Posted on 05/18/2020 7:31:42 AM PDT by Kaslin
Sullivan should not embark on any contempt proceeding against Michael Flynn. Doing so would be a misuse of his contempt power.
Stunning developments in the criminal case of Lt. Gen. Michael Flynn exploded onto the national scene the past two weeks. First, the government moved to dismiss the case, a one-count plea for allegedly making false statements to the FBI.
Then the trial judge, Emmet Sullivan, issued an order permitting people and groups claiming to have an interest in the matter to file briefs about whether he should grant the government’s motion. Further, Sullivan appointed a retired federal judge, John Gleeson, to act as amicus curiae (friend of the court) to present opposing arguments to the government’s motion.
Much has been and will be written about these developments, but somewhat lost in the uproar they’ve caused is the second portion of the order appointing Gleeson, which directs him to advise Sullivan on whether he should issue a show-cause order to Flynn for criminal contempt for perjury.
I can save Gleeson the trouble. The controlling legal authority from the Supreme Court holds that contempt power cannot be used to punish people for making statements, even under oath, that the judge deems false.
When Flynn pleaded guilty, and again when he was originally scheduled to be sentenced by Sullivan, he acknowledged under oath that he was guilty of making false statements to the FBI agents who questioned him about his telephone conversation with the Russian ambassador. He made these statements, however, while he was represented by counsel who had an apparent conflict of interest and before the government disclosed that the FBI lacked a legitimate reason to question him about the telephone call.
More recently, after Flynn obtained new counsel, he moved to withdraw his guilty plea and submitted a declaration stating that he was innocent of the crime. The potential discrepancy between that declaration and his earlier statements appears to be the basis for Sullivan flagging the perjury issue.
Flynn may well have legitimate defenses to any charge for perjury that might be brought against him, such as reliance on conflicted counsel and ignorance of the defect in the FBI’s interview of him, which render any statement he made legally immaterial. Of more interest is whether Sullivan has a legal basis to explore these issues in a contempt proceeding.
A court issues a show-cause order for contempt as a prelude to possibly punishing a person for alleged misconduct. It describes the misconduct and requires the person to defend against that allegation. It is similar to an indictment except the court, rather than a prosecutor, initiates it. The person receiving a show-cause order must appear and defend the accusation but has certain due process rights, such as the right to notice, the right to counsel, and the right to present a defense.
Sullivan has not yet issued a show-cause order to Flynn, but he has directed Gleeson to advise him as to whether he should do so. The answer is absolutely not, because Sullivan lacks the authority to sanction Flynn for perjury.
Under the separation of powers established by the Constitution, criminal charges are brought by the executive branch and adjudicated by the judiciary. Thus, any actual prosecution of Flynn under federal statutes for perjury would have to be brought by the Department of Justice.
Courts are, however, permitted to initiate prosecutions for criminal contempt of court. Contempt is behavior that disobeys, offends, or disrespects a court’s authority or dignity. It can occur directly in court, or indirectly when it happens outside the judge’s presence. Judges have the authority to summarily punish contempt committed in their presence in certain instances.
The federal criminal code specifically recognizes a court’s contempt authority. Section 401 of the federal criminal code provides that a federal court can punish contempt of its authority, consisting of misbehavior in its presence that obstructs the administration of justice.
Rule 42 of the Federal Rules of Criminal Procedure governs contempt proceedings. It provides that, generally, a person charged with contempt shall be given notice of the charge, a prosecutor shall be appointed, and a trial shall occur to adjudicate the charge. If the potential punishment exceeds 180 days, the defendant also has a right to a jury trial.
But the Supreme Court decided 100 years ago in a case called Ex parte Hudgings that perjury does not constitute contempt of court under Section 401. In that case, a judge held a witness in criminal contempt for giving what in the judge’s view was perjured testimony.
The Supreme Court held that to convict the witness of contempt for alleged perjury, “there must be added to the essential elements of perjury … the further element of obstruction to the court in the performance of its duty.” It voided the contempt conviction because “the punishment was imposed for the supposed perjury alone without reference to any circumstance or condition giving it an obstructive effect.”
