crime victims

How Should Judge Sullivan Determine if the Government's Motion to Dismiss the Michael Flynn Case is Appropriate?

This "victimless" crime is a curious one for close judicial scrutiny of a Government motion to dismiss--closer scrutiny should be reserved for cases in which crime victims have a clear interest.

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The Government's motion to dismiss charges against former national security advisor Michael Flynn seems to have drawn more-than-ordinary scrutiny from D.C. District Court Judge Emmet Sullivan. In fact, yesterday Judge Sullivan appointed an amicus curiae (an experienced former federal judge) to file a brief in opposition to the Government's motion. While Judge Sullivan may have been acting within his authority to seek an amicus view, this is a curious case in which to exercise such detailed scrutiny over Government dismissal motion. More than a decade ago, I called for careful review of Government dismissal motions in cases in which crime victims' interests might be at stake. My suggestion seemed to have gained little traction then. If the Flynn case is going to serve as a precedent, then I hope the precedent will be applied evenhandedly to ensure that judges always consider crime victims' views in evaluating Government dismissal motions–rather than the ad hockery that this case seems to be producing.

Some background about the Flynn case: Last week, the U.S. Attorney for the District of Columbia moved to dismiss the criminal case against former Trump national security advisor Michael Flynn, who had previously pleaded guilty to a single count of making a false statement to the FBI during its counterintelligence investigation into Flynn. In its dismissal motion, the Government explained its view that continuing the case against Flynn "would not serve the interests of justice" because it was no longer able to prove, beyond a reasonable doubt, that any statement by Flynn was "materially" false with respect to a matter under investigation.

Under Federal Rule of Criminal Procedure 48(a), a Government motion to dismiss charges requires approval of the judge presiding over the case. In most cases, that approval is a mere formality. In the Flynn case, however, the presiding judge (Judge Sullivan) has taken a greater interest in the dismissal motion than is normal.

The standard that a district judge is to apply in reviewing a motion to dismiss is generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court with authority over Judge Sullivan) has previously explained the limited role that trial judges have in reviewing motions to dismiss:

Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain "leave of court" before dismissing charges against a criminal defendant. Fed.R.Crim.P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)'s "leave of court" requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one—"to protect a defendant against prosecutorial harassment … when the [g]overnment moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977).

So understood, the "leave of court" authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. 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.

United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).

Other Circuits have given a slightly broader interpretation of the judicial role in evaluating a Rule 48(a) motion to dismiss.  For example, the Fourth Circuit has recited the standard as "clearly contrary to manifest public interest." Rice v. Rivera, 617 F.3d 802, 811 (4th Cir. 2010).  This formulation–which appears to be the more common one among the circuits–gives room for district courts to reject bad faith dismissals motivated by (among other grounds) "personal dislike of the victim." Id.

While as a substantive matter federal prosecutors have discretion in deciding whether to dismiss criminal charges, an important procedural issue arises against the backdrop of expanding crime victims' rights in federal criminal justice process: Should a judge consider a crime victim's view on the dismissal? In 2004, Congress adopted the Crime Victims' Rights Act (CVRA), guaranteeing victims greater rights throughout the process. Effectively implementing those rights throughout the federal criminal justice process would seem to require extensive changes to the Federal Rules of Criminal Procedure. And so, in 2006, when I was serving as a federal district court judge in Utah, I wrote a law review article comprehensively reviewing the kinds of changes that appeared to be appropriate to a number of the federal criminal rules. For Rule 48(a), I proposed an amendment requiring the district court to consider the views of any victim on a dismissal motion, with language to be added to the rule as follows:

Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint…. In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.

I submitted my proposals for changing the rules to the U.S. Supreme Court's Advisory Committee for the Federal Rules of Criminal Procedure. After reviewing my proposals, the Advisory Committee essentially decided to adopt none of them.  With regard to my proposal to amend Rule 48(a), the Advisory Committee disagreed with my suggestion, explaining:

The Subcommittee recognized that victims will have a great interest in whether charges are dismissed. The CVRA does not, however, explicitly address dismissals, and it speaks only of not excluding the [victim] from, and providing the [victim with] … a right to be reasonably heard at public proceedings in the district court. If the government moves for dismissal there is ordinarily no public proceeding. … In light of the statutory statement in 18 U.S.C. § 3771(d)(6) that nothing in the CVRA "shall be construed to impair the prosecutorial discretion of the Attorney General," as well as the separation of powers issues raised by judicial review of the government's decision to terminate a prosecution, the Subcommittee was not persuaded that the rule should be amended to require the court to consider the victim's views on dismissal. When there is no public court proceeding, the victim's views will be taken into account through the right to confer with the government under 18 U.S.C. § 3771(a)(5).

In a law review article a few months later, I explained my disagreement with the Advisory Committee's views.  In particular, given that the CVRA promises crime victims in the federal criminal justice system a right "to be treated with fairness," it seemed to me that as a procedural matter, the victim's views should at least be in front of the court as it evaluates a motion to dismiss.  I also pointed out in another section of my article that many crime victims will lack legal counsel, and accordingly  courts should consider appointing attorneys to help provide victims' views to the court.

Since I offered these views more than a decade ago, very few judges have acted to ensure that crime victims' views are considered on Government dismissal motions. In 2006, a case presenting the issue arose in front of me (U.S. v. Heaton), and I ruled that that it was inappropriate to grant a Government motion to dismiss in a victim-related case unless the Government provided me with information about the victim's view on the dismissal. Similarly, in 2014, Judge Barry Ted Moskowitz cited my decision, reaching essentially the same conclusion. Few other judges, however, have followed this approach.

But during the last week, the Flynn case has sudden prompted renewed interest in judicial scrutiny of Government dismissal motions. For example, on Monday, literally "thousands of ex-prosecutors" urged Judge Sullivan to question the Government's motion to dismiss the case.

In this short blog post, I don't want to venture into the substantive merits of the Flynn dismissal issue or the amicus appointment. I recognize that some knowledgeable commentators, including my friend (and former Utah U.S. Attorney) Brett Tolman, view Judge Sullivan's action to receive more input as "outrageous", given the deference judges typically give prosecutors on a dismissal motion. And I know that other distinguished commentators have criticized Judge Sullivan's decision to appoint an amicus to present arguments to him, particularly in light of his earlier rulings declining to hear from non-parties in the case. Having served as a court-appointed amicus in a federal criminal case (before the U.S. Supreme Court no less), this objection strikes me as not going to Judge Sullivan's power to appoint an amicus so much as his consistency in doing so.

