Flynn Judge Hell-bent on Banana-Republic Justice


Judge Emmet Sullivan has failed to do what a federal appeals court presided over by a tribunal of judges has ordered him to and dismiss the case against Michael Flynn, Trump’s ex-national security adviser.
Instead, Sullivan has asked the appeals court for an ‘en banc’ review of the decision. That means that a panel of all active judges on the DC court would reconsider the decision to order the case to be dismissed. Such requests are very rarely granted.

Sullivan refuses to follow order to dismiss Flynn case

Sullivan claims that the order to dismiss the case “threatens the orderly administration of justice.”

In the unlikely event that the appeals court grants the en banc request and ends up reversing the previous ruling, that would go against an earlier decision by Chief Judge Srinivasan, an Obama appointee. In a case called United States v. Fokker Services B.V., Srinivasan made a ruling that most interpret as revoking the right of judges like Sullivan to deny the DOJ’s request to dismiss a case like Flynn’s.

The common law legal system used in the USA and most English-speaking countries is based on precedent, prior legal rulings. Most experts interpret that Srinivasan’s ruling in the case above means that Sullivan has no right to refuse the appeals court’s order to dismiss the case. Srinivasan ruled that “decisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion,” leaving no “substantial role for courts.” The trick with the law is in how it is interpreted.

Although the wording in the quote seems clear enough, context is everything. The Fokker case involved the Speedy Trial Act’s application to a proposed deferred prosecution agreement. That’s kind of like a probation period in place before a trial and can take over a year, giving the prosecution a chance to observe the defendant’s behavior. The Fokker case did not involve any ruling by an appeals court.

Request for en blanc review unlikely to be granted


Sullivan’s refusal to obey the order and dismiss the case given the evidence that a perjury trap was set at the highest levels of power is obscene. This is the kind of thing that happens in countries like Moldova or Somalia. From the beginning, the Flynn case was the swamp’s strategy to avoid getting drained, and Sullivan is bending the law to carry that cause forward. Meanwhile, John Durham’s investigation is expected to produce indictments for high-level Obama officials by Labor Day.