This morning law professor Jonathan Turley wrote a piece arguing that it was time for Judge Sullivan to stop playing games and drop the case against Michael Flynn. As you’ll see in a moment that’s not at all how things worked out. But let’s start with Turley’s argument that Sullivan has been given a chance by the Appeals Court to do the right thing:
The appellate panel held that time was up for Sullivan in the case of Flynn because “we need not guess if this irregular and searching scrutiny will continue” as “it already has.”
After that opinion, many predicted the full appellate court would reverse, not because of any discord on the law but because Sullivan must be given the chance to do the right thing. He had not made a final ruling and, while making note of the clear law in this issue, the panel should not have taken that decision away from him. There remains no doubt as to the outcome of this case. Sullivan either will dismiss this charge or be reversed by the same court that sent it back to him for a final ruling…
…the reputation of Sullivan instead of Flynn is at stake in this hearing. He can follow the law dispassionately and dismiss this charge without gratuitous commentary. Or he can use the hearing to lash out at the administration and the defendant just before an election.
With that in mind, here’s what happened today at Flynn’s sentencing hearing today:
U.S. District Court Judge Emmet Sullivan’s grilling of Flynn attorney Sidney Powell, during a highly anticipated hearing, underscored Sullivan’s deep concerns about the effort by Flynn and the Justice Department — with Trump’s active and public support — to drop a criminal case against Flynn that has been pending since 2017.
After initially resisting and citing potential executive privilege concerns, Powell revealed that she briefed Trump on the case within the last two weeks and requested that he not issue a pardon. But she denied asking the president to take any other actions related to the case.
“I can tell you I spoke one time to the president about this case to inform him about the general status of this litigation,” Powell said.
“Did you ever ask the president of the United States or request his attorney general to appoint new attorneys in this case?” Sullivan wondered.
“Oh, heavens no,” Powell said.
So not only did Judge Sullivan not dispassionately dismiss the case, he pressed Flynn’s attorney on the theory that the President was involved in doing her bidding in the case.
Also present today was Kenneth Kohl from the U.S. Attorney’s office who argued that, contrary to Judge Sullivan’s claims, there was no case the government could win here given that several people involved were fired by the FBI and have serious credibility problems:
Kohl said the case would be all but impossible for the government to take to trial because of credibility problems related to both of the FBI agents present during Flynn’s alleged lies during the January 24, 2017 interview that gave rise to the case, as well as the deputy director of the FBI at the time, Andrew McCabe.
“Who are we going to call as witnesses in this case?” Kohl asked, saying that each of the men had their “credibility” challenged by the Justice Department’s internal watchdog, the Office of Inspector General.
Meanwhile, John Gleeson, the attorney Sullivan picked to argue against dismissing the case is pushing the idea that the DOJ is heeding President Trump’s tweets.
Gleeson urged Sullivan to deny the motion, calling it “a gross abuse of prosecutorial power.” He disputed the government’s explanation for its reversal and noted Trump has tweeted or retweeted more than 100 times about Flynn’s case.
The government moved to close the case, Gleeson said, because the president “wants Flynn off the hook, and doesn’t want to use the pardon power to do it.”
Later on in the hearing, Flynn’s attorney asked the judge to recuse himself because of his bias in the case. Judge Sulllivan didn’t like that:
Powell later during the hearing asked Sullivan to recuse himself from the case, on the grounds of purported bias against Flynn, which included the judge appealing a higher court’s order that Flynn’s case be promptly dismissed.
Sullivan, seeming annoyed, waved aside her request, telling her to put it in writing in a court filing.
Flynn’s lawyers have already put in writing their feelings about the ongoing case. In a brief submitted last week they called it a “hideous abuse of power and travesty of justice.”
After five hours spent on this today, Sullivan said he had not made up his mind about whether or not to dismiss the case. He did say he was aware the appeals court was looking for a quick decision from him. Does that mean he’s going to finally reach a conclusion this week or is he trying to drag this out until the election? I’m not sure what the strategy is here but both he and his hand-picked attorney John Gleeson are behaving like aggrieved partisan looking for a pound of flesh.
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