My point here is a more limited one touching on the rights of crime victims–i.e., that whatever approach Judge Sullivan uses to evaluate the Government's motion to dismiss the Flynn case should be applied to all such motions across the country. For example, the many ex-prosecutors who want close examination of this particular dismissal motion should explain why similar examination isn't called for in other cases. The scrutiny that a judge gives to a Government dismissal motion should not depend on whether one tends to agree or disagree with the underlying merits of the case–or whose political ox is being gored. Instead, neutral principles should be in place that are uniformly applied to all such dismissal motions. Thus, for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim's views before dismissing a case. It may well be that most Government dismissal motions continue to be granted, even when a victim objects. But as a procedural matter, consideration of the victim's view ensures greater fairness–and certainly greater perceived fairness–in the process.

From the perspective of applying neutral principles to dismissal motions, it is unclear why the Flynn case is suddenly attracting such broad attention. Indeed, if anything, this particular dismissal motion arguably deserves less scrutiny than many others that the Government files. Here, the crime at issue (false statement during a Government investigation) can be viewed as a "victimless" crime–or, perhaps more precisely, a crime in which the only victim is the Government. And the Government/victim in this case is represented by legal counsel–in contrast to the vast majority of criminal cases, in which victims are unrepresented. Here, the Government/victim has indicated that it can no longer clearly prove the underlying criminal case. As the Government's dismissal motion explains in great detail, "[u]nder these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are 'material' to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn." In other words, in this case, no "victim" exists–in contrast to many other Government dismissal motion cases, in which a crime"victim" indisputably exists.

If Government dismissal motions are going to receive the kind of scrutiny that Judge Sullivan is giving to this one, then that attention should not be ad hoc. Perhaps the renewed attention being brought to Rule 48(a) through the Flynn case will create broader interest in ensuring that crime victims' views are always heard before a judge considers whether to grant a dismissal motion. Rule 48(a) should be amended to give crime victims an opportunity to be heard on any dismissal.  But until a consistent procedure is put in place for such judicial scrutiny–and until "amicus" legal representation is provided to all victims in all cases in which dismissals are consider–the attention being given to the Flynn dismissal motion is going to look "outrageous" to those who think the underlying prosecution was itself unfair.

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  1. I actually predicted that the judge would do something of this nature, when the DOJ first stated they were going to drop the prosecution. Sullivan has built up a track record in regards to Flynn, and it’s a very hostile track record. By all rights he should have long since recused himself.

    1. Hey, Brett found more bad faith in someone he disagrees with!

      1. See my link below. Sullivan has personally attacked Flynn in the courtroom, and has previously reacted badly to Mueller’s proposal that Flynn do no time.

        1. Personally attacked? The guy pled guilty to lying to the FBI during an investigation. Sounds pretty serious. Should he have told him he was the pretty and offered him a pink carnation to wear?

          This is also the same judge that tore apart the prosecutors in the Senator Stevens case. This is not unique.

          1. The guy pled guilty to lying to the FBI after they bankrupted him and threatened to go after his family. Even Mueller didn’t think he should serve time, and Mueller was involved in railroading him.

            Based on the in courtroom rant, I’d say Sullivan should have recused himself.

            1. What “courtroom rant”…?

              1. From Vox in Feb. 2018: “In a fiery statement at the sentencing hearing for former national security adviser and retired Lt. Gen. Michael Flynn, the presiding judge, Emmet Sullivan, denounced Flynn and argued that he might be guilty of treason.”

              2. The one he launched into at the sentencing hearing back in 2018. Even people who think Flynn genuinely guilty of perjury were put off by it.

                1. “Even people who think Flynn genuinely guilty…”

                  (Like Flynn?) What does this mean? You sound like the fucking President, “people are saying”.

                  The “rant” was the court telling Flynn he may want to rethink the sentencing hearing, which turns out to be very lucky for Flynn, since he did, in fact, postpone sentencing based on the court’s recommendation. Did Flynn’s lawyers file a motion to recuse Judge Sullivan for any “emotional rant”? What’s your legal basis for saying this “rant” obligated the judge to recuse?

                  1. “(Like Flynn?)”

                    No, get the scenario straight: Flynn was coerced into pleading guilty to perjury he didn’t commit, by bankrupting him, and then threatening to similarly go after his family. Pretty much any man would agree to plead guilty to a crime they hadn’t committed under that sort of pressure, particularly if they were assured that they’d only be subject to minor penalties.

                    Pleading guilty under coercion doesn’t imply that you think you’re guilty.

                    1. Where’s your evidence that Flynn was coerced in his plea? What evidence do you have that the prosecutors threatened to “go after his family”? And even if there’s evidence in support of both of those assertions, I’m wondering how much effort you put into trying to put-right the numerous injustices inflicted on poor criminal defendants every day, and why you are choosing to focus your attention instead on this situation, involving a powerful man who was represented throughout the process by highly qualified lawyers?

                    2. He wasn’t coerced into pleading guilty. But even if anyone believes you, that’s not the same thing as not committing the perjury in the first place. Flynn has not denied that he committed perjury.

                    3. NToJ – Flynn has denied he lied to the FBI. When withdrew his plea, months ago, he stated so.
                      He hasn’t been charged with perjury, so I have no idea why you are bringing that up.

                    4. @Toranth,

                      Send the link to the withdrawal in which you contend he denied lying to the FBI.

          2. Yes, waiting until after Election Day before calling the foul.

          3. At this point Sullivan is certainly aware of the FBI’s bad behavior in this case

            1) failing to provide exculpatory evidence – that alone will get judges to throw the case out
            2) the blackmail of defendent
            3) failure to disclose the terms of the blackmail as part of the plea agreement
            4) Altered docs 302’s etc
            5) acknowlegements from FBI personell that he did lie,
            6) targeted set up
            just to name a few

            Yet Sullivan seems obsessed with punishing Flynn. – By ll appearances of any lack of objectivity by the judge –

            1. None of that is considered bad behavior. Except for the 302’s which is not a material issue on it’s own.

              Welcome to the world of criminal justice reform. Happy to have you.

