Criminal Law

A Defense of Judge Emmet Sullivan

A former Bush Administration Justice Department official responds to Judge Michael Luttig's critique of Judge Sullivan.

|The Volokh Conspiracy |

Yesterday I highlighted former judge Michael Luttig's critique of Judge Emmet Sullivan's handling of the Department of Justice's motion to dismiss the charges against former National Security Advisor Michael Flynn.

Stuart Gerson, who served as Assistant Attorney General in the George H.W. Bush Administration and briefly as Acting Attorney General, has a response to Luttig's op-ed in today's Washington Post. Here's a taste:

Luttig argues in his op-ed that the appeals court should step in to replace the advisory counsel that Sullivan selected to argue against the motion to dismiss, block the receipt of briefs from friends of the court (including one in which I participated), and name a new trial court judge to oversee the case. With due respect, he is wrong on all counts. . . .

This would be unwarranted, unfair and an inefficient use of judicial resources. Sullivan has overseen the Flynn case, has accepted his guilty plea and is well-versed in the facts. He has done nothing improper in dealing with the extraordinary move by the government, at the 11th hour, to abandon its own case. He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.) In this situation, that is an asset, not a demerit.

Sullivan's concern about the gravity and complexity of the issue before him is understandable, as is his effort to establish mechanisms to help ensure that he has the benefit of a competing view now that the government has aligned itself with the defense's effort to end the case. The D.C. Circuit should let him proceed.

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  1. One Deep State actor coming to the defense of another Swamp Creature.

    1. Don’t knee-jerk so hard, you’ll break something.

      He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.

      1. And was first appointed ti the Bench by Reagan — which is why none of this makes sense — except he *is* 71 years old and intellect can fade at that age.

        If there is Circuit precedent he is violating, and it appears there is — there is no excuse.

        1. DC courts are so called “merit” selection courts, there is a commission of Democrats that forwards 3 nominations.

          So the fact that Reagan may have appointed the least bad choice in Sullivan is meaningless. Clinton made him a federal judge.

          1. Good point. President Reagan also appointed Eric Holder to the DC bench, and we saw how that turned out after he Bidened his time.

        2. Another day, another post by “Dr.” Ed which is nothing but the speculation of a fool.

        3. We’ve seen evidence of that fading intellect every day since 1.20.17.

      2. The Justice Department moved to dismiss the prosecution. Sullivan was just grandstanding.

        Hmm, that sounds familiar.

  2. The answer here is simple.

    A judge should recuse themselves not only when they are biased, but even when the appearance of potential bias is present. Section 455, captioned “Disqualification of justice, judge, or magistrate judge”, provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”

    That threshhold has undoubtedly been met. There is no reasonable argument to be made that Sullivan’s impartiality might reasonably be questioned.

    1. You’re right. And can you think of a more obvious showing of bias than ruling for one of the parties? Clearly every judge should always recuse themselves before ruling!

      1. The fact that multiple parties are publically questioning the Judge’s bias and odd decisions indicates that the Judge’s impartiality might reasonably be questioned.

        Sullivan should recuse himself.

        1. The effective appearance of bias standard for disqualification was met when the judge suggested in open court prior to sentencing that Flynn might be guilty of treason, a crime punishable by death when he was facing about 5 years max, and which the prosecution never remotely suggested was under consideration. Everything else since then has been gravy.

        2. Who are these “multiple parties?”

          And why does it matter if they are “publically questioning the Judge’s bias and odd decisions? (Question-begging alert!)”

          (Question-begging alert!)

          Lots of judges get criticized all the time.

          1. There are only two parties to the case, the prosecution and the defense. Sullivan’s problem is that the agree with each other.

            1. Sullivan’s problem is that all the career prosecutors think that Flynn is and was guilty as sin and that he was smart to plead to his repeated lies and obstruction . . . while Whore Barr and the political appointees/lickspittles in the Trump administration want to actively assist in covering up and excusing away Flynn’s felonies. That is indeed a problem for Sullivan.

              I remember when my Republican party used to actually care about law and justice. When we made a mistake, it was to err on the side of prosecuting wrongdoers. Now, my party representatives whore their integrity by ignoring and polishing the turd that is Flynn’s behavior. What an embarrassment we has become (With apologies to “Pogo.”).

              1. “Sullivan’s problem is that all the career prosecutors think that Flynn is and was guilty as sin”

                You’re probably referring to This. The usual people who sign such a letter; Not “all”, not all “career prosecutors”, and not remotely representative.

                This sort of stunt is meaningless.

              2. What the heck do they think that Flynn was guilty of? FARA violations? Almost always settled with a civil fine, and the FARA case against his partner was dismissed summarily. Nothing there. Logan Act? 200 year old law never prosecuted in the 150 year history of the modern DOJ. And almost universally considered unconstitutional. Moreover, he was working for the Presidential Transition, which was federally funded. That essentially meant that he was operating as a government employee within his job description. Which leaves §1001 knowingly and willingly making material misstatements to a federal official. It turns out that the two agents interviewing him that that he appeared honest when telling them that he didn’t remember parts of his conversation with the Russian Ambassador. It was only in the much later, heavily edited, 302s, that this exonerating information was excised.

                So, again, what was their basis for believing that Flynn was guilty? Because he was working for Trump? Was planning to massively overhaul the Intelligence Community? Had told Obama that his Iran deal was stupid and that ISIS was not the JV team? That he had been on the opposite side of a sexual harassment suit from FBI DD McCabe? Or are they just a bunch of hyper partisan hacks with law licenses?

          2. Trump and Luttig and McCarthy are at least three parties.

        3. ‘Many people say’ is not a proper legal foundation.

          Especially when multiple parties are all partisan.

        4. politically questioning

          Fixed That For You

          There is no rational reason for Sullivan to excuse himself except that your feelings are hurt that he didn’t blindly follow the Justice Department rash decision.

          1. He suggested that Flynn might be guilty of treason. Then he walked it back, sure, but he suggested it. That’s not an indication of an objective judge.

            1. You should have spent more time watching Reading Rainbow and actually reading books during your formative years Brett, so as not to make such simple mistakes as grossly misinterpreting basic English.

              He did not suggest it. He never suggested it. He asked a question whether any other charges were considered based on Flynn’s proven behavior of being paid to lobby for foreign governments against the foreign policy desires of the United States without ever telling anyone he was bought and paid for by those foreign countries.

              Foreign countries which happen to be hostile to the US.

              It’s entirely appropriate to question whether other charges were considered before accepting a guilty plea.

              Your inability to comprehend this rests squarely on your own shoulders.

