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Judge Emmet Sullivan’s parting shot at Michael Flynn

Judge Emmet Sullivan’s parting shot at Michael Flynn

Dismisses case against Michael Flynn as moot in light of presidential pardon, but spends over 40 pages detailing why Judge Sullivan thinks Judge Sullivan was right all along.

https://www.youtube.com/watch?v=xd9sHB6WMb0

Judge Emmet Sullivan dismissed the criminal prosecution of Michael Flynn, after previously having refused to do so, in light of Trump’s pardon of Flynn.

But Judge Sullivan, who has demonstrated a personal dislike for Flynn and desire to punish Flynn, took a last cheap shot, issuing a gratuitous 43-page opinion arguing, basically, that Flynn is a bad guy and that Judge Sullivan was right all along.

Here’s what the opinion should have been limited to:

Pending before the Court are: (1) the government’s motion to dismiss the criminal information against Mr. Flynn with prejudice pursuant to Federal Rule of Criminal Procedure 48(a), see Gov’t’s Mot. Dismiss Criminal Information Against Def. Michael T. Flynn (“Gov’t’s Mot. Dismiss”), ECF No. 198; and (2) the government’s notice of executive grant of clemency and consent motion to dismiss this case as moot, see Notice Executive Grant Clemency Consent Mot. Dismiss Moot (“Consent Mot. Dismiss”), ECF No. 308. Upon careful consideration of the motions, the applicable law, the entire record herein, and for the reasons explained below, the Court DENIES AS MOOT the government’s motion to dismiss pursuant to Rule 48(a), and GRANTS the government’s consent motion based on the presidential pardon and DISMISSES this case AS MOOT.

It’s moot. There’s nothing left for you, as a Judge, to do.

But Sullivan spent dozens of pages to show that Sullivan was right all along, Flynn did the crime and should have done the time, concluding, among other things:

However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances. For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

* * *

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss. The government advances two primary reasons8 justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31. As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.

* * *

Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications.

* * *

Asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government likely do not meet this standard.

Thus, the application of Rule 48(a) to the facts of this case presents a close question. However, in view of the President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance of the pardon, and for the reasons stated in the following section, the appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).

I agree with Prof. Jonathan Turley’s assessment:

The court’s opinion seemed intent on clearing its own reputation by trashing what reputation remains for Michael Flynn. Such a decision would ordinarily 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 the guilt or innocence of an individual. After all a defendant has no appeal or recourse from such an declaration from the bench…

…Even in live cases, judges refrain from such commentary until sentencing of a defendant. Now however Flynn has been publicly condemned in a long opinion that should have been one sentence in length. Judge Sullivan was intent on rendering an effective verdict.

While couched in terms of deciding whether the pardon was effective, Sullivan’s opinion was more like a Closing Argument. But the Judge isn’t supposed to be an advocate, and no matter how upset Sullivan was at Flynn’s attempted change of plea and the subsequent pardon, Sullivan should have put his personal feelings aside.

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Comments

He got exactly what he wanted, he ran out the clock and forced Trump to pardon him, now he can preach and preen about how Flynn was ‘obviously guilty’.

We have far too many judges in this country who are more interested in their own whims than they are in the law. Sullivan isn’t even the worst of them, though he’s bad enough that he should be removed and prevented from ever hearing another case again.

    The Friendly Grizzly in reply to irv. | December 8, 2020 at 8:48 pm

    I think if we stripped away all of this “your honor” and “if the court please”, and “all rise”, we’d see a different sort of person wanting to be a judge. Too many are preening stuck-ups.

    I went to high school with two who ultimately became judges; one at the federal level. Neither of them knew when to “shut it off”. Even at gatherings like high school reunions they expected to be addressed as “Judge” or “Your Honor”.

    I am not normally vulgar, but the retired federal judge tried that on me, and I – addressing him by his junior high nickname – told him he could take his “Your Honor” and [perform anatomically uncomfortable acts with] himself with it. Of course those around us were horrified that I – a mere mortal, and one who often got his hands dirty to earn a living at that – would DARE address this exhalted figure in such a manner.

      Those archaic terms you object to are ways of addressing the principles of justice operating through our judicial system. Not the judges themselves.

      In Communist courts, aren’t the judges addressed as “comrade”? A lot of good that does.

