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Home » J’Accuse: Judge Sullivan marches on and invents his own judicial procedures

J’Accuse: Judge Sullivan marches on and invents his own judicial procedures

The New Neo Posted on by

I cannot state strongly enough how unmoored these actions are from the ordinary safeguards our legal system has attempted to provide defendants:

In the case against Michael Flynn the court appointed amicus curiae, essentially a court appointed outside lawyer enlisted to prosecute the case despite the DOJ withdrawal motion, John Gleeson has now filed a motion requesting: (1) a briefing schedule, (2) oral arguments; and (3) the possibility of interviewing witnesses.

It is true that, as described there, John Gleeson is indeed acting as a “court appointed outside lawyer enlisted to prosecute the case despite the DOJ withdrawal motion.” But that is the “unprecedented” part. An amicus curiae does not have that function. You can read this article by Andrew C. McCarthy on how odd it was that Sullivan would ask for amicus briefs in this case, and that was before Gleeson was appointed and it became clear the plan was that he was going to act as a sort of junior judge in a new trial, or at least new discovery for a new trial under new charges (perjury for withdrawing a plea, another previously unheard-of charge). Also please take a look at this article about a recent unanimous SCOTUS ruling that Sullivan is flouting here:

In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

The Conservative Treehouse author of that first article I linked, “sundance,” starts out by saying “This is so far outside the bounds of traditional judicial activity it is unprecedented.” Indeed. But although I also looked at a number of “straight” news articles on the move by Sullivan and Gleeson (the latter of whom had already signaled his anti-Flynn stance in an op-ed written before his appointment), none of them even mentioned the unusual nature of the proceedings.

Meanwhile, Flynn’s attorney Sidney Powell had this announcement:

The text of the petition can be found here.

Someone compared this to the Dreyfus case. Just now, looking for who it might have been, I Googled “Michael Flynn is the new Dreyfus,” and got nothing whatsoever that’s relevant. DuckDuckGo gave me this article in fairly short order. It’s from May 8, so the author Gary Spina wasn’t yet aware of Judge Sullivan’s “creative” way of dealing with the DOJ’s decision not to continue with the action, but he says this:

As in the Dreyfus Affair, the prosecutors themselves were the treacherous villains. In the Flynn Affair, Deep State traitors attempted to overthrown a lawfully elected United States president and his administration…

Similarly, Captain Alfred Dreyfus in 1894 was falsely accused and a court martial found him guilty of treason. Perhaps his real crime was being a Jew in antisemitic France. Dreyfus was found guilty based on the tenuous evidenced of a handwriting comparison on scraps of paper (the bordereau) and a letter addressed to a German military attaché in Paris promising to furnish secret documents. In 1896, evidence was discovered that a Major Ferdinand Walsin Esterhazy was the real traitor, but the authorities suppressed the evidence. Mathieu Dreyfus, Alfred’s brother discovered exculpatory evidence, and public outcry resulted in a second military trial. But in 1899, the second military court found Dreyfus guilty. Emile Zola’s famous article “J’accuse” accused the authorities of framing Dreyfus. Zola was found guilty of libel and sentenced to prison but escaped to England. The public outcry was such that French President Loubet pardoned Dreyfus, but only after Dreyfus was broken in body and spirit by the harsh treatment he received at the infamous Devil’s Island prison.

Both the Flynn Affair and the Dreyfus Affair exposed the deep corruption that will forever stain the history of the Washington establishment and France’s Third Republic. Still, some good may result from exposing this tyranny. Hopefully the FBI will be disbanded, the FISA Court stripped of its autonomy and strictly regulated, the IRS declawed and defanged, entrenched bureaucrats subject to firing for malfeasance, misfeasance, and nonfeasance, and the Intelligence Agencies swept clean of schemers and traitors.

Ha, ha; dream on. I suppose I shouldn’t be so pessimistic, but that’s where I’m at right now, and unfortunately I think my pessimism is fully justified.

You might also say that Flynn’s legal experience has been Kafkaesque. But there’s also the competing narrative – Alice in Wonderland:

`But what did the Dormouse say?’ one of the jury asked.

`That I can’t remember,’ said the Hatter.

`You must remember,’ remarked the King, `or I’ll have you executed.’

`Are they in the prisoner’s handwriting?’ asked another of they jurymen.

`No, they’re not,’ said the White Rabbit, `and that’s the queerest thing about it.’ (The jury all looked puzzled.)

`He must have imitated somebody else’s hand,’ said the King. (The jury all brightened up again.)