              1. Suggest transitive verb

                a : to mention or imply as a possibility
                b : to propose as desirable or fitting
                c : to offer for consideration or as a hypothesis

                b doesn’t seem on point, but b and c seem like home runs here.

                1. “All right. Hypothetically, could he have been charged with treason?”

                  That’s asking a question.

                  ““All right. Hypothetically, he could have been charged with treason.”

                  That’s a suggestion.

                  Both of you need to brush up on your comprehension skills immediately.

            2. He didn’t suggest any such thing. He asked.

              And that’s not how it works. To show judicial bias, one must site extrajudicial sources, not things that happen in court. Again: Flynn was, and is, a convicted criminal. Judges often say harsh things about convicted criminals in court. That’s not impermissible bias.

              1. To show judicial bias, one must site extrajudicial sources, not things that happen in court.

                I may not be getting you here. This looks like it’s not possible for a judge to be biased in his courtroom. So if the judge leaps up when you walk into court and yells :

                “You’re going down you filthy homo scumbag !”

                even as you plead “Not guilty” – that’s not bias ?

                The law is more mysterious that we had imagined. Perhaps more mysterious than we can imagine.

              2. David,
                I generally agree with you, but you’re not correct about in-court statements. In fact, it’s not uncommon for judges to recuse themselves because some statements/actions in court raised the reasonable appearance of bias. Imagine a judge in a criminal trial to (at the bench, only to the lawyers) referring to a defendant as “that piece of shit n*gger.”? I think any attorney could demonstrate judicial bias based only on that in-court comment.

                (The above is vastly different than this actual case. I think Sullivan has acted properly every step of the way. And it is appalling to hear and read people applauding the utter reversal by political appointees, and applauding Flynn…a man, after all, who is–AT BEST–a person who was willing to secretly act on behalf of a marginally-adversary country, and was willing to repeatedly lie to VP Pence to cover his own ass. This repeat liar and perjurer–AT BEST, again–is the shining apple in Trump’s eye, and in the collective eye of far-too-many conservatives.

                1. I think any attorney could demonstrate judicial bias based only on that in-court comment.

                  Well, I was trying to put it into layman’s terms, and so, yes, I was speaking too generally, without putting enough nuance into what I was writing. Yes, you are of course correct that the location of the statement itself doesn’t make it acceptable. So it’s not literally whether the statement is made “in court” that’s important; it’s (and I’m still trying to put this into layman’s language) whether the statement is legitimately part of the judicial proceedings. A conclusion the judge forms based on the actual happenings in the litigation is not generally bias of the sort that requires recusal. Or, in other words, a judge who decides that a party is a liar based on the party’s filings is entirely different than a judge who decides that a party is a liar because of the party’s ethnicity.

                  Or, to be more specific to this case: Sullivan excoriated Flynn because of what Flynn had admitted doing, not because of some preexisting prejudice. And a judge criticizing a convicted defendant for having committed a crime is entirely normal.

                2. You may think Sullivan is acting reasonably. He is acting…oddly…in my book, rejecting all amicus curie brief requests, then suddenly reaching out on his own to a specific individual with suggested arguments right now for his own.

                  It looks like his impartiality may reasonably be questioned. It would be best for justice if he was to step aside, and a different judge take over. If another judge was to come in, and immediately use the same line of reasoning as Sullivan, then any hint of bias would likely be limited.

              3. If Flynn was convicted, he could appeal.
                He can’t appeal yet can he?
                So he has not been convicted.

                1. Nice try, but your major premise is wrong: criminal defendants are convicted when they are found guilty, but they cannot appeal until they are sentenced. Moreover, defendants who plead guilty generally cannot appeal at all, except to challenge their sentence. And most defendants convicted in federal court cannot even do that, because they expressly waive all of their appellate rights. This is, incidentally, what Flynn did, and what he confirmed under oath that he wanted to do.

                  1. That explains why the prosecution has motioned to drop the case. When the motion is denied, appeal is on the table.

                    1. Well, not exactly. As part of his plea bargain, he waived most of his appeal rights.

        5. That’s the standard?

          No, you know it’s not. You know better. Boo, hiss.

    2. This is the least perceptive comment I’ve ever seen you leave, Bored Lawyer, and the most out of touch with actual precedent and practice. I’m pretty sure you know better.

      1. Bored Lawyer, you’re someone whose views I generally respect. I believe you know very well that there are lots and lots and lots of judicial decisions interpreting and applying section 455, and that the analysis you’ve just engaged in here is laughably, pathetically out of touch with them. But if I’m wrong, and if you’ve actually never cracked a book to take a look at caselaw, I suggest you start with Cheney v. U.S. District Court, 541 U.S. 913 (2004) (memorandum of Scalia, J., denying a motion to recuse himself). See also, regarding the “extrajudicial source” requirement of section 455 and the real-world operation of motions to disqualify/recuse, Liteky v. United States, 510 U.S. 540 (1994) (Scalia, J., for a unanimous SCOTUS).

        1. Beldar,

          The problem here is not your legal analysis, but that you misread the comments section. The comments you are complaining about are not by Bored Lawyer, who generally posts intelligent, thoughtful things here. The comments you are complaining about are by Armchair Lawyer, who almost never does.

          1. This.

          2. Oh! My! Gosh!

            Mea culpa maxima; apologies, Bored Lawyer (and for that matter to Armchair Lawyer). Thank you Mr. Nieporent.

          3. David’s just upset because he has a habit of posting court decisions that he didn’t actually read. And when someone does read them and point out that he got it wrong, he gets in a snit.

        2. It’s a good case. Here are some nice excerpts.

          “Resolve any doubts in favor of recusal.” Motion to Recuse 8. That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally.”

          Indeed in this case, Sullivan’s place could easily be taken by another judge.

          Let’s go on..

          ” But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue,”
          Indeed, the personal freedom of Flynn is at issue

          Finally, the primary judgement for Sullivan’s need for recusal have been his actions within this case.

  3. He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.)

    During the trial, Sullivan blocked defense motions about prosecutorial misconduct, allowing Sen. Stevens to be convicted and lose his re-election bid a few days later.

    After the election was safely in the bag, Sullivan generously preened about prosecutorial misconduct and eventually vacated Stevens’ conviction. But none of the prosecutors actually suffered any legal consequences.

  4. …has a response to Luttig’s op-ed in today’s Washington Post.

    Doesn’t the Washington Post have a conflict of interest? They allowed themselves to be the useful idiots in leaking the Flynn non-story and spinning it to be sinister. Their original reporter thought it was no big deal – why shouldn’t the incoming NSA be speaking to the Russian ambassador? So the leak was passed along to David Ignatius to manage.

