Technical difficulties plagued a digital hearing over the fate of onetime National Security Advisor and retired Lt. Gen. Michael Flynn on Tuesday–but one thing was constant through the first hour of the quickly-recessed hearing: the court’s iciness toward the defendant and the U.S. Department of Justice (DOJ).
U.S. District Judge for the D.C. District Court Emmet G. Sullivan spent the better part of the first hour summarizing the current state of play in the years-long Flynn saga. On Tuesday, the court was scheduled to formally consider arguments whether to dismiss charges of lying to federal investigators against Flynn–to which Flynn twice pleaded guilty in the past. Just as questioning began, however, technical difficulties forced the court to pause proceedings.
Sullivan began with a few of his own takes on the nature and scope of the hearing. He said that he would not address 1) whether there is a live case or controversy in the case because that was already addressed by the D.C. Circuit Court of Appeals; (2) whether or not Flynn should be held in criminal contempt for perjury because the parties’ own positions are “crystal clear” on the matter; and (3) whether or not the court can appoint an amicus in John Gleeson because it already has.
“Suffice it to say, the case was remanded to me by the en banc court,” Sullivan said during the hearing–dispensing with the need to address the appellate proceedings prompted by Flynn’s failed mandamus bid. Flynn’s legal team previously attempted to have the D.C. Circuit force Sullivan to drop the charges.
Sullivan spent a substantial amount of time addressing Gleeson’s findings and his tone suggested a charitable reading of the legal conclusions reached by the his self-appointed amicus curiae.
Notably, throughout the summary, Sullivan was largely dismissive of Flynn’s position in the case.
OK BIG: Judge says Flynn ‘elected not to fully cooperate with the government’ last year. Flynn’s position is that he did cooperate and the government decided to drop him as a witness at his business partner’s trial
— Josh Gerstein (@joshgerstein) September 29, 2020
While Sullivan was technically reciting Gleeson, the judge appeared to be heavily leaning into the theory that the court has substantial leeway to determine what “leave of court” means and that the phrase’s “plain meaning” must have an actual, forceful meaning.
Recall: Earlier this year, Attorney General Bill Barr directed his subordinates at DOJ to drop the case against Flynn. Sullivan, of course, did not acquiesce to that demand–citing Rule 48(a) of the Federal Rules of Criminal Procedure, specifically language requiring “leave of court” which has traditionally been understood to grant judges some discretion over decisions to pursue or end a criminal prosecution. Legal seesawing ensued–mostly based on what, exactly, the phrase means.
Per Gleeson, Sullivan said that the phrase is a legal term of art premised on: (1) protecting against politically-connected corruption of the legal system; (2) granting the court discretion beyond being merely a “rubber stamp”; and (3) there is no evidence that “leave of court” is simply a salve for a defendant.
Point number three bears some explanation: Gleeson believes the court itself has rights to vindicate under the “leave of court” rule–an understanding that the concept of “justice” may not simply be limited to the interests of a criminal defendant alone.
After a thorough recounting of Gleeson’s arguments, Sullivan quickly went through the DOJ’s position–without offering much in the way of elaboration. The judge then turned back to Gleeson’s understanding of the case and his arguments against the DOJ’s motion to dismiss. The amicus, Sullivan noted, claimed that DOJ never really addressed any of his arguments about “leave of court” because the Supreme Court did not create a bright-line rule on the phrase’s meaning and because D.C. Circuit case law supports his theory that the phrase leaves court’s with substantial authority.
As with his prior Gleeson reports, the trial judge offered an extended explanation. The amicus argued that “abusive dismissals” tend to “imperil” the standing of the entire court and legal system–an interest the court itself may very well like to avail. This idea seems tailor-made for Sullivan to latch onto–one way or another–when he ultimately reaches his decision in the case.
The judge then turned to the DOJ’s original motion to dismiss, but quickly pivoted to Gleeson’s own attempts to dismantle that argument. Throughout the hearing, Sullivan appeared to be prizing Gleeson’s rebuttal to the government’s arguments–often in the context of presenting the DOJ’s side of the argument.
Specifically, though not exhaustively, Sullivan cited Gleeson’s references to Flynn’s “categorical denials” in response to FBI questioning. He quoted Gleeson calling DOJ’s actions “gross prosecutorial abuse” and cited Gleeson’s reference to coordination between Flynn and Trump transition team members “before he lied to the FBI.”
Questioning then began with the government getting the first swing–and then the audio went haywire.
[U.S. District Court for the District of Columbia]
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