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Thursday, May 28, 2020

ANALYSIS/OPINION:

The Trump-Russia collusion ruse has been unraveled, proven false and buried in the annals of dirty politics, except for one dangling strand — the relentless persecution of former Trump National Security Adviser Michael Flynn that masquerades as legitimate prosecution. Knowing that a nation can’t long endure without respect for justice, judges with the authority to intervene should gavel the case to a close.

Monday, June 1, brings the deadline the U.S. Court of Appeals for the District of Columbia Circuit has imposed on U.S. District Judge Emmet Sullivan to explain why he has refused to dismiss charges against the three-star U.S. Army general of lying to the FBI during its collusion investigation. This, despite the Justice Department having asked the judge to dismiss the case after discovering misconduct on the part of its prosecutors.


It doesn’t take a law school sheepskin to grasp the foolishness of beating a dead horse. Yet Judge Sullivan continues to lash the moribund case that has confounded the nation for more than three years. Strangely, the recent declassification of secret communications among Justice officials scheming to ensnare Mr. Flynn in a perjury trap has fueled the judge’s fury — toward the general. And the revelation that prosecutors squeezed the defendant to plead guilty while hiding exculpatory evidence has brought little calming relief.

Even curiouser, His Honor has recruited more hands to help wield the whip. Former federal Judge John Gleeson, a vocal supporter of the Flynn prosecution, has been enlisted to help explain why the general deserves jail. Judge Sullivan has also hired prominent Washington lawyer Beth Wilkinson to represent him before the appeals court. Perhaps to make things more interesting, he invited third parties to file amicus briefs suggesting legal rationales for refusing to dismiss the Flynn case, a course of action he had earlier rejected and the U.S. Supreme Court has disallowed.

So in order to perform his job, the jurist needs a fellow judge and a defense attorney to come to his rescue. Is there any reason why an individual of common sense wouldn’t wonder whether Judge Sullivan et al. are auditioning for Comedy Central?

To be fair, beneath their black robes judges must put on their pants one leg at a time. They are not immune to exasperation when, as in this case, a defendant abandons the presumption of innocence to plead guilty, only to reverse course and reclaim innocence. And when the prosecution prevails then discards its success to side with the defendant, the view of the courtroom from the bench must resemble a hall of mirrors.

New information emerges by the day that the Obama administration’s predicate for spying on Mr. Flynn was rooted in political mischief rather than national security concerns. The secret recording of the incoming national security adviser’s December 2016 telephone conversation with Russia’s ambassador was long known as the trigger for the FBI interrogation that led to criminal charges. Declassified documents showing no request to unmask the identities of the callers means U.S. intelligence assets were already targeting the general for surveillance before the troublesome phone call occurred.

Congressional testimony about a meeting in the Oval Office on Jan. 5, 2017, to discuss the Flynn situation contended that outgoing President Obama was well aware that his spy masters had the general in their sights. Taken with Justice Department text exchanges discussing whether FBI interviewers would steer Mr. Flynn into a lie that would lead to his firing or prosecution, there is little doubt that the full weight of a rogue legal establishment had been enlisted to crush a top official from an adversarial Trump administration.

None of this may matter to the appeals court judges who have called their underling, Judge Sullivan, onto the carpet. “At stake is a straightforward legal issue: the Justice Department’s authority to dismiss the case in a manner that protects Flynn’s due-process rights,” writes former federal prosecutor Andrew McCarthy in National Review online. “The law is clear that the Justice Department has this power, even if a district judge subjectively believes it should not be exercised.”

The Flynn case is anything but routine. Unthinkable prosecutorial misbehavior, though, has induced the Justice Department to seek an uncomplicated conclusion: dismissal. As investigations proceed into the motivations of the Trump-Russia collusion investigators, the sordid details continue to confirm that the persecution of Michael Flynn must end. Now.


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