    Perhaps the Washington Post should consider recusing itself from coverage of this story, since it has been an active participant?

    1. Doesn’t the Washington Post have a conflict of interest?

      No.

      This has been yet another episode of Simple Answers to Stupid Questions. Tune in tomorrow, same Bat Time, same Bat Channel.

  5. “He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.) In this situation, that is an asset, not a demerit.”

    Like the Stevens case – we have a tarnished prosecution of conducted by the FBI. Yet sullivan is taking the opposite approach.

    Instead of seeking an unbiased independent counsel to investigate, sullivan chose a person who had just a few days before written an oped in the Washington post condemning the DOJ’s dismissal of the charge. Normally such a obvious bias would warrant a reclusal instead of acceptance

  6. Stuart Gerson is one of the signatories of a letter calling for Barr’s resignation over this case.

    The letter says If anyone else who is not a friend of the president “were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we could be prosecuted.”

    Well, thanks to the release of documents in the last few weeks we know that the investigation was not properly predicated. Yet, Gerson persists. He is an unprincipled hack.

    Gerson’s editorial is entitled “Judge Sullivan is handling the Flynn case just fine.” Well, William Barr is handling the DoJ just fine, thank you. See you in court.

    1. Interesting that the Mueller prosecutors threatened Flynn with prosecution of three different felonies, in what was billed as a counterintelligence investigation.

      In any case, one of the things that came out fairly recently was that the Washington DC field office, that had been formally investigating Flynn, reported back to FBI HQ that there was nothing found detrimental on Flynn after an exhausting search, and were thus closing the investigation. Their decision to close it was overridden by FBI CD DAD Peter Strzok, upon orders of the “7th Floor” (D Comey or DD McCabe). No evidence or reasoning was provided by Strzok, McCabe, or Comey, in keeping it open. That essentially means that from that point forward (at a minimum) the investigation of Flynn was not properly predicated.

      1. That essentially means that from that point forward (at a minimum) the investigation of Flynn was not properly predicated.

        1) No, it doesn’t.
        2) “Properly predicated” is internal FBI jargon, not a statutory thing. 18 U.S.C. § 1001 doesn’t have any sort of “properly predicated” requirement.
        3) They don’t have to be investigating Flynn. They just have to be investigating something within the ambit of any agency or department of the federal government.

        1. 3) They don’t have to be investigating Flynn. They just have to be investigating something within the ambit of any agency or
          department of the federal government.

          You have evidence? Nothing in FBI documents leads to your wild speculation.

          1. That’s what the plain language of the statute say:

            Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
            (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
            (2) makes any materially false, fictitious, or fraudulent statement or representation; or
            (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
            shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

            1. What it comes down to is the “materiality” requirement. All three subsections require materiality as a element of the crime. And to be material, the false statements must affect a criminal, national security (e.g. counterintelligence), etc investigation. And to be a legitimate investigation that can be materially interfered with for materiality, it has to be predicated on articulated facts.

              One example of immateriality is if the FBI agents had asked Flynn the color of his tie the day of his call, and he had responded “red”, and instead, he had been wearing a blue tie. It wouldn’t have mattered to any investigation, so would not have been material.

              I am not making this up, but rather paraphrasing from the DOJ memorandum supporting its motion to dismiss the §1001 charge against Gen Flynn. The lack of proper predication, and thus lack of materiality is at the core of their argument.

              Turns out that the entire Crossfire Hurricane was probably illegitimate from the start. The documentation apparently never provided the factual basis for any crimes or legitimate counterintelligence investigation (and the FBI knew that, at a minimum, that they were uncorroborated at least second hand hearsay). Apparently Peter Strzok applied to open the investigation, and then personally approved his own request, and even CC’d himself as the last person (by rank) in a email rom himself to himself documenting the investigation that he had just opened. Not surprisingly, approving your own request to open an investigation is apparently against FBI regulations.

              In any case, what was the purpose of the interview of Flynn by the two agents? It couldn’t have been to determine the contents of the call, since they had the transcripts (which they never showed Flynn). Strzok’s boss, CD AD Bill Priestap, in a meeting setting up the interview, asked the group (led by DD McCabe) what the purpose of the interview was. Was it to get to the truth? Or get Flynn fired or indicted? His qualms were apparently overridden by his boss, likely DD McCabe.

              1. Yes, there seem to be two different things getting confused here. One is the subject matter requirement bolded by Noscitur, the other is the materiality requirement – that the false statement etc be material.

                per the DoJ’s motion :

                The materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular “subject of [their] investigation”………
                ……..In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

                So the “properly predicated investigation” soundbite has nothing to do with Noscitur’s bolding and everything to do with whether there was a viable investigation in progress to which Flynn’s statements might be material.

                Which makes your color of tie example inapt. Unless the FBI were investigating a murder carried out with a blue tie, the color of anyone’s tie would not even meet Noscitur’s threshhold bolding.

                A better example might be if say the government had been conducting a genuine investigation into a possible Logan Act violation and if Flynn had falsely stated that he had spoken to Kislyak on 30 December not 29 December, but had otherwise told the truth.

                The matter would pass Noscitur’s bolded threshhold but if the actual date was unimportant then the false statement would not be material.

                Interestingly, this materiality requirement has the strange quality of making the defendant – sometimes, but not always – ignorant of the facts necessary to determine whether he is committing an offense.
                Unless he is aware of what the matter that is being investigated is, he won’t necessarily know whether a false statement would be material to the investigation. Which makes a guilty plea interestingly difficult. The defendant would have to – as in this case – rely on the government’s stipulation that it was material. And that stipulation might turn out to be wrong.

                1. Argh. I was interrupted by kids while typing my response, which means Lee got his overlapping response in first.

              2. And to be material, the false statements must affect a criminal, national security (e.g. counterintelligence), etc investigation.

                That’s not quite right, in three ways.

                1) It does not need to actually affect anything; it only needs to be something that theoretically could affect something. That’s why the “They already knew he was lying so it didn’t impact them” defense fails. Every court to have considered that argument has rejected it.

                2) It need not be criminal or counterintelligence. Anything involving the government falls within its scope. Purely civil matters. Purely financial matters. Again, as I’ve said before, and as Noscitur a sociis quoted above: “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”

                3) You are conflating materiality with the jurisdictional requirement. Materiality refers to the former; jurisdictional refers to the latter. One can sort of compress them, but one needs to understand the difference.

                Did you let your dog poop on the lawn of your neighbor who is an FBI agent, and falsely deny to him that you did so when he asks? That’s not a violation of 18 U.S.C. § 1001, because that’s not a “matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” That’s the jurisdictional requirement.

