want to know!!

      1. Anonymous check out the more recent discussion of the different ideologies so you stop pretending you know anything.

  6. Jonathan: Michael Flynn was guilty as hell! He pleaded guilty not just once but twice. No one tortured him into his confession. He was not, as you have tried to argue in several columns, the victim of some “deep state” conspiracy. Had it not been for AG Barr’s personal intervention in the case as a political favor for Trump and the subsequent pardon Flynn would be looking at serious prison time. Trump’s pardon will not absolve Flynn of his guilty pleas–pardons clearly imply guilt.

    Judge Sullivan has no need to clear his “reputation”. In his 43 page decision Sullivan took time to point out the fraud Barr and Trump were foisting on the his court. It is Barr that has to worry about his “reputation”. During his tenure he has turned the DOJ into Trump’s personal law firm. And Trump has abused the pardon power to reward his friends and political allies–to protect those who have covered up for his misdeeds. Just ask Roger Stone. Trump will also likely pardon Paul Manafort–a real low life. Trump is also considering pardons for his family members and himself. The innocent don’t need pardons. To show his gratitude for the pardon Flynn is urging Trump to declare martial law and overturn a legitimate election, That’s sedition under the UCMJ. Flynn belongs in prison not walking the streets!

        1. Comrade Josef:

          “Is there a difference?”
          ******************************

          Yeah, your own lawyers don’t persecute you until the scam is discovered. You’d know that anywhere east of St. Petersburg.

        1. “Flynn’s lawyers are paid to disagree.”

          Wow, Anonymous finally grasped a bit of knowledge about our legal system.

          Are you paid to be disagreeable.

    1. Your comment shows your lack of information regarding FACTS surrounding this case AND your extreme bias. This is why conservatives no longer trust the Government. If you have a D behind your name your get a pass. If you have R then just hang them.
      The FACT is Flynn’s son was threatened. The FACT is he did not lie (Strzok and Pientka said so) and he did NOTHING wrong in speaking to the Russian ambassador—that was within his role as incoming National Security advisor.
      As far as the FARA matter—why are Tony Podesta and Greg Craig walking around Scott free? Oh yeah….they are Democrats. The protected class!

      1. If a guy robs a bank, and you accuse him of a robbing the bank, it’s not a threat. Flynn involved his son in breaking the law. Telling Flynn that they might go after his son is Flynn’s chickens coming home to roost.

        1. As usual, your Chinese propaganda is a circular argument. “He is guilty because we forced a confession from him. If he was innocent, he wouldn’t have confessed.”

          Stalin would be so proud of you. Here’s a crayon.

    2. Ok Dennis McIntyre we all get it and understand why your so biased against ANY Trump official like the hero Gen. Flynn ! Lmao even the FBI I.G. discovered he was framed and his son was threatened by the dirty cops handling the HOAX investigation if he pled NOT guilty. The original agents even said he was not guilty of anything dummy. Even a snowflake should be able to take a break from your blatant Trump Derangement Syndrome and comprehend that Judge Sullivan is an embarrassment to our American Judicial System.

    3. Yeah, Trump’s personal law firm. The same one that withheld the declaration that Hunter Biden was under federal investigation until after the election? That Bill Barr?

    1. Hawaii Rules:

      “I wish Trump would issue a pardon for Sullivan, just to F with the guy, put a stain on him.”
      **************************************
      That’s a great idea. It’s like the old saw about the sailor writing in the ship’s log that “Our captain was sober today.” It’s not what you say but what you don’t say. LOL

  7. I always give you credit for careful analysis. I disagreed with your opinion that the three judge panel should have been reversed. What was more chilling is that it was evident that all judges on that Appeals court had made up their minds to reverse before even reading a brief. While you say Sullivan was sure to be reversed if he did not dismiss, I contend that if any reversal was to occur it would have been at SCOTUS not the Appeals court and I further assert the case would have been decided by a 5-4 vote at SCOTUS. I assert Roberts would join the liberal justices in upholding Sullivan. There is no way in a cold day in hell the D.C Circuit Court would reverse Sullivan, and no way Breyer, Sotomayor, and Kagan would reverse. I think Roberts has such a disdain for Trump and anyone associated with him that he would ignore the obvious and find a way to uphold Sullivan much like he did on Obama Care and Churches even when casinos were declared essential. I know you still have faith that these judges follow the law and Constitution but I have faith that they follow whatever political whim they have at any given time.

  8. Sullivan should never have been allowed on the bench in the first place, and if he was a white, Christian male, he wouldn’t have been. He needs to be impeached. It does make you wonder how this creature metes out justice in his court room. The American judiciary is profoundly unethical and corrupt. We are seeing it now with one faux lawyer after another refusing to consider mountains of evidence of electoral fraud. When the people are sheep, or soccer moms, you end up being run by wolves.

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