              1. “None of that is considered bad behavior.”

                Since when is withholding exculpatory evidence not bad behavior –

                The Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment.” The court determined that under Maryland law, the withheld evidence could not have exculpated the defendant but was material to his level of punishment.
                Citations: 373 U.S. 83 (more)83 S. Ct. 1194; 10 …
                Prior: Brady v. State, 226 Md. 422, 174 A.2d 167 …

                1. Yeah, I know Brady. I also know how narrowly it applies.

                  Talk to a federal defense attorney. Or just google their take on this.

                  ALL of this sucks, all of it is terribly unfair and screwed up. It’s also all allowed. Because it’s always easy to tighten the ratchet on ‘criminals.’

                  You want to change that, argue to change these policies. Special pleading just makes you look like a knee-jerk partisan.

                  1. “Yeah, I know Brady. I also know how narrowly it applies.”

                    In this case – the withheld exculpatory was material – so Brady does apply
                    Agents notes that say that he didnt lie is Material –

                    But you already know that since you “know Brady”

                    1. Sarcastro doesnt know shit u less Vox tells him to know it. He is a failed physics major who works a government job.

                    2. Jesse, I also went to law school. I took both Crim Pro and Wrongful Convictions.

                      You, on the other hand, are mostly just angry on the Internet.

                      Joe, why do you think no one in this case made a move for Brady disclosure?

                    3. Sullivan DID issue an order for Brady disclosure on February 16th, 2018. Sullivan knows it, and admitted it in his first response to Flynn’s attempt to withdraw his plea:

                      … the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court’s Standing Brady Order of February 16, 2018.

                      The DoJ claimed they had complied, repeatedly.

                    4. That’s not what Joe_dallas is saying – Joe is claiming the government did not comply. None of the parties seem to be asserting that, however.

              2. “Welcome to the world of criminal justice reform…”
                We are sorry we missed you.
                We have stepped away for a moment.
                We expect to return in January 2021, or maybe January 2025, or definitely the next time a Democratic candidate is accused of rape.

                Sincerely,

                The Libs.

              3. Exactly how often does the government threaten to go after family members and restart an investigation in order to get someone fired?

            2. At this point Sullivan is certainly aware of the FBI’s bad behavior in this case

              1) failing to provide exculpatory evidence – that alone will get judges to throw the case out
              2) the blackmail of defendent
              3) failure to disclose the terms of the blackmail as part of the plea agreement
              4) Altered docs 302’s etc
              5) acknowlegements from FBI personell that he did lie,
              6) targeted set up
              just to name a few

              Half of that is just a complete fabrication; the other half isn’t “bad behavior” in a legal sense.

              1. And that’s the line I expect the left to take here: Just flat out denial even as the evidence floods out.

              2. Point 5 is a “fabrication”, true!
                The FBI personnel wrote that they thought Flynn did NOT lie.

                But can you explain which points you think are “complete fabrications” and which are not “bad behavior” in a legal sense? Rather than just throwing out an insult and vague denial.

              3. David, I used to like reading your posts, even though I sometimes disagreed with them.

                Sad to see you now veer so far of course, that you are rooting for prosecutorial and judicial misconduct.

                1. Mixing up is and ought again.

                  Saying what the law is does not mean you endorse it.

        2. And as usual you think not being a fan of someone means you can’t do your job.

          You’re a pretty partisan dude, isn’t your professionalism better than that? Or do you recuse yourself from whatever your job is whenever one of those lying liberals is involved?

          1. You calling others partisan is fucking hilarious.

            1. You have three comments on this thread, all just insults to me.

              Stop being creepy.

    2. Why do you think Judge Sullivan should have recused? And what is “something of this nature”? It’s just appointing an amicus. Not a big deal.

      1. The dude accused Flynn of being guilty of treason in open court because of a phone call that was perfectly ordinary and routine for his role in the incoming Administration. A phone call with the FBI had the complete transcript of before they ever went to talk to him.

        Even arguing that every word of the indictment is true and that he is completely guilty lying to Federal investigators, casting that as treason requires some impressive mental gymnastics.

        In a case in which the investigators performing the interview stated that they did not believe that he was lying or intended to lie, having the judge take the steps of personally condemning the accused as treasonous and all-around bad person seems to indicate some form of bias that runs beyond the facts presented in the case.

        1. “The dude accused Flynn of being guilty of treason in open court…”

          Yes, he did that at a sentencing hearing after the defendant had pled guilty.

          I don’t have any idea but do you know if Flynn’s lawyers ever asked the court to recuse? Because my recollection is that Flynn’s lawyers accepted the court’s recommendation to rethink the sentencing.

          1. But not, importantly, to giving aid and comfort to an enemy of the United States.

            1. That’s right, I keep forgetting the Putin government is our friend and ally now.

        2. The dude accused Flynn of being guilty of treason in open court

          He did not. Here’s what he actually said:

          “THE COURT: All right. 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?

          MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

          THE COURT: All right. Hypothetically, could he have been charged with treason?”

          He then added a few sentences later: “THE COURT: All right. I also asked about — and this is very important — I also asked about the Special Counsel’s Office. I also asked questions about the Special Counsel and
          the — and other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged, and I gave a few examples. And, you know, there are a lot of conspiracy theorists out there. I’m not taking the elements of any of the uncharged offenses into consideration at the time of sentencing. I was just trying to determine the benefit of and the generosity of the government in bestowing a benefit on Mr. Flynn. That was the reason why.

          MR. VAN GRACK: Yes, Your Honor.

          THE COURT: And I said early on, Don’t read too much into the questions I ask. But I’m not suggesting he committed treason. I just asked a legitimate question.”

          1. Right, so he didn’t accuse him of treason, he accused him of “treasonous activity”.

            Face it: He accused him of treason, then realizing what he’d done on the record in court, walked it back a little.

          2. “I’m not calling him a traitor. I’m just asking questions.”

            Good grief. Do you have any idea how transparently disingenuous that sounds?

          3. Do you think he asks if every defendant could have been charged with treason?

            1. I think many judges, the country over, ask questions about potentially blame worthy conduct that would affect sentencing, especially in the context of a recommendation by prosecution for a lesser sentence. What did you think he should ask? His favorite color?

