easyt65
Diamond Member
- Aug 4, 2015
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Do you know WHY legal experts are calling Sullivan's actions 'Unheard Of', 'un-precedented', 'un-believable', etc...?
BECAUSE SULLIVAN IS VIOLAITNG THE LAW, GOING AGAINST LEGAL MANDATE / ESTABLISHED PRECEDNECE
"The U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. Thatâs what Michael Flynn judge Emmet Sullivan decided to do.
Judge Sullivan announced he would accept amicus briefs, a group of lawyers operating under the moniker Watergate Prosecutors filed a notice of its intent to file an amicus brief. That a group of left-leaning lawyers intended to relitigate Obamagate via the Flynn case wasnât surprising. What was surprisingâno, unbelievableâis what Judge Sullivan did on Wednesday: He entered an order âappoint[ing] The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the governmentâs Motion to Dismiss.â
This order was jaw-dropping for two reasons.
First, the U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. In fact, the very case Judge Sullivan cited for the proposition that he had the inherent authority to appoint an amicus curiaeâUnited States v. Fokkerâmade clear Sullivanâs order was lawless.
âdecisions to dismiss pending criminal chargesâno less than decisions to initiate charges and to identify which charges to bringâlie squarely within the ken of prosecutorial discretion.â
âto protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendantâs objection.ââ Such review in that case is to guard against âa scheme of âprosecutorial harassmentâ of the defendant through repeated efforts to bringâand then dismissâcharges.â
Fokker then concluded: âSo understood, the âleave of courtâ authority gives no power to a district court to deny a prosecutorâs Rule 48(a) motion to dismiss charges based on a disagreement with the prosecutionâs exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecutionâs desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendantâs alleged conduct. The authority to make such determinations remains with the Executive.â
The Fokker decision was a 2016 decision from the D.C. Circuit Court and, as such, establishes âmandatory precedent,â i.e., precedent that must be followed, by all D.C. district court judgesâincluding Judge Sullivan. Thus, Judge Sullivanâs directive that Judge Gleeson, as amicus curiae, should âpresent arguments in opposition to the governmentâs Motion to Dismiss,â cannot stand: It conflicts with controlling circuit court precedent, and more significantly with the U.S. Constitution."
So what NOW?
'While Judge Sullivan has not yet ruled on the governmentâs Motion to Dismiss, his mere attempt to usurp the executive branchâs authority must be addressed, and now. The government should, as it did in Fokker, seek a writ of mandamus from the D.C. Circuit, directing the charge against Flynn be dismissed.
The government should also seek reassignment of the case on remand, meaning that when the case returns to the lower court for dismissal of the charge, it goes to a different judge.'
SULLIVAN'S OBVIOUS ATTEMPT TO THWART THE DISMISAL OF THE CASE
The same day Judge Sullivan named Judge Gleeson to serve in the amicus curiae role, the Washington Post ran an op-ed co-authored by Gleeson, entitled, âThe Flynn case isnât over until the judge says itâs over.â âThe Justice Departmentâs move to dismiss the prosecution of former national security adviser Michael Flynn does not need to be the end of the caseâand it shouldnât be,â he opened. Then, after misrepresenting the Rule 48(b)âs âleave of courtâ requirement, Gleeson suggests dismissal of the Flynn case would be inappropriate because âthe record reeks of improper political influence.â
No, what reeks is Judge Sullivanâs selection of a clearly biased âfriend of the courtâ who appears to have already pre-judged the prosecutorâs motive and found it improper. Judge Sullivan surely knew of Gleesonâs bent and just as surely shares it.
There were several earlier glimpses of Judge Sullivanâs bias.
BECAUSE SULLIVAN IS VIOLAITNG THE LAW, GOING AGAINST LEGAL MANDATE / ESTABLISHED PRECEDNECE
"The U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. Thatâs what Michael Flynn judge Emmet Sullivan decided to do.
Judge Sullivan announced he would accept amicus briefs, a group of lawyers operating under the moniker Watergate Prosecutors filed a notice of its intent to file an amicus brief. That a group of left-leaning lawyers intended to relitigate Obamagate via the Flynn case wasnât surprising. What was surprisingâno, unbelievableâis what Judge Sullivan did on Wednesday: He entered an order âappoint[ing] The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the governmentâs Motion to Dismiss.â
This order was jaw-dropping for two reasons.
First, the U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. In fact, the very case Judge Sullivan cited for the proposition that he had the inherent authority to appoint an amicus curiaeâUnited States v. Fokkerâmade clear Sullivanâs order was lawless.
âdecisions to dismiss pending criminal chargesâno less than decisions to initiate charges and to identify which charges to bringâlie squarely within the ken of prosecutorial discretion.â
âto protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendantâs objection.ââ Such review in that case is to guard against âa scheme of âprosecutorial harassmentâ of the defendant through repeated efforts to bringâand then dismissâcharges.â
Fokker then concluded: âSo understood, the âleave of courtâ authority gives no power to a district court to deny a prosecutorâs Rule 48(a) motion to dismiss charges based on a disagreement with the prosecutionâs exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecutionâs desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendantâs alleged conduct. The authority to make such determinations remains with the Executive.â
The Fokker decision was a 2016 decision from the D.C. Circuit Court and, as such, establishes âmandatory precedent,â i.e., precedent that must be followed, by all D.C. district court judgesâincluding Judge Sullivan. Thus, Judge Sullivanâs directive that Judge Gleeson, as amicus curiae, should âpresent arguments in opposition to the governmentâs Motion to Dismiss,â cannot stand: It conflicts with controlling circuit court precedent, and more significantly with the U.S. Constitution."
So what NOW?
'While Judge Sullivan has not yet ruled on the governmentâs Motion to Dismiss, his mere attempt to usurp the executive branchâs authority must be addressed, and now. The government should, as it did in Fokker, seek a writ of mandamus from the D.C. Circuit, directing the charge against Flynn be dismissed.
The government should also seek reassignment of the case on remand, meaning that when the case returns to the lower court for dismissal of the charge, it goes to a different judge.'
SULLIVAN'S OBVIOUS ATTEMPT TO THWART THE DISMISAL OF THE CASE
The same day Judge Sullivan named Judge Gleeson to serve in the amicus curiae role, the Washington Post ran an op-ed co-authored by Gleeson, entitled, âThe Flynn case isnât over until the judge says itâs over.â âThe Justice Departmentâs move to dismiss the prosecution of former national security adviser Michael Flynn does not need to be the end of the caseâand it shouldnât be,â he opened. Then, after misrepresenting the Rule 48(b)âs âleave of courtâ requirement, Gleeson suggests dismissal of the Flynn case would be inappropriate because âthe record reeks of improper political influence.â
No, what reeks is Judge Sullivanâs selection of a clearly biased âfriend of the courtâ who appears to have already pre-judged the prosecutorâs motive and found it improper. Judge Sullivan surely knew of Gleesonâs bent and just as surely shares it.
There were several earlier glimpses of Judge Sullivanâs bias.
Constitution Requires Judgeâs Lawless Order Against Flynn Be Overturned
The Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. Thatâs what Michael Flynn's judge decided to do.
thefederalist.com