                When the FBI agent asked about whether you robbed the bank, did you in the course of the interview lie about what brand of cereal you had for breakfast that morning? That’s not a violation of 18 U.S.C. § 1001, because even though the agent is investigating a bank robbery — something that is a “matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States” — that particular lie isn’t the sort that could possibly affect the investigation.

                I am not making this up, but rather paraphrasing from the DOJ memorandum supporting its motion to dismiss the §1001 charge against Gen Flynn. The lack of proper predication, and thus lack of materiality is at the core of their argument.

                I know you’re not making it up. But since the argument I’m making is that Barr’s actions were corrupt and dishonest, making factually and legally frivolous arguments, quoting Barr’s brief doesn’t actually move the ball.

                In the time period we’re discussing — January 2017 — the FBI was investigating whether the Trump campaign was in bed with the Russians. They were also investigating why the Russians responded in a certain way to sanctions that Obama had imposed on them in retaliation for their interference in the election. And they were also concerned with why Flynn had lied to Pence about his conversations with Kislyak. Each of those topics is a “matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” And Flynn’s false statements to the FBI about the content of his conversations with Kislyak are of the sort that could affect an inquiry into those topics.

                Turns out that the entire Crossfire Hurricane was probably illegitimate from the start.

                No. No such thing even remotely “turns out.” It’s undisputed by serious people — I exclude Trump, of course — that the Russians did interfere with the election (whether or not Trump was complicit). Even if they didn’t think — hell, even if they knew for a fact — that the Trump campaign wasn’t complicit, of course it’s legitimate to investigate those Russian actions. And they didn’t know it for a fact when Crossfire Hurricane was initiated. (Hell, we don’t know it for a fact now. Mueller found insufficient evidence to establish any criminal conspiracy, but insufficient evidence is not the same thing as factual innocence. But even assuming the campaign was as pure as the proverbial driven snow, that doesn’t mean that investigating it was improper. And certainly IG Horowitz, while criticizing aspects of the way it was conducted, found that it was proper.)

                In any case, what was the purpose of the interview of Flynn by the two agents?

                That’s not a legal argument; that’s an argument about strategy.

                1. David

                  It seems there was no reason to suspect the Trump campaign of colluding with Russia, therefore there was no legitimate basis for investigating such a conspiracy theory. But there was great political incentive to foment baseless charges and conspiracy theories.

                  I’m open to be being proved wrong. Your thoughts on this?

                  https://thehill.com/opinion/white-house/499586-new-fbi-document-confirms-the-trump-campaign-was-investigated-without

                  1. The second one is easy: the headline is a misrepresentation. Crowdstrike’s testimony was that the evidence was circumstantial, not that it didn’t exist. But contrary to the way that word is used in Hollywood, “circumstantial” does not mean “weak.” It just means that there’s no eyewitness. They didn’t literally see a Russian person hack into the server and copy the files. They just saw the evidence of it. But in any case, one doesn’t need evidence in order to investigate. One investigates in order to get evidence.

                    The first one is just random FUD. First, it falsely claims that the email is quoted verbatim; only one portion of Downer’s email is quoted. (You can tell because the part that’s quoted starts with “5.”) And even the part that’s quoted is redacted, so Brock has no idea what it says. Second, Downer’s email by itself isn’t the issue; Downer’s email combined with the leaks of the DNC emails is what made the investigation. (Third, Brock apparently does not know what the word “exculpatory” means.) Even Horowitz agreed that there was a proper basis to start an investigation. Again: you don’t need proof of anything to investigate. You investigate to get proof.

                    1. Circumstantial does not necessarily mean weak, but in this case the evidence in this case seems weak. Pinning responsibility on anyone for a sophisticated hack is notoriously unlikely, since a competent hacker will leave no trace other than what they want to leave (intentional breadcrumbs).

                      But the bigger problem with your response is that this has nothing to do with the proper predication of the investigation, which predated the DNC hacks and Crowdstrike’s analysis of the same. It has to do with the ultimate conclusion that Russia was responsible for hacking the DNC. I posted it as a separate point because you wrote, “the Russians did interfere with the election.”

                      I thought you would be more helpful here but you seem to lack a grasp on the most basic facts when you say the leaks of the DNC emails was the predication of the investigation. After years of reading all of the propaganda and earnest defenses of the deep state I think that’s a brand new one.

                    2. Actually, my apologies – I guess the investigation was commenced days after the DNC leaks. I was mistaken. Either way, the initial predication was thin at best, and there’s mountains of evidence of bias. The later FISA was even worse. By the time Trump was inaugurated they all knew there was nothing to it.

  7. It was good of the judge to look into the Stevens conviction and the shenanigans involved there. In that situation the judge was, of course, helping root out prosecutorial misconduct against the defendant – here the prosecution is *admitting* it.

    I guess the circuit court will soon tell us whether a court can keep a person convicted if the prosecution itself says it (the prosecution) used bad means to get the conviction.

    I still think that, if the President thinks Flynn is innocent, he should grant a pardon based on innocence. Yes, there is that Supreme Court dictum from 1915 that accepting a pardon means admitting guilt. There are also the sources cited by Prof. Volokh to the contrary.

    https://reason.com/2017/08/26/is-accepting-a-pardon-an-admis/

    Yes,

    1. The ultimate response would be to pardon Flynn and then put him in charge of a task force to reform FBI procedures.

      Starting with replacing 302s with badge cams the agents have to have running during their whole working hours, (Bathroom visits can have the video redacted as necessary, after the fact.) with turning if off being an automatic firing offense.

      1. No. If Trump wants to really give the finger to middle and left voters, he should appoint former ambassador Sergey Kislyak and appoint *him* to be in charge of this task force. [“Yeah, House of Rep’s leaders; you can take your investigations and go pound sand!”]

    2. It was good of the judge to look into the Stevens conviction and the shenanigans involved there. In that situation the judge was, of course, helping root out prosecutorial misconduct against the defendant – here the prosecution is *admitting* it.

      False. Barr was very careful in his motion not to make any allegations of misconduct. He did not say that “the prosecution used bad means to get the conviction.”

      1. The prosecution turned over all the Brady evidence in a timely manner?

        1. Or maybe the prosecution is the *real* victim, innocently bringing forward FBI evidence which it sincerely believed was legitimate.

          1. After all, the FBI isn’t really part of the prosecution, is it? I mean, it may look that way to a layperson like Flynn, but in reality they’re two totally different tentacles of the same government.