    3. Should the GOP retake the House, and it’s looking like they will, Judge Sullivan well may find himself impeached.

      At this point, there’s definitely grounds for it….

      1. What grounds do you see?

        1. Grounds at least as good as those for which Samuel Chase was impeached.

      2. There may be grounds for it, but I doubt it still, because no way, even if this is a good year for Republicans, is the GOP going to get enough Senate seats to convict. And the GOP isn’t in to impeaching just for the sake if giving somebody an “asterisk”.

        More likely file an ethics complaint with the Judicial Conference, and get him sidelined.

  2. Paul Cassell : “The scrutiny that a judge gives to a Government dismissal motion should not depend on whether one tends to agree or disagree with the underlying merits of the case–or whose political ox is being gored”

    Cassell’s reasoning would be more persuasive if he included political influence / favoritism with the other two reasons he gives here. Also, in addition to reviewing Judge Sullivan’s consistency in these cases, he might have looked a Barr’s consistency in dealing with cases that don’t involve allies of the president.

    1. No law requires Barr to be consistent, other than minimal requirements of selective prosecution cases (which are highly deferential).

      1. No law requires Judge Sullivan to be consistent, yet Cassell thought his inconsistency worthy of comment.

        1. True in a sense, but Sullivan needs to make a decision that will stand up on appeal and whether he applied the legal standard consistently is going to be an element of that.

    2. On a somewhat similar factual basis but politically reversed:

      “The Massachusetts Supreme Judicial Court, in a decision released Monday, granted a request by the DA’s office for emergency relief by vacating charges against Roderick Webber, one of 34 counter-protesters of a “Straight Pride” parade arrested by Boston police officers on Aug. 31….The SJC declared that Boston Municipal Court Judge Richard Sinnott had “no authority to ‘deny'” the prosecution’s decision to cease prosecution of Webber. “

      See: https://www.wgbh.org/news/local-news/2019/09/09/sjc-rules-in-da-rachael-rollins-favor-on-straight-pride-counter-protester-prosecution

  3. Maybe it would help if the DOJ, instead of just going with this “can’t prove the case anymore” line, came right out and officially admitted that Flynn is a victim of prosecutorial abuse, and should never have been charged in the first place.

    Not that it’s likely to help so long as Sullivan is on this case. The judge seems to personally have it in for Flynn.

    Judge rakes Michael Flynn over the coals in sentencing hearing

    Even when Mueller thought that time served was sufficient, Sullivan wanted him behind bars.

    1. Presumably they would do that but for the fact that they have at least some professional ethics still left in the building.

      1. The only reason they’re not doing it is that they don’t have enough professional ethics left in the building.

        1. If Comey and the gang aren’t charged with crimes, forget ethics, there’s not even any justice left.

          1. You’re an awful lawyer if you actually think they committed crimes.

            1. Comey testified become Congress that Clapper briefed Obama

              Clapper testified before Congress that he did not brief Obama.

              Someone’s lying to Congress…

              1. Or has a bad memory. Or testified about more than he knew.

                It may well be that one of them lied to Congress. It may well be that both of them lied to Congress. But the mere fact that two witnesses testified differently does not, without more, prove that anyone is lying. Witnesses get it wrong all the time, as any trial lawyer can tell you.

                1. If it’s good enough grounds to charge Flynn with…

                  Then what’s good for the goose is good for the gander.

                  1. Lying to the FBI != Perjury. Different laws.

                    1. Please pass that along to Barack Obama.

                    2. “You’re an awful lawyer if you actually think they committed crimes.”

                      “Lying to the FBI != Perjury.”

                      Discuss…

                    3. The burden in perjury is different.
                      If you want to make the case ‘Comey and the gang’ perjured themselves you have a much harder lift than that Flynn lied to the FBI

                    4. Why and how precisely is the burden higher for lying to the FBI than for perjury? Please be specific. It will be illuminating.

                    5. Edit. Higher for perjury than lying to the FBI.

                2. Or has a bad memory. Or testified about more than he knew.

                  Or Armchair is speaking with his usual level of accuracy.

            2. Comey stole classified documents from the FBI, and gave them to uncleared people with the express intent of having those people leak the information to the press.

              Even if you don’t think signing off on fraudulent FISA requests, or suppressing evidence, or any thing else’s he’s done, to be a crime, there is always that one crime that Comey has publicly admitted to.

              1. Comey stole classified documents from the FBI, and gave them to uncleared people with the express intent of having those people leak the information to the press.

                Nope. Basically not true.

                fraudulent FISA requests
                Also BS.

                Your facts need to be established, not claimed by some speculative right wing blog post.

      2. Even if VanGrack stayed on the case there is no way he wou would go to trial with that mess. There was a reason they were threatening Flynn Jr. in order to get a plea deal with no jail time in the first place, they never had the goods.

        To go to trial they would have to have Strzok and Page as their key witnesses because the case relies on their edited 302. That is if the edited 302 is even admitted, why they don’t require the original document to be produced when the veracity of the document edited by two highly prejudiced officials is a travesty. Both witnesses would likely plead the 5th rather than answer all the questions about their conduct in the case. That would be a disaster to the prosecution. And no jury is going to be sympathetic to a prosecutor that threatens a family member to get a guilty plea.

        1. There is no evidence that they were threatening Flynn Jr.

          Page would of course not have been a witness to anything. Strzok and Pientka would have been witnesses, but they would not have had to testify to anything since there was no trial since Flynn pleaded guilty. No 302 needs to be admitted to anything. They would not “plead the fifth” for anything because of course Obamagate isn’t a thing and there’s not even remotely the hint of anything they did wrong.

          And setting aside everything else, how on earth do you think this imaginary threat would get into evidence before the jury anyway?

          And I have no

    2. “Maybe it would help if the DOJ, instead of just going with this “can’t prove the case anymore” line, came right out and officially admitted that Flynn is a victim of prosecutorial abuse, and should never have been charged in the first place.”

      Maybe doing so (now) would jeopardize *other* criminal prosecutions — there appear to be some serious felonies involved in the “unmasking” of Flynn’s phone calls and for all we know, Judge Sullivan himself may be a target of the DoJ.