`Please your Majesty,’ said the Knave, `I didn’t write it, and they can’t prove I did: there’s no name signed at the end.’

`If you didn’t sign it,’ said the King, `that only makes the matter worse. You must have meant some mischief, or else you’d have signed your name like an honest man.’

There was a general clapping of hands at this: it was the first really clever thing the King had said that day.

`That proves his guilt,’ said the Queen.

[NOTE: From Professor Jacobson at Legal Insurrection.]

Comments

J’Accuse: Judge Sullivan marches on and invents his own judicial procedures — 47 Comments

  1. And…those “patriotic” moral cretins in the House are planning another round of—you guessed it—Impeachment(TM), which seems to have overtaken baseball as America’s, or the House’s at least, favorite pastime….

    Hmmm. Wonder why they want to try that again…

    I have this fantasy that this thing just might end like the end of “Witness”, where Harrison Ford tells the corrupt cop who’s about to kill him, “Enough! Enough already” (or something like that…) Of course, Harrison Ford is not, as we speak, exactly a fan of Trump’s. Still… (Loved that movie….)

  2. Barry Meislin:

    Loved that movie, too. Ford was great in it, but the whole movie was good. There’s another scene that sticks in my mind and I’ve tried to find it on YouTube, because current events have made me think of it.

    I can’t find it. But what I recall is that the Ford character is talking on the phone to the police chief, telling him about the horrible corruption he (Ford) has uncovered, and there’s a moment in which he realizes that the chief is in on it, too. It’s an incredibly chilling moment.

  3. That’s right. He’s on the phone (calling from a private home, I think) and when he makes the realization, his hand, holding the phone, slowly falls away… (or maybe I just think I remember it that way….)

    Anyway, whenever I need a bit of chuckle (usually most of the time), I just say to myself, “Oh, it’s the, um, Indiana cousins…”

    But it is a pretty chilling film (the opening and “the kid” looking at the shelves in the police precinct)—with some extremely deft touches and simply gorgeous scenes of the PA. Dutch country…not to mention the barn raising.

    A fabulous flic.

    File under: “Don’t know much about history….”

  4. And by making that phone call, it then dawns on him that he’s endangered the entire Amish community where he’s hiding out, since the call can—and will be—traced. (I think that’s what happened.)

  5. More of the same old, same old stuff going on here. We have an event and the information I read from various conservative sources point out the out of line, probably criminal activity by the various Democrats and professional career left leaning men and women who staff all sorts of governmental agencies. I think I understand what has occurred and then I read the main stream left leaning media and the story becomes twisted, turned upside down and the people I know who use those sources are sure they have been properly informed.

    It’s as if we are watching the same foreign movie with subtitles but they were written by two different translators 180 degrees apart, same film but different stories and dialog. Now we are at the moment where experienced lawyers on both the left and right come forth and say that’s not how it works, that’s now how any of this case should work.

  6. Barry Meislin:

    And Harrison Ford without a shirt didn’t hurt the movie, either.

    Just my humble opinion.

    I didn’t like Ford in “Star Wars.” Actually, I didn’t like Star Wars. But I was stunned at how good he was in “Witness.”

  7. OldTexan:

    Yes. And that’s why the left and the MSM continually demonize reporting from the right. They want people to distrust it so much that they either will never listen to it, or if they do, they’ll discount it automatically as lies.

  10. Barry and Neo:

    Sounds like a good movie to watch during my platelet donation this afternoon. I remember seeing it when it came out (~35 yrs ago).

  12. Look at it this way, if Republicans take back the House and retain the Senate, it seems to me that there is a good chance that Bills of Impeachment will be filed against both Judge Amy Berman Jackson, and Judge Emmett Sullivan.

  13. Snow, those two had better be just the beginning, given the extent to which so many Circuit courts have become Circuses.

  14. Back in the last century, my law firm filed a direct writ of mandamus with the Nebraska Supreme Court regarding the Dem primary for Governor between Ben Nelson and Bill Hoppner. I worked with Nelson at the time and I wrote the petition and a portion of the brief.

    The Board of Canvassers refused to certify the election results where Nelson had won by about 90 votes. I was sitting in the hearing room and Bob Spire, the AG and really great guy, said he wasn’t a potted plant. I walk out of the hearing room and said to another lawyer at the law firm, “We have to file a writ of mandamus.” It was a ministerial act and the Board had no legal authority to refuse certification.

    Two senior lawyers later drove down to Lincoln to file the case and their picture was on the front page of the OWH.

