Posted on 05/20/2020 6:03:36 AM PDT by Kaslin
There are two aspects to the current imbroglio over the Justice Department’s attempt to dismiss the Michael Flynn case, which U.S. District Judge Emmet Sullivan so far has rejected. The first is procedural -- whether Sullivan following Rule 48(a) of the Federal Rules of Criminal Procedure must dismiss. The second is substantive, whether the basis the government gave for dismissal is legitimate.
As is almost always the case, left and right are completely at odds on the issue. On the right the government and conservative analysts rightly point out that Sullivan’s refusal to dismiss must fail. There is no longer any controversy between the parties. Discretion to prosecute is an exclusively executive function in this country. The Constitution, common practice, and existing case law all overwhelmingly support this interpretation. Both the Supreme Court and the Court of Appeals for Sullivan’s own District (the District of Columbia) have so ruled. Procedurally, he’s fighting a losing battle and looks foolish for it.
Legal experts on the left know this, but see Sullivan’s quixotic fight as heroic, even if he is likely to lose in the end. Taking up the cudgel for the combative and attention-seeking jurist, any number of liberal lawyers claim that dismissal is an abuse of power, and Sullivan is right to refuse it. They maintain that the government’s contention that Flynn’s statements to FBI agents in 2017 were not material to the underlying case (supposed Russian collusion by Trump officials) is false.
Of the two issues the materiality one is the more interesting, and in the long term perhaps the more important.
(Excerpt) Read more at americanthinker.com ...
Renegade Judge Sullivan wants to the
the Uncle Tom for the clowns and seditionists.
Impeach the SOB.
The rule that is in place that the judge is invoking is not intended to protect the government or the court, it is intended to protect the individual on trial.
It is so the government cannot dismiss a case, then reopen it again at some future date to keep the pressure on the accused.
The judge is going against the intent and mechanics of the rules.
Sullivan to GTMO
The judge is going against the intent and mechanics of the rules.
****************
There are no rules anymore. Only politics.
I’m not an expert legal analyst but... does the judge intend to stand in for the prosecutor when the prosecutor has dropped the case? Can he be both judge and prosecutor?
The major problem with allowing a hearing on materiality is that it would be almost guaranteed to extend the issue past November. None of the players have been deposed, meaning that process would come first, followed by procedural wrangling over the terms of the hearing, followed by the hearing itself, ad nauseum.
I’d rather see the Durham report address these issues, soon, rather than let one side drag this out hoping for a hail Mary reversal of the party in power in December.
In East Germany,yes. Here? Maybe not.
The Judge defines the term “Rectum Exit”.
He shouldn't, so he brought in John Gleeson for cover.
NO! On May 7 2020 AJ Ginsburg writing for the court in a 9-0 decision in UNITED STATES v. SINENENG-SMITH reversing the 9th circus stated
Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....
The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243
Even more damning in this case is what Ginsburg wrote in the cited Greenlaw case where she said:
“[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:
“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.
And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)
So holdeth Ginsburg and her colleagues.
In this case, the United States has withdrawn from prosecution and sought to dismiss.
Judge Sullivan cannot continue a prosecution in place of the DOJ.
And the controlling case in the DC Circuit is Fokker In that case the DC COA held: "[T]he `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." United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).
The case further held:
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.
This whole fiasco is wrong on several levels:
1. The power to prosecute a criminal case lies solely with the state. You do NOT have people brought to court for CRIMINAL trials and have non-government entities prosecuting them. That would be the same as a civil trial resulting in jail time for the loser.
2. General Flynn has a right under the 6th Amendment to a “speedy and public trial”. First, the court and prosecution refused security clearance to Flynn’s lawyer in order to read material disclosed by the prosecution. Now, when the state and the defendant both agree to disposition of the case, the judge is refusing and is extending the trial by months.
3. Clear precedent exists to instruct this judge that he should dismiss the case.
4. One of the overlooked motions that Judge Sullivan has given is to have Flynn’s former counsel appear and submit information.
https://lawandcrime.com/high-profile/michael-flynns-fired-lawyers-just-filed-court-papers-to-reappear-in-his-case/
I submit this may be the most egregious abuse of Flynn’s rights. He fired those lawyers. However, attorney/client privilege still exists. Sullivan has ordered Flynn’s (former)attorneys to present information in opposition to their client (privilege still binding).
5. Sullivan has yet to sanction the prosecution for EGREGIOUS violations of his Brady order. The prosecution has hidden exculpatory information for years. Some of this information actually implicates the prosecution for misconduct in blackmailing Flynn to obtain the guilty plea.
Sullivan’s actions have guaranteed a dismissal on appeal. It appears Sullivan has another outcome in mind, something that is completely outside the purview of his job as a Federal Judge.
What is stopping Sullivan from dismissing with prejudice?
The Witch, HRC. Flynn knows too much.
Interesting, isn’t it? Materiality is important whether the FBI/DOJ should pursue prosecution against Flynn over no violations of the law. But, intent was what was determined for not prosecuting Clinton over actual felonies committed by her.
Yeah, that would be text book definition of a two-tier justice system.
That is so true, Starboard.
So true. And sad.
Granted, that is my opinion, but it most certainly is in conflict with the law.
Oddly, and this is not highly reported, Sullivan is DIRECTLY contradicting his own prior stance on this type of thing back in December 2017.
From this excellent article from Jonathan Turley who is regarded as solid on these things: Turley: In Michael Flynn case, Judge Sullivan’s gross overreach turns justice into mob rule
(bolded underlined red text is direct quote from Emmett Sullivan: "...While courts have discretion to grant amicus or third-party arguments in civil cases, there is no counterpart under the Federal Rules of Criminal Procedure." In fact, Judge Sullivan rejected such a request on Dec. 20, 2017, stating that “the Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases.”
What Sullivan has done is effectively shat on his own reputation and unmasked at least one (and possibly all) of four things about himself:
Personally, given his conduct in the Ted Stevens case, I believe him to be an incompetent, vindictive, partisan hack. He should be impeached.
Another possibility is that he is also being managed by others who want to get Flynn at all costs. He is doing their bidding — for whatever reasons.
I wonder if Sidney Powell would get a contempt citation if she asked the judge which one of his rulings applies now?
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.