      The real question is what does Flynn know, and who wants him silenced?

      1. I will say that Obama put an inordinate amount of effort into getting rid of Flynn. I don’t think it can be a matter of what he knows, though, because he was perfectly capable of just spilling the beans to somebody else.

        Maybe some combination of what he knows, and thinking he’d act on it where somebody else wouldn’t.

        1. Just write the fan-fiction already.

          1. What fiction? We know for a fact that Obama tried to persuade Trump not to hire Flynn, he did so fairly publicly.

            We know for a fact that, after Trump hired Flynn anyway, administration hold-overs set out to get him fired. This isn’t speculation, documentary evidence has been unearthed proving it.

            The only question is why they were so dead set on keeping Flynn out of the Trump administration that they were willing to frame him for perjury to do it. We may never know why.

            1. Naw, keep speculating about the Obama-versus-Flynn thriller. Edge of my seat how soon it is until you bring up Kenya.

              1. It is amazing watching how willfully ignorant you choose to be. Probably why that science thing never worked put for you.

                1. As far as I can tell, you do nothing but (1) insult people with whom you disagree or (2) regurgitate talking points from the Cult of Trump.
                  I’m looking forward to the day when you have an intelligent opinion of your own to add to the conversation.

            2. Flynn wasn´t framed. He admitted every element of the offense in his guilty plea, and he reaffirmed his admissions in colloquy with the Court at the truncated sentencing hearing.

              Should Flynn be prosecuted for making false statements under oath at these proceedings?

          2. Dude, take the L. The more you fight the realization that this was a political hack job by the Obama administration, the harder it will be for you to admit you’re wrong.

            1. Great post. Much factual. Very convincing.

        2. “…because he was perfectly capable of just spilling the beans to somebody else.”

          No, not if it was classified, because that would be a violation of the National Security Act. Hence there is the possibility that he knows something that is (a) highly classified and (b) highly damning — and the fear is that some intrepid Congresscritter might just happen to ask him the right question under the right circumstances where Flynn *could* legally talk.

          1. Particularly if this was something that was highly compartmentalized so that it coming out would point directly at him as the source.

            I’m thinking something involving B. Hussain’s deal with Iran.

      2. So you are saying the DOJ wants him on the streets where he can commit suicide, and the judge is trying to save his life?

      3. Maybe doing so (now) would jeopardize *other* criminal prosecutions — there appear to be some serious felonies involved in the “unmasking” of Flynn’s phone calls and for all we know, Judge Sullivan himself may be a target of the DoJ.

        Since there is no law against unmasking, there are no felonies of any sort. (To be sure, leaking the information could be, but you’ll have to figure out who you’re going to blame for that, rather than just handwaving.)

    3. Maybe it would help if the DOJ, instead of just going with this “can’t prove the case anymore” line, came right out and officially admitted that Flynn is a victim of prosecutorial abuse, and should never have been charged in the first place.

      The problem with a filing like that is that they’re subject to professional sanction if they make such a frivolous argument. That’s why Barr was very careful, in his motion to dismiss, not to indulge any of those fantasies. No FBI abuse, no prosecutorial abuse, no Brady violations, nothing. Just “We’re not sure we can prove the case anymore.”

      1. In Massachusetts, that’s a Nolle Prosequi and “we’re not sure we can prove this case anymore” is pretty much what the one I’ve seen did say.

  4. SCOTUS and the DC Circuit are right. I don’t see how this would even work. Without an independent counsel law, the Court can’t control the prosecution anyway. Separation of powers. So the DOJ can issue a presentence report lowballing the guidelines calculation. They can confess error on appeal.

    At the end of the day, it protects defendants’ rights to have judges adjudicate and leave the prosecutorial decisions to prosecutors. The Rules committee didn’t, and couldn’t, override this (though under Morrison v. Olsen, Congress probably could).

    1. As a general matter that’s true. But in this case, since Flynn has already been convicted, the court could simply proceed to sentencing, which doesn’t require the government’s participation. (Note that presentence reports are prepared by the probation office, which is part of the court system, and that the judge has an independent obligation to calculate the guidelines correctly anyway.) So this is a rare case where a denial of the motion to dismiss would actually be meaningful.

      1. Flynn was never convicted, he entered a plea that he has now withdrawn. And there is a solid basis on adequacy of counsel alone.

        Or the judge sends this to trial, and the prosecutor doesn’t show up. What then?

        1. I realize that, for reasons best known to you and your therapist, you seem to derive some sort of pleasure from making trivially disprovable false assertions, and that I’m probably setting back your recovery by indulging you, but for the record:

          Flynn was convicted on December 1, 2017, when the district court accepted his guilty plea. Although he has filed a motion to withdraw his plea, the court has not ruled on it. As things stand today, Flynn has been convicted of the charged crime, and that will remain the case until a court takes some sort of action (or President Trump pardons him).

          1. Have you practiced before a federal appellate court in criminal matters? How long do you think this case will last when the appellate court reads “defendant moved to withdraw his guilty plea” and “the DOJ moved to drop the prosecution?”

            Refusing either motion is generally sufficient (in the DC circuit) to get remand on abuse of discretion.

            1. I mean, the first claim is utterly false; motions to withdraw pleas are almost never granted. Motions to drop prosecutions usually would be, with the key phrase being usually.

            2. In addition to being wrong, this is completely non-responsive to my point. Regardless of what happens to the case in the future, as things stand right now, Flynn is convicted.

        2. Flynn has not withdrawn his plea. He has moved the Court for leave to withdraw the plea.

      2. No it wouldn’t. As I said, why can’t the DOJ just confess error in the DC Circuit? File a brief saying all of Flynn’s contentions have merit?

        I mean, I haven’t even gotten into some of the details here. It wouldn’t upset the conviction, but how can the court system force the DOJ to imprison him. They can just say “because of coronavirus, you can serve your sentence in your home without a monitor”. That’s not reviewable by a court.

        I think the “he’s already pleaded guilty” is a talking point, not reality. The reality is you need DOJ participation at every step of the process, from the initial charging decision through the carrying out of the sentence. The Courts can’t do all these things without running into super-serious Article III limitations, and they can’t delegate them without an independent counsel statute. There’s just no way a couple of words in a Federal Rule of Criminal Procedure, which, by the way, applies EQUALLY to situations where there has not been a guilty plea or trial, is a mandate to eliminate the role of prosecutors and convert to a European-style judge/prosecutor system.