            1. Here’s something from the brief:

              “The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”

              https://www.foxnews.com/politics/read-dojs-motion-to-dismiss-charges-against-michael-flynn

              So, the prosecution persuaded Flynn to plead guilty to a crime of which, the prosecution now says, it cannot prove guilt.

              Of course the prosecution is accusing itself of misconduct, from the layperson’s standpoint.

              Let’s even assume getting someone to plead to a crime of which there isn’t enough evidence of guilt – is good conduct under some rule or other. Just because some rule considers this “close enough for government work,” it’s still misconduct for the average Joe Citizen.

        2. The prosecution turned over all the Brady evidence in a timely manner?

          Exactly.

          1. They turned it over before the plea?

            1. Yup. The only evidence helpful to Flynn related to the matter to which he pleaded guilty is that the agents didn’t sense deception¹ on the part of Flynn during the interview, and that was disclosed before he pleaded.


              ¹Note that this does not mean that they thought Flynn’s statements were correct. They knew the statements were incorrect, since they knew the contents of the calls. As was elaborated on later, what they noted was the lack of indicia of lying (such as hesitancy, squirming, etc.). Which could mean either that he thought he was telling the truth, or that he’s got a good poker face. If Flynn had decided to go to trial, he could’ve presented that to the jury and asked them to decide whether they believed beyond a reasonable doubt that he was knowingly lying. But Flynn didn’t want to do that, because if he had gone to trial he would have faced much more serious charges that carried longer sentences.

  8. You know what, let’s see what he submits to the DC Circuit court. This whole entire thing stinks to the high heavens…for everyone. There is something to grouse about from all sides.

    I think Sarcastr0 accurately foretold what would happen. We will see a very grumpy dismissal from Judge Sullivan.

    If there was prosecutorial misconduct (I personally believe there was), how does General Flynn go about getting compensation for that? He lost his home. Paid millions in legal fees. Has a tarnished reputation for all time. Seems very unjust how this all unfolded.

    What would justice require as recompense?

    1. Flynn can sue the lead prosecutors on the Mueller report in their personal capacity, as well as those FBI officials who oversaw his investigation, in order to recover the funds.

      1. Or at least I could hope for that. Comey seeing his book money disappear to feed Flynn’s legal fees would be justice.

      2. Prosecutorial immunity is absolute.

        1. Maybe if Flynn sues it will go all way to SCOTUS, and we will finally say goodbye to absolute prosecutorial immunity. I’d like to see that go, along with qualified immunity for rogue cops, and civil asset forfeiture.

          1. Oh look, a unicorn!

        2. Sarcastr0….because of Imbler, right (1976)?

          Does that extend to all possible kinds of prosecutorial abuse? The facts here are very different than the facts in Imbler.

          Or is that irrelevant?

          1. For civil, yeah. Absolute.

            1. Maybe for criminal cases, that precedent needs a second look.

              In my town, we had a LEO killed while he was riding a motorcycle. The guy who hit him worked for the county prosecutors office. The cops on the scene let him go home, to return the next day to answer questions (can you believe that shit?). Complicating matters, this guy (driver) had just left a party. He was never tested, even though some statements by cops on the scene stated he had alcohol on his breath. The tire skid marks (or lack thereof from the P/U truck) lend credence that the driver (who worked for the county prosecutors office) just whacked the motorcycle from behind.

              The county prosecutor declined to press any charges. My town was like….whut!? No punishment for the LEOs who let this guy walk away from the scene and go home.

              I still shake my head at that one. My point? Prosecutors do bad things and they need to be held to account. They should not be immune when they deliberately do stuff.

              1. I mean, that sounds like a bad situation, but it doesn’t have anything to do with the topic and I’m not really sure what you’re saying.

                The driver, of course, was not acting as a prosecutor when he caused the accident, so he would not be immune from ordinary civil liability for causing an accident.

                Neither the LEOs who let the driver walk nor a prosecutor who chose not to take action would face liability even in the absence of any immunity; “they failed to hold someone accountable” is not a cause of action.

                1. Yeah, it was a tragic situation. Concur: Not directly related.

                  I do think that prosecutors who commit venal acts in the course of their duties should not be immune.

                  1. Well, they are not immune from criminal law; the immunities we’re discussing are civil only.

                    Also, they have only qualified immunity, the same as cops, rather than absolute immunity, when they are not acting in a prosecutorial capacity. This is a narrow exception and of course, as any Volokh reader knows, QI is almost always de facto absolute immunity.

                    1. DA Micheal Nifong?

      3. Prosecutors are generally immune from suit for damages. Imbler v. Pachtman.

        1. Yeah. But I can hope. It would be justice. Besides, Comey at least wasn’t a prosecutor.

  9. In neither of the opinion pieces highlighted by Professor Adler did the author refer to DC Circuit precedent in opining on what Judge Sullivan should do.

    As a trial court judge, he “should,” of course, follow circuit precedent. And given the DC Circuit’s Fokker decision (which it cited in the order calling for Judge Sullivan to respond to the mandamus petition), I don’t see how he has any alternative but to grant the government’s Motion to Dismiss.

    Among other things, the Fokker court held that a motion to dismiss must be granted even if the even if “the district court’s criticisms of the prosecution’s exercise of charging authority were entirely meritorious.” Thus, assume that Gleason submits a perfect brief with meritorious criticism of the Motion to Dismiss. Even in that instance, Sullivan would have no choice but to dismiss the charges.

    As a trial-court judge, he’s bound by Fokker. So what he “should” do is clear–dismiss the charges.

    1. I don’t disagree, but Fokker does not disallow appointment of amici.

      1. Correct. But, if in the end, Sullivan has no authority but to grant the Motion to Dismiss, then why should he be permitted to authorize a futile (but expensive and time-consuming) procedure? It seems to me that Fokker would disallow appointing an amicus–not expressly, but by implication.

        Perhaps Fokker was wrongly decided. But Sullivan does not get to make that determination.

        1. Because we’re not the judge.

          He’s the paid expert, he has the eyes of the public on him, he gets to determine what the precedent is, and face the consequences if he gets it wrong.

          1. “face the consequences ”

            He has a lifetime appointment. What “consequences”?

            1. A gig at MSNBC upon retirement!

            2. He could be demoted to traffic court. With full pay, of course, but it would still be a slap in the face.

              1. He could not, of course, because as Brett doesn’t know because he’s not a lawyer or really an expert on anything other than his own whims, there is no “traffic court” in the federal judiciary.

                1. David Nieporent, esteemed lawyer and legal expert doesn’t seem to know that federal officers issue traffic tickets and those are adjudicated in a court of the federal judiciary.

                  https://www.mdd.uscourts.gov/trafficpetty-offenses

                  What else do you make up stuff about? Everything to do with Lt. Gen Flynn for sure. Federal Traffic Court. Anything else?