    Senator Bob Kerry was friends with the late Mike Dugan. Dugan was at the same law firm with Nelson and me. Hoppner had been Kerry’s chief of staff when he was governor. I was in Dugan’s office when Bob called up. He said Ben would now be known as Nelson Mandamus.

    Some counties recounted while others didn’t. The results stayed the same. The Supreme Court did nothing and Hoppner eventually conceded.

    The OWH reported that Hoppner went into the trucking business with a friend from Pender. He said that the loss was a blessing. He took better care of his health. He was diagnosed with cancer and he recovered. Losing the race saved Bill’s life.

    Years later I dated a woman from Pender. Of course she knew Bill and his mother.

    Nebraska is a small state.

  15. On Witness– it has been a few years since I have seen the movie, but Ford’s character realizes his captain is corrupt only after he is shot by Danny Glover’s character. This shooting occurs immediately after Ford has met with the captain and told him about Glover’s involvement. This is why Ford runs to the Amish village- he can’t trust anyone in the department except for his partner. It is the killing of his partner that provokes the careless call from the phone booth, but it isn’t really the phone call that betrays his location- it is the fight with the local that catches the attention of the local police, and thus eventually leads the villains to the farm.

  16. I think the DC Appeals court will have no choice but to grant the writ. What Sullivan is doing is utterly corrupt- it is nothing but a nakedly political act- the sort of thing that deserves impeachment and removal, but we know that will never happen.

  18. Going forward, if this succeeds, it will forever be considered a political act, the legal and ethical issues notwithstanding. Or, I suppose, not even visible.

  19. I find the Dreyfus Affaire redux angle pretty powerful.

    However, there is one divergence in the parallel (and perhaps someone may enlighten me out of my ignorance): cuo bono?

    Today, it’s clearly the Left’s insatiable power lust that’s the prize and motive. And some are open about that.

    But in the miscarriage of justice and mobbery inflamed by prejudice and villainy versus something more safe, it is hard to see what end-state or prize is gained by Dreyfus punishment for treason?

    (And I must confess to have read all of the works of Thomas Szaaz, a psychiatrist who was an expert on the subject and political psychology of scapegoating; perhaps I’ll benefit from rifling through his many books that I’ve long neglected.)

    If so, then isn’t the parallel – then and now – only on the surface? Especially within the hysterics on the traitorous Democrat mind? A function of projection? Mobs have been used, propagandised into a cause, and wildly abused and sinisterly moved to harm the people of the USA and its process oriented institutions.

    True, Gen. Flynn has been a victim like Dreyfus, but Flynn was a stand-in for Trump, and a country who voted “wrongly.”

    Yet this is a far, far greater evil than was the Dreyfus Affaire. And such a sinister calumny against Truth and Justice that cannot see any punishment equal to this crime than civil war and succession or…vigilantism and blood-filled retribution administered throughout DC.

  20. The people who pinned the crime on Dreyfus were covering for the actual culprit, Esterhazy — it was the “in group/elite” versus the “odd man out” — which does make for an even more complete parallel.

    Wikipedia:

    In 1896, evidence came to light—primarily through an investigation instigated by Georges Picquart, head of counter-espionage which identified the real culprit as a French Army major named Ferdinand Walsin Esterhazy. When high-ranking military officials suppressed the new evidence, a military court unanimously acquitted Esterhazy after a trial lasting only two days. The Army laid additional charges against Dreyfus, based on forged documents.

    Paul Muni starred in an award-winning 1930s biopic about Zola, in which his championing of Dreyfus is a major plot element. People forget that the famous writer was convicted of libeling the army, by producing the exculpatory evidence, and had to self-exile to England after writing his inflammatory letter.

    https://en.wikipedia.org/wiki/The_Life_of_Emile_Zola

  21. Another interesting parallel.
    https://thefederalist.com/2020/05/19/judge-emmet-sullivans-bullet-fee-persecution-of-michael-flynn-is-an-abomination/

    In 2009, shortly after clashes between Iranian security forces and protesters, the family of 19-year-old Kaveh Alipour learned that to retrieve the remains of their son, they had to pay an equivalent of a $3,000 “bullet fee” to reimburse the Iranian government for the costs of shooting Alipour. It’s a technique pioneered by the Soviets: one last pound of flesh extracted from the victim’s family as further punishment for “forcing” the state to oppress the victim.
    …
    The judge means that he’s considering charging Flynn with perjury for pleading guilty in the face of a rigged prosecution. In other words, the judge is thinking of sending Flynn a bill for the metaphorical bullet used to destroy Flynn’s career and deny him justice.

