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Who Is Influencing Judge Sullivan and How Influential Are They?
Yesterday, we witnessed a significant and unusual turn of events when the judge overseeing the prosecution of former national security adviser General Michael Flynn would not immediately grant a U.S. Department of Justice (DOJ) request to dismiss the case, saying he’s willing to hear outsiders weigh in on what should happen next.
With that decision, U.S. District Judge Emmet Sullivan in Washington will accept what is known as friend-of-the-court briefs in response to the dismissal request from Attorney General William Barr’s DOJ, according to an order in the court docket on Tuesday. The judge’s unusual move is viewed as somewhat of a potential setback to the DOJ and President Trump, who has repeatedly attacked the case, part of Special Counsel Robert Mueller’s probe into Russian interference in the 2016 election.
As had been anticipated, the judge could have ended this entire matter with a single word – “granted,” but instead, he seems open to the idea of hearing other voices about whether DOJ’s motion should be granted. Again, this is extremely unusual as many legal experts have weighed in. So, the question now is who has been influencing Judge Sullivan and how influential are they?
At this point, this is what we know. Judge Sullivan’s invitation was extended to at least two groups referred to as friends of the court. The first group, known as the Former Watergate Prosecutors. These lawyers were also deeply involved aiding the Democrats House Impeachment Team asserting the following pertaining to President Trump. The group’s amicus position claims that:
> Trump conditioned protection of the military security of the United States and of an ally (Ukraine) on actions for his personal political benefit.
> Trump subordinated the integrity of our national electoral process to his own personal political interest by soliciting and encouraging foreign government interference in our electoral process, including by Russia and China. He also appears to have demanded that Ukraine investigate a potential 2020 political opponent and pursue the conspiracy theory that Ukraine had interfered in the 2016 presidential election, despite the unanimous conclusion of the U.S. intelligence community that it was Russia that had interfered.
> According to the evidence laid out in the Mueller report, Trump engaged in multiple acts of obstruction of justice in violation of federal criminal statutes and of his oath of office to “take care that the laws be faithfully executed.” Because Mueller viewed Justice Department policy as precluding him from filing criminal charges against the president, the special counsel appropriately stated that these abuses are for Congress to address.
Secondly, there is yet another group that signed a letter condemning Attorney General William Barr’s motion regarding the Flynn case. This particular group was mobilized by a left-wing organization called Protect Democracy. The group was founded and is led by Ian Bassin who served as an Associate White House Counsel from 2009-2011 — with the Obama White administration White House. Bassin also says that the MAGA hats broke the Hatch Act law. So, this is not about a legal challenge, but it is for sure a deliberate political argument. Also realize that Protect Democracy is still soliciting signatures through May 25, 2020. Also understand that the co-founder and legal advisor for Protect Democracy is Justin Florence who most recently served as counsel in Ropes & Gray’s business & securities litigation practice group, where his practice focused on appellate and Supreme Court matters. Note, Ropes & Gray LLP is a global law firm with eleven offices in Europe, Asia and the U.S. He has represented clients in the Supreme Court and federal courts of appeals, as well as at the trial level. He has previously served in the Office of the White House Counsel as Special Assistant to the President and Associate Counsel to the President. Justin also worked for Senator Sheldon Whitehouse as Senior Counsel on the staff of the Senate Judiciary Committee.
In a letter to Judge Sullivan from Protect Democracy, the group urged that the judge to hold evidentiary hearings with witnesses and proceed with sentencing if appropriate. Briefly, the letter in part reads:
It is now up to the district court to consider the government’s motion to dismiss the Flynn indictment. We urge Judge Sullivan to closely examine the Department’s stated rationale for dismissing the charges — including holding an evidentiary hearing with witnesses — and to deny the motion and proceed with sentencing if appropriate. While it is rare for a court to deny the Department’s request to dismiss an indictment, if ever there were a case where the public interest counseled the court to take a long, hard look at the government’s explanation and the evidence, it is this one.
Attorney General Barr’s repeated actions to use the Department as a tool to further President Trump’s personal and political interests have undermined any claim to the deference that courts usually apply to the Department’s decisions about whether or not to prosecute a case.
Finally, in our previous statement, we called on Attorney General Barr to resign, although we recognized then that there was little chance that he would do so. We continue to believe that it would be best for the integrity of the Justice Department and for our democracy for Attorney General Barr to step aside. In the meantime, we call on Congress to hold the Attorney General accountable. In the midst of the greatest public health crisis our nation has faced in over a century, we would all prefer it if Congress could focus on the health and prosperity of Americans, not threats to the health of our democracy. Yet Attorney General Barr has left Congress with no choice. Attorney General Barr was previously set to give testimony before the House Judiciary Committee on March 31, but the hearing was postponed due to the COVID-19 pandemic. We urge the Committee to reschedule Attorney General Barr’s testimony as soon as safely possible and demand that he answers for his abuses of power. We also call upon Congress to formally censure Attorney General Barr for his repeated assaults on the rule of law in doing the President’s personal bidding rather than acting in the public interest. Our democracy depends on a Department of Justice that acts as an independent arbiter of equal justice, not as an arm of the president’s political apparatus.
So, in moving to dismiss its own case on Thursday, the U.S. (the DOJ) said an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation were not “material” to the Russia probe.
General Flynn’s lawyer, Sidney Powell, said in a court filing shortly after the judge’s order on Tuesday that no briefs from outside parties should be accepted, noting that two dozen such requests had been denied during the three-year prosecution and urging Judge Sullivan to sign off immediately on the motion to dismiss.
Further, “A criminal case is a dispute between the United States and a criminal defendant,” Powell said in the filing. “There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel.”
In a statement this week, Powell said that Flynn’s prosecutors should be held in contempt and “meaningful sanctions imposed” over their conduct, which she said included failing to hand over evidence to the defense.
Bottom line, this is a first! This is an outrageous and unprecedented decision by a federal judge in the federal criminal justice system.
Judge Sullivan has now placed himself in to that awful category of an activist who is willing to set aside rules, set aside ethics, set aside precedent and go in that direction because he is politically motivated to do so.
This court is now going against its own rulings. There is obviously a strategy there on the part of the judge and his left-wing “outside influential groups” know as friends of the court. On Flynn’s part, there is an opportunity by Sidney Powell to attempt the appeals route, which is currently being considered and reviewed at the time of this writing.
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