                  1. These courts are invariably presided over by magistrate judges: it is indeed impossible to demote an Article III judge to be “demoted” to presiding over one.

                  2. Sigh. There are some cases in which federal courts have jurisdiction over traffic offenses. That doesn’t mean that there is a federal traffic court.

          2. and face the consequences if he gets it wrong.

            Which would be????

      2. I don’t disagree, but Fokker does not disallow appointment of amici.

        I have a feeling that I read somewhere that the Federal Rules permit amici at any level in civil cases; and at the appelate level, and above, in criminal cases. But don’t mention them in criminal cases at the District Court level.

        But you cannot always believe everything you read.

    2. As a trial court judge, he “should,” of course, follow circuit precedent. And given the DC Circuit’s Fokker decision (which it cited in the order calling for Judge Sullivan to respond to the mandamus petition), I don’t see how he has any alternative but to grant the government’s Motion to Dismiss.

      I had a brief, low attention, skim of the “Watergate Prosecutors” effort, and my understanding is that they – and presumably anyone else challenging the Motion to Dismiss – would wish to distinguish Fokker on the basis of whether or not Flynn has been “convicted” and whether that matters.

      The Fokker precedent is, I understand, about “charging decisions” and it is contended that the Flynn case has moved past that to a “conviction” even if that has not yet been fully perfected.

      Since as you say, the Appeal Court expressly requested, nay ordered, Sullivan’s comments on the applicability of Fokker, I’m guessing we will soon discover if Fokker is indeed distinguishable.

      I’m also guessing that if the DoJ offers a brief on the Mandamus thing, it’ll confine itself to the question of how much discretion the judge has, and how much o a precedent Fokker is, and steer well clear of Flynn’s request to have Sullivan replaced.

    3. United States v. Fokker Services BV, in its own words, “ar[ose] from the interplay between the operation of a DPA [deferred prosecution agreement] and the running of time limitations under the Speedy Trial Act.”

      Neither the Speedy Trial Act nor a deferred prosecution agreement is involved in Judge Sullivan’s consideration of the DoJ’s pending motion to dismiss.

      Is Fokker nevertheless relevant and among the precedents that need to be considered and, if appropriate, distinguished or applied here? Oh, sure — along with literally hundreds of other precedents.

      But those who insist, here or elsewhere, that Fokker controls here are revealing that they didn’t really understand, or indeed even read, the opinion.

      1. However, it is interesting that of the literally hundreds of precedents they could have mentioned, in their order requiring Sullivan to file a response to Flynn’s mandamus petition, it happens that the Appeal Court panel only chose to mention one – Fokker .

        So they presumably think it’s at least vaguely relevant.

        1. (1) It’s not surprising that the scheduling order from the D.C. Circuit mentioned Fokker, since it was the principal case relied upon by the petitioner, Flynn. (2) Given Flynn’s reliance upon it, there was zero chance anyway that Judge Sullivan (or those responding on his behalf or as amicus in his support) would fail to discuss Fokker regardless of whether the D.C. Circuit panel had mentioned it. (3) Distinguishing it isn’t hard, as I believe my comment above demonstrates.

          Using the shorthand employed by lawyers, judges, and law clerks as they’re briefing an issue: Fokker is a horse case, but not a white horse case. It’s not controlling or obviously dispositive, but it certainly does, at least inferentially and by analogy, support Flynn’s arguments; so, too, do some other not-quite-on-all-fours cases from other circuits. But the history of the Advisory Committee’s (and thus, presumably, the SCOTUS’) concerns when they re-wrote Fed. R. Crim. P. 48(a) in 1948 certainly cuts in the opposite direction.

      2. Yes, Fokker involved a Deferred Prosecution Agreement. But in analyzing a district judge’s authority to question a DPA, the DC Circuit engaged in a lengthy analysis of Criminal Rule 48(a), which is the rule at issue in the Flynn case. It referred to or cited Rule 48(a) 18 times (based on a Control+F search). Thus, I think it is not a good argument to say that Fokker did not deal with Rule 48(a).

        Indeed, the DC Circuit wrote the following: “And as is the case when confronted with a motion to dismiss charges under Rule 48(a), a district court lacks authority to disapprove a DPA under § 3161(h)(2) on the ground that the prosecution has been too lenient in its exercise of charging discretion.” It clearly saw Rule 48(a) dismissals as carrying similar Executive discretion as a DPA.

        1. So the question may not be horse v white horse, but white horse with big teeth v white horse with little teeth.

        2. the DC Circuit engaged in a lengthy analysis of Criminal Rule 48(a),

          Do you know what we call that? Dicta.

          1. Dicta is the popular lawyer term for information in conflict with the lawyers preconceived notions.

    4. Among other things, the Fokker court held that a motion to dismiss must be granted

      Fokker held no such thing. Fokker was not even about motions to dismiss. Fokker was about deferred prosecution agreements.

      even if “the district court’s criticisms of the prosecution’s exercise of charging authority were entirely meritorious.”

      And even ignoring your first error, that’s not what Fokker said.

      And, once again, the controlling precedent is Ammidown, not Fokker.

      1. “Fokker held no such thing. Fokker was not even about motions to dismiss. Fokker was about deferred prosecution agreements.”

        Untrue. Fokker discussed Rule 48(a) at length. The DC Circuit found Rule 48(a) to be “of particular salience.” Here’s a direct quote from Fokker addressing the trial judge’s role in reviewing a Rule 48(a) motion:

        “For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct.”

        “And even ignoring your first error, that’s not what Fokker said.”

        Actually, the “entirely meritorious” language is (again) directly from Fokker. Quoting in full:

        “Even if the district court’s criticisms of the prosecution’s exercise of charging authority were entirely meritorious—an issue we have no occasion to address—the court should not have ‘assume[d] the role of Attorney General[.]'”

        I’m wondering if you actually read the Fokker decision.

        1. I’m wondering if you actually read the Fokker decision.

          I did. Which is why I know that the sentence that you quoted is cut off in the middle.

  10. For several years the media, Democrats, and government officials lied and fomented a baseless conspiracy theory to undermine Trump. When will they apologize?

    1. Who was this post for, exactly?

      1. People with scruples, so not you.

  11. It’s perfectly understandable that Judge Sullivan might want to inquire into possible misconduct when the government seeks to dismiss an indictment, but what is not understandable is his apparent indifference to the apparently unethical and illegal behavior of the Special Counsel in bringing the charges in the first place.