I knew for months Judge, Jury and Executioner Sullivan was doing, force President Trump to pardon Gen Flynn ot hang him one wayy or another.
Welcome to the new justice system under the Socialists

    The Friendly Grizzly in reply to Skip. | December 8, 2020 at 8:52 pm

    “…under the socialists.”. Justice in this country has been by whim for a very long time; this is not a recent development.

    Too many laws, too much bad precedent, too much over-analysis, and too much of if you can afford top-floor representation, you walk. Or, if you are The Right Person, you walk.

    There is also FAR too much headline-seeking and vote-seeking by DAs or State’s Attorneys, or whatever the persecuting attorney is called. Nifong is a prime example.

      Chuckin Houston in reply to The Friendly Grizzly. | December 8, 2020 at 10:15 pm

      Pass so many laws that nearly everyone has violated at least one of them. And, then abuse prosecutorial discretion by going after only those folks you dislike and letting everyone else slide.

    The guy is a dirtbag. What more can we say?

At some point in the future when r control Congress I hope they have the stones to impeach Judge Sullivan and strip his judicial pension using whatever parliamentary or legal quirks required. Even if they must craft and tailor them to him personally. What a pompous piece of work this guy is.

    henrybowman in reply to CommoChief. | December 9, 2020 at 12:14 am

    Any plan that relies on Republican politicians having stones needs to be immediately discarded and replaced by another plan.

      CommoChief in reply to henrybowman. | December 9, 2020 at 9:27 am

      Henry,

      Maybe we could simply elect r with stones? Lot’s of combat vets and first responders out there. Oil rig workers and others with high degree of danger occupations.

        Sonnys Mom in reply to CommoChief. | December 9, 2020 at 10:14 am

        The reign of the RINO is slowly but surely on its way out. Ordinary citizens are stepping up, talking leadership at the local level, background-checking candidates’ voting records and using their brains to discern who can truly represent us.

    ConradCA in reply to CommoChief. | December 9, 2020 at 10:49 am

    How about they have a committee dedicated to impeaching judges like Sullivan over and over so he is unable to hold court?

notamemberofanyorganizedpolicital | December 8, 2020 at 8:08 pm

Emmet – you’re one of the biggest bigots!

Sullivan needs to be disbarred

Can this judge really be unaware that his behavior says far more about his poor judgement than he can ever say about Flynn?

Take the “L” and sit the F down, Sullivan.

By federal statute, any person can file a complaint alleging that a judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts.”

Every U.S. court website has a complaint form and additional information on how to file a complaint in that particular circuit. The complaint process is not for people who are dissatisfied with a particular judge’s decision.

“Resistance” means thousands of people making a complaint that Sullivan violated his duties as a judge to be impartial, etc., as indicated by his behavior. Time to turn the tables?

Perhaps a bold member of Congress, would seek impeachment or at least censure or a strong reprimand. Take Sullivan to task and show him there actually is accountability when you abuse your power.

No matter, this is a sad illustration of how the legal system should never be.

    JusticeDelivered in reply to oldschooltwentysix. | December 8, 2020 at 10:27 pm

    How about a steady stream of cartoons making fun of Sullivan and hash tags, nasty rumors could be equally damaging?

    The leftists do this all the time– usually based on false accusations– targeting and villifying opponents to taint them in hopes of minimizing their voices and their influence.

    So why shouldn’t we “target” Sullivan, J. in this way by raising legitimate complaints about abuse of discretion?

This judge is an Obama cockroach.

“The government advances two primary reasons justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt.”

An extreme soft-pedaling of the facts. In actuality, the prosecution had found itself in the above stated position long ago, when it decided to strong-arm the law firm running the defense and Flynn by threatening them both.
-Then when the facts came out about his ineffective counsel and the Prosecution’s backtracking on the agreed plea (when they tried to slug him with jail time despite his assistance to the prosecution in other cases), they over-reached. They could have simply caved slightly and said “Ok, no jail time, no prosecution of your son, just sign here” Nope. Prosecution ego would not stand for it. They bluffed.
-Every document the DOJ declassified weakened the case further until it became obvious to anybody paying attention that Flynn had not done what the Prosecution claimed, and that only an idiot would try to prosecute.
-Enter Sullivan. ‘Nuff said.

    mark311 in reply to georgfelis. | December 10, 2020 at 5:27 pm

    Flynn was clearly guilty, he even admitted it. I don’t buy it that he was railroaded unless you are telling me he was soft. His pardon was an abused of power by Trump, letting his friends of the hook.

