Judge Sullivan can be an American hero

Nixon’s cover-up failed because federal Judge John Sirica believed that something was seriously amiss in the Watergate burglary trial over which he was presiding. He was sure that the burglars were shielding higher-ups and that the Justice Department was not adequately pursuing that question. On the eve of sentencing, Sirica’s skepticism and reputation for tough sentences caused one defendant to admit that higher-ups were involved and that perjury had been committed at trial. That admission ultimately led to the exposure of Nixon’s involvement in the cover-up and his resignation from office. It made Sirica an American hero.

Judge Sullivan could be today’s Judge Sirica. Sirica not only probed the facts of the burglary during that trial, he ordered a public hearing during the cover-up investigation when he learned that two subpoenaed Nixon tapes were missing and a third had an 18½-minute gap. Sirica believed the public had a right to know the facts. Similarly, Sullivan, seeing that the DOJ and Flynn were on the same side, appointed John Gleeson, a retired federal judge, to represent the public interest, and is considering accepting third-party briefs.

I’ve read a fair number of opinion pieces criticizing Sullivan, but they all tiptoe around certain issues, and mischaracterize several things. Here is a summary of the most common misconceptions, with clarifications:

  • Sullivan has a lawyer, isn’t that unexpected and suspicious.
    • No, several commentators indicated that Sullivan retaining his own council is the would be the ordinary and expected thing to do the instant Flynn’s defense sought the mandamus injunction.
  • Flynn has a right to change his plea
    • Flynn’s signed guilty plea explicitly waived this right
  • Exculpatory evidence was withheld, so charges should be dropped
    • The DOJ motion to dismiss does not actually make this claim, or describe what that evidence is.
    • If evidence were withheld, the correct procedure is to ask the judge to declare a mistrial
    • When Flynn switched from Law Firm A to Law Firm B, Law Firm A found they had forgotten to send Law Firm B some notes after a few weeks. This is unprofessional, but it is not withheld evidence, and took place long after the guilty pleas.
  • Flynn was coerced into his guilty plea
    • The DOJ motion to dismiss does not make this case.
    • Flynn affirmed in court, under oath, more than once, that he was entering his plea because he was guilty and for no other reason
    • If Flynn lied about his guilt to conceal crimes by his son, that in and of itself would be a crime.
  • The DOJ dismissed all charges against Flynn
    • Flynn plead guilty to 3 things: 2 counts of lying to the FBI, and illegally working with Turkey.
    • The DOJ motion to dismiss charges does not even mention Flynn’s 3rd guilty plea.
    • The DOJ’s justifications for dropping the lying to the FBI charges are not relevant to the Turkey charges.

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