  22. CTH ties the Rice memo even closer to the Flynn case as it now exists.
    https://theconservativetreehouse.com/2020/05/19/susan-rice-memo-declassified-and-released-confirms-discussion-about-flynn-as-subject-of-fbi-investigation/

    …
    Lastly, it does not go unnoticed the purpose for the original redaction. The DOJ/FBI and intelligence administrators were trying to keep James Comey protected; and maintain the offensive effort toward the Trump administration.

    Imagine if this memo had been released in 2017 or 2018?… the sunlight would have been unbearable for a multitude of ongoing narratives. Mueller could never have attempted to prosecute Flynn in 2017 against the backdrop of a known FBI investigation to target and frame Michael Flynn.

    Also – Sullivan doubles down.
    https://theconservativetreehouse.com/2020/05/19/flynn-judge-grants-amicus-request-for-oral-arguments-defense-attorney-sidney-powell-reacts/

  24. There’s a big difference.

    During the Dreyfuss affair, there was a balance of powers. Emile Zola letter was published in a newspaper, and other newspapers took his side.

    Nowadays, Emile Zola would publish his open letter in his personal blog and twitter (if he wasn’t already banned). No newspaper would reproduce it. No media would even talk about it. Emile Zola wouldn’t go to court or be sentenced, he just would be ignored. Mainstream media would give his letter the silent treatment.

    His open letter would fall into oblivion and probably only a small minority would ever read it. Zola would be periodically attacked with the usual straw-man, creating a fictional mainstream view of Zola with words he didn’t say and opinions he didn’t really support. The wikipedia would describe him as a far-right extremist and the original text of the ‘J’Accuse’ letter would be almost impossible to find in google and other searchers like duckduckgo*
    —
    *they use google results to prioritize their own database, that’s why the results are so similar.

  25. There’s a bright side here:

    The Senate is so hopelessly riven by politics that they would never get 67 votes to impeach Sullivan, but now they don’t have to! If his outrageous behavior gets him disbarred, doesn’t that disqualify him from the bench?

  26. Matt_SE, unfortunately no. No requirement I’m aware of that a judge has to be a lawyer.

    Who’s going to disbar Sullivan anyway?

  27. How many times has a prosecutor moved to dismiss charges after a defendant has pleaded guilty?

    Is the role of a judge before taking a plea (when charges are pending) the same as the role of a judge after a guilty plea has been taken (when charges are no longer pending because there is a conviction, a conviction obtained after a process where the judge’s role was essential)?

  28. Judges have been regularly overturning the acts of legislative bodies for years in the name of the Constitution, and ever increasing and tenuously anchored penumbras, or perhaps more in line with the figure, umbrellas. This has gone to the point where they have commanded legislative bodies to enact their directives, and overturned fundamental social norms based on biology in the name of some spurious equity. And they have gotten away with it, so cowed have the populace and tbeir elected representatives become through decades of social conditioning. The phrase ultra vires has lost all legal meaning in our modern era.

    This tendency to usurp and rule has has recently spread to regular intrusions into very ordinary acts of the executive. So, it is no surprise that judges should feel free to rewrite established legal processes and principles to suit their own ends. Or even the plain text and repeatedly established meaning of the Constitution so as to conform to, as they see it, some superior legitimacy … some supernal constitution which they have divined and which annoints them gods, not referrees. It’s all in the nature of “Evolution” – which brings Neo`s oft mentioned cosmic justice – hallowed be It’s name.

    Many Americans, temprementally and psychologically unfitted for freedom and self direction and life in a constitutional republic, are just fine with that: The most important question in their lives being, “When can we get our fourth wall screen, Montag?”

  29. My new fantasy – Trump wins a House majority of Reps in 2020.
    And all the FISA judges get impeached – even without the votes needed w/o some Dems.

    The impeachment process is part of the “punishment”.

    And, ya, then the gov’t won’t have much time to put up new laws (to oppress the honest, law-abiding folk) – but that’s a feature.
    Of the fantasy.
    But it’s only a dream.

  30. Yeah, Tom Great – LOL!
    And thank you AesopFan for your detailed elucidation of the parallels. I believe the old Paul Muni/Zola bio pic is on YouTube. I will watch it and re-read my back story two links, given your insights.

    Thus, an Opportunity to reflect on a lot of significant parallels. And how interesting that that pre-WWI contretemps prefigured that war and so directly illustrates “The Persistence of The Old Regime” argument for the origins of the Great War made by historian at Princeton, Arno Mayr. While Great Britain had made steps checking if not dismantling old aristocratic powers, and to include the rising middle classes, the Central and Eastern European powers had not. Or almost minimally for a century. The latter therefore revolted against modernism in politics, thereby causing the war.

