A funny thing happened on the way to the gallows. It was discovered that the condemned man was actually innocent. But the sentence would be …
A funny thing happened on the way to the gallows. It was discovered that the condemned man was actually innocent. But the sentence would be carried out, reasoned the hanging judge, because the partisan mob must not be left disappointed. (It would also be a waste of good lumber.)
A metaphorical story, yes. But the underlying facts bear a disturbing resemblance to the treatment of Gen. Michael Flynn, President Trump’s former national security adviser.
In early 2017, the retired three-star general was deviously set up and framed by James Comey’s FBI for a crime he did not commit. Thereafter, he was coerced by special counsel Robert Mueller’s unscrupulous prosecutors into pleading guilty to the charge of lying to the FBI, even though the evidence now shows he did not lie.
The presiding federal judge in the Flynn case, Emmet Sullivan, is utterly unbothered by the newly revealed evidence of the defendant’s innocence. He seems determined to carry out the sentencing to satisfy the partisan media mob and Democrats who agitate for the punishment of a Trump ally. Ready the scaffold.
But wait. On Tuesday, Flynn’s attorneys resorted to a higher court for relief by filing a writ of mandamus before the U. S. Court of Appeals for the District of Columbia Circuit. They correctly argue that Sullivan should be kicked off the case and/or ordered to follow the law by dismissing the criminal charge against Flynn.
It is highly likely that the defense will prevail, notwithstanding the best efforts of Sullivan to turn the law upside down. This is because the trial court judge has no authority whatsoever to usurp the power of the Department of Justice (DOJ), which uncovered the exculpatory evidence of Flynn’s innocence and decided to drop the case entirely.
Judges are impartial and disinterested referees; they resolve disputes that arise at trial. They neither initiate prosecutions nor perpetuate them.
Judge Sullivan might want to revisit Article III, Section 2 of the Constitution. It circumscribes the role of a judge to preside over “controversies to which the United States shall be a party.”
Normally, there are only two parties to a federal controversy — the prosecution, represented by the DOJ, and the defendant, who is charged with an offense.