    1. ,” but what is not understandable is his apparent indifference to the apparently unethical and illegal behavior of the Special Counsel in bringing the charges in the first place.”

      Its worse than indifference. At this point he is fully aware of the behavior and seems to be upset upon its discovery by the defendent.

    2. Maybe it’s more understandable if you realize that your premise is wrong, and there was no unethical or illegal behavior of the Special Counsel?

      1. You can quit with the spin. Documents are overwhelming.
        No agency of the Federal Government every had any evidence of the Trump campaign or transition team working with any Russia factions. Zero actions that could predicate a counter intelligence investigation. Zero predicate to ambush Flynn. Mueller walked his roll as Special Counsel, asked the FBI for all the evidence they had on Russia, and recieved Zero documents in return. The Mueller led Special Counsel investigation, is the very definition of unethical.
        Note the lack of a single criminal charge, or prosecution. (Now that Flynns case is being dropped)

        1. Do… do you think Flynn is the only person who was prosecuted by the Mueller team?

          1. Ummm, yes. The only person connected to the Trump team that was prosecuted for ties with Russia, that intersected the campaign or transition. (Roger Stone’s conviction is about to be tossed also)

            1. Umm, no. You forget, inter alia, George Papadopoulos. And, no, Stone’s conviction is not “about to be tossed,” though of course Trump could pardon him. The evidence against Stone is overwhelming.

        2. No agency of the Federal Government every had any evidence of the Trump campaign or transition team working with any Russia factions.

          This is utterly untrue, and also irrelevant. “You didn’t have evidence so you shouldn’t have investigated!” is not how things work. One investigates to gather evidence.

          Zero actions that could predicate a counter intelligence investigation.

          To quote Pauli, that’s not right; it isn’t even wrong. A counterintelligence investigation doesn’t turn on what Trump did; it turns on what the Russians did. Even if they knew with 100% certainty that Trump and everyone associated with him was innocent, a counterintelligence investigation into Russian interference with the election was entirely proper.

          The Mueller led Special Counsel investigation, is the very definition of unethical.

          Narrator: that’s not the definition of unethical.

          Note the lack of a single criminal charge, or prosecution. (Now that Flynns case is being dropped)

          Actually, there were numerous other prosecutions by the SCO, so you continue an unblemished streak of not knowing what you’re talking about.

          1. Name the SCO prosecutions that intersect the Trump team.

          2. To quote Pauli, that’s not right; it isn’t even wrong. A counterintelligence investigation doesn’t turn on what Trump did; it turns on what the Russians did.
            We now have the EC that launched your Counter intell farce.
            The EC that launced the investigations missed even the proper protocol in its generation. Written by Strokz, addressed to Strokz, with no supervisor approving the investigation.
            “The Strzok EC quotes verbatim an email authored by Downer. In it, Downer claims Papadopoulos “suggested” to him that the Trump team had received “some kind of suggestion” of assistance from Russia regarding information damaging to Hillary Clinton and For
            Hear-say about rumors. For that dozens of persons in President Trumps orbit, spent$ millions defending themselves. (but this is not a criminal investigation?)

          3. The Papadop bombshell?
            What was Papadopalous’s source for this unsourced rumor? Pro tip, NOT RUSSIA.
            Q.Who then?
            A. Spy being directed by MI6, Joseph Mifsud.

            1. A. Spy being directed by MI6, Joseph Mifsud.

              Why are you lying about Mifsud?

              1. Where did Papadopalous get the rumors he was spreading? Mueller should have had no problem asking Papadopalous that question and getting an answer.
                Who informed the rumors Paopadopolous was spreading.

                1. Where did you get the rumor that Mifsud is a “spy being directed by MI6”?

                  Do you remember when Barr rushed off to Italy to purportedly get Mifsud’s phone so he could prove this conspiracy? Have you seen any information actually released about that? Why do you think that is?

                  If Mifsud is actually a British agent, don’t you think the U.S. intelligence agencies, which work closely with the UK, would know that? Why haven’t any of those intelligence agencies provided any such evidence?

                  1. You still avoid the question
                    The predicate for the FBI counter intell investigation. (flynn interview) was an email Downer sent that related Papadopolous musing about Russia maybe had information useful to the Trump campaign.
                    Where did Papadopolous get that information?

                    The entirety of the FBI spying on US citizens rests on that answer.

                    Mifsud’s phone? Yes, Barr, etal did go in search that evidence along with other facts. Why haven’t we heard anything? Durham will reveal his findings in indictments . According to Barr, Durham is not writing a report, he is writing indictments.

                  2. Where did you get the rumor that Mifsud is a “spy being directed by MI6”?

                    Sure he was a spy, thats not much of a secret.
                    Since the CIA can’t spy on citizens, Clapper farmed that out to foreign intel agencies. One being MI6, seems Italy is involved also. We know at least two individuals in the office of Americas Ambassador to Italy, were unmasking Flynns name in captured communications. Why underlings in the state dept were unmasking raw intelligence is something the US Attorney for Texas is going to investigate. Barr has wisely tapped US Attorneys far away from the corruption in the DC AG’s office, in an attempt to shed some honesty on the Obama administration, rampant corruption.

      2. Moreover, the government failed to hand over significant Brady evidence to the defense. Of course, the prosecutors tried to structure the plea agreement so as to get around their Brady duties. But Judge Sullivan had been burned by this before (by some of the prosecutors who ended up on the Mueller team), and had a standing Brady order in his court.

        The prosecutors knew or should have known, that they we submitting fraudulent FD 302s to he defense and the court. The 302s submitted were dated weeks after the interview, despite the FBI rule that they had to be filed w/I 5 days (the original, still missing, 302s were apparently drafted and filed the same day of the interview by SA Joe Pientka). Which, of course, meant that the 302s originally submitted to the defense were inadmissible hearsay. In any case, at least the lead prosecutor, Brandon Van Grack, was a very experienced federal prosecutor, who no doubt knew FBI rules and practices backwards and forwards, probably having dealt with thousands of 302s in his career. Moreover, the details of Peter Strzok and Lisa Page editing the 302s until they were satisfactory to DD McCabe was exposed in their text messages during the summer of 2017. The text messages that got both Strzok and probably Page removed from the Mueller investigation that was prosecuting the case.

        Moreover, the prosecutors engineered an unwaivable conflict of interest between Flynn and his Covington by threatening to charge them with FARA violations for filling out Flynn’s FARA forms. Then they did a deal with Flynn’s counsel to let them off the hook if Flynn plead guilty to the §1001 charge. They never, of course, had a viable FARA criminal case against any of them. Notably, the FARA case against Flynn’s partner was dismissed on summary judgment.