    As for Yann, sure. These are huge differences which go directly to our hosts complaint: who will correct the media lies and propaganda machine that runs on Journo-List 4.X?

    Today, Trump is Zola to our side, but no others, not even abroad (eg, polls show Germans fear Trump more than Russia’s Putin; Europe’s in trouble when Germany cannot even conduct an honest body-count, given the current trial in The Hague over Malaysian (sp?) Airlines 193 killed over Ukraine in 2014, many of the dead from EU countries). Plus, their media lies and double-dumb doubling down reveal a hateful incapacity for any shame. It is psychotic.

    DNW – true. However, the weight of a fresh unanimous SCOTUS ruling against everything Sullivan is doing cannot make the District Court bench, who receives the writ of mandamus, indifferent.

  31. PS and thanks to all for your kindly instructive input, for me as well as readers unknown!

  32. Germans fear Trump more than Russia’s Putin;

    Trump isn’t a threat to them and Putin isn’t much of one. They’re just being Eurotrash a**holes. That’s been a common disposition among elites and public in Europe for a generation and a half, if not longer. See, for example, Jimmy Carter’s remarks about what an unpleasant piece of work was Helmut Schmidt, penned nearly 40 years ago.

  33. I think the DC Appeals court will have no choice but to grant the writ.

    I’d like to think so, but high class lawyers tend to believe in one thing: that the prerogatives and perquisites of the legal profession must not be infringed.

  34. Is there a distinction between a judge holding a person in contempt based on perjury during trial testimony, where the jury is the sole decider of credibility, versus a judge holding a person in contempt for perjury during a plea colloquy, where a judge is a necessary “party” to the proceedings, and in fact has sole authority to determine if the plea is valid?

    If a defendant is sentenced and has filed an appeal, can a prosecutor make a motion in the appellate court moving to withdraw the charges based on the prosecutor’s alleged plenary powers of accusation?

  35. DNW – true. However, the weight of a fresh unanimous SCOTUS ruling against everything Sullivan is doing cannot make the District Court bench, who receives the writ of mandamus, indifferent.

    Well, we shall see soon enough if the writ is issued.

    Along with the demand for cosmic justice and the righting of the “wrongs” nature has done them by demanding compensation from their neighbors, an assumption by some part of the populace is that an inquisitorial judicial process would be preferred. If they even know the difference. One where judges have an unlimited charter and combined powers of investigation, prosecution ,and judgment.

    Add to that the left’s reformulation of the principle of stare decisis to: “precedents need be followed if and only if we set them”, and we will have exactly the kind of legal system which their cringing serf-worthy ancestors fled from in the first place.

  36. Dragons are not dragonflies.

    Does a legal principle applicable to an appellate court considering issues and opposing arguments submitted by two adversaries, also apply to a trial judge who approved a guilty plea, and is now being asked to undo the plea because one of the parties who brought about the guilty plea has now changed his mind?

    Is it a defense to perjury that the perjurer was trying to help out a relative?

    If mandamus applies to ministerial acts only, is it true that “leave of court” is actually just a phrase meaning rubber stamp? Then why require leave of court? And can a court with jurisdiction over a matter make a legal error with respect to the matter and still retain jurisdiction? Or does legal error divest a court of jurisdiction?

  37. Impeachment 2: The Electric Boogaloo
    Impeachment 2: The Schiff Hits the Fan

  38. Dragons may not be dragonflies, but coerced confessions and pleading’s leveraged put of the victim on what the justice department now acknowledges was a false predicate, an irregular process, a concocted charge, and a corrupt result , is dragon enough.

    Perhaps Flynn should have gone to the stake initially so as to demonstrate a letter of the law purity the authorities ignored.

    But our system does not demand that, and a parody of formal due process in the case of a man railroaded by corrupt politically motivated agents of the government, is generally recognized as a legal outrage.

  39. Apologies for all the typos, misplaced commas and nonsensical word substitutions. Can’t keep up with a Tablet determined to “auto-correct ” text, in script already reduced to phone book sized font.

    Probably a good reason for me to take a break until I can access a better platform.

  40. @DNW 2:34 PM

    How is an argument improved by incorrectly citing cases and misunderstanding the legal significance of discrete events?

    If the Flynn case has become the Dreyfus case, shouldn’t there be a coherent LEGAL (as opposed to political) argument which could easily be made?