President Trump should grant Judge Sullivan a full pardon for all of his acts as a judge in the last four years. Then have Barr call him to testify about his acts.

Sullivan was an Affirmative Action appointment and continues to be such.

He’s a light weight that got on the bench due to one reason.

Flynn, Page and Stone were targets for entrapment. Considering the discovery so far in the Carter Page lawsuit, this is obvious. At least Page will finally get his day in court against the REAL perpetrators of this fiasco. Durham shielded the main characters with one lowly fall guy. The FBI cannot be trusted anymore. Sorry agents…as they say…once the water is dirty …it stays dirty.

This guy is sad and pathetic.

The fact that Sullivan feels comfortable enough behind his black robe shield to launch a gratuitous attack on his victim says a lot about the legal system and its failures.

He should be held accountable for the abuse of government funds (he used his work hours and presumably clerks to type up this Memorandum Opinion) and should not be shielded from the consequences of his defamatory statements. In fact, since he acted as a judge and not a private citizen, in a sane legal world he should not be able to claim free speech as a shield. Of course, the judiciary is very generous with the members of their caste.

In a functioning non-factionalized republic this judge would swiftly be impeached by the House and convicted by the Senate with very large majorities if not unanimously.
That this will not happen is a sad state of affairs.

He has been hoisted on his own petard, and I don’t believe the stink will ever go away.

No “Equal Justice Under Law”-fare.

Florida Gator | December 9, 2020 at 8:41 am

Ahab’s parting shot: “To the last I grapple with thee; from Hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”

This cannot be considered good for the country in any way you spin it. If Sullivan gets any kind of promotion, we will know that they just don’t care any more and plan to get away with whatever they want as long as it doesn’t spark a revolution.

We are the frogs in the slow boil pot of water.

Just finished reading all the comments and it is unanimous.
Sullivan is a bloody arsehole!

The D.C. Circuit blew it when it denied the mandamus petition en banc and said it expected the district court to act “with dispatch” in July. Sullivan did not and strung it out until it became likely Biden would be inaugurated in January, forcing Trump’s hand on a pardon.

The dismissal order needed to only note the filing of the pardon and Flynn’s acceptance of it; and dismiss the case–three (short) sentences at most. A 42-page opinion is overkill–I guess the only thing now to await is whether it winds up in the F.Supp. reports.

Sullivan’s rant proved the necessity and verity of Trump’s pardon. The judge was truly and invariably bent against both Gen. Flynn and the president.

He is mentally unstable and a liability to the courts.

Questions:

1. Did Flynn actually ACCEPT the pardon before this case was dismissed?

2. Would that have any affect on suing for fees incurred?

3. Was the case dismissed contingent on acceptance?

He is under no obligation to accept the pardon.

sincerely hope that some point in the future gen. flynn has an opportune encounter with sullivan, just the two of them, and gives sullivan the ass-whipping the turd in robes deserves

When an employee of the federal government commits a crime while at work is he personally liable?

As a retired DEA agent, I found it incomprehensible that after the prosecution asked to drop charges, the judge refused and tried to drag out the case. That is inconsistent with the spirit of the law, if not the letter.

Judge Sullivan clearly had a personal/political motive here, and his actions have discredited the Bench.

One of my fellow DEA retirees just this week told of being in the courtroom of (now disgraced ) Judge Alcee Hastings in Florida. He described Hastings as a second defense attorney. In this case, we have a judge, Sullivan, acting as a substitute prosecutor. That is clearly not the role of the judge.

    mark311 in reply to gary fouse. | December 16, 2020 at 10:20 am

    The problem with that argument is that the man had already pled guilty. Some of the prosecutors even resigned because they were being pressured to drop the case. This was not the evidence leading to a conclusion this was political pressure to ensure he was let of the hook.

It seems to me that Sullivan did things to harm Flynn that were not his business.
Can Flynn sue him for some of that behavior?
For example getting someone who had already bashed Flynn to report to him and holding up his action until receiving that report.
Also appealing the order to dismiss charges against Flynn to the higher court.
Sullivan had no standing to do that.

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