To prepare for tomorrow’s hearing in the United States Court of Appeals of General Michael Flynn’s petition for an order to end the government’s case against him, we recommend watching “Just Mercy.” It’s a magnificent new movie dramatization of the campaign for a dismissal of a murder verdict against an innocent man, Walter McMillian, who, after being cast into death row, finally finds the right lawyer. So begins a five-year struggle.
The climactic moment comes in court, when the prosecution announces it does not object to a defense motion that the case be dismissed. The judge presses the question. Is the state of Alabama joining the motion? The state says that it is. What does the judge — Pamela W. Baschab, in real life — say in the movie? “Well,” she drawls, “ya’ll have made my job easy today.” Then she gavels McMillian to freedom.
It would be inaccurate to suggest that Alabama’s case against Walter McMillian, which ended in 1993, is directly analogous to the case against General Flynn. McMillian v. State involved, among other issues, racial bigotry, which is not a feature of the case against General Flynn. Both dramas, though, involve wrongful behavior by the prosecution that is eventually acknowledged by the authorities.
Plus, both cases climax with the question of what a judge must do when the prosecution and defendant both move for dismissal. Judge Baschab graciously bowed to the constitutional clause that confines the judicial power to deciding actual cases and controversies, with the executive branch solely tasked with the executive function of prosecuting — or withdrawing the prosecution of — a case. The judge in the Flynn case, Emmet Sullivan, is balking, threatening to launch a new investigation.
That’s why General Flynn is petitioning the United States Circuit Court of Appeals for a writ of mandamus. Such a writ would order Judge Sullivan to do his duty. Meantime, while the appeals judges were preparing to hear the general’s petition, the first brief was filed in the district court by the lawyer Judge Sullivan brought in to oppose both America and the general. The brief illuminates just what a cynical view is being advanced.
That is betrayed by the amicus curiae’s repeated use in his brief of the word “pretextual.” It connotes something done on a false pretext, to conceal true intentions.* This sneer shows up 13 times in the brief of Judge Sullivan’s amicus curiae, who argues that America’s “statement of reasons for seeking dismissal is pretextual,” i.e., Judge Sullivan’s amicus opposes dismissal and thinks that America and its officers are lying.
That strikes us as demagogic. Both General Flynn’s new lawyer, Sidney Powell, and the government filed detailed briefs with their motions to dismiss and also with their quest for the mandamus writ. They cite from the Justice Department’s own introspection — new and, in our view, damaging evidence that the government withheld material from the defense and maneuvered to entrap the general.
Meantime, another astonishing feature of the case has come in the recommendation to Judge Sullivan by his amicus in respect of whether to order General Flynn to show cause as to why he shouldn’t be held in contempt for perjury. The amicus claims that the general “has committed perjury in these proceedings,” for which he “deserves punishment.” Then the amicus recommends the judge not hold the general in contempt.
Instead, the amicus recommends that Judge Sullivan proceed to sentence the general on the lesser charge of lying to the FBI, to which the general originally pleaded. On top of which the amicus recommends the Judge “take Flynn’s perjury” — for which he hasn’t been tried — “into account in sentencing him on the offense to which he has already admitted guilt.” Never mind that the government and the general dispute that plea.
That’s a glimpse of what the District of Columbia circuit riders will face tomorrow — a total absence of self-reflection by Judge Sullivan on the case he oversaw and his own judgment. He’s a judge who seems unwilling to credit the executive with the powers that were reserved to it, even when the prosecutors move to drop the case. May the sages who ride circuit discover the grace and wisdom to say, “You’ve made my job easy today.”
* Google offers a chart suggesting the word really only entered English usage to a significant degree in the 1960s. Image: Painting by Honore Daumier, from WikiArt.