    To understand what Sullivan is doing, is it sufficient to accuse him of corrupt motives regardless of what the law actually is?

    Take a single example. Is it a defense to perjury that you committed perjury to do a favor for a relative? That is a serious question, and it may not be as simple and obvious as a lot of people assume. And in fact, despite looking hard, I have yet to see a single Powell supporter address the issue, let alone analyze it.

    Yet Sullivan (apparently) believes that Flynn committed contempt by committing perjury to Sullivan’s face. Or at least Sullivan is considering that possibility. He may decide: no.

    But what if the answer is yes? What if Flynn committed contempt by committing perjury to Sullivan’s face? Is Sullivan entitled to look into the matter? And if he is entitled, what does that do to Dreyfus?

    The government moved to drop charges in the Steven’s case, but Sullivan decided instead to appoint a master and examine the underlying facts. He refused to dismiss the case despite the government’s position. That is a big part of the book Powell sells, in which she praises Sullivan for doing so.

  41. Tonawanda:

    The SCOTUS (Ginsburg) quote in the post controls. “[Judges] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” If the party prosecuting a criminal case says “no” to the prosecution and/or sentencing, the judge is supposed to comply.

    Perjury is ordinarily about a statement of fact. I have never – literally never – heard of a person being charged with perjury for changing a plea. And yet pleas are changed every day. In this case, the plea was originally made because of prosecutor malfeasance and coercion and threats. That’s another issue, for which the original prosecutors should be punished, not the defendant, who is the victim here.

    Ordinarily, a plea is entered while the defendant is not under oath, so there is no question of charging him/her with perjury. However, in the Flynn case – in which the judge is clearly prejudiced against Flynn, as his bizarre rant about “treason” proved – the judge did something very odd in addition. That link I just gave is to someone on the left who rails against “right-wing talking points” and completely approves of what Sullivan did. But he also made this telling statement about what happened back then (a year and a half ago):

    Sullivan tore into Flynn and his lawyers. He almost bizarrely put Flynn under oath before demanding that he admit his guilt and deny all the right-wing talking points which have recently been repeated by the president himself. He forced Flynn to admit that he knew he was wrong to lie to the FBI and that there had been no misconduct in how his interviews were conducted. He acknowledged that any possible wrongdoing then-Deputy FBI director Andrew McCabe and counterintelligence official Peter Strzok may have committed in other areas had no bearing on his responsibility to be truthful to federal agents.

    Judge Sullivan openly questioned whether Flynn could have been charged with treason for operating as an undeclared agent of a foreign power while serving as National Security Advisor, suggested that Flynn had dishonored the flag that was displayed in the courtroom, and said “arguably you sold your country out.”

    Note that even this guy – who hates Flynn and the right and agrees with Sullivan – thinks what the judge did in making Flynn admit his guilt under oath was bizarre. Why did Sullivan do that? I submit that it was to make it impossible for him to withdraw that plea without being subject to a possible perjury charge.

    I can’t find a single additional discussion of this very odd behavior from Sullivan, making Flynn affirm his plea under oath. At the time, coverage concentrated on Sullivan suggesting Flynn was guilty of treason, a comment that was way out of line and showed not only prejudice but emotional instability (and ignorance of the law) from the bench. Now I am more concerned with the forcing of Flynn to reaffirm his guilty plea under oath which is apparently also highly unusual and perhaps unprecedented.

    Here’s what Flynn has said recently (January, 2020) on the matter of his December 2018 reaffirmation of guilt (under oath) in Sullivan’s court:

    Flynn in his filing Wednesday said it was a mistake to confirm his guilty plea before Sullivan in his first sentencing hearing in 2018.

    “Regretfully, I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty,” Flynn wrote.

    Not only were Flynn’s original prosecutors and investigators out to frame him, but his defense attorneys were compromised as well. The situation he has been put in is outrageous.

  42. Tonawanda:

    And also, a judge is never a party to the case at any point. He is the judge. The adversarial system is the party system, and the adversaries in a criminal case are the prosecution (the government) and the defendant.

    That’s basically what that SCOTUS decision I quoted affirms, also.

    And Flynn has never been sentenced.

  43. I have a suspicion about Sullivan. (1) he was always a mediocrity and (2) early-stage Alzheimer’s is a real possibility. The signature of Alzheimer’s (in contrast to other dementias) is that the subject is unaware of his impairments. Either that or he’s a megalomaniac.

