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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