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George Washington University Law School Prof. Jonathan Turley ripped U.S. District Judge Emmet Sullivan, the jurist overseeing the Michael Flynn case, for “gross overreach,” calling his decision to order oral arguments in the former national security adviser’s case tantamount to “mob rule.”
In a column for USA Today, where he a member of the paper’s Board of Contributors, Turley — renowned for his constitutional expertise — wrote that the case against “Flynn is abusive and should be dismissed, as the Justice Department requests,” but for some reason, “Sullivan has other ideas.”
Turley’s critique comes after the DOJ decided earlier this month to drop its case against Flynn after uncovering evidence that makes it clear the FBI under then-Director James Comey allegedly conspired to catch him in a perjury trap so he could either be charged with a crime or fired from his post as newly-minted-President Donald Trump’s top national security official.
But rather than simply accept the Justice Department’s request, Sullivan has instead “decided to create a contested case by inviting third parties to create conflict and is now suggesting that he may substitute his own criminal charge rather than let Flynn walk free,” Turley noted.
“At the appropriate time, the court will enter a scheduling order governing the submission of any amicus curiae briefs,” Sullivan wrote last week, next appointed a retired judge, John Gleeson, to argue against dismissing the case against Flynn though there is currently no dispute between DOJ and Flynn.
Gleeson recently co-wrote an op-ed in which he criticized the Trump administration’s handling of the Flynn case.
“This is effectively outsourcing the argument to introduce a dispute,” Turley noted. “This move is nothing to celebrate.”
Noting that he has praised Sullivan’s judicial prowess in the past, Turley nevertheless claimed that the judge’s actions are “fast becoming a case of gross judicial overreach as the court appears to assume both judicial and executive powers.
“Sullivan can disagree with the exercise of prosecutorial discretion, but he cannot substitute his own judgment for it,” Turley noted.
Sullivan has set a July court date to hear Gleeson’s arguments against allowing Flynn to walk, a decision that has infuriated the retired Army lieutenant general’s attorney, Sidney Powell, who, on Tuesday, filed an emergency request with the D.C. Court of Appeals to have Sullivan removed from the case.
In an interview with Fox Business Network’s Lou Dobbs Tuesday evening, Powell described her filing as an emergency writ of mandamus, which is very rare and is reserved for when there has been a suspected “usurpation of judicial power” that is “clear and indisputable.”
In her filing, Powell cited Sullivan’s inappropriate claim during a December 2018 sentencing hearing that her client “sold out his country” while pointedly suggesting Flynn had committed “treason.”
(Source: Lou Dobbs Tonight)
Sullivan’s “actions are completely unconstitutional, they’re contrary to Justice [Ruth Bader] Ginsberg’s unanimous Supreme Court decision of just a week ago, two weeks ago…and, of course, D.C. Circuit decisions within just the last couple of years,” Powell told Dobbs.
“He’s completely off-base, way out in left field all by himself” on the matter, she continued.
Powell wouldn’t comment on Sullivan’s health or mental status, but she did say that she’s never seen a federal judge go so far to prosecute a defendant.
As for how quickly the D.C. Circuit will act, Powell expressed hope that the court would rule on her emergency request quickly.
She also said she expects the Justice Department to join in her emergency request since Sullivan is essentially dismissing the DOJ’s request.
As for Turley, he noted that amicus briefs are generally reserved for civil cases, not criminal cases like the one involving Flynn.
“There are serious questions about the propriety of such third parties being asked to brief uncontested motions in a criminal case. The lives and liberty of individuals generally are protected from public demands for punishment. We do not do punishment by plebiscite in this country,” he wrote, adding:
…[T]he Flynn case has proved to be the defining temptation for many in discarding constitutional protections and values in their crusade against President Donald Trump. Experts are asking a court to consider sending a man to prison after the Justice Department concluded it can no longer stand behind his prosecution. Under this same logic, any defendant could face public outrage over an unopposed motion to dismiss, and a court could invite third parties to make arguments against him. Rather than protecting an unpopular criminal defendant from those outside clamoring for his head, the court is inviting them inside to replace the prosecutors.
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