        1. “As I said, why can’t the DOJ just confess error in the DC Circuit? File a brief saying all of Flynn’s contentions have merit?”

          The DOJ is systematically corrupt, and the Trump administration has only gotten a shallow level of control over it. They push too hard, the DOJ goes into open revolt, and has the capacity to cause Trump a LOT of damage in an election year.

          1. The DOJ is systematically corrupt

            And yet you only seem to see it when it applies to a Trump ally.

            1. And also, I think that’s particularly silly in this case. The HEAD of the DOJ is sympathetic to this defendant. We can debate why that is, and whether that’s a problem, but it is clearly a fact on the ground. The notion that if Judge Sullivan goes ahead and refuses the dismissal, AG Barr is going to say “OK, that’s it then, I guess I lost this one” is nuts.

            2. No, this was obvious during the Obama administration, too. It’s just that they’re corruptly in favor of Democrats regardless of who is in the White House.

              1. Haha, the FBI sucks but it’s not a partisan sucking.

                Amazing.

            3. “And yet you only seem to see it when it applies to a Trump ally.”

              So you’re saying that the career prosecutors are the problem, and Barr’s doing it correctly? I’ll buy that.

              1. Barr is still doing some special pleading.

                Not like he’s stopped these tactics at the FBI generally.

                1. No, but the career guys are free to follow his example. Do you think they will?

                  1. TiP, if you think Barr’s actions have anything to do with reforming FBI practices, you’re a fool. I know you’re not a fool, so I wonder why you posted that.

                    1. “TiP, if you think Barr’s actions have anything to do with reforming FBI practices, you’re a fool.”

                      I’m pretty sure I didn’t say that. You can criticize Barr’s motivations. But you should be criticizing the career guys’ actions in the rest of the cases.

        2. As I said, why can’t the DOJ just confess error in the DC Circuit? File a brief saying all of Flynn’s contentions have merit?

          An appellate court still has an independent obligation to ensure that the defendant’s legal arguments are correct even when the government confesses error.

          The reality is you need DOJ participation at every step of the process, from the initial charging decision through the carrying out of the sentence.

          I suppose in a hyper technical sense that’s true, in that the case won’t work if BOP refuses to accept someone who’s been committed to their custody, or if the US Marshals refuse to open the courtroom and so forth. But for the reasons you point out elsewhere, I’m dubious that any of the actors involved are interested in that sort of lawless obstructionism: if there is a final judgment imposing sentence on Flynn, I am confident that DOJ will cooperate in its execution.

          I agree with you that denying a pretrial request to dismiss seems fairly pointless: the prosecutor can just ask to start the trial and then immediately rest without calling any witnesses. (Technically, I suppose the court could try to prove the case by calling its own witnesses, but I don’t think that’s very realistic.)

          Once the defendant has been convicted, however, there’s no longer the same need for the prosecutor to participate in order to move the process forward. Indeed, as late as the 80s, DOJ guidance directed prosecutors not to make sentencing recommendations at all in most cases.

          I tend to think that Judge Sullivan is probably going to grant the motion (at least without prejudice) and I think that’s probably the correct decision. But I don’t think there’s any particular practical impediment to it moving forward if he were to refuse.

          1. I suppose in a hyper technical sense that’s true, in that the case won’t work if BOP refuses to accept someone who’s been committed to their custody, or if the US Marshals refuse to open the courtroom and so forth. But for the reasons you point out elsewhere, I’m dubious that any of the actors involved are interested in that sort of lawless obstructionism

            It’s not lawless obstructionism. The Bureau of Prisons (which is under Barr’s control) has complete control over security classifications. That’s exactly why they can release people right now who have not served their sentences in order to protect inmates from coronavirus.

            They can also let inmates out for their own protection, or because they feel that the prison is overcrowded.

            It’s completely lawful for the BoP to let Flynn out. It’s not at all like disobeying a court order, which I agree, would be lawless if Barr did it.

            Technically, I suppose the court could try to prove the case by calling its own witnesses, but I don’t think that’s very realistic.

            It’s more than unrealistic. It would violate Article III. Judges have no power to prosecute cases themselves.

            Once the defendant has been convicted, however, there’s no longer the same need for the prosecutor to participate in order to move the process forward. Indeed, as late as the 80s, DOJ guidance directed prosecutors not to make sentencing recommendations at all in most cases.

            What you are saying is that because you could, in theory dispense with this one element, this is the same thing as saying “prosecutors aren’t needed”. At the end of the day, the adversarial process needs prosecutors. The imprisonment process needs the DoJ. The calculation of good time credits needs the DoJ. The supervised release process needs the DoJ.

            Judge Sullivan has no power, under the Constitution, to substitute himself for any of those steps. If you want to argue Congress should pass an independent counsel statute to deal with situations like Flynn’s, that would be one thing. But two words in Federal Rules of Criminal Procedure 48(a) can’t get you there.

            1. To be perfectly clear, I think the DC Circuit’s reading of Rule 48(a) as essentially imposing a ministerial duty to grant leave with no judicial discretion as long as the defendant consents is required as a matter of constitutional avoidance.

              The Rules Committee has no power to grant Article III judges any prosecutorial powers or to empower them to take actions without a prosecutor.

              Under Morrison v. Olson, Congress can grant that power. (I agreed with Scalia’s dissent, but Morrison is good law and can’t be ignored.) But not the Rules Committee, and not based on two words (even if those two words were in an act of Congress).

              1. To be perfectly clearer, the DC Circuit does not read Rule 48(a) that way. There’s been a lot of bad twitter law making that false claim, citing a few words from a case that people haven’t read.

                Sentencing a guilty defendant is not a “prosecutorial power,” and of course courts can take that action without a prosecutor.

                1. You are making the same error Noscitur is. You are acting like there’s this one thing, sentencing, still to do, and that’s it. And it can go on without a prosecutor.

                  In point of fact, the DOJ’s involvement in a criminal proceeding does not end until you get to the completion of all prison and supervised release terms (and even after that there could be coram nobis proceedings and the like).

