Finally, a semblance of sanity has been restored to the law and Constitution in the misbegotten prosecution of former National Security Adviser Michael Flynn.
The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday ordered the controversial lower court judge, Emmet Sullivan, to follow the law by dismissing the false statements case wrongfully brought by the original federal prosecutors who were either incompetent or corrupt — maybe both.
As evidence emerged that Gen. Flynn was set up and framed by malevolent actors at the FBI —fired Director James Comey, fired Assistant Director Andrew McCabe and fired counterintelligence agent Peter Strzok — the Department of Justice (DOJ) moved to dismiss charges against Flynn a month ago.
If the retired three-star general can be faulted for anything, he is guilty of being human. Under threats and duress (as well as bad advice from his prior conflicted counsel), Flynn pleaded guilty.
He caved in to the tactics of intimidation, coercion and bullying. He should never have done so. Flynn began to regret it, as evidence of his innocence materialized. He then sought to withdraw his plea. He had the absolute right to do so under the law.
Judge Sullivan inexplicably balked. This precipitated a skilled legal effort by Flynn’s new and better attorney, Sidney Powell, to uncover the exculpatory evidence proving that her client should never have been charged with anything at all.
Notes concealed by the FBI and prosecutors showed that Flynn did not lie to bureau agents. Instead, he was the victim of a politicized campaign by Comey, McCabe and Strzok to falsely accuse and wrongfully convict him of a crime he never committed. The bureau never had a legitimate reason to even interview Flynn because he had done nothing wrong and the FBI well knew it.
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This is important because whatever Flynn said during his FBI interview was “material” to nothing. In a false statements case (18 U.S.C. 1001), “materiality” is an essential element of the crime. Hence, the new prosecutors in the Flynn case soon realized they could not possibly have won the case. Not only did Flynn tell the truth, according to the only witnesses involved, but his remarks were immaterial to an illegitimate investigation.
Flynn’s conversations with the Russian ambassador to the U.S. during the presidential transition in December of 2016 were perfectly legal and quite normal for incoming administrations. No matter. Top FBI officials targeted Trump’s newly selected national security adviser by inventing a clever pretext. They lied and deceived their way into the interview with Flynn by resurrecting (and exploiting) a moribund and unconstitutional law called the Logan Act, which had been collecting copious dust mites in the museum of fallowed statutes.
Recently, thanks to the intrepid work of Powell, the DOJ decided to review what had happened. The truth behind a disgraceful injustice was discovered — belatedly. A new prosecutor was appointed and promptly moved to dismiss the case because the previous prosecutors engaged in atrocious misconduct by suppressing evidence of innocence in violation of accepted standards of law and decency.
Again, Sullivan balked. Something was amiss. At this point, it became clear that Sullivan was not a neutral or objective jurist dedicated to following the law. He was a rogue judge with an agenda. His decisions reeked of dead fish.
If Sullivan had an ounce of respect for the law, he would have explained that any decision to bring charges or drop them is solely an executive branch function. He would have advised that he is not constitutionally permitted to countermand that decision without violating the fundamental principle of separation of powers.
Judge Sullivan had no authority under the Constitution to usurp the power of a separate branch of government.
In a previous column, I wrote: “Sullivan cannot conduct an inquisition into the decision-making or motives underlying the motion to dismiss. ... Even if Sullivan disagrees with those reasons and believes they are unwise or incorrect, he is constitutionally powerless to force the government to proceed with its prosecution.”
Thankfully, the appellate court managed to read and comprehend simultaneously the established law. In a 2-1 decision, the judges ordered Sullivan to approve the DOJ’s motion to dismiss the case against Flynn. Sullivan’s signature is nothing more than a ministerial act.
Sullivan had no authority under the Constitution to usurp the power of a separate branch of government. In simple terms, when the executive branch determines that the case is dropped, a judge cannot suddenly abdicate the bench, shed his robe, and appropriate by fiat the role of a prosecutor. The D.C. Circuit Court could have issued their ruling in five simple words: “Stay in your lane, Sullivan.”
It’s anyone’s guess whether Sullivan will grudgingly admit that he was wrong — flagrantly so. After all, this is the same guy who falsely and preposterously accused Flynn of “treason” during a previous court hearing, then recanted when he realized (with prompting) that what he’d said was not just dumb, but anathema to the law governing treason.
All of this leads me to suspect that this judge’s grasp of the law is embarrassingly feeble. His ability to recognize his own disqualifying bias is shamefully absent.
This, of course, invites the inexorable question: will Sullivan adhere to the instructions issued Wednesday by the higher court? If he has a conscience or a scintilla of humility, he will follow the directive to dismiss the case.
As I have argued for the better part of three years, Gen. Michael Flynn committed no crime. He was the victim of a gross miscarriage of justice.
The revered Supreme Court Justice Felix Frankfurter once wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”
It is too late for Flynn. He incurred financial ruin defending himself and was forced to sell his home. He has suffered incalculable damage.
If the case is dismissed as it should be, Flynn should immediately sue the very people and government that persecuted him under the pretense of a legitimate prosecution. What happened to this courageous man who served his country selflessly with great distinction, should never happen again to anyone.
Flynn deserves rich compensation for a life and legacy that has been ruined by odious characters such as Comey, McCabe and Strzok.
He is also deserving of an apology. Fat chance he’ll ever get it.