Sounds like a scene straight out of the cantina scene in Star Wars, doesn’t it? Or, maybe, right out of Lucifer’s own precincts, and I can well imagine that some of the principals in all of these intertwined dramas are feeling that’s where they are right about now, especially the fine, dedicated, honorable Lt. General of the Army, Michael Flynn. His only “crime,” a word I use advisedly and only wish others had done so back in the early days of 2017, was to support the candidacy and serve the Presidency of Donald J. Trump. The other attendees at this little gathering are quite well known, although one may need a little more introduction as our social gets underway.

General Flynn’s saga, and it is truly that, in the tradition of the great tragedies of ancient times, is so well known it needs little or no fleshing out here, except to capture the highlights of recent “daffy” developments in his case from an excellent article by Andrew McCarthy. It should be noted that the adjective is from a tweet by the author describing the Judge’s “unusual” ruling, to use the most extreme, if that is the proper usage, euphemism one can use about Judge Sullivan’s refusal to simply grant the Motion to Dismiss of the Department of Justice and, instead, to open it up for the filing of briefs by probably every loony, far-left-wing group in the country, thereby inviting a spectacle resembling anything but Justice.

McCarthy’s piece, entitled “The Politicized Order Inviting Amicus Briefs against the Flynn Case’s Dismissal”, surveys the wreckage left in the wake of the travesty of justice created by the “cantankerous jurist,” Judge Emmet Sullivan, and the very sound reasons it is so “legally dubious.” I would have used a much stronger descriptive phrase, something along the lines of “outrageous,” but that points up the very reason I always try to read everything McCarthy writes in this field. He is not only clearly the writer today with the most actual, courtroom experience in Federal Criminal Law but he is also a very careful and cautious analyst, at times far readier to give the benefit of the doubt to such cretins as James Comey — in the earlier days, to be sure — than I would have been. Thus, when he writes observations like the following, it is well worth one’s studied attention as he does not throw conclusions like these around loosely:

Late Tuesday, federal district judge Emmet Sullivan issued a bizarre order, inviting third-party groups with no legal interests in the case to file amicus briefs addressing the Justice Department’s motion to dismiss the false-statements charge against Michael Flynn, President Trump’s former national-security adviser.
The cantankerous jurist is stoking opposition to the dismissal. He knows the law calls for him to accede to attorney general Bill Barr’s decision. But Barr can’t stop Sullivan from turning the dismissal into anti-Trump group therapy — and who knows, maybe the grieving Legal Left will figure out some way for the judge to convict Flynn despite DOJ’s retreat.

…Lest we forget, the primary function of the federal judiciary is to protect the accused from overbearing government action, not to agitate for the prosecution of Americans. Even if he’s convinced Flynn is as guilty as the day is long, one might expect Judge Sullivan to be disturbed by the FBI’s perjury trap, by its editing of and misrepresentations about the “302 report” of Flynn’s interview. By the prosecution’s withholding of exculpatory evidence and concealment from the court of its threat to prosecute Flynn’s son. By the derelictions of Flynn’s original counsel, who took the case notwithstanding a deep conflict-of-interest, and who appear to have counseled Flynn to plead guilty without ever reviewing rudimentary discovery — we know they never inspected the 302 (which is mind-boggling in a false-statements case); did they ever demand that Mueller’s prosecutors produce the recording of the Flynn–Kislyak “sanctions” conversation that is the heart of the case?

Those are the kinds of questions a responsible judge would be posing, not, “How do I sentence this guy if DOJ won’t prosecute?” Regardless of what the DNC and CNN have to say on the matter, Flynn is supposed to be presumed innocent as far as Judge Sullivan is concerned.

