In his post about Judge Emmet Sullivan’s decision refusing to find prosecutorial misconduct in the case against Michael Flynn, Scott noted that Sullivan berated Flynn’s attorney, Sidney Powell, for lifting a portion of her brief to the court. Scott added that Sullivan’s accusation “is misplaced,” but did not discuss the matter further because it was not the subject of the post.
Jonathan Turley takes up Sullivan’s accusation in this article. He shows not only that Scott was right, but that he was gentle.
Sullivan suggested that Powell engaged in unethical conduct by “[lifting] verbatim portions from a source without attribution.” Sullivan added that “in a footnote, Mr. Flynn’s brief merely provides a hyperlink to the ‘excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.’”
But in the electronic age, the hyperlink is attribution. The source of Powell’s language was there for anyone to see with just one click.
Powell clearly wasn’t trying to deceive anyone into thinking that the language originated with her. Even if one believes she should have made the attribution on the face of her brief rather then through a hyperlink, Sullivan’s suggestion that she “engage[d] in conduct involving dishonesty, fraud, deceit, or misrepresentation” is ludicrous.
I’m as apt as any oldtimer to indulge in get off my lawnism. But Sullivan’s accusation goes beyond that phenomenon. It smacks of personal hostility.
Thus, Turley is correct to say that “the criticism [of Powell] in the opinion will likely deepen the unease of Flynn in having the sentencing under Judge Sullivan.” Like Scott, I think Turley is putting it gently.
I expect that President Trump, at a minimum, will commute Sullivan’s sentence. More likely, he will pardon Flynn.
Unfortunately for the General, this may not happen until after the election next November.