Michael Gaynor
Judge Emmet Sullivan should dismiss the case against General Flynn immediately because there is no longer a case or controversy between the parties
By Michael Gaynor
May 13, 2020

Any further delay in dismissing the Flynn case is unconscionable.

Benjamin Franklin was right: we got a Republic, if we can keep it.

To keep it, we must respect our Constitution instead of ignore it.

Article III, Section 2, Clause 1 of the Constitution states:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

This clause is known as the Case or Controversy Clause.

It sets out the scope of the jurisdiction of the federal judiciary and prohibits federal courts from issuing advisory opinions and hearing cases that are not ripe, whether because a controversy has not yet arisen or the controversy has been resolved and become moot.

With respect to the “case” and “controversy” requirement, the late Chief Justice Warren opined that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.”

It is for the Executive Branch through the Justice Department to decide whether a prosecution should be initiated and to determine that it should be dismissed in light of newly discovered facts.

It is for the Judicial Branch to determine whether a prosecution is properly proven.

It is not for the Judicial Branch to prolong and/or to refuse to dismiss a prosecution that the Executive Branch determines should not have been initiated.

The only parties to the Flynn case are the United States Department of Justice and General Flynn.

After discovering that there was no legal basis for the FBI investigation of General Flynn that led to his prosecution, the Justice Department moved to dismiss the case, as it should have.

Therefore, there is no longer a case or controversy.

The parties agree that the case should be dismissed.

The dismissal should be a simple ministerial act, because there is no case or controversy between the parties.

Commentary to Canon 3(A)(5) of the Code of Conduct of U.S. Judges states in pertinent part:

"In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay."

There is nothing in the Code or Code commentary about permitting others to prolong the case by awaiting amicus briefs by those who don't want the case dismissed.

This reeks of partisan politics, not justice.

Instead of issuing a dismissal order, Judge Emmet Sullivan has changed his position on amicus briefs in the case that now should be over to allow anti-Trumpers to prolong the case.

Previously Judge Sullivan rejected amicus briefs supporting General Flynn more than twenty times.

Anti-Trumpers are determined to prolong if not actually prevent the issuance of a dismissal order.

Nevertheless, "justice delayed is justice denied" is still a legal maxim and federal judges still must not be partial.

As Chief Justice of the United States Warren E. Burger noted in an address to the American Bar Association in 1970:

"A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets."

Dr. Martin Luther King, Jr. used the phrase in the form "justice too long delayed is justice denied" in his "Letter from Birmingham Jail," ascribing it to "one of our distinguished jurists."

General Flynn was persecuted, not properly prosecuted.

Any further delay in dismissing the Flynn case is unconscionable.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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