        And then they had, in their guilty plea by Flynn, that there were no side deals, but, the reason that Flynn pled guilty were the side deals to get his son (and attorneys) off the FARA charges. That was suborning perjury.

        1. Moreover, the government failed to hand over significant Brady evidence to the defense.

          No. And note that Barr’s motion makes no such claim.

          (by some of the prosecutors who ended up on the Mueller team),

          What?

          The prosecutors knew or should have known, that they we submitting fraudulent FD 302s to he defense and the court.

          Why should they have known something you just made up?

          The 302s submitted were dated weeks after the interview, despite the FBI rule that they had to be filed w/I 5 days

          There is no such “FBI rule.” The rule is that they need to be prepared within 5 days, and that’s a prudential rule so that they are composed with the interview fresh in the agents’ mind. But that’s — as you seem to agree — an “FBI rule,” not a law.

          My office has a rule that expense reports must be turned in within five days of incurring the expense. If I don’t, bad me. But so what? It doesn’t make the reports false if I don’t. I violated an office policy. Maybe as a consequence I don’t get reimbursed.

          (the original, still missing, 302s were apparently drafted and filed the same day of the interview by SA Joe Pientka).

          There is no missing 302. Sullivan already ruled on this insane conspiracy theory by Powell, rejecting it in its entirety. The defense got the draft, the final version, and the original notes taken during the interview.

          Which, of course, meant that the 302s originally submitted to the defense were inadmissible hearsay.

          Uh, no. Were you sick the day that they taught law in law school? That’s not what it means at all.

          Moreover, the prosecutors engineered an unwaivable conflict of interest

          [Citation needed.]

          between Flynn and his Covington by threatening to charge them with FARA violations

          [Citation needed]

          for filling out Flynn’s FARA forms. Then they did a deal with Flynn’s counsel to let them off the hook

          [Citation needed.]

          if Flynn plead guilty to the §1001 charge. They never, of course, had a viable FARA criminal case against any of them.

          Well, then, there couldn’t be any conflict of interest, could there?

          Notably, the FARA case against Flynn’s partner was dismissed on summary judgment.

          Nope. You got that wrong too. In fact, he was convicted by a jury. Then the judge entered a judgment of acquittal. But of course, one of the reasons was that Flynn changed his story and refused to cooperate with the prosecution.

          And then they had, in their guilty plea by Flynn, that there were no side deals, but, the reason that Flynn pled guilty were the side deals to get his son (and attorneys) off the FARA charges. That was suborning perjury.

          Flynn perjured himself, but it’s really the government’s fault? Uh, yeah. Whatever. Except that internal C&B emails that were released show that there was no such side deals.

  12. “He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.)”

    What a glowing way to describe getting duped by corrupt prosecutors and then getting mad when you find out you got duped.

    1. Yeah, the fact that he fucked up before in a similar manner does not speak well of him here.

  13. Mr. Gerson’s op-ed, like former Judge Luttig’s op-ed, ignores what to me is the controlling procedural fact that should be guiding the D.C. Circuit in responding to Flynn’s mandamus petition:

    Judge Sullivan hasn’t yet acted on the DoJ’s pending motion to dismiss.

    In other words, not only is there no final, appealable order in place yet that could justify an “as of right” trip to the D.C. Circuit to review Judge Sullivan’s final judgment in the Flynn case (and the rulings upon which it might be based), there’s not yet even an interlocutory order, nor a ruling from the bench, on the pending prosecution motion to dismiss with prejudice. To the contrary, Judge Sullivan continues to solicit input from the litigants and, now, from others who may have views on the public interests involved in considering the government’s motion to dismiss.

    Were I on the D.C. Circuit, my vote would be to immediately dismiss the mandamus petition because it’s not ripe. Indeed, taking up the petition on the merits now would be an abuse of the D.C. Circuit’s discretion!

  14. Also in the category of “generally relevant, even if not precisely procedurally on point,” from Liteky v. United States, 510 U.S. 540, 555-56 (1994) (per Scalia, J.) (citations omitted, italics in original, paragraph break added), on the broad topic of trial judge demeanor and whether it reflects some disqualifying bias:

    … First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i. e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.

    Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible…. Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.

    1. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible…. Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.

      I feel confident in saying that a presiding judge saying that a defendant charged with false official statement could have and should have been charged with “Treason” is the judge expressing an opinion that is both derived from an extra judicial source (how could he conclude Flynn was guilty of treason based on an indictment for lying to FBI agents about an entirely legal phone call without relying on extra judicial information) and shows a high degree of antagonism towards the defendant.

      That case seems to make a very strong argument that Sullivan needs to be removed from the case.

      1. I feel confident in saying that you are making shit up, since Sullivan said neither that Flynn “could have” nor “should have” been charged with treason.

        1. He didn’t say those exact words, David, but the implication was crystal clear. Read the transcript. In addition to saying he sold his country out, he asked the question of the prosecutors:

          “I really don’t know the answer to this question, but given the fact that the then-president of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?” Sullivan asked.

          “All right. Hypothetically, could he have been charged with treason?”

          Note the prosecutors never suggested treason. And for Sullivan to suggest it demonstrates a total lack of understanding of treason.

      2. @ John: You are confident and wrong. Read the rest of Liteky to understand what an “extrajudicial source” means in this context to begin with. Moreover: Many defendants deserve a “high degree of antagonism” — especially those who have been found guilty or pleaded guilty. Again, read the rest of what Justice Scalia wrote — that’s why I provided not just a cite, or a quote, but a link — to see why that’s so. Finally: that Judge Sullivan later promptly walked back and clarified his prior remarks demonstrates conclusively that him making a “fair judgment” is not “impossible.”

  15. Isn’t SCOTUS’s recent decision in the Fresno case controlling on the issue of appointing outside counsel, as well as changing the issues to fit the judge’s idea of what a case should be, and ignoring the plaintiff’s right to make it as he will? What’s that line about “the master of the pleadings,” again?

    1. SCOTUS’s recent decisions are always controlling. The one you’re talking about simply doesn’t say what you think it says, and isn’t applicable here.

      Hint: it doesn’t say that courts can’t appoint amici to argue. In fact, it goes out of its way to point out that SCOTUS routinely (not commonly, but as a matter of routine) does that.

      Hint #2: It doesn’t say that when courts do appoint amici to argue, they can’t argue something different than the parties. That would be nonsensical, because that’s the only reason to have amici at all. (Amici that repeat what the parties say are worthless.)

      Hint #3: It does say that courts can’t appoint amici to address issues different from the ones the parties raised, but that’s utterly irrelevant because Sullivan appointed Gleeson to address an issue raised by a party.

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