  44. There’s an easier answer as to what Sullivan “is”. And therefore, what he HAS to do.

    He’s the only defender left standing that can keep Flynn locked in personal and legal limbo—in personal and legal Hell—for months and months ahead and by thus neutralizing him, keeping the conspirators safe until the threat to their safety is past.

    He’s the final remaining Republican Guard.
    The last Guardian of the Gate.
    The only member of the Praetorian Guard left standing.

    It is only Sullivan who can keep Flynn neutralized, frozen in place; only Sullivan who can hold back the floodgates that Obama knows will engulf him if the innocent Flynn is permitted to go free.

    Sullivan knows what he has to do.

    He knows that he is now the ONLY ONE LEFT.
    And he knows where his allegiance lies.

    (And he knows he has the MSCM and the Leftist Intelligentsia at his back.)

  45. “The SCOTUS (Ginsburg) quote in the post controls. ‘[Judges] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.’ If the party prosecuting a criminal case says ‘no’ to the prosecution and/or sentencing, the judge is supposed to comply.”

    1) Neo, please understand I say this with sincere and great respect.

    The Ginsburg statement controls appellate courts under the circumstances in which the appellate court found itself. Whether it applies to trial courts under the circumstances in which Sullivan found himself is an entirely different question. This is the “exceedingly fine” part of the saying most laymen and many lawyers do not get. The Ginsburg statement does not control IMO, and IMO it does not apply to Flynn’s entirely different legal circumstances. Also, Flynn’s purported contempt was not manufactured by Sullivan. It “came to him” in front of his face. Whether the basis for the contempt (alleged perjury) is valid is a debatable legal question. The sort of question where a judge might call in the assistance of capable attorney who can clarify the issue.

    The prosecution has near plenary power regarding criminal charges (accusations). The charges in Flynn’s case ceased to be pending when he pleaded guilty. When Flynn pleaded guilty, he was then convicted. The prosecution does NOT have plenary power over convictions. So Barr was not saying “no” to the prosecution, he was saying “no” to the conviction. Folks are not getting this “exceedingly fine” part of the discussion. IMO Sullivan has no categorical obligation to comply with Barr.

    “Perjury is ordinarily about a statement of fact. I have never – literally never – heard of a person being charged with perjury for changing a plea. And yet pleas are changed every day. In this case, the plea was originally made because of prosecutor malfeasance and coercion and threats. That’s another issue, for which the original prosecutors should be punished, not the defendant, who is the victim here.”

    2) Guilty pleas are primarily statements of fact: “I am doing this of my own free will.” “I have not been made a promise in exchange for this plea.” “I am satisfied with my lawyer in this case.” “I do this voluntarily.” “I waive various rights in this case because none of those rights are of interest to me given my consideration of all the factors.” ETC ETC ETC. Whether any of us have heard of a person being charged with perjury because of statements during a guilty plea is interesting but not dispositive. I have asked around and have not heard of anyone who has a legal argument why a person could not be charged with perjury for false statements during a plea colloquy.
    Whether the original prosecutors and law enforcement ought to be charged criminally is an open question, but my inclination is they ought to be, given what we know. That would be Durham’s job, not Powell’s.

    3) “Ordinarily, a plea is entered while the defendant is not under oath, so there is no question of charging him/her with perjury.”

    Having read thousands of plea transcripts in criminal cases, I have never seen one NOT taken under oath. And here, I think, is an important point. A judge rules on the validity of every plea. And his ruling depends upon a defendant telling the truth. A guilty plea is a substitute for trial, not a perfunctory thing. It may look perfunctory, but it is not, and the law relevant to guilty pleas is quite extensive and deep.

    4) I will not quote your approving point of the leftist’s criticism of Sullivan. The quote is too long. I will just answer it. What Sullivan did was entirely routine. Just an educated guess, what Sullivan did happens every day in courts all across America. A defendant pleads guilty. A defendant then expresses equivocation about his guilt. The court then sternly inquires whether the defendant in fact is guilty, and the court repeats the plea colloquy to ascertain whether the plea is valid or not.
    Flynn expressed equivocation about his guilt, so Sullivan followed up. It truly is as simple as that.

    The accusation of treason by Sullivan was egregious and deplorable. But Sullivan was told he was wrong and he apologized for it. That justifiably makes all of us suspicious and distrustful. But I will tell you this: out of that precise circumstance happening a million times, an appellate court will a million times say: the court acknowledged it was wrong and apologized. End of issue.

    I cannot stress enough how often a defendant expresses equivocation about a guilty plea AFTER the plea, and how often courts do EXACTLY what Sullivan did. Like it or not, it is an entirely known issue, addressed millions of times (I would guess) by the appellate courts, and dealt with keeping in mind the seriousness of a defendant’s statements under oath when he pleaded guilty, making the many factual statements he makes under oath during a plea colloquy.

