Fantasy has its place, but it’s not the courtroom. With more than a full share of unlikely twists, the case against former Trump National Security Adviser Michael Flynn for lying to the FBI has lost a line of sight with reality. When the legal process carries prosecution of a citizen beyond the bounds of common sense, Americans sense instinctively that the system is out of whack. For the law to be respected, the law must be just.
U.S. District Judge Emmet Sullivan has garnered widespread praise in the past for courageous acts from the bench in the District of Columbia Circuit, including battles against corruption within the Department of Justice and the Internal Revenue Service. But not now. With his handling of the Flynn case, His Honor conjures the image of a gamer sporting a virtual reality headset who believes himself wielding a sword against a fiery dragon but is actually trashing his living room lamps with swats from a broomstick. To a startled observer, it makes no sense — just like the continued prosecution of Flynn.
The former U.S. Army general should never have been targeted in the infamous Crossfire Hurricane investigation into purported Trump-Russia collusion and charged with a crime in the first place. That reason-based conclusion emerges from the crypt of Justice Department files, recently declassified, which reveal communications among senior officials over whether to steer Flynn toward lies that could lead to his firing or prosecution. The revelation prompted U.S. Attorney General William Barr to petition Judge Sullivan to drop the 3-year-old case against the defendant.
End of story, right? Wrong. The longtime jurist ought to sheath his broomstick, but he continues to swing it with wild abandon. Judge Sullivan has invited interested parties to weigh in on his decision whether to dismiss the case, apparently influenced by 16 former Watergate prosecutors who wrote a legal brief urging him to impose sentence on the basis of the former general’s initial guilty plea.
The judge has since topped that move by appointing former federal Judge John Gleeson, who has urged the sentencing of Flynn, to argue against the case dismissal. Moreover, the presiding judge has asked his former colleague to size up the defendant for an additional perjury charge for first pleading guilty, then seeking to withdraw his plea. “Never before have I seen something like this,” former Rep. Trey Gowdy, who also served as a federal prosecutor, told Fox News.
Has the judge similarly demanded Justice Department prosecutors appear to explain their shady behavior in which they withheld documents revealing efforts by fellow officials to entrap their quarry? Hello?
In the meantime, acting Director of National Intelligence Richard Grenell has declassified additional documents exposing Obama administration mischief that occurred in the investigation of Trump associates. Jarringly, included is a list of 39 high-ranking officials who “unmasked,” or uncovered the identity, of Flynn after Mr. Trump’s election. Among them were intelligence bosses, ambassadors, White House staffers and, stunningly, former Vice President Joe Biden.
Some of the unmaskings occurred before Flynn’s fateful December 2016 phone call with Russia’s ambassador that led to his lying allegation, suggesting that the general’s identification wasn’t simply coincidental, but intentional. Either way, there is no obvious innocent explanation for why he would be targeted from every angle by dozens of Obama loyalists.
Despite the recent spate of incidents, like the Flynn case, in which the nation’s spy apparatus has been abused, the U.S. Senate on Thursday voted down an amendment to the Foreign Intelligence Surveillance Act (FISA) that would have prohibited the FISA court from approving surveillance warrants for the monitoring of U.S. citizens. The threat persists to Americans from invasive spycraft by unethical government.
It is all the more reason why Judge Sullivan should awaken from his judicial fantasy and recognize that there was no legitimate predicate for surveilling Flynn to begin with. A legally sound FBI would not have questioned him, and his statements — truthful or not — would never have passed his lips.
The U.S. judicial system must make a better showing of common sense or Americans shouldn’t be blamed for agreeing with Mr. Bumble in “Oliver Twist” when he opined, “The law is a ass, a idiot.” If the court that has held Michael Flynn on unyielding tenterhooks refuses to unhand him, then justice should be restored by presidential pardon.
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