The D.C. Circuit, which sits over Sullivan, has reinforced the Hudgings limitation and emphasized that “actual, not theoretical, obstruction is the test, and that any claimed obstruction must be proven precisely.” That decision, called In re Brown, involved a person who falsely claimed to be, and acted as, an attorney in a criminal proceeding before the court. The D.C. Circuit ruled that this conduct, however fraudulent, had not obstructed the proceeding.
Flynn’s statements in connection with his plea did not obstruct the court in the performance of its duty. Thus, they simply cannot constitute contempt of court under long-standing precedent. Sullivan should therefore not embark on any contempt proceeding. Doing so would be a misuse of his contempt power.
Dirty “Judge” Sullivan exposes the corrupt blackrobes
just like Comey and the other seditionists exposed
and ruined the image of the FBI for a century.
Dirty “Judge” Sullivan’s behavior should make
all Americans never again trust the Article III courts.
I believe President’s can pardon up to their last full day in office. I don’t think President Trump would leave them hanging.
I think too many of us forget something important about Trump. These people have attacked his family and pledged to attack his family long after he is out of office. Look at the AG for New York! It is outlandish.
Trump is not dumb and he knows better than anyone that if he does not clean this up his family will be attacked by lawfare for the rest of their lives.
Didn’t Bill Clinton issue some pardons the morning of his last day in office?
if Pres.Trump is not reelected he would probably just issue a pardon for LT Gen Flynn before he left office
Yes, he did. Marc Rich among them if memory serves (a big-time Clinton donor/supporter).
Self ping
I am basing my comment on the contents of this post alone. The poster’s take on the matter is superficial, and as with ALL the legal analysis on our side in the Flynn case (including Powell’s), fails to make distinctions.
As I have said before on this site, people get the “exceedingly slow” part of the saying, but they do not get, or even consider, the “exceedingly fine” part of the saying.
Legal analysis is all about distinctions based on context. The contexts change and the distinctions change with them. For instance, Powell readily demonstrated her gross incompetence by yelling Brady and citing the Steven’s case.
Witnesses commit perjury all the time during testimony. One of the principal duties of a jury is to determine who is telling the truth, both in terms of veracity and reliability. To give a judge power to hold someone in contempt for perjury during trial is giving a judge too much power to interfere in a jury’s authority.
A guilty plea is an entirely different legal context. A guilty plea implicates hugely significant duties of a judge, and the plea is a very special and specific interaction between a judge and a defendant.
An oath is administered before a guilty plea because it is essential (in many ways I will not go into here) that a defendant be scrupulously truthful to the judge while pleading guilty. There may be a dozen aspects of the plea of crucial significance, all dependent upon a defendant telling the utter truth.
A person is not entitled to lie to a judge just because the lie is told during a guilty plea. And a judge who is lied to his face is properly entitled to hold a person in contempt. Ask any judge in America, from village court to Supreme Court, what he thinks about people in court lying to his face.
Powell was grossly incompetent in this case. And every time I post that opinion there is an explosion of lawyers on our side who rush to assure us how brilliant Powell is. What they never do is write a post explaining her legal strategy in coherent terms, citing the actual law, and addressing the objection’s to Powell’s incoherent legal strategy and poor grasp of legal analysis.
Powell blundered her way into having Flynn commit perjury. No one on our side has even addressed that issue, because they cannot. That blunder alone (which I predicted before it happened) demonstrates Powell’s incompetence. But it is one example of many.
I have never doubted for one instant the corruption which lead to Flynn’s case. What I am questioning is how Powell handled the case after she took over.
And otherwise I am amazed at the people on our side, lawyers in particular, who keep doubling down on Flynn despite having no idea what they are talking about.
ping
Pollyannish much?
Exactly.
I know who Blood and Guts , and Stonewall were of course but I coun't find anything an a general "Vinegar Joe, if there was supposed to have been one, What I found was Vinegar Joe were a British R&B band in the early 1970s, who were best know for live shows.
So what's up with that?
Remember when Bill Clinton fired the travel team that was left over from the previous administration(s) President Trump should have fired everyone from the 0bama team. Unfortunately it would have taken forever to get a team together. You know how the rats are.
