Reply
Honored Social Butterfly

President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May

President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]

 

BY:  Jonathan Turley

 

Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”  Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder.  Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]

 
 The Obama statement is curious on various levels.  First, the exhaustive search may have been hampered by the fact that Flynn was never charged with perjury. He was charged with a single count of false statements to a federal investigator under 18 U.S.C. 1001. I have previously wrote that the Justice Department should move to dismiss the case due to recently disclosed evidence and thus I was supportive of the decision of Attorney General Bill Barr.
 
Second, there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare.  There is a specific rule created for this purpose.  Federal Rule of Criminal Procedure 48(a) statesthe government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors. 
 
 
 

Third, there is also case law.  In Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions.   There are also related cases in Bartkus v. Illinois, 359 U. S. 121 (1959), and Abbate v. United States, 359 U. S. 187 (1959).  The Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s Petite policy. The Court laid out the standard for such motions.  The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”

 

There are also lower court decisions on this inherent authority.  For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions. The Court noted that this deference extends to core constitutional principles:

 

“The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that“[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations.  . . . The Executive routinely undertakes those assessments and is well equipped to do so.”

 
 

Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns.  One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case.  That was just roughly ten years ago.  As with Flynn, there was an allegation of withheld evidence by prosecutors.

 

At the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.”  What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.

 

While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.

 

The rare statement by President Obama is also interesting in light of the new evidence. As I discussed in a column this morning in the Hill newspaper, the new material shows that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus.  The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic.  Now that is dubious precedent.

 

 

 

VIMTSTL
0 Kudos
859 Views
5
Report
Honored Social Butterfly

Flynn was charged with lying to the FBI, not perjury.  However, Obama was speaking of the intrusion into the judicial system by the Trump administration.  Not the individual case.  The letter to the NY Times from Mary B. McCord  states quite plainly that the refusal to continue the case had no basis in the facts.  The resignation of the career prosecutor rather that sully his reputation with this miscarriage of justice is further proof of how dispicable the Trump administration has become. 

 

In short, Obama was right. ITYS

Honored Social Butterfly

LOL!!

 

I agree with Jonathan Turley when he said:

 

BY:  Jonathan Turley

 

Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”  Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder.  Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan.

 

++++++++++++++++++++++++++

 

He should have talked to Eric Holder before he made that comment because he was wrong...

 

Also, it was the same judge!!  LOL!

 

 

 

 

 

 

VIMTSTL
0 Kudos
779 Views
1
Report
Honored Social Butterfly

You posted this before. It was not true then by fact and can never be true no matter how many times you post it. Experts proved correct.

0 Kudos
752 Views
0
Report
Honored Social Butterfly

Here we go again. This story has been covered in many other threads and the author of this support article has been used many times. Lets start with the FACT he is a far right opinion writer, and the Hill clearly tells all readers plus the Hills tells all the views he expresses are his own not the Hills. You cannot use an opinion writer as fact back up. We see this being done all the time by the Trump enablers.

The writer covers only one small part of the Flynn problem, and it is the part used in the plea agreement to make sure Flynn got no jail time if he lived up to his agreement with the Govt. where we was going to give information on people in the WH who were breaking the law to the FBI. If you recall when this was happening we had a lot of people saying would spill the goods on Trump and Trump would be out. Well Flynn broke his agreement with the govt. If the judge throws out Flynn guilty plea on this he could be tried on Turkey where he was guilty and the fBI has the goods on him, and he could get a lot more jail time. That will not happen due to Barr who will just forget about the other charges dropped. Dictator Trump in action. I covered all of this in another thread so my guess is that is why we see this thread. The enablers never give up.

0 Kudos
822 Views
0
Report
Honored Social Butterfly

One can become absorbed in the minor details of right wing conspiracy theories or one can look at the big picture and see a massive threat to our democracy. What we just saw was a U.S. Justice Department no longer acting independently. Instead of representing the American people, thanks to Trump and his flunky AG Barr, the Justice Department has become a political arm of the president. 

 

Anyone who cherishes our democracy, that excludes Trump Cult members, should be terrified of what's happening. This is what budding dictators do. Hitler replace the German police with the GESTAPO.

cancel
Showing results for 
Show  only  | Search instead for 
Did you mean: 
Users
Announcements

Does AARP donate to political parties or endorse candidates?

AARP is strictly non-partisan and always has been. We never endorse or donate to candidates, political parties or political action committees.

Learn more.

AARP Members Only Games

Play members only games, like FIll Ins, Lumeno, 2048 and a collaborative, multiplayer Let's Crossword.

Play Now
AARP Members Only Games Logos
AARP Rewards

Solve Crosswords. Earn Rewards. Activate AARP Rewards to earn points for games, quizzes and videos. Redeem for deals and discounts.

Get started with AARP Rewards now!
/html/assets/Rewards-program-badge-355x224.png