After a discussion of Federal Rule of Criminal Procedure 48, whose purpose is described as one “to protect defendants–exactly the opposite of what Sullivan is doing,” McCarthy concluded with a reminder about one of the most shocking and disgusting scenes to ever take place in an American courtroom, and I say that as one who has lived through more of those than I care to recount here, the day this totally out-of-control Federal Judge accused a three-star General of the United States Army of possibly being a traitor, conduct which should have merited his removal from the case the moment it happened:

Alas, in the Flynn case, we are dealing with a judge who prefers bloviation to preparation.

“I’m not hiding my disgust, my disdain, for this criminal offense,” he railed in his first appearance in the case. “This criminal offense” was actually a relatively low-level process crime: a false-statements charge against a career military officer, brought even though the FBI did not think Flynn made intentional misstatements, the bureau was not obstructed in any way, and the prosecutors originally recommended no jail time. Sullivan, however, was not up to speed, but could not contain himself: He inveighed that Flynn, a decorated U.S. combat commander, had sold out his country and committed treason, a death-penalty offense.

Judge Sullivan’s order inviting amicus briefs is a travesty. Sad to say, it is not a surprise.

One must bear in mind that these comments were written before Judge Sullivan’s next astonishing Order:

ORDER APPOINTING AMICUS CURIAE

Upon consideration of the entire record in this case, it is hereby ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss, ECF No. 198, see, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); it is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.

It is necessary to take this order apart, piece by piece, as it is so absolutely, manifestly, legally wrong and without foundation in so many ways. Several good dissections of this “unbelievable order” are found in “The Constitution Requires Judge Emmet Sullivan’s Lawless Amicus Order Against Michael Flynn Be Overturned” by Prof. Margot Cleveland and “Judge Sullivan Disregards Two Controlling Precedents By Appointing Amicus In Flynn Case” by Mark Chenoweth, legal analyst for Forbes magazine.

Prof. Cleveland begins by noting that one of the two cases Judge Sullivan cited in support of his action is, in actuality, the very case which will probably get him reversed, as it stands for the exact opposite proposition. Her discussion of that case, the Fokker case, by the Court of Appeals for the DC Circuit, is quite detailed, but the following are the major points showing no District Court within the jurisdiction of that Court of Appeal — not even Judge Sullivan –can simply ignore it.

… What was surprising—no, unbelievable—is what Judge Sullivan did on Wednesday: He entered an order “appoint[ing] The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss.”

This order was jaw-dropping for two reasons. First, the U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. In fact, the very case Judge Sullivan cited for the proposition that he had the inherent authority to appoint an amicus curiae—United States v. Fokker—made clear Sullivan’s order was lawless.

***

Fokker then concluded: “So understood, the ‘leave of court’ authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. The authority to make such determinations remains with the Executive.”

This Is Mandatory Precedent
The Fokker decision was a 2016 decision from the D.C. Circuit Court and, as such, establishes “mandatory precedent,” i.e., precedent that must be followed, by all D.C. district court judges—including Judge Sullivan. Thus, Judge Sullivan’s directive that Judge Gleeson, as amicus curiae, should “present arguments in opposition to the government’s Motion to Dismiss,” cannot stand: It conflicts with controlling circuit court precedent, and more significantly with the U.S. Constitution.

The Forbes piece also discusses the Fokker case but details the very important decision of the US Supreme Court only a week ago in which the Court held 9-0 the very procedure used by Judge Sullivan was an abuse of discretion and caused the Court, through Justice Ginsburg, to chastise that “the Ninth Circuit’s radical transformation of the case goes well beyond the pale.” Very unusually strong admonition, to put it mildly! That case is U.S. v. Sineneng-Smith, and, based on a reading of the Forbes analysis, seems to clearly dictate that Judge Sullivan’s order was, indeed, to put it most charitably, lawless in the truest sense of that word.

