It's going to be a really big shoe....
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.
Good reference. Thanks.
Bttt.
5.56mm
This is not a DPA. The case mas motioned to be dism8sses with prejudice. It can no longer be brought one dismissed.
Judicial discretion under rule 48, as I understand it, is aimed to prevent serial prosecution with charge dismissal.
The Deep State also wants the gag order on Flynn to remain in place for as long as possible.
Sullivan must have skeletons in his closet. Time to put him under a microscope.
Immediately after Trump wins reelection he needs to put Flynn in charge of the FBI to clean house.
It's going to be a really big shoe....
Response: The DOJ’s description of FBI actions in the Flynn motion to dismiss looks bad to Flynn supporters, but does not describe anything done by the FBI or prior prosecutors as misconduct.
At the end of Judge Sullivan’s 12/16/19 Order denying Flynn some discovery and dismissal, he wrote:
“This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court. In re Special Proceedings, 825 F. Supp. 2d 203, 204 (D.D.C. 2011).”
By comparison — Flynn agreed to withdraw his “motion to dismiss case for egregious government misconduct” in exchange for the DOJ’s motion to dismiss. The DOJ moved to dismiss the Flynn prosecution without admitting to misconduct and only after getting Flynn to withdraw the motion that would have allowed Judge Sullivan to decide if there was misconduct.
Ah, thanks. I missed that rather important point. I think DOJ should admit what they did to him - it is all out in the open now.
Good stuff!
And, if I’m not mistaken, if the case is not dropped and PDJT has to pardon General Flynn, then GF will have no avenue to sue for malicious prosecution and that will be another opportunity missed to get the bigger fish.
Looks to me like Sullivan has not read any of the documents the prosecution has hidden for nearly 3 years. He has continually ignored the blatant violation of Brady by the prosecution.
If he thinks his desire to have more power over the prosecution trumps his duty to uphold his rulings, re. Brady, he is in for very rude awakening.
He either has no regard for the rights of the defendant, in which case he should be removed from the bench
OR
he is negligent in his duty as a judge to the point he is depriving the accused of his civil rights, in which case he should be removed from the bench
OR
he is simply corrupt or incompetent, in which case he should be removed from the bench.
Judging by this, Sullivan smells like long-dead fish: https://threader.app/thread/1261480070683688967
Impeachment of judges should be become almost as common as replacing them, clearly.
Congress is not lawful enough to correct lawless judges.
Jail for some judges; all who create law from the bench or decide a case based on anything but lawful, written law (or common law).
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.
Yeah, no. Almost certainly Sullivan is channeling Roberts on Obamacare here. He’s looking for any fig leaf he can to stick it to Flynn and Orange Man (TM).
From
https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/october-2009-ted-stevens.cfm
The Prosecutors
The Justice Department probe into Stevens and other Alaskan officials, known as Operation Polar Pen, lasted several years. Lawyers from Washington fought with lawyers from Alaska over how to handle the case and whether to bring charges in Alaska or the District of Columbia.
Some observers blame the subsequent problems in part on the lawyers’ personal conflicts and poor management. Others suggest that the Justice Department lawyers were no match for the stars that formed the defense team—they knew it and felt pressure to find any advantage they could.
But in actuality, some of the Justice Department’s finest lawyers handled the case. The trial team was part of an elite group of prosecutors in the Public Integrity (PIN) Section, with experience pursuing high-profile and complex cases.
The PIN Section, which comprises about 30 lawyers, investigates and prosecutes corruption in all levels of government. Between 2001 and 2007, it brought public corruption charges against 416 individuals, winning 371 convictions. And just recently, the section was praised for its investigation of Washington lobbyist and convicted felon Jack Abramoff.
Seasoned litigator Brenda K. Morris, principal deputy chief of the PIN Section, was not assigned to the prosecution team until late into the investigation. A native Washingtonian, Morris received her juris doctor from Howard University and trained as a prosecutor in the New York County District Attorney’s Office. She moved back to Washington, D.C., and joined the PIN Section in 1991. Promoted in 2004, Morris supervised high-profile cases, including the Abramoff probe and a series of cases involving the theft of funds meant for the Iraqi reconstruction. She is also an adjunct law professor at the Georgetown University Law Center.
Brand, who has opposed her in cases, describes Morris as “fair, forthright, and sensitive to the facts.”
Chuck Rosenberg, Morris’ lawyer and a partner at Hogan & Hartson LLP, declined comment.
The rest of the prosecution team included Nicholas A. Marsh and Edward P. Sullivan, Washington, D.C.-based trial lawyers. And then there were the Alaska-based lawyers, Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke.
Overseeing the case as supervisory attorney was William M. Welch II, chief of the PIN Section. Welch grew up in Massachusetts, the son of a local judge. He received his law degree from Northwestern University School of Law and worked in several parts of the Justice Department, including the U.S. Attorney’s Office in Springfield, Massachusetts. There, Welch made his name prosecuting a serial killer nurse and Springfield City administrators for corruption. In 2006 Welch was recruited to Washington, D.C., and has been the head of the section since 2007. Prior to the Stevens meltdown, Welch allegedly was angling to be the U.S. Attorney in Massachusetts.
“Bill is the hardest working prosecutor I’ve ever worked with,” says Kevin J. Cloherty, a former supervisory attorney at the U.S. Attorney’s Office in Massachusetts. “He is of the highest ethical standards and is dedicated to public service and doing the right thing.”
But, you see, in that case Sullivan waited until just 8 days before the election day to complain about the DOJ mistreating a republican Senator! And of course just after the jury “convicted” the republican of the crime. Damage has already been done against a Republican.
“For months Judge Sullivan had warned U.S. prosecutors about their repeated failure to turn over evidence. Then, after the jury convicted Stevens, the Justice Department discovered previously unrevealed evidence. Meanwhile, a prosecution witness and an agent from the Federal Bureau of Investigation (FBI) came forward alleging prosecutorial misconduct. Finally, newly appointed U.S. Attorney General Eric H. Holder Jr. announced that he had had enough and recommended that the seven-count conviction against the former Alaska senator be dismissed.”
On May 7 2020 AJ Ginsburg wrote the opinion for the 9-0 decision in UNITED STATES v. SINENENG-SMITH reversing the 9th circus stated
In that opinion she cites her prior opinion in Greenlaw v. United States, 554 U. S. 237 (Scalia, J., concurring in part and concurring in judgment). This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”
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.
“Yes, Judge Sullivan is that smart.”
Then where did his “Traitor Outburst” come from?
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.