The Judge Who Could Not Judge

Comment by Jim Campbell

June 2nd, 2020

Judge Emit Sullivan is clearly not one of the sharpest knives in the circuit court’s batting order.

Perhaps he should return to law school, that is where aspiring attorneys learn to write briefs, he likely slept through that class.

Judge Sullivan has no right to do what he is doing.

Incompetent Judge Sullivan ripped the judicial mask off, and what’s behind it is ugly.

Perhaps, he’s just stuck on stupid.

The American Thinker

By Andrea Widburg

June 2nd, 2020

General Michael Flynn filed a Petition for Writ of Mandate requesting that the Court of Appeals for the D.C. Circuit order Judge Emmett Sullivan to dismiss Flynn’s case, in the face of Sullivan’s refusal to do so.

On Monday, as the appellate court requested, both Judge Sullivan and the Department of Justice filed briefs defending their positions. Sullivan’s was a disaster.

The fact that Judge Sullivan even had to file a brief is unusual.

In the ordinary situation, while a writ of mandate requests an order that a judge does or undo something, the “real party in interest” is the party who sides with the judge’s original position. That party writes the brief.

In this case, however, both parties are on the same side, and the judge stands opposite them. The appellate court, therefore, ordered the judge to file a brief defending his position, and it expressly added that he must do so in light of United States v. Fokker Servs. B.V. (D.C. Cir. 2016) 818 F.3d 733, the preeminent D.C. Circuit Court of Appeals case regarding motions to dismiss.

Sullivan apparently felt he was not up to the task of explaining his own legal analysis, so he hired one of Washington’s fixers – Beth Wilkinson. He should have saved his money. Wilkinson’s brief (which you can read here) is a joke. Additionally, Wilkinson has abandoned any pretense that Sullivan is impartial. This is an attack brief against Flynn.

The brief’s main failing is that it pretends that, because the Fokker decision gives the trial court some discretion (as even the Department of Justice conceded), that means that under the “unique facts of this case,” Sullivan has full discretion to review the request for dismissal.

Wilkinson and her team are being dishonest. On the matter at issue here, Fokker is unambiguous:

[T]he statute’s “approval of the court” requirement did not empower the district court to disapprove the DPA based on the court’s view that the prosecution had been too lenient.

[D]ecisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. (Fokker, at pp. 741, 742.)

The reason that the prosecution must file a motion is so that the court can protect the defendant:

Rather, the “principal object of the ‘leave of court’ requirement” has been understood to be a narrow one — “to protect a defendant against prosecutorial harassment  . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.” (Fokker, at p. 742.)

Everything else in Sullivan’s brief is irrelevant. He makes much of the fact that Flynn entered into a plea agreement, which required him to admit under oath that he was guilty. Sullivan’s argument seems to be “he was lying then or he’s lying now so I need to nail him to the mast.”

It’s as if Judge Sullivan has never seen a plea agreement before.

Plea agreements have long been abused.

It’s common for defendants facing the might of the federal government to lie about a lesser wrong to escape endless trials, personal bankruptcy, undeserved guilty verdicts, or, in Flynn’s case, the government’s threat to go after his son. Any agreement entered into under duress is invalid.

That same duress also applied to Flynn’s counsel. Under pressure from the prosecution, Flynn’s attorneys immediately abandoned their fiduciary duty to him. When they should have demanded that the government produce exculpatory documents, they instead encouraged Flynn, who knew nothing about the legal maze in which he found himself, to cop to a guilty plea.

Those are the obvious problems with the brief. Here are just two of many others:

Sullivan argues that the petition for writ of mandate is premature because he hasn’t yet ruled on the motion to dismiss. However, because a motion to dismiss should be rubber-stamped except to protect the defendant, the judge has no right to delay the ruling. This petition is, therefore, timely.

As well as misleading the trial court about the Fokker case, Sullivan’s attorneys also pretend that Judge Sullivan can request third-party briefs because the civil rules of procedure say so. They must know that the criminal rules of procedure bar amicus briefs. Certainly, Sullivan knew that when he refused to allow such briefs during an earlier proceeding in the case.

[For more fatal flaws in the brief, check out Undercover Huber’s analysis.]

The brief boils down to one argument: Judge Sullivan believes that Flynn’s a bad guy and Sullivan wants to keep the case alive (something he has no constitutional authority to do), presumably until Biden is elected and appoints a new Attorney General. The lawyers who wrote this partisan nonsense should be embarrassed.


About JCscuba

I am firmly devoted to bringing you the truth and the stories that the mainstream media ignores. Together we can restore our constitutional republic to what the founding fathers envisioned and fight back against the progressive movement. Obama nearly destroyed our country economically, militarily coupled with his racism he set us further on the march to becoming a Socialist State. Now it's up to President Trump to restore America to prominence. Republicans who refuse to go along with most of his agenda RINOs must be forced to walk the plank, they are RINOs and little else.
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8 Responses to The Judge Who Could Not Judge

  1. gds44 says:

    Reblogged this on Gds44's Blog.


  2. Stop the Corruption says:

    Judge Sullivan needs to be arrested and prosecuted for his violation of the U. S. Constitution. The Separation of Powers is clear and the Judicial Branch has no authority to prosecute any case. The Prosecution function belongs solely to the President. The Department of Justice is the President’s responsibility and the Judicial nd Legislative Branches have been oversteppinh thier authoriy for many years.

    The Supreme Court will rule with the DOJ on tgis matter. Judge Sullivan needs to look for a place to hide!

    Liked by 1 person

  3. Time to push back! says:

    AG Barr Responds to Judge Emmet Sullivan’s Actions in General Flynn Case with Massive Fire Power

    By Joe Hoft
    Published June 2, 2020

    On Monday Judge Emmet Sullivan claimed he was not required to “rubber stamp” the Justice Department’s bid to dismiss the case.

    This is a ridiculous statement by the corrupt judge turned prosecutor.

    On Monday afternoon the Department of Justice responded to the rogue judge reminding Sullivan, “We’re the prosecutors here, not you!”

    But what has gone unreported is that the brief filed by the Justice Department has massive fire power. The response from the Department of Justice came directly from the office of the United States Solicitor General, Noel Francisco.

    Sean Davis at the Federalist reported:

    In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court wasn’t just signed by the line attorney managing the government’s case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ’s entire criminal division; Deputy Solicitors General Jeffrey B. Wall and Eric J. Feigin; assistants to the Solicitor General Frederick Liu and Vivek Suri; Michael R. Sherwin, the acting U.S. Attorney for the District of Columbia; Kenneth C. Kohl, the acting Principal Assistant United States Attorney for D.C.; and Jocelyn S. Ballantine, the line prosecutor handling the Flynn case at trial.

    “The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” DOJ argued in its brief. Rules of federal criminal procedure, cited by Sullivan in support of his gambit to appoint himself both judge and prosecutor in the inquisition against Flynn, “do[] not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of [those rules] would violate both Article II and Article III” of the constitution, DOJ wrote.

    “Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own,” the brief continued. “Instead of inviting further proceedings the court should have granted the government’s motion to dismiss.”

    The case is not in the hands of the Circuit Court. Obama’s plans to indict General Flynn are over.

    Liked by 1 person

  4. Paula says:

    This man was an Obama appointee …. and his knowledge of the Constitution is a tad better than the Constitution Law Professor who appointed this incompetent fool. Any appointee Obama did has proven to be inept. They all have acted stupidly.


  5. bunkerville says:

    Somebody has something on this fine fellow….


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