Here is the core of Chenoweth’s analysis of how clearly that case applies to the Sullivan Order:

Justice Ginsburg’s decision castigated the Ninth Circuit’s conduct as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion” and “remand[ed] the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.” J. Ginsburg faulted the panel’s “redirection” and “takeover” of the appeal and chastised that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Judge Sullivan’s actions this week raise serious doubt whether he paid attention to this recent, unanimous decision. Let’s rehearse. First, the Ninth Circuit solicited specific amici. So too, J. Sullivan has now appointed former prosecutor and judge John Gleeson to oppose DOJ’s effort to drop the case and essentially represent DOJ’s former view of the case. And he has opened the door to a flood of amicus curiae briefs from special-interest groups hostile to Flynn. Second, the Ninth Circuit suggested particular arguments for amici to make. Likewise, J. Sullivan has instructed Mr. Gleason to explore a possible perjury charge. Last, the Sineneng-Smith panel decided the case on an issue not presented by the parties. J. Sullivan has not issued a ruling yet, but if he does anything other than accept dismissal of the charges, he will duplicate the Ninth Circuit’s violation of the party presentation principle. Hence, he is coming perilously close to completing the very trifecta that drew the Supreme Court’s wrath against the Ninth Circuit.

There are so many articles out in the past few days discussing this disgusting turn of events one can only briefly survey them and refer the reader via links for further review. For example, the excellent opinion columnist at the Wall Street Journal, Daniel Henninger, refers to the entire case as “The Michael Flynn Debauchery” and no less an authority than Prof. Dershowitz makes clear his belief that Judge Sullivan “had no right to do” what he is attempting in these recent orders. Another recent discussion, also by Prof. Cleveland, carries the title “Michael Flynn Judge is destroying a man’s reputation: His own,” with which I fully agree. She comments on the sad spectacle of seeing “politics and pride” drive a formerly highly respected Judge to these extremes:

With this later order, Sullivan has destroyed any possible semblance of impartiality — and his reputation. A federal court has no authority over prosecutorial decisions, including whether to prosecute or whether to dismiss. Gleeson already declared Wednesday in a Washington Post op-ed that the Barr DOJ’s handling of dismissing the charges against Flynn was politically motivated.

No, what was politically motivated was Sullivan’s response. Barr had already assigned the case to an outside U.S. attorney for an independent review, and that review uncovered that the federal prosecutors handling the prosecution had withheld material exculpatory evidence — in direct violation of Sullivan’s order.

Other evidence discovered by Powell showed that, as Flynn had claimed, the prosecutors threatened to target his son if Flynn didn’t plead guilty. Additional documents also suggest that rather than inform the court of that side agreement, the federal prosecutors kept it secret so that they did not need to disclose the understanding to other defendants, as is constitutionally required.

The Sullivan who presided over the Stevens case would care about this prosecutorial misconduct. But politics and pride have destroyed that man. The long-respected jurist is now a shriveled shadow of the defender of liberty and the rights of the accused. In trying to destroy Flynn, Sullivan has instead destroyed himself.

A further sampling of these strange orders can be found here (very lengthy treatment of applicable case law), here, here and here.

At this point, one might with good reason ask: Where does the Rabbi fit in this “gathering?”

He is not only a Rabbi but a very widely known and most capable lawyer named Dov Fisher, who writes for the Spectator.org. His most recent writing gives voice to what so many of us are thinking and feeling about the double standards of “equal” justice we see all around us, with the Flynn case being a painfully vivid example. His piece carries the title “A Time To Hate” and it bears careful reading for those concerned about what appears to be a dangerous breakdown in the American Rule of Law.

Fischer takes his theme from Ecclesiastes 3:1-8 — it is a lengthy, serious article and should be read and studied closely, in my opinion. It runs the gamut of all the things the left has served up to us which seem, at times, to e just downright hateful– things we hate. As an aside, I was taught from the earliest days that it was against every tenet of Christianity to “hate” anyone or anything. I feel that lifetime lesson is one reason this thoughtful scholar’s comments struck such a resonant nerve with me and why I wanted to share it in the context of Gen. Flynn’s nightmare of persecution. After reviewing his enduring the Obama years, feeling that as much as he disliked everything about Barack Hussein Obama and those around him, he won fair and square (reasonable minds could sure differ on that one, but that’s for another day) and according to the Constitution he loved and revered, he noted:

As a rabbi of 40 years and a person who believes that most people have the potential for goodness, and who tries to find the good even in people who disappoint until they absolutely close off the possibility of goodness being discovered within them, I now have learned to hate.

