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Flynn Case: ‘The Public Interest’ vs. The Truth

Michael Flynn Judge Sullivan
According to a May 18 post on the Lawfare site, a group of more than 960 former federal prosecutors and former high-ranking Justice Department officials in cooperation with the Far Left ProtectDemocracy.org plan to seek leave to file an amicus brief in the Flynn case—a current draft of which readers can find here, once Judge Emmet G. Sullivan sets a briefing schedule.

The argument the amici plan to present, as summarized in the Lawfare piece by Andrew Crespo, Laura Londoño Pardo, Kristy Parker, and Nathaniel Sobel is:

Sullivan does not merely have the authority to review the department’s motion to dismiss. As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it.

Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: imposing a sentence.

Setting aside the fact that they appear to have ignored the government’s brief moving Judge Sullivan to dismiss the case against LTG Flynn (and the supporting evidence submitted with it) the argument of these amici hinges on their interpretation of Federal Rule of Criminal Procedure 48. The Rule states that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint” (emphasis added).

In support of their argument they cite a Thomas Frampton piece they claim is the most thorough scholarly treatment of the rule’s history to date; Rule 48’s principal object Frampton claims was not to protect “individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, Frampton writes, Rule 48 “was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.”

Citing language in the Supreme Court’s recent opinion in Young v. United States the amici further claim:

The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. ... [T]he proper administration of the criminal law cannot be left merely to the stipulation of parties. (Emphases added.)

The argument presented by Crespo et al is clearly at odds with the plain language of the Supreme Court’s recent decision authored by Justice Ruth Bader Ginsberg in United States v. Sineneng-Smith, in which the liberal icon wrote: "[T]he appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion," later stating that "a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale."

It is hard to imagine a circumstance in which a case has been more radically transformed by a judge than the Flynn case, but there is another aspect of the matter that the former federal prosecutors fail to address in their draft amicus brief and that is what constitutes “the public interest.”

Is it the truth of whether or not Mike Flynn committed a crime for which he was investigated, indicted and bludgeoned into an admission of guilt? Or is it simply enough that the defendant is someone the judge and the amici do not like?

What if the government had come forward, admitted wrongdoing and moved to dismiss the case against the Scottsboro Boys, would Crespo and the amici argue the case should not be dismissed?

Would the amici be arguing against the dismissal of the charges back in 1957, when D. Malcom Anderson, U.S. Attorney for the Western District of Pennsylvania, asked a U.S. District Judge to dismiss the indictment against five Communist Party leaders, including Steve Nelson and William Albertson, following discovery that one of the principal witnesses in the 1953 trial "may have lied."*

The frame up and prosecution on false evidence of General Michael Flynn carries the same stench that many racist and political prosecutions of the past carry – the only difference is this time it is the radical Anti-Trump Resistance that finds it is in “the public interest” to railroad an innocent man they don’t like because his views threaten their power.

* "U.S. Drops Retrials for Nelson and Five Others on Smith Act". New York Times. 14 September 1953

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The Rule of Law Scandal that Rocks the Free World

Flynn should already be a free man, Sullivan the judge is risking his own freedom by blatantly disobeying the rule of law and unmasking his own political path to stall the verdict of not guilty because there is no case according to the DOJ...A well documented conclusion, this indicates just how much the Barry Sotero thug team fears the revelations that Flynn can speak of and show the court where the bones are buried....Sullivan may very well be removed as a judge for doing political favor....

Sullivan is Biased

Judge Sullivan has made clear his enmity for Gen. Flynn. An honest Judge would recuse himself at this point and let another jurist adjudicate the motion to dismiss, but Judge Sullivan's ire for both the defendant and the President is driving his actions to the detriment of justice.