By John Leonard
A kangaroo court ignores recognized standards of law or justice and has no legitimate authority because due process is often ignored. The “court” often reaches a predetermined conclusion that makes the trial itself something of a farce. That seems an appropriate description of Emmet Sullivan’s courtroom in the astonishing case of Lieutenant General Michael Flynn, a patriotic American military hero targeted for felony prosecution on trumped-up charges only because he had been asked to serve in Donald Trump’s new administration.
When Department of Justice prosecutors announced they were dropping the charges against General Michael Flynn for allegedly lying to the FBI, it should have been a formality for Judge Emmet Sullivan to accept their nolle prosequi (meaning unwilling to pursue) motion because at that point, the opposing parties (prosecution and defense) were no longer adversaries. Without a prosecutor, how does a criminal trial proceed?
Our Constitution has a well-defined separation of powers. Congress (the Legislative branch) passes bills that become new laws if signed by the President, who as head of the Executive branch is our chief law enforcement officer. Finally, the Judicial branch (the courts) interprets the law and applies it in individual cases. When the Executive Branch dropped the prosecution of General Flynn, the Judicial Branch no longer has a role to play. So, why is this case still going?
Readers may recall that Robert Mueller’s rogue team of special prosecutors took advantage of highly questionable and unethical motives and investigative techniques by FBI agents to accuse Flynn of a felony for lying to the FBI. Due to bad legal advice from his counsels from the firm Covington & Burling, Flynn initially pled guilty in the court of Judge Rudy Contreras. However, Judge Contreras was forced to recuse himself due to his connection to the FISA court as well as his personal friendship with FBI agent Peter Strzok before sentencing Flynn.
The case was then assigned to Judge Emmet Sullivan. Incompetently but still represented by Covington, Flynn unfortunately committed perjury by entering a second guilty plea after prosecutors threatened to charge his son, but Sullivan delayed sentencing to give Flynn more time to cooperate with the Special Counsel’s office. Then on May 7, 2020 after the resignation of Mueller prosecutor Brandon Van Grack, a new team of DOJ prosecutors assigned to the case by Attorney General William Barr asked Judge Sullivan to dismiss the case but the judge refused because Flynn had already pleaded guilty, not once but twice, in spite of the fact that exculpatory documents had subsequently been produced showing that former FBI director of counterintelligence William Priestap questioned whether the purpose of interviewing Flynn was only to trap him in a lie to get Flynn fired from the administration at a minimum.
Also, notes taken by the two FBI agents who interviewed Flynn proved they never believed the general had deliberately lied to them. In short, there had never been any valid reason for charges to be brought against General Flynn. Now normally, there isn’t an issue when prosecutors and defense agree to dismiss the case and the court grants the motion because according to Rule 48(a) under the federal rules of criminal procedure. The government requests the dismissal and the court gives permission as a formality. Frankly, there aren’t many other options left for the court except to grant permission because when the prosecution and defense are in agreement, there is no dispute about the law for the court to arbitrate.
However, these are not normal times. General Flynn’s true crime was his willingness to work for Donald Trump. What should have been a fifteen-minute hearing to formally conclude a trial that should have been over in May turned into surreal, five-hour ordeal that one might have reasonably expected to see from a Third World dictatorship, but not in a U.S. courtroom.
Judge Sullivan began the proceedings with a detailed recitation of the facts and case history that took a full hour to finish, and naturally was biased to his personal point of view. Sullivan finally began to ask each of the attorneys if they agreed with his description of the case as read into the record, but when attorney Moopan said that he disagreed with some of the narrative, the audio feed from the courtroom was abruptly cut, and thousands of conservatives began to get angry, convinced that censorship was involved. Admittedly the timing was peculiar, but apparently the court took a recess while “technical problems” were resolved, and the hearing finally resumed about a half hour later.
Probably the best way to describe the hearing on the whole would be to compare it to a tag-team wrestling match where assistant U.S. attorney Kenneth Kohl, and Deputy Assistant Attorney General Hashim Mooppan teamed up with Flynn counsel Sidney Powell against Judge Sullivan and amicus counsel John Gleeson in a no-holds-barred cage match. There were plenty of fireworks—Sullivan probed to see if Powell could be accused of doing something unethical as she become involved in the case and questioned her about any communications with President Trump about the case. Powell acknowledged speaking to the president once about the case, but only to ask that he refrain from pardoning General Flynn.
The strangest part of the hearing was a two-hour presentation by the court-appointed amicus curiae John Gleeson, acting in his role of special prosecutor (although Sullivan insisted Gleeson was not a special prosecutor) where he made a point of either dismissing or ignoring all of the exculpatory evidence produced by U.S. attorney Jeff Jensen after his independent review of the Flynn investigation material codenamed Crossfire Razor. Gleeson didn’t seem to care about anything except two facts: Flynn had pleaded guilty in court twice, and Donald Trump was interested in the outcome of the trial. Without offering any evidence to support his claim, Gleeson contended that Donald Trump had interfered with the Department of Justice on Flynn’s behalf to get the case dismissed, and also seemed to be saying that guilty pleas can never be withdrawn once entered, no matter the circumstances. He also argued that prosecutors would have no choice but to pursue the case if Sullivan refused to dismiss it.
Attorney Kohl (I think) asked a fascinating question in response to the idea of putting General Flynn on trial in light of the new exculpatory evidence: would Judge Sullivan like to see the prosecution call tainted witnesses such as former assistant FBI director Andrew McCabe, who was fired for lying himself? Or James Comey?
There’s an old Southern expression that Judge Sullivan should take to heart that warns we should be careful of what we wish for, in case that wish comes true. Most recently the rumor has spread that nothing will come out of the Durham investigation until after the November election, which means if Joe Biden wins, the truth will never be known by the American people.
Even though General Flynn has suffered through four years of unfair persecution, perhaps this latest delay will prove to be a blessing in disguise. If Judge Sullivan forces prosecutors to take their case to trial, Kohl and Mooppan should do exactly what was just suggested: call Comey, Brennan, Clapper, McCabe, Strzok, and every other conspirator on the stand and force them to testify under oath about their role in the seditious coup attempt against President Trump and members of his administration.
If Judge Sullivan stubbornly refuses to relinquish control of his kangaroo court, prosecutors should turn the proceedings into a zoo.
