Below is my column in The Hill newspaper on the hearing of former Trump National Security Adviser Michael Flynn. Unfortunately, at the hearing, Judge Emmet Sullivan met the expectations of the DC Circuit Panel, which asked him to immediately dismiss the charges. That decision was reversed en banc, but only because the court decided (as many of us argued) that Sullivan should make a final decision before the complainant considered his handling of the case. The en banc court did not rule in favor of his controversial comments or orders. At the hearing, however, Sullivan stated: "Suffice it to say that the court has referred the case back to me." As stated below, the law is clear and suffice it to say that if Sullivan follows the advice of John Gleeson, he will be overturned. Instead, Sullivan announced that he still "had questions" and stated that he was not ready to make a final decision after two years. Instead, he repeated Gleeson's words as a virtual fact like an alter ego. This moves from the cathartic to the tragic. The court extends not only the inevitable for the judgment, but also the trauma for the accused. Flynn should have been convicted years ago and the charges dismissed months ago. A defendant should not be used as a means of trial to express displeasure or to satisfy curiosity about public controversy. The court knows that if it followed the advice of its self-appointed quasi-prosecutor, Gleeson, it would almost certainly be overturned. Instead, she continues to refuse to rule while using the case to ask further questions about internal decision-making at the Justice Department.
Here is column:
When Michael Flynn goes to court for his final trial today, a lifetime of respected national service depends on what is said and done. I'm not talking about Flynn, I'm talking about Judge Emmet Sullivan. There is no problem with the dismissal of the charges against Flynn who lied to federal investigators. The only question is whether Sullivan will use the pre-election hearing as a forum for rash comments.
I worked as a lawyer before Sullivan for years and praised him for his demeanor and experience as a judge. He has served with honors since 1994 on cases ranging from Guantanamo Bay inmates to the mistaken pursuit of Ted Stevens to Hillary Clinton's emails.
Then came the case of Flynn, who was accused of once lying to federal investigators. Such a charge would normally result in a brief hearing. Flynn fought the charges, but after running out of his fortune and being threatened by prosecutors to target his son, he agreed to rely on a census. Even the non-cooperative witness such as Alex Van Der Zwaan was only held in prison for 30 days on a similar charge related to the investigation by a former special adviser Robert Mueller.
However, this is the third attempt to convict Flynn as the simple hearing derailed by Sullivan himself two years ago. Both Flynn and the prosecutor believed they would have a cursory hearing and a likely no-jail term. After all, this was just a count, and Flynn pleaded guilty and then met with Mueller as a cooperative witness about 20 times. In addition, we know that federal investigators at the time did not believe Flynn deliberately lied to them. But when Flynn went to court, he was berated rather than convicted.
Using the flag as a prop in court, Sullivan falsely accused Flynn of "being an unregistered agent of a foreign country while acting as a national security advisor" selling out his country. Sullivan even suggested that Flynn should have been charged with high treason and then suggested that he ignore any recommendations and send Flynn to jail when he stated, "I cannot assure you that if you continue today you will not be sentenced to prison receive. I do not hide my disgust and contempt. "
Sullivan apologized for some of his comments, but the hearing resulted in a critical delay. During that time, new evidence emerged that cast further doubts about Flynn's investigation, including material showing that FBI agents were about to close the case in 2016 due to lack of evidence. The investigation was kept open at the urging of dismissed FBI special agent Peter Strzok, who showed intense animus for President Trump.
We also know that former FBI director James Comey told President Obama that talks Flynn had with Russians as the new national security adviser seemed legitimate. These and other revelations prompted the Justice Department rightly to move the charges to be dismissed. There is an ongoing investigation and various experts, including myself, have argued that the investigation and indictment in Flynn's case were flawed.
The law on this is clear and overwhelming. Sullivan should have dismissed the charges months ago. Instead, he again took a controversial position. Not only did he propose that Flynn himself be charged with criminal behavior for challenging his guilty plea, but hired a former judge to argue against his dismissal. It is very unusual and extremely worrying to have such a third party involved in law enforcement. Sullivan appeared to be claiming the right to negotiate his own version of justice with a criminal complaint from the bank and an outsider playing the role of another prosecutor.
Sullivan chose John Gleeson, who spoke about the Flynn case and is also a critic of Trump. Gleeson was overturned as judge for usurping the position of federal prosecutor in a bank case in which the Second Circle hit him for increasing his role in ways that "raised the presumption of regularity would turn upside down ". Gleeson briefly asked the court to deny the motion and order the detention of people entertained by prosecutors.
His letter was filled with heated rhetoric and attacks on "allegations of government misconduct". It was severely reprimanded by an appellate body for "relying on news, tweets and other facts outside of the minutes to compare the reasons for the government's dismissal here with their prosecution reasons in other cases." The Appellate Body ruled that in Flynn's case, Sullivan's time was up because "we don't need to guess whether this erratic and searching examination will continue", as "it has already done".
Following that statement, many predicted the full appeals court would reverse, not because of a disagreement over the law but because Sullivan must be given the chance to do the right thing. He had not made a final decision, and although the panel had taken note of the clear law in this issue, it should not have taken that decision away from him. There is no doubt about the outcome of this case. Sullivan will either dismiss these charges or set them aside in the same court that sent them back to him for final judgment.
But as if determined to agree with the panel, Gleeson responded with another brief argument that the government's position was evidence of "a corrupt and politically motivated favor that is unworthy of our judicial system." Gleeson is still arguing against the overwhelming jurisprudence and advocating some reversal of Sullivan by convicting a person of a federal crime that the government claims was wrongly charged.
Therefore, at this hearing, Sullivan's reputation is at stake instead of Flynn's. He can dispassionately obey the law and dismiss this charge without gratuitous comment. Or he can use the hearing to take action against the administration and the accused shortly before an election. Many of us have criticized the handling of this case. Others loved the comments from the bank. Those who undone the panel did not do so to approve the case work or previous orders.
Their opinion was a model of objective analysis in which the need for a final decision was cited by Sullivan regardless of the controversy. I respect Sullivan and hope he puts an end to this cathartic record that lasted two years. The law here is clear and it is time for a decision that has never been in serious doubt. It's time to dismiss the criminal case against Flynn.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.