***

There is a time to hate.

I have come deeply to hate. I hate that Donald Trump never was given a chance to be president of the United States for even one day’s honeymoon. I hate that, long before he won the presidency — fair and square — corrupt crooks and criminals in the United States Department of Justice, its Federal Bureau of Investigation, were actively plotting to take him down. I hate that there are so few outlets in the media that give voice to condemn the criminality and corruption that broke every accepted societal norm by which we play the game. I hate that Obama was in on it, yet continues to pontificate on what is just and on what threatens freedom.

I hate that they all keep getting away with it. Every single one of them gets away with it. There is absolutely no price to be paid on the left for perjury, for conspiracy to overturn a legitimate election, for treason.

***

Lt. Gen. Flynn never deserved what was done to him. He was targeted for destruction by criminals and crooks in the FBI. They set out to destroy him. The FBI is not allowed to bother law-abiding people like you and me, to set us up, and to induce us to commit a crime. They are permitted to pursue criminal investigations only when they have a predicate before them. In the case of Flynn, they had in their possession a complete recording and transcript of his phone call with Sergey Kislyak. Yet they interviewed him and asked him to tell them what was said during the call. The Bureau of Investigation was not investigating; they already knew the answer. Rather, they were setting him up to speak a falsehood, to commit the crime of lying to the FBI, an act whose criminal dimensions he did not appreciate as a layman. They dissuaded him from having an attorney at the interview so he would slip into the trap. A competent attorney would have protected him. Frankly, a competent attorney would have killed the interview in the first place or would have wrangled terms that would have negated its purpose, much as Hillary did.

***

There is something so evil in a society that tolerates a dual standard of justice, dual standards of everything. On the one hand, we political conservatives harbor profoundly deep feelings, but we do not destroy people’s lives based on abstract politics. Yes, we oppose them and expose them, and we hope that contemporary society and history judge them for the evil they represent. But we do not destroy them in their lives. They get away with everything. Hillary Clinton spoliated 33,000 emails amid a federal probe, a federal crime that always ends up with prison time — but not for her. It is a federal crime to lie under oath to Congress. Comey, Clapper, Brennan — how have they all avoided prison time? Strzok, Page, the whole bunch of them? Adam Schiff. The outliers on the Mueller team. Not one single slime among them in the swamp has been brought to justice.

These animals destroyed the life of Lt. Gen. Michael Flynn. They drove him into such financial ruin that he had to sell his home to pay his legal bills

After taking a very close and studied look at what these “animals,” as Rabbi Fischer described them, have done to a real American hero who served his country in uniform for 33 years, several of which were in combat zones, and his family, I now state, with no reticence whatsoever, that I deeply hate what they have done to this fine man and to the Nation which he has so obviously loved all his life.

People go to bars, and here one should note parenthetically, in the good old days when we could go to bars and restaurants without fear of antagonizing the Microbe Patrol, for all sorts of reasons— for good times with friends, for dark times to drown our sorrows, and a whole range of reasons in between. I prefer to think that we who have to believe there is still vibrant life left in the American system of justice, go to this particular Barr for hope — hope that he will continue to be true to his word and restore the Rule of Law in America. That he and his colleagues, Mr. Durham and Mr. Jensen, will continue to root out and bring to justice “animals” like the Rogues’ Gallery in the past leadership of the FBI and the Justice Department and the CIA and so many other parts of the Chicago pols machine Obama brought with him to Washington.

The Rabbi closed his litany with these words: “There is a time to love and a time to hate. This is a time to hate.”

Maybe, just maybe, we finally have some reason to believe that there is also:

A time to hope.