Posted on 05/18/2020 11:43:31 AM PDT by Kaisersrsic
Some of the concern about Judge Sullivan not accepting the DOJ’s motion to dismiss the Michael Flynn case and appointing former Judge Gleeson to argue that the motion should be denied appears to be overblown. This 01/2017 case note in the Harvard Law Review explains “three recent district court decisions have attempted to assert a more substantive role for the court — declaring that an Article III judge is not a “potted plant” or “rubber stamp” when reviewing deferred prosecution agreements (“DPAs”). HLR Fokker Note
Two of the “three recent district court decisions” were written by Judges Sullivan and Gleeson. The third was U.S. v Fokker, which was reversed by the D.C. Circuit because Judge Leon overstepped his authority in rejecting a prosecutor’s decision he believed was too lenient. The Fokker appeal decision is the leading authority establishing that Judge Sullivan must approve the DOJ’s motion to dismiss.
Sympathetic to the three Judges' view of judicial oversight, the law review note concluded that the D.C. Circuit’s decision “intensifies concerns about maintaining the rule of law in corporate prosecutions — concerns that a ‘potted plant’ cannot allay.” The 2nd Circuit held that Judge Gleeson over-stepped his authority in supervising a DPA in U.S. v. HSBC Bank several months later. So, the score is 2-0 against these Judges on appeal.
Unlike Leon and Gleeson, Judge Sullivan was not reversed on appeal because he approved the DPA in U.S. v Saena Tech. In doing so, however, Judge Sullivan:
(1) wrote a decision that looks like a law review article, arguing that trial court judges have an important role to play in reviewing DPAs;
(2) quoted Judge Gleeson’s HSBC decision extensively; and,
(3) appointed lawyers to submit an amicus brief arguing that he had broad authority to reject the DPA – before rejecting their arguments as suggesting he had more authority than the law allows.
Judge Sullivan appears to be following the playbook he used in the Saena Tech case with Flynn – the difference is people are watching this one. He asked retired Judge Gleeson to write an amicus brief because he knows that Gleeson will make strong arguments that trial court judges should have more power than the Courts of Appeal have allowed. That does NOT mean Judge Sullivan will issue a decision adopting the arguments Gleeson makes (even if he agrees with them). After all, he rejected the amicus arguments he specifically requested in Saena Tech.
Judge Sullivan will probably do the same thing in the Flynn case that he did in the Saena Tech case – He will write a long and detailed decision explaining that Judges should have more authority, but he will ultimately hold that the law requires him to grant the DOJ’s motion to dismiss.
Unlike with the Saena Tech cases, many members of Congress, the Senate, and their staffs will actually read Judge Sullivan’s opinion in the Flynn case. Judge Sullivan can take this opportunity to tell the law-makers that they should fix the law to give trial court judges more authority to watch over prosecutors. If Judge Sullivan refuses to dismiss the case, the lawmakers will forget about the issue by the time the decision is reversed on appeal (or Flynn is pardoned) and he will have gained nothing.
Judge Sullivan is not going to miss his golden opportunity to make the case for increasing the oversight authority of Judges just because people think his actions are motivated by different political issues. It sucks to be Flynn caught in the middle of this, but that has been true from the beginning.
Superb reasoning. Definitely worth publishing. I would send it to the WSJ op-ed page.
DPA = Deferred Prosecution Agreements
Yeah, let's just overlook the negative op-ed Gleeson recently wrote about the DOJ dismissal, and the declassified documents that prove FBI and prosecutorial malfeasance. Like everything else in this case...they, and Judge Sullivan want all that covered up too.
In any event, Gleeson is not going to issue his opinion for another MONTH. This is nothing but a ploy to get Trump to pardon Flynn, which Dems hope will damage him. It’s also Sullivan throwing his weight around, just because.
I have zilch in the way of legal knowledge, and I do appreciate the presentation of a thought process outside of what we are accustomed to hearing or seeing on the public facing side of it.