                  And all those prosecutorial functions require a prosecutor who wants to pursue them. Which an Article III court can’t create, at least without congressional authorization, and which certainly are not inferrable out of a couple of words written by the rules committee.

                  1. I mean, this isn’t right at all. The criminal proceeding is over at sentencing.

                    Of course there are many more things to do in life, relating to this person, but that’s not relevant here. Serving prison time is not part of a criminal proceeding. It’s something that comes after a criminal proceeding is over.

                    1. Who is going to defend the appeal of the sentence?

                      Who is going to oppose the petition for habeas corpus?

                      Who is going to put Flynn in a prison to serve a sentence, and keep him there for 85 percent of his term?

                      No, setencing is in no sense the end of a criminal proceeding. All you do is delay things a bit before the DOJ does what it clearly has the power to do, which is refuse to impose criminal sanctions on Flynn.

                    2. Well, likely nobody because Trump will pardon him on his way out the door. But if that doesn’t happen, the Biden DOJ.

            2. It’s more than unrealistic. It would violate Article III. Judges have no power to prosecute cases themselves.

              Rule 614 is unconstitutional?

              1. That’s a non-sequitur. Of course judges can question witnesses. That’s different from prosecuting a case.

                1. Rule 614 also lets judges call witnesses. It would of course never happen in real life, but I can’t see any particular reason why a conviction would be invalid simply because the evidence supporting it came in through the judge’s witnesses instead of the prosecutor’s.

                  1. A judge technically always calls the witnesses. No witness can be subpoenaed or called without the judge’s sign off.

                    But calling witnesses is different from prosecuting a case.

                    This is like so fundamental to separation of powers to be obvious. The person who adjudicates your case can’t also prosecute you. If any state tried this, it would be struck down under the Fourteenth Amendment. On the federal level, it violates Separation of Powers.

                    And it’s scary that you don’t get this. This is one of the most fundamental protections of rights in our system.

                    1. A judge technically always calls the witnesses. No witness can be subpoenaed or called without the judge’s sign off.

                      Well, that’s certainly not true: I’m fact, the federal rules of criminal procedure, and most state criminal procedure codes, expressly forbid judicial screening of subpoenas. See Fed. R. Crim. P. 17(a) (“The clerk must issue a blank subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena is served.”)

                      And it’s scary that you don’t get this. This is one of the most fundamental protections of rights in our system.

                      The only that’s remotely scary is your insistence that your heterodox views on criminal law are the received truth. But since no one who actually practices criminal law could possibly believe your nonsense, it’s not really any scarier than whatever Dr. Ed is trying to say. I

  5. Judge Cassell: You write that “the crime at issue (false statement during a Government investigation) can be viewed as a ‘victimless’ crime–or, perhaps more precisely, a crime in which the only victim is the Government.” Aren’t we all victims of General Flynn’s perjury? Don’t we all have a legitimate expectation that our elected and appointed officials — especially high-level ones like the national security advisor — tell the truth? Shouldn’t honesty and candor be requirements of those who are in a position to shape and implement national policy? And when someone admits that he failed to meet those standards, shouldn’t we, as victims, have as much say as the “government” in whether he should be prosecuted?

    1. “Aren’t we all victims of General Flynn’s perjury?”

      1. presumption of innocence.
      2. Not in any legally significant sense.

      “Don’t we all have a legitimate expectation that our elected and appointed officials — especially high-level ones like the national security advisor — tell the truth?”

      No. Given the last 100 years of history, such an expectation is delusional.

      1. 3. Not in any sense whatsoever: It was a failure of recollection concerning what was discussed in a phone call, and the FBI had a transcript, so the mistake had no consequences at all except for providing a pretext for the perjury prosecution.

        And records that have been unearthed indicate that was the only purpose of the interview in the first place.

        1. “It was a failure of recollection concerning what was discussed in a phone call”

          The way the law on lying to the FBI is written, that would still be culpable.

          His guilt hangs not on the truth of what he said to the FBI, or his intent, but on and only on it’s materiality to an investigation.

          1. Actually, his culpability depends on the FBI special agent’s notes of the conversation. There is no audio recording. And, according to news reports, the original report (Form 302) has disappeared and the version used was drafted several months after the fact. So if the FBI decides you lied, it does not matter what you actually said…it’s what’s in the notes that matters.

            Theoretically, you could tell the absolute truth, but if you have FBI agents acting in bad faith, they could submit a Form 302 saying that you lied, and you would have no way to prove otherwise.

            1. Yep.

              The fact the original law firm apparently never looked at the (new) 302 or looked for the original 302 in this case is…troubling.

              1. That’s big law for you. In medicine, I think they call it the VIP syndrome. You get very expensive doctors who practice medicine “by the book.” The patient dies, but the doctor followed established procedures so they can’t be held liable.

              2. The fact the original law firm apparently never looked at the (new) 302 or looked for the original 302 in this case is…

                not a fact at all, but a lie.

                1. Please provide a citation that the original law firm looked at both the original 302 and the edited version.

                  1. No burden shifting. AL made an unsupported assertion.

                    1. I’m sorry, that’s an unsupported assertion.

                2. Powell has received “all documents” from the old lawyers (assuming they don’t “find” more again), and they do NOT include the original 302 (according to her).

                  Powell has repeatedly stated this is filings to the Court, and the DoJ has never denied it in any of their responses. In fact, in one response, in September 2019, the DoJ told her that they “did not have” the 302s.

                  If the DoJ didn’t have them, how could Flynn’s old lawyers have them?

          2. The way the law on lying to the FBI is written, that would still be culpable.

            His guilt hangs not on the truth of what he said to the FBI, or his intent, but on and only on it’s materiality to an investigation.

            That is incorrect. The statute in question (18 U.S.C. §  1001) requires proof that the defendant acted “knowingly and willfully”. That is why Flynn expressly admitted as part of his plea that he knew that the statements were false when he made them.

        2. Brett : Not in any sense whatsoever: It was a failure of recollection concerning what was discussed in a phone call, and the FBI had a transcript, so the mistake had no consequences at all except for providing a pretext for the perjury prosecution.

          Two Questions :

          (1) Have you considered the chronology here? Flynn was lying about the phone call to White House officials and the Vice President within thirty days. (probably much less, I admit I don’t have an exact number, but that’s the outside limit). So how bad do you believe Flynn’s memory is – concerning calls with the Russian ambassador on a sensitive national security topic?

