BREAKING NEWS: Rule of Law Ends in America
PS/ A Trump appointee wrote the decision.
In America, when a defendant is convicted, sentencing—and the case as a whole—becomes a judicial function. Fact-finding—and government's authority to retract charges—ends.
Trump's pals are an exception. They get a different rule of law.
In America, when a defendant is convicted, sentencing—and the case as a whole—becomes a judicial function. Fact-finding—and government's authority to retract charges—ends.
Trump's pals are an exception. They get a different rule of law.
PS2/ I assume an effort at en banc review will be made. But the fact that this even happened closes a chapter in American jurisprudence that roughly corresponds to "America having rule of law."
PS3/ This decision does many things, one of which is to call a conviction a "pending charge"—which is *insane*—and another is to make the extraordinary claim that an appeals court can deem lower-court material "exculpatory" *without a trial court ruling having first been made*.
PS4/ If prosecutors prosecute a case to conviction and then say, "Wait, we have new material that's exculpatory!" and the court says "No it isn't, this is corruption," the court is in control. Yet here the appellate court didn't even let the trial court make an *initial* finding!
PS5/ Trump's appointee says this is a case about a "pending charge" and the government's "charging decision." *No*—the entering of a conviction *ends* the "pending" status of the charge and moves it *out* of the realm of "prosecutorial discretion." Now it's a *sentencing* matter.
PS6/ The "discretion" prosecutors have in the sentencing phase of a trial—a *wholly separate phase*, non-lawyers should know, from the fact-finding phase of a trial—is what punishment to ask for. Here, the DOJ could've asked for no time—*that's* what constitutes its "discretion."
PS7/ Indeed, on the plain face of the record below, the defendant here used dilatory tactics—such as agreeing to a plea bargain he then violated—in order to *forestall* his sentencing *precisely* so that the DOJ could play politics with a case that was open for sentencing.
PS8/ Had this case been pre-conviction, Trump's appointee would've issued an *identical* ruling—and may even have been correct, though it still would've necessitated Congress impeaching Barr. But to *pretend* the reasoning holds *post-conviction* is Bush v. Gore levels of insane.
PS9/ What this outrageous decision does is *dramatically* recast "conviction" on a charge as a *non-event* in the lifespan of a charge.
(Read *that* a few times.)
This is a *historic* diminishing of the power of judges—and a historic *expansion* of executive powers.
Stunning.
(Read *that* a few times.)
This is a *historic* diminishing of the power of judges—and a historic *expansion* of executive powers.
Stunning.
PS10/ Understand this, America: Trump's DOJ can now prosecute and *convict* someone to *force them to do something Trump wants*, then move to dismiss the case when the defendant complies by claiming "exculpatory evidence" that *the trial judge can't review*.
This is *autocracy*.
This is *autocracy*.
PS11/ What I described is the rule the decision just handed down establishes—as if the court can't holding a hearing on claims of "new exculpatory evidence" post-conviction so long as defendant and prosecutor agree, how could a court *ever* ferret out "prosecutorial harassment"?
PS12/ Lest you say, "Yeah, but that's not what happened *here*..."—slow your roll. Trump didn't want Flynn to aid the feds. Trump didn't want Flynn to testify against Bijan Kian. The DOJ reversed its position on Flynn *once* Flynn had done what Trump wanted him to do (or not do).
PS13/ Judge Sullivan had *every* right to inquire into prosecutorial misconduct here, and for the appellate court to assume any misconduct a defendant willingly agrees to can't be "harassment" is the equivalent of saying any case whose victim opposes prosecution must be dropped.
PS14/ When DOJ moved to dismiss the charge against Flynn post-conviction, it rewarded Flynn having made decisions in mid-case that benefited the person who controls the prosecuting authority—Trump.
To say a court can't ever review such a scenario is wrong for *this* reason also.
To say a court can't ever review such a scenario is wrong for *this* reason also.
PS15/ The real question now is *why do we even have judges take pleas*? Why should a judge be involved at *all*—if the judge's exercise of authority in accepting a plea doesn't transfer *any* discretionary authority to the court *besides* the mechanical role of imposing sentence?
PS16/ If a new presidential administration comes in in 2021, I pray it quickly charges this traitorous criminal with *every charge the Trump administration forewent* in order to sign a sweetheart deal with Flynn that he broke and then (post-conviction) demanded he be let out of.
PS17/ FARA crimes, conspiracy to commit kidnapping, fraud, obstruction of justice, lying on federal security clearance forms, perjury, and more. Flynn must face *every federal criminal charge* he cravenly slithered out of by signing a deal he *immediately* violated spectacularly.
