Can Flynn be sentenced when prosecutors say there was no crime?
If the prosecution and defense both want to drop a case, can a federal judge refuse and sentence the defendant anyway? The easy call should be no, which makes all the more bizarre federal Judge Emmet Sullivan’s decision Tuesday to invite outside briefs in the Michael Flynn case.
Judge Sullivan refused to grant the Justice Department’s request to drop the prosecution, and thus Mr. Flynn’s guilty plea, after Justice discovered that exculpatory evidence had been denied to the defense. The judge invited comment from people outside the case, which amounts to the de facto outsourcing of the prosecution to partisan legal analysts who want Mr. Flynn to hang because he worked for President Trump.
One such band calls itself the Watergate Prosecutors, who include Nick Akerman. When Donald Trump Jr. released emails relating to a meeting with a Russian lawyer at Trump Tower, Mr. Akerman declared him guilty of “outright treason.” As special counsel Robert Mueller’s report showed, that Trump Tower meeting amounted to nothing.
Judge Sullivan doesn’t normally ask others to write his decisions, so what’s the point in this case? This isn’t a Supreme Court argument seeking competing points of view. The competition here is between defense and prosecution, and they both now agree.
This is a criminal case subject to normal rules of evidence that were clearly violated by Mr. Mueller’s prosecutorial team. Our friends at the New York Sun speculate that Judge Sullivan may want to keep the prosecution going for months so a Biden Justice Department could revive it. We hope that’s wrong, though we do recall that Judge Sullivan some months back in open court asked prosecutors if Mr. Flynn might have been charged with “treason.”
One issue here is the role of a judge in the U.S. system, which is to adjudicate cases and controversies, not to supplant the prosecutorial duty of the executive branch. There’s also the matter of simple fairness. Mr. Flynn has endured three years of public trial because he was caught up in the Russia collusion allegations that turned out to be based on nothing more than Russian disinformation.
Justice now says Mr. Flynn’s statements to the FBI weren’t criminal because the interview lacked any investigative legal basis, and in any case the agents at the time said they didn’t believe he was lying. Is it serving the cause of justice to keep Mr. Flynn hanging for many more months so partisan op-ed writers can influence Judge Sullivan’s thinking?
Judge Sullivan’s judgment is all the more disappointing because he has enjoyed a reputation for holding prosecutors accountable for their obligation to turn over Brady material—evidence that could be exculpatory—to the defense. If Judge Sullivan insists on Mr. Flynn’s continued prosecution even as prosecutors conclude the facts don’t support it, he will likely to be overturned on appeal.
The path to serving justice for Mr. Flynn and maintaining Judge Sullivan’s reputation for holding prosecutors accountable all point to a ruling that drops all charges against Mr. Flynn—with prejudice, so this travesty of a case is ended once and for all.