No, Michael Flynn, President Trump’s former national security adviser is not about to be frog-marched off to prison.
Some in the mainstream media would love to see that happen, of course. Perhaps they think it might somehow justify their own biased and inaccurate reporting on the whole Trump-Russia collusion canard that ensnared an innocent man, Flynn.
So, beware of the fallacious predictions that are sure to follow Monday’s decision by the full D.C. Circuit Court of Appeals reversing an earlier order by a three-judge panel to dismiss the case against Flynn.
Here’s what the ten-member D.C. Circuit actually said to Flynn in simplistic terms: you came to us too soon, so come back later if the trial judge doesn’t dismiss the charge against you. Importantly, the Circuit Court did not say that the case against Flynn should not be dismissed.
They know it should be.
Because the Department of Justice belatedly realized that Flynn was the victim of a wrongful prosecution.
A review ordered by the DOJ discovered that the original prosecutors concealed exculpatory evidence of innocence. They engaged in atrocious misconduct in violation of accepted standards of law and decency. Such behavior demands dismissal.
Unsealed documents showed that Flynn was set-up and framed with false accusations. Then, under a torrent of threats and duress, the same unscrupulous prosecutors coerced him into a guilty plea. Under the law, a forced plea is no plea at all.
The two FBI agents who were sent by then-FBI Director James Comey to the White House to interview Flynn (under false pretenses) concluded that he did not lie. They put it in writing. But those records were conveniently buried. Their mysterious suppression allowed Special Counsel Robert Mueller’s team of partisan prosecutors to charge Flynn with lying to the FBI, even though he did not.
Armed with this new evidence of his innocence, Flynn attempted to withdraw his guilty plea. The new prosecutors at the DOJ agreed and did not oppose it. In fact, they moved to dismiss all charges against Flynn, admitting that the case against him should never have been brought by Mueller.
Remarkably, U.S. District Judge Emmet G. Sullivan balked at the idea of dismissing the case. Instead of punishing the government actors who fabricated the case against Flynn, Sullivan proposed that he might manufacture a new charge of perjury contempt against the defendant because Flynn sought to withdraw his plea.
It’s difficult to make sense of such reasoning by a trial court judge unless you factor in judicial bias against the accused.
This has been on display during several court proceedings. During one such hearing, Sullivan became so antagonistic toward Flynn that he accused him of treason without any credible evidence to justify such an absurd allegation.
Realizing that Flynn was being treated unfairly, his lead attorney Sidney Powell sought relief from a higher court by filing what is known as a writ of mandamus to either compel Sullivan to dismiss the case or to reassign it to a different judge.
Powell’s argument was a compelling one. A trial court judge has little alternative but to grant a dismissal when both sides agree to it. The reason for this is obvious.
Any decision to file criminal charges or drop them is solely an executive branch function carried out by prosecutors. A judge in a different branch of government is not permitted to countermand that decision without violating the fundamental principle of separation of powers.
A judge might not like the decision to dismiss a case or may think that it is wrong, but he or she is powerless to force the government to proceed with its prosecution without offending a cherished constitutional principle.
Yet, by continuing to pursue the case against Flynn and even creating a new charge against him, Sullivan has shown that he is acting as a prosecutor, not a judge.
In so doing, he is usurping the power of a separate branch of government. As I wrote in an earlier column, “a judge cannot suddenly abdicate the bench, shed his robe, and appropriate by fiat the role of a prosecutor.”
Monday’s ruling by the D.C. Circuit Court does not disagree with any of these arguments. Instead, it determined that the writ of mandamus was “premature” since Sullivan had not yet convened a full-blown hearing on the matter and formally refused to sign the dismissal.
The D.C. Circuit suggested that it is within the realm of possibility that Sullivan might actually dismiss the case, however improbable that may seem given his conduct.
If Sullivan refuses to drop the case, the court stated that Flynn would then be able to present the very same arguments in a direct appeal after sentencing.
In other words, the higher court played a silly game of legal “dodgeball.” They found a way to duck making a decision on the merits, and simply deferred the case pending Sullivan’s final ruling.
This is unfortunate and underscores the legal maxim that “justice delayed is justice denied.”
Politics may have had something to do with the Circuit Court’s non-decision decision. Democrats appointed seven of the ten judges, and the Flynn case has been a political football being tossed around since the moment Flynn was targeted by both Comey and Mueller.
Powell, Flynn’s lawyer, alluded to this on Monday when she told me, “This was the most political result-driven attempted justification of a predetermined conclusion ever seen in my career.”
That assessment should also apply to Sullivan. He has repeatedly demonstrated that he is not a neutral or objective jurist dedicated to following the law.
He appears to be a rogue judge with an agenda.