Friday, September 18, 2020
Miles from the Mainstream
D. R. ZUKERMAN, proprietor

The Current Phase of the Lt. Gen. Michael Flynn Affair, as LPR Understands It

June 5, 2020 --

LPR believes that the Flynn litigation is comparable to the Captain Alfred Dreyfus Affair, in France, from 1894, when he was charged with treason, to July 1906 when he was exonerated.

Dreyfus was first found guilty and spent a few terrible years on Devil's Island, off French Guiana,  He was brought back to France and found guilty a second time, but by then it was clear that a Major Estahazy was the guilty party and that Dreyfus had been framed by French officers, including Majors Esterhazy and Henry.

(Esterhazy was eventually tried, acquitted and went to England.   Henry was arrested in August 1898 for his role in the Esterhazy matter and was said to have committed suicide in prison August 31, 1898, by cutting his throat, although it was reported that he did not have a razor with him when he was arrested.)  

Although found guilty a second time, Dreyfus was pardoned in 1899.  But he continued to press for exoneration and July 1906 he was exonerated by the French Supreme Court, which refused to send the matter for further litigation because it found that there had been no reason to charge Dreyfus in the first place.

This is the argument of Sidney Powell, the new attorney for Michael Flynn.  Fifteen Republican attorneys general (16 according to National Law Journal) put it this way in an amicus brief: "What the Constitution has put asunder, let no judge join together."   

The brief goes on to say, "This Court may not order the commencement of any prosecution, and therefore may not order the continuation of what it could not initiate."  Clearly, for these attorneys general, Judge Sullivan has violated separation of powers by ordering "the continuation of what [he] could not initiate."

Andy McCarthy, chatting with John Batchelor on the John Bartchelor radio show, May 28, wondered if Judge Sullivan wanted to force the president into deciding on a pardon, by extending the Flynn litigation up to the conventions. 

LPR infers that a pardon of Flynn, particularly around the time of the conventions,  would ignite a political firestorm among Democrats, led by the media, intended to prevent the president's re-election.  As such, this would amount to an intolerable intrusion by the judiciary into the political process.

But what if the original charge against Flynn represented an intolerable intrusion by the Obama administration into the post-election transition period, intended to sabotage the Trump presidency in its early days, not excluding forcing it from office?  It has become abundantly clear that the Flynn conversations with Russian Ambassador Kislyak were justifiable. 

The anti-Flynn position is that he pleaded guilty to giving false statements to FBI agents in the course of an interview about the conversation with the ambassador and must be held to the plea, or be found in contempt for lying to the court when he pleaded guilty.  This position, to LPR, is untenable as being cynical, at best, malicious at worst, all for the purpose of framing Flynn as Dreyfus had been framed. This anti-Flynn position is tantamount, LPR believes, to acknowledging that the origins of The Flynn Affair lie in politics, not in violations of the law.

One of the charges against the former lieutenant general was that he gave false statements about a lobbying project for the Republic of Turkey, to which he also pleaded.  Arguably, the circuit court could dismiss the charges related to the phone conversation with the ambassador, and send the charge related to lobbying back to Judge Sullivan.  (LPR doubts that the appellate couft will refer the matter to a third district court judge; it has already been before two district judges.)  The appellate court might rule tht the lobbying charge presents a material issue for judicial determination -- although, of course, it has nothing to do with Russia,

LPR believes that if the appellate court itself dismisses the entire matter, it will be acknowledging that the origin of the case was political in nature, not a matter for judicial disposition.  (This would hold true if the appellate court dismisses the complaint in part -- having to do with the phone conversation, and returns the lobbying matter to Judge Sullivan for disposition.)   If the entire matter is returned to Judge Sullivan for disposition, it will indicate that the appellate court considers the  complaint  to be material as a matter of law,, not a political matter that should never have been brought before a court.  

The case is presently before the appellate court on a writ of mandamus.  If the matter is returned, in toto, or even in part (the lobbying accusation), to Judge Sullivan, Flynn could appeal Judge Sullivan's decision -- should the judge rule against him, and hand down a sentence,,  but in that context, it is more likely than not, LPR believes, that the appellate court would affirm Judge Sullivan's  decision, leaving Flynn to appeal to the Supreme Court, which if a pardon is not forthcoming, might then rule to exonerate as the French Supreme Court did in The Dreyfus Affair.    Of course by then, the election may well have taken place, with an adverse result as to the re-election of President Trump.