But I think (and I feel you agree to at least some degree with your final sentence) that is abhorrent for this judge to use the Flynn case to make any kind of judicial statement meant to garner more power or authority to the job of a judge.
This case against Flynn should have been tossed years ago, and like the Judge did in the case against Ted Stevens where he finally did the right thing but only after the damage had already been catastrophically done to Ted Stevens’ campaign and he lost the election.
What possible judicial logic is there now to keep Flynn under a gag order?
It’s a ploy to extend the entire process closer to the election. However, I believe that Flynn’s lawyer will be filing something soon. That’s what she said on television.
and the Judge has a timeline - must not be adjudicated before November 4th!
Is he really that smart?
Cutting to the chase and you made a logical argument and I thank you for it - it is solid, we are left with the Comey and Mueller standards and that is outside the law.
Comey - “she (HRC) really screwed up but nobody will prosecute it”. That was not his role and the DOJ does not publicly excoriate people under investigations when they choose not to pursue charges - the FBI should NEVER publicly make any recommendation nor does the director have authority to do so.
Mueller - “we did not find any collusion by Trump or others, but we cannot exonerate him either.” A farce on its face - you either found it or the person is presumed innocent.
Judge Sullivan - “I think it was perjury, but since higher courts have said it is not, nor can it be, I am forced to grant the motion to dismiss.” This is legal reasoning with no foundation in law, precedent, or the facts of the case.
What did these three things have in common? No foundation to do what they did, yet they did it anyways because “Orange Man Bad.” These are all prime examples of the type of judicial activism that is destroying the rule of law in our nation. It existed in the FBI and DOJ. It existed throughout the special counsel investigation. Once again, as many decisions tied to Trump by district court judges, it now rears its ugly head again at a district court.
I have a different desire for the Flynn matter. I think US Atty Jensen should appear personally before Judge Sullivan and lay out his motion to dismiss verbally before the bench because Judge Sullivan is NOT addressing the motion to dismiss on the merits.
Judge Sullivan is NOT addressing the malfeasance documented in the motion to dismiss by DOJ. Instead, he is looking strictly at the case as it occurred at the podium in his courtroom. Is there a precedent for this? A judge is supposed to view the entire case from start to finish far beyond the courtroom. Do all facts of the case matter before a court?
I tried (and won) one for the first civil trials before Judge Gleeson after he was appointed to the bench in 1994. I also saw him work as the lead prosecutor in the trial that resulted in the conviction of John Gotti (which is why he was rewarded with a federal judgeship. Gleeson was a pretty good judge, who treated the lawyers, litigants, and defendants with respect, which is not always the case in the Eastern and Southern Districts of New York.
Yes, Judge Sullivan is that smart.
i do not think the judge has standing in this case or any case actually...
The DOJ needs to go to the circuit court and get a writ of mandamus then drop the charges and reassign the case to another judge. End of problem. So why aren’t they doing it?
In that case you should definitely write up your piece for the WSJ (for example). They may or may not agree with your reasoning but it’s the only fresh take on the issue that I have seen. It’s also quick and tot he point so reads well.
Here’s how I thought it worked. A complaint is made and the investigators, in this case the FBI, investigate. The FBI then goes to the DOJ and presents their case. The DOJ decides whether to prosecute. The case goes to a court for judgement.
It seems to me that if the DOJ determines that the original prosecution was in error, that the judge should have no say. His role is to render a judgment based on the facts and arguments presented by the prosecution and the defense. If the prosecution agrees with the defense, what then does the role of the court become? I would think that the moment the two parties in contention agree, then the judge has no further role to play.
The judge in this case is attempting to usurp the role of the prosecution.
The Constitution limits the federal judicial power to cases or controversies. When the government initiates and the defendant does not oppose dismissal of a guilty plea, the court loses subject matter jurisdiction because there is no longer a case or controversy to adjudicate. At most, the court would still have jurisdiction to impose sanctions for prior misconduct by an attorney or a party or witness.
By the way, an outstanding defense of that truth comes at the beginning of Scalia’s dissent in the DOMA case:
https://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
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