    5) Neither you nor I are privy to what Flynn’s original lawyers told him. And Powell is adamant that she does not want those discussions to be made public. My total educated guess is that his lawyers, corrupt though they may be, would crush the allegation of ineffective assistance. And my guess is that both Flynn and Powell are not reliable on this issue, but I could be wrong.

    6) OK, a judge is not a party to a case. I thought I put quotation remarks around that word. Regardless, a judge and a defendant are the two PERSONS essential to a guilty plea. A guilty plea takes the place of a trial. Long ago, extensive legal opinions addressed the question of the validity of guilty plea in various contexts, and even now guilty pleas are prohibited in some cases.

    A judge has a solemn duty with respect to guilty pleas, and his duty is owed to the People as well as the defendant, for many deep reasons given over decades in decisions addressing the issue every where in America. I say again, guilty pleas are not supposed to be perfunctory, not even for defendants. Defendants are supposed to tell they truth during a plea colloquy. As a person and a magistrate, a judge has a profound interest in the validity of a guilty plea.

    7) A guilty plea is a conviction. A guilty plea and a sentence is a judgement of conviction. Two separate things. Just like an accusation and a conviction are two separate things.

    8) Interesting how attorneys on our said do not make LEGAL arguments in support of Dreyfus. For instance, “this is why Ginsburg applies,” or “this is why a defendant has not committed perjury.” In many instances, they could not even formulate what the issue is because they have zero experience doing so. I include McCarthy, Turley and Levine in this group, who are in over their heads.

    9) Outrage is not a legal argument. That is where Powell has bamboozled trusting people.

    10) BTW, have you ever seen a federal guilty plea on paper?

  46. To Tonawanda, I must say that I have seen a lot of nonsense in legal writing before, but in 43 years of law practice I have never seen so much in such a relatively small space. A Supreme Court decision applies to a Court of Appeals but not to a trial court? Are you serious? What legal authority excuses a federal district court from following a Supreme Court decision? Please cite a case.

    I don’t know where (or if) Tonawanda practices law, but in the two jurisdictions where I have practiced, I never heard of anyone being charged with perjury for making and then withdrawing, or attempting to withdraw, a plea agreement. I haven’t had time to do thorough research, but a quick search of California Supreme Court cases for the last 20 years produced four cases on the issue. In two of the cases, the defendants were illegal immigrants who claimed they did not know that deportation could result from a felony conviction. In one case, an applicant for a green card claimed he did not know a felony conviction would result in him being disqualified for a green card. In the fourth case, it appeared the defendant wanted to withdraw his plea because testimony of a witness that he thought would go in his favor went against him. In none of these cases was there any suggestion of the defendant being charged with perjury.

    The reason for this is simple: all plea bargains are the product of perjury. As Mr. Tonawanda admits, a defendant who pleads out must state “I am doing this of my own free will.” “I have not been made a promise in exchange for this plea.” “I am satisfied with my lawyer in this case.” “I do this voluntarily.” “I waive various rights in this case because none of those rights are of interest to me given my consideration of all the factors.” All of those statement are lies. The defendant is not entering a plea voluntarily and of his own free will. In every case, he has been made a promise in exchange for this plea — a promise not to prosecute him on the more severe charge which he undoubtedly deserves. If defendants were to be prosecuted for perjury, it would be for entering into plea agreements, not for seeking to withdraw from them. But, the workings of the vast machine that is our criminal justice system requires plea bargains to function, so no one can be prosecuted for perjury for making a plea bargain, whether he seeks to withdraw it or not, or the whole system would grind to a halt.

    As to Towandana’s last comment about McCarthy, Turley, and Levine being in over their heads, McCarthy and Turley (I don’t know which Levine he is referring to — I know about 50 lawyers by that name in my neighborhood) are superb lawyers, experienced criminal litigators, and in Turley’s, case a brilliant legal scholar. Unless he is a lawyer who has gone against them and won, or an appellate court judge who has overruled a case they had won, it’s Towandana who is in over his head.

  47. “…which he undoubtedly deserves.”
    Um, er, careful there.

    Having said that, your deft takedown of the previous screed is much appreciated. The part about McCarthy and Turley, etc., is pure gold!
    (But my favorite part is about Sidney Powell “bamboozl[ing] trusting people”. If only it were in the first sentence or so…it would have “set the tone” and saved me a bit of time….)

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