Skip to comments.Former Acting AG Whitaker speaks to Judge Sullivan's orders in Flynn case
Posted on 05/24/2020 12:29:55 PM PDT by jazusamo
Former Acting Attorney General Matthew Whitaker reacted on Sunday Morning Futures to a federal appeals court directing the judge hearing the case against former National Security Adviser Michael Flynn to respond to a petition by Flynn for the charges against him to be thrown out.
There is no discretion of Judge [Emmet] Sullivan to not dismiss the case once the Department of Justice has decided to no longer pursue those charges, Whitaker said in an exclusive interview on Sunday Morning Futures.
I think ultimately its going to be a strange proceeding when the appeals court gets their filing from the judge, trying to defend his actions.
He went on to say that the case will be dismissed and the charges will no longer be held against him [Flynn].
Flynns attorney last week had filed an emergency writ of mandamus to the D.C. Circuit Court of Appeals seeking that the prosecution against Flynn be dismissed as the Justice Department has requested, and for Judge Sullivan to be taken off the case.
The order issued Thursday directs Sullivan to file a response by June 1, and invited the government to respond "in its discretion within the same 10-day period."
Writs of mandamus are extraordinary remedies, which are appropriate when there has been a "usurpation of judicial power" that is "clear and indisputable.
(Excerpt) Read more at foxnews.com ...
Just that much longer to gag Flynn,so he can’t tell the world what those goons did to him...
But, but, but, The W0n doesn’t want Flynn to get off so easy.
Yep, looks like The Won and Sullivan are birds of a feather.
Keep Flynn gagged until the election and then after the democrats steal it, they can do what they want to keep him silent. Good Americans, where are you??
Keep Flynn gagged until the election and then after the democrats steal it, they can do what they want to keep him silent.
I strongly suspect heavy back channel communications. Br0nc0 apparently HATES Flynn. With a cold passion.
I beg to differ with Matthew Whitaker. The rule of law has largely been tossed out the window, and in it’s place is a left-wing agenda that is both anti-white and anti-male. It’s getting so it doesn’t pay to put yourself in front of a black robed thug.
There’s much truth to what you say but I believe the DC Circuit Court is going to shoot down Sullivan big time on this.
Whitaker was quite critical of Flynn when I saw him on Fox just after he quit DOJ last year. He’s got a book to sell now and has changed his tune quite a bit.
I’d wager that there are multiple copies of his “Tell All” book stashed away in various secret bunkers all over the USA!
After he is exonerated, a whole bunch of LIEberal Democrats are going to be fitted for orange jump suits!
And, It cannot happen soon enough!
Sullivan may have lots of skeletons in his closet... https://twitter.com/Johnheretohelp/status/1261480070683688967
Suffolk County (Boston) District Attorney Rachael Rollins wanted charges against Antifa “demonstrators” who attacked police and marchers at the St. Patrick’s Day parade last year dismissed. Two circuit court judges told the assistant DA’s handling the cases in court they would not. Less than a week later they were reversed, but they made their point.
The Won and Sullivan appear to be sock puppets for Valjar, Soros, or such ilk. They were ORDERED to get RID of Gen. Flynn. And woe be unto their @$$$ if they fail. Why else would The Won and Sullivan be clinging frantically to the case by their fingernails at this late date?
I agree, neither of them should be involved but they are, up to their necks.
I support General Flynn just as much as the average Freeper. What has happened to him is horrible.
But, putting on my appellate counsel role, I think that if Sullivan’s attorney submits the right brief, as she likely will, the writ is going to be denied.
Here is what Sullivan’s attorney should NOT do: She should not argue the law to the Court of Appeals. That’s not the judge’s role here, and would make him seem like just another litigant. If she does that, he will come off as even more of a partisan hack. Sge should also not claim he has the right to second guess the DOJ’s decision to drop its pursuit of the lying to the FBI charge. The law is too clearly against that.
What she should do is: First, point out, as to the amici (other than appointed amici) issue, that Judge Sullivan has done everything so far strictly by the book. He became aware a number of parties intended to file amici briefs. He issued an order, entirely consistent with his earlier refusals to accept amici briefs, that correctly set out the criteria that would have to be met in order to file an amici brief. He has stated an intent to set a deadline by which all such briefs shall be filed. In other words, he has acted to create an orderly process, and to provide for a clear record for review, when he denies all these motions and the frustrated amici seek to appeal. Nothing wrong there.
As to the amici he appointed, here’s what the brief should say: “I am considering initiating criminal contempt charges against the defendant (describing exactly whatever it is that Judge Sullivan thinks—as he clearly does—might justify such charges).
It is well settled that a judge can himself initiate a criminal contempt proceeding against someone whom the judge concludes has committed a contempt of court in his in his presence. See 18 U.S.C 401 (”A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;. . . “). Further, the court’s power to initiate a criminal proceeding against a party for contempt includes the authority to appoint a private attorney to prosecute the contempt. United States v. Vlahos, 33 F.3d 758 (7th Cir. 1994).
The purpose of this statute, including the rule allowing the Court itself to initiate a criminal contempt proceeding, is to allow the Court to vindicate its authority. Thus, unlike in most cases, the Court itself has standing as a party.
This fact—that the Court independently has standing to initiate a contempt—is what distinguishes these facts from the facts of the cases cited by the defendant in the petition for the writ of mandamus. In Fokker Services, this Circuit held that a court does not have a right to review the DOJ’s decision to drop or settle a case. I am not seeking to do that here. I am only delaying dismissal of the DOJ proceeding pending a final determination whether the Court will initiate its own criminal contempt proceeding.
In United States v. Sineneng-Smith the Supreme Court held that a court may not, by appointing amici, inject into a case issues which the parties have not themselves chosen to litigate. But that case did not involve a situation where Congress has granted the Court the right to initiate a criminal contempt proceeding to vindicate its own interest in ensuring respect for it’s authority as a Court. Here, the Court has its own independent right-and standing to act to assert that right—that simply was not present in that case. Therefore, the cases relied on by defendant in its application for a writ of mandamus are distinguishable.
The Court feels that the defendant engaged in acts that may warrant the initiation of a criminal contempt procedding. But the Court recognizes there is a legal issue about whether the defendant’s acts constitute “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,” with the meaning of 18 U.S.C. 401.
In order to ensure that the Court did not initiate a criminal contempt proceeding in a situation where it is not legally warranted, the Court therefore appointed amici and asked it to address this issue. This procedure will allow for the Court to seek a well-considered opinion on this issue, while providing the defendant a fair opportunity to respond.
Finally, it appears that if the Court intends to initiate a criminal contempt proceeding, it needs to do so before it dismisses the underlying criminal proceeding against this defendant. Therefore, while I agree that the Court is obligated to dismiss the charges brought by the DOJ at the request of the DOJ, the Court intends to do so only once it has made a final determination whether to initiate its own proceeding for criminal contempt against the defendant.”
This, to my mind, constitutes (1) a non-frivolous explanation for Judge Sullivan’s behavior; (2) the judge’s best argument; and (3) a fairly reasonable argument for why the Court should—at least at this point—deny issuance of the writ of mandamus.
Would such an argument actually prevail? I think the Circuit Court could simply decide for itself the issue that Judge Sullivan sought to have amici address, and hold that Flynn’s conduct does not qualify as “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice” within the meaning of 18 U.S.C. 401. But the Circuit Court could also decide that that is a complicated enough question to leave for another day.
Wow! That is some twitter thread.
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