Can you clarify? Do you mean by withdrawing his original plea?
Remember when American Generals had nick-names like “Blood and Guts,” or “Stonewall” or “Vinegar Joe?”
Instead we have Beltway marshmallows who are so a part of the swamp, and so afraid of the perfumed apparatchiks of the FBI, they plead guilty to manufactured charges on crimes they didn’t commit.
************
One thing Stonewall never had to face was the possibility of being tried before a DC jury that would convict him just because of who he was. All the prosecutors had to do with Flynn was to put him in front of any DC jury and he would have been dead meat.
Remember when American Generals had nick-names like “Blood and Guts,” or “Stonewall” or “Vinegar Joe?”
Instead we have Beltway marshmallows who are so a part of the swamp, and so afraid of the perfumed apparatchiks of the FBI, they plead guilty to manufactured charges on crimes they didn’t commit.
************
One thing Stonewall never had to face was the possibility of being tried before a DC jury that would convict him just because of who he was. All the prosecutors had to do with Flynn was to put him in front of any DC jury and he would have been dead meat.
One of my criticisms of Powell (of many) has been her relentless antagonism toward the government in this case.
Put aside whether the criticism is justified; was it necessary in the way in which it was expressed and how it was expressed? Again, put aside the truth of the matter, where is the common sense in the matter?
At the very beginning Powell insisted she did not want to move to have the plea withdrawn. I heard her say it myself.
Now, there were grave legal and logical problems with her refusal to move to withdraw the plea in the context of her overall argument. There were also grave legal and logical arguments with her complete omission of arguing ineffective assistance of counsel.
Nevertheless, as non-nonsensical as these two aspects were, they made complete sense from a practical point of view. If she moved to withdraw the plea, then Flynn would be required to commit perjury. And if she argued ineffective assistance of counsel, she would invite a devastating refutation which undermined the “public” reasons for the plea.
I predicted several times that her style of antagonism and public airing against the government, as well as her legal position, was going to get the government to drop the support of probation and recommend incarceration. That was not a foregone consequence, it was just common sense which had a good chance of happening.
It happened. And once it happened Powell was LEGALLY REQUIRED to move to withdraw the plea. She did not choose to do so.
And once she moved to withdraw the plea, she necessarily had Flynn confess to perjury. Similarly, she now had to assert ineffective assistance of original counsel, which invited disclosures from the law firm highly damaging to Flynn’s and Powell’s credibility.
BTW, Powell also forced Flynn into making humiliating assertions in his “declaration” which are totally at odds with his public persona. But he needed to humiliate himself in this way in order to support the motion. The analysis of Flynn’s humiliating statements has not been publicly made anywhere, that I have seen, but they are there and it will only take time. This will probably be in conjunction with disclosures from his original lawyers, if they are made.
The last thing Powell wanted to happen is have Flynn and Flynn’s lawyers testify. She at least “got” that part. Now this appears to be exactly what Sullivan is aiming at, hearings, regardless of how he eventually decides the case.
Barr appeared to take Powell off the hook, much to her relief. And IMO Barr wanted to put a stop to Powell’s mishandling of the case by doing so, as her screw-ups could interfere with Durham.
But Powell so jerked the court around with her political statements and lack of legal coherence, that Sullivan as a matter of personal integrity appears to not be letting her off the hook. In that respect, this is on Powell and Powell only.
let’s see. . .in a trial, one side says one thing and the other side says something completely different.
So, if one side says one thing and is convicted, technically that person was deemed to be lying (perjury).
Why hasn’t this corrupt agenda-driven crayon eating judge punished all defendants in his court found to be guilty?
This whole thing is a farse and you have to wonder why the “judge” is doing this.
He’s got to know he is making a top-shelf brain-dead fool of himself and showing his partisan butt to the world.
I know of a US district attorney in Oklahoma that once said, "the law is what I say it is". He was a democrat and that's what we're up against. They can charge you with anything they wish to make up. The FBI can fake 302s and there is no defense.
Yes. . .and the day he entered office he fired EVERY federal DA.
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