Judge picks anti-Trump lawyer to carry case against Flynn

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The federal judge who was informed by the Department of Justice it was dropping its case against Michael Flynn, for a time President Trump’s national security adviser, has refused to grant that request immediately.

Instead, he’s picked a known critic of President Trump to argue for the continuation of the case – even though the DOJ won’t prosecute.

Judge Emmet Sullivan this week appointed John Gleeson, lawyer and former judge, to oppose the DOJ effort to drop the case, and Sullivan further wants someone to explore a perjury charge against Flynn.

Flynn was caught up in FBI special counsel Robert Mueller’s years-long investigation of Democrat claims the 2016 Trump campaign colluded with Russia. That concluded with the finding that didn’t happen.

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However, FBI documents show agents set a trap for Flynn, and even discussed openly about trying to trick him into a lie.

He later pleaded guilty to lying to investigators, a plea apparently submitted under the threat from agents that they would otherwise prosecute his son. He has been attempting to withdraw that plea for some time now.

Last week, the DOJ concluded that case had no legal foundation, and it should be dropped.

Sullivan, however, so far has declined. Instead he took over the role of prosecutor, appointing Gleeson. This was after he openly said he would accept briefs from outsiders to the case, offering him advice on what to do.

Samuel Buell, who teaches criminal law at Duke, told the New York Times Sullivan essentially is bringing in an outsider to continue the prosecution, against the wishes of the DOJ.

“This is extraordinary for the judge to appoint somebody to argue against a prosecutors’ motion to dismiss a criminal case,” Buell told the publication, noting that the whole case is unusual.

Gleeson already has expressed his own opinion, and in an article in the Washington Post expressed opposition to the DOJ’s decision to dismiss the case.

He claimed, “Prosecutors deserve a ‘presumption of regularity’ — the benefit of the doubt that they are acting honestly and following the rules.”

He charged there was “improper political influence” in the decision.

The comments come just as records have been released revealing that dozens of Obama administration officials were part of a campaign to “unmask” Flynn’s name, as he was an American who had conversations with foreign leaders that were the target of spying operations.

Typically, Americans caught in that situation have their identities protected by federal masking procedures. Obama administration officials, including Joe Biden, however, insisted that his name be released.

Sullivan was appointed by Bill Clinton, and previously has been abrasive with Flynn, one time expressing alarm that Flynn appeared to explain that investigators had coerced him into pleading guilty. The judge immediately demanded he plead guilty “knowingly, voluntarily, intelligently, and with fulsome and satisfactory advice of counsel.”

Flynn later changed lawyers, and his new lawyers counseled him to withdraw his plea.

Harvard Law emeritus professor Alan Dershowitz, a longtime self-professed liberal, said Sullivan should dismiss the case or face impeachment.

“If this judge has the gall to not throw this out, he ought to be impeached. Remember that judges only have jurisdiction for cases and controversies,” Dershowitz said. “There’s no controversy here. Both sides agree this case should be dismissed. This judge has no power to do anything else. And if he asserts that power, he has violated the Constitution.”

A commentary at the Gateway Pundit pointed out that lawyer Sol Wisenberg told Laura Ingraham on her television show that the precedent already has been established for such cases – and it doesn’t agree with Sullivan’s apparent manipulations.

He said, “Under the Fokker case that just came out two years ago, the D.C. Circuit which governs Judge Sullivan made it very clear if the government wants to dismiss a case you cannot, the district court, cannot refuse to do so because he doesn’t like the government’s theory. Because he thinks the government should continue the case. And it doesn’t matter if the defendant has pled or not.”

The commentary quoted from the Harvard Law Review about that case, “Since the Arthur Andersen prosecution in which thousands of innocent workers lost their jobs, the Department of Justice has increasingly turned to deferred prosecution agreements to avoid the collateral consequences of a corporate criminal conviction.”

It continued, “In a DPA, the government agrees to dismiss filed charges if a corporation complies with negotiated conditions that are aimed at punishing the misconduct and allowing the corporation to demonstrate rehabilitation. Traditionally, judicial scrutiny over the DPA’s terms has been ‘essentially nonexistent.’ … However, 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.’ … The D.C. Circuit subsequently curtailed these efforts in United States v. Fokker Services … in which it held that to preserve ‘the Executive’s long-settled primacy over charging,’ a court is not authorized to reject a DPA based on a finding that the ‘charging decisions’ and ‘conditions agreed to in the DPA’ are inadequate.”

The article said, “…as a matter of established law, the judiciary is not to second-guess the Executive’s decisions of ‘whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges.'”


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