Posted on 05/13/2020 8:44:10 PM PDT by 11th_VA
You know, the message of Judge Sullivan and the 2000 “former prosecutors” is that, even if you get the 4AM arrests, the government will not be able to prosecute and the courts will not allow convictions.
We are in the grip of “combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law”, and the outcome is far from certain.
I don’t see how this decision affects the Michael Flynn case. Under the federal rules for criminal cases, once a defendant has pled guilty, if he seeks to withdraw his plea, the court “may“ allow him to withdraw the plea. It is completely discretionary with the judge. The case that everybody is citing deals with a deferred prosecution agreement, not an actual guilty plea. Obviously, what this judge is doing is highly irregular. Every judge in the country, upon receiving a motion from the government seeking dismissal of a case, would simply sign an order and get the file off of his desk. This reeks
Here’s a good summary of the Stevens case:
He still has jurisdiction. He must determine a just outcome. The government has already moved to dismiss the indictment on well documented grounds of prosecutorial misconduct, demonstrating that there was no case to prosecute. Those are well established grounds for dismissal.
Per Zokker, he has no choice but to dismiss the indictment. As for the rule 42 stuff - he has determined himself to consider prosecution of Flynn AFTER he government has confessed its own eggregious misconduct.
The judge is no longer remaining a neutral arbiter. He has inserted himself into the case and become his own prosecutor - exactly what all the cited cases say he is not allowed to do.
Under Zokker he has exactly one choice. Dismiss.
“...O is behind this....”
Without a doubt. The judge is beholding to O for some reason.
Bath House Barry likely has a lot of dirt on a lot of folks.
O belongs in GITMO as a treasonous domestic terrorist, but since he’s the US’s first “black POTUS”, he’ll never be tried.
However, he could just “disappear” from the face of the planet....pffft...just gone, vanished. Kinda like an “alien abduction”. Nobody knows when, where, how, etc...just gone...kinda like the way old Jimmy Hoffa “disappeared”.
Hey, “O”, say hello to old Jimmy for us when you see him.
“Yes, but this Fokker was a Messerschmidt!”
“They were everywhere!”
The legal circumstances are not the same as the Flynn case. The plea deal avoided a trial court case that rendered a verdict. Flynn had a court case and it did reach a verdict.
In one no verdict was rendered, they reached a settlement before that happened which is not the same as pleading guilty and just waiting for the sentence. That latter is where the Flynn case was, before the DOJ, based on new evidence, reversed its official course and sought the dismissal of the charges it had prosecuted. That condition would seem unusual, were it not for its basis, the new evidence.
If Sullivan rules on the technicalities alone and throws out the importance of new evidence as providing THE qualifications for the DOJ actions, then Barr will take it to the SCOTUS, not seek a pardon from Trump.
Yes, I would think a plea is a procedural move, a formality, outside the category of evidence.
Judge Emmet Sullivan does not have the authority to prevent the dismissal of charges against Gen. Michael Flynn. In the 2016 case linked above, the United States Court of Appeals for the District of Columbia Circuit ruled that a judge cannot block a prosecutor from dismissing criminal charges against a defendant. Here are excerpts from the decision:
The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.
. . .
The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong,517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) ; In re Aiken Cnty.,725 F.3d 255, 262–63 (D.C.Cir.2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[ ] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non–Violence v. Pierce,786 F.2d 1199, 1201 (D.C.Cir.1986). . . .
Correspondingly, “judicial authority is ... at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations. Pierce,786 F.2d at 1201 ; see ICC v. Bhd. of Locomotive Eng’rs,482 U.S. 270, 283, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987). The decision whether to prosecute turns on factors such as “the strength of the case, the prosecution’s general deterrence value, the [g]overnment’s enforcement priorities, and the case’s relationship to the [g]overnment’s overall enforcement plan.” Wayte v. United States,470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). The Executive routinely undertakes those assessments and is well equipped to do so. By contrast, the Judiciary, as the Supreme Court has explained, generally is not “competent to undertake” that sort of inquiry. Id. Indeed, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” Newman v. United States,382 F.2d 479, 480 (D.C.Cir.1967). . . . .
Those settled principles counsel against interpreting statutes and rules in a manner that would impinge on the Executive’s constitutionally rooted primacy over criminal charging decisions. Of particular salience, Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain “leave of court” before dismissing charges against a criminal defendant. Fed.R.Crim.P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)’s “leave of court” requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the “principal object of the ‘leave of court’ requirement” has been understood to be a narrow one—”to protect a defendant against prosecutorial harassment ... when the [g]overnment moves to dismiss an indictment over the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the defendant through repeated efforts to bring—and then dismiss—charges. Id.
So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. See In re United States, 345 F.3d 450, 453 (7th Cir.2003). The authority to make such determinations remains with the Executive.
United States v. Fokker Servs. B.V., 818 F.3d 733, 737, 741-742 (D.C. Cir. 2016).
47 has it right. The judge set up an insurance plan. But Flynn can just say he believed the FBI when they said he lied. But then found out that the FBI was lying about him lying.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.