The Flynn case is in disarray. Even former judges don’t know what to do.
But it seems pretty simple to me.
The sentencing judge, Sullivan, hasn’t made a decision yet. He’s been asked to dismiss the case because Trump-Barr-Shea want it so.
There is, however, no controversy ripe to be reviewed. The Judge has not reached a decision.
One former judge says the court of appeals should do nothing except take the case away from the trial judge, away from Sullivan, who knows the case well and has done nothing wrong in the case.
From my perspective, the trial judge Sullivan has made choices that make sense in the difficult situation presented by the slapdag way the Just Us Department has interfered. After Flynn pleaded guilty twice and cooperated, it’s a lot to swallow that somehow his case doesn’t deserve a sentence, and perhaps punishment.
Both the defense and the prosecutors are on the same page. Indeed the Justice Department’s motion was signed by the US Attorney because the career prosecutor who had been handling the case, apparently wanted to have nothing to do with this debacle. If the judge is going to make a decision based on the parties, his decision has been made for him. Because Flynn’s counsel certainly wants what DOJ wants — to let Flynn go free.
But the law says the judge should exercise discretion, on the motion to dismiss or not, that is, whether to Grant the motion to dismiss the case or not, and, if the latter, to sentence him.
Accordingly, Judge Sullivan invited amicus briefs to determine the public interest to Grant or deny the motion. The case law for 48(a), the rule the government invoked, says, with leave of the court, meaning, the trial court judge has to agree or not. And all the circumstances have given Judge Sullivan pause that a dismissal is in the public interest.
In addition, Judge Sullivan is faced with the difficult question of whether Flynn has committed a contemptible offense.
At the core, it is that Flynn said he was guilty twice, and now suggest that he’s not. He also cooperated to bring other cases. How does that shake out with the pending motion to dismiss. That can hardly be a good faith position for Flynn and his new counsel.
The judge has not rushed to judgment. The judge instead has created a deliberative process to decide if a dismissal is in the public interest and whether or not that’s the case.
Also, what if any offence Flynn may have committed. And for this exercise he’s asked a former prosecutor and former federal judge to assist in making that determination.
The trial court judge is the only one who makes any sense in this case of conflicting impulses. The worst impulse of course is to bow to the demands of the Trump-Barr-Shea disruption of the regular order to defeat what is plainly just and right.
How anyone can look at the misconduct of the Just Us department and not think this is a special case, suggests such a view may only be harbored by partisans who believe in tyrant Trump’s efforts to erase from the history books the special counsel investigation and the offenses that rightly resulted in his impeachment, if not his conviction.
The worst aspect of the saga is that it’s a test whether or not another branch of government will bow before tyrant Trump’s misconduct. The congress because of the Republican Senator’s spineless deference to Trump has rendered the House less than a rubber stamp — as, at least, a rubber stamp leaves an impression. The question is will the judiciary follow the law or succumb to the pressure of the tyrant in the west wing.0