By an 8-2 vote, the U.S. Court of Appeals for the D.C. Circuit has rejected Gen. Michael Flynn’s petition for dismissal and sent the case back to judge Emmet Sullivan. The only proper action for Sullivan, contends Andrew McCarthy, is “to dismiss the case,” but he waits to see if the judge “follows the law.”
That is not likely given Sullivan’s bizarre behavior to date, and the stakes at hand. The previous administration certainly didn’t follow the law in its action against General Flynn, President Trump’s choice for national security advisor.
Gen. Flynn, a Democrat, regarded the previous president as a weak leader and spineless coddler of terrorists. In his speech to the Republican convention in 2016 Flynn said, “We should always remember that our country, was built upon Judeo-Christian values and principles.” Hillary Clinton, Flynn said, “put our nation’s security at extremely high risk with her careless use of a private e-mail server,” and “Donald Trump recognizes the threats we face and is not afraid to call them what they are.” That would be radical Islamic terrorists.
The “composite character” David Garrow described in Rising Star: The Making of Barack Obama did not want Gen. Flynn to become National Security Advisor, least of all with Trump in the White House. So the president targeted Flynn to facilitate action against Trump that would continue during his presidency.
In the course of his duties, Flynn came into contact with foreign nationals under routine surveillance by U.S. intelligence. American citizens in such encounters are normally redacted, but Democrats duly “unmasked” the identity of Gen. Flynn and leaked the information to the establishment media, a “10-year felony,” according to former prosecutor Trey Gowdy.
Samantha Power, Obama’s ambassador to the UN, made unmasking requests for Flynn on November 30, 2016, and then on December 2, 7, and 14 – two requests that day – and December 23. Power’s seventh unmasking request came on January 11, 2017, days before Trump took office.
On December 14 and 15 of 2016, CIA boss John Brennan made unmasking requests for Gen. Flynn. Director of National Intelligence James Clapper put in requests on December 12, 28, and again on January 7, 2017. FBI director James Comey requested to unmask Gen. Flynn on December 15, 2016, and on January 12, 2017, vice president Joe Biden made his request to unmask the general.
The same day, treasury secretary Jacob Lew put in an unmasking request, as Lew had also done on December 14, 2016. The administration unmaskers included President Obama’s chief of staff Denis McDonough, on January 5, 2017. On December 6, 2016, another request came from ambassador to Italy John Phillips, who like treasury officials Adam Szubin, Nathan Sheets, and Sarah Raskin could have no legitimate reason to unmask Gen. Michael Flynn.
As with the Democrats’ fraud on the FISA court, this was the deployment of U.S. intelligence to spy on a U.S. citizen who had committed no crime. FBI agents weren’t sure whether their task was to get Flynn fired or get him to lie. When that and other misconduct finally came to light, the Department of Justice dropped the case against Gen. Flynn.
As McCarthy recalls, judge Sullivan opposed the dismissal and appointed an “obviously biased amicus,” former federal judge John Gleeson, “to argue for Flynn’s continued prosecution.” Gleeson “threatened to have Flynn prosecuted for criminal contempt on the theory that, if he was now claiming innocence, he must have committed perjury when he pled guilty.”
Flynn’s attorney sought a mandamus, an extraordinary writ available only when a lower-court judge’s action is “manifestly lawless” and there is no alternative means for the aggrieved party to attain relief. In June, a three-judge panel agreed with Flynn, but the full D.C. Circuit, heavily weighted with Democrat appointees, has now nixed that action and booted the case back to Sullivan. If he did not dismiss the case when the DOJ ordered such action, he is not likely to do so now.
Some reports speculate that Sullivan might proceed directly to sentencing on the original charges of lying to the FBI, which is not the same as perjury. In such a scenario, President Trump would likely pardon Flynn, who knows the intel community from the inside and would have a lot to say as the election approaches.
Sullivan is more likely to put the DOJ on trial and drag out the case until after the election. That would cast some light on the motives of Sullivan, who seems confused about the role of a judge and the rule of law. If anyone thought he should be booted from the bench it would be hard to blame them.
Delaying also seems to be the strategy of U.S. Attorney John Durham, often portrayed as fair and fearless. With the election less than two months away, none of the key players in the attempted coup against President Trump is facing a criminal indictment. As the president says, we’ll have to see what happens.