          (2) Just curious : Were you equally opposed to perjury traps when they involved Bill Clinton and oral sex? (inquiring minds want to know)

        3. It was a failure of recollection concerning what was discussed in a phone call, and the FBI had a transcript

          Since Flynn has repeatedly stated under oath that he knew the statements were false when he made them, I take it you’re accusing him of being a perjurer?

          1. Yes, clearly he perjured himself at the time he pled guilty, as the price of the DOJ not going after his family.

            1. Sounds like a pretty dishonorable character, then.

              1. No, actually that’s honorable behavior for a family man.

                1. Then why is he withdrawing his plea and exposing his family to liability? Doesn’t sound like honorable behavior for a family man.

                  1. Perhaps he thinks the folk now at the top of the DoJ are unlikely to persist with the blackmail.

                    I also have a vague feeling that the old DoJ theory of the breadth of FARA took a knock in a recent court ruling on Flynn’s partner. So Flynn may feel his son is in the clear. Unless he is foolish enough to talk to FBI agents of course.

              2. Were those accused in Stalin’s purge trials dishonorable for choosing to save their families’ lives by pleading guilty to things they didn’t do? As far as I know all of them did it. In this case they weren’t planning to kill Flynn’s son just railroad him into prison.

          2. “Since Flynn has repeatedly stated under oath that he knew the statements were false when he made them, I take it you’re accusing him of being a perjurer?”

            WOW….

            Is this all about being able to impeach his testimony in future criminal trials of Team Obama?

            I’m sure others know the nuances better than I, but wouldn’t his having been convicted of lying be a relevant argument for the defense counsel in said future hypothetical trial(s) to make?
            But if he wasn’t (i.e. then isn’t) convicted, then….

        4. 3. Not in any sense whatsoever: It was a failure of recollection

          Nope. He lied. We know that, because he admitted it under oath. Multiple times. Nobody believes that he forgot whether he was conducting negotiations with the Russian ambassador — and that ‘nobody’ includes the White House, which fired him for that.

          And records that have been unearthed indicate that was the only purpose of the interview in the first place.

          Even if that were true — it’s not — it would not have any legal significance.

          1. He plead guilty to a charge.

            Many people plead guilty to ‘lesser’ charges – According to the National Association of Criminal Defense Lawyers, 40% of people who plead guilty are admitting to at least one crime they did not commit.
            According to The Innocence Project, 20% of guilty pleas are by people that committed no crime at all.

            We also have not seen either the original 302s, nor the transcript of the call. We don’t know what Flynn said, nor do we know what the Agents asked or how Flynn responded.

            We do know that the agents originally did not think Flynn was lying.
            We do know that the DoJ originally told Flynn and his first lawyers that they would go after Flynn Jr if Sr did not plead guilty to making false statements to the FBI.

            We also now know that Pence did not see a transcript of the call – he was given a summary written by McCabe. That summary is now “missing”, after Powell requested it…

      2. You refer to a “presumption of innocence.” Doesn’t that sort of evaporate when the alleged wrongdoer admits to the the wrongdoing?

        1. No, it only evaporates after an actual conviction in court, which hasn’t happened yet.

          Personally, I think negotiated plea deals with prosecutors are inherently coercive, so any “confession” was made under duress and is as such invalid.

          1. I take the same position. I’m really down on coerced plea deals, the government should always be forced to prove their case in court.

          2. No, it only evaporates after an actual conviction in court, which hasn’t happened yet.

            What are you talking about? Flynn was convicted on December 1, 2017, when the court accepted his guilty plea.

      3. 1. He’s pled guilty.
        2. Right. “legally significant sense” would apply to the victims of violent crimes, too.

        1. 1. Do innocent people ever plead guilty?

          1. Yep, and they’re still screwed. That’s how it works.

            1. I see. And if the government later reviews the case and evidence, and upon review thinks they are not guilty, what should the government do? Or are they “still screwed” because they pled guilty?

              1. That’s not what the DoJ is saying here, so…

                1. For the sake of argument, why don’t you answer the question

                  1. Nah, I’m going to stay on topic.

                  2. Ha ha ha! Imagine him admitting he can’t defend his position.

                2. Isn’t it though? They are saying that an essential element of the offense has been refuted. Its like a prosecutor on a grand theft case coming back and the guy knows he stole the car so he pleads for a better deal, but then a second guy prosecutor is feeling nice and looks into the case and sees the car was only worth 500 bucks so the prosecutor files a motion to amend the charge to petty theft instead.

            2. You are sounding like the nihilist that you accuse Bob of being.

              1. No – I’m against special pleading.

                I think we should, and we can, make the FBI better.

                But the outrage at how Flynn is treated particularly? as though that’s not SOP, is just the unusual emptyheaded partisanship. And will be forgotten about for everyone who isn’t a Trump ally.

                1. I think we should, and we can, make the FBI better.

                  Dismantle the FBI completely. Rip it out, root and branch. Then repeat for the FISA Court. That will make it better.

                  1. I would not be opposed, but I tend to be optimistic about reform.

                    I’d note there hasn’t been a big reform effort in those two institutions in a long time/forever.

                    (See also: the abolish ICE movement)

          2. Yes, of course. Sometimes innocent people are even convicted.

            1. So, it seems odd, how the now primary argument against Flynn is that he pled guilty, but you admit that even innocent people plead guilty.

              What precisely should the government do, if someone had pled guilty, but when the government reviews the case, the government doesn’t think they are guilty anymore. What should the government do in that case?

              1. AL, it is normal to take guilty pleas as evidence of guilt.

                I’m all afire for criminal justice reform, but that’s one I’d keep.

              2. “So, it seems odd, how the now primary argument against Flynn is that he pled guilty, but you admit that even innocent people plead guilty.”

                Why is that odd? The fact that some innocent people plead guilty to crimes they don’t commit, doesn’t exonerate Flynn.

                “What precisely should the government do, if someone had pled guilty, but when the government reviews the case, the government doesn’t think they are guilty anymore. What should the government do in that case?”

                Dismiss the case. I’m not sure that’s what’s happened here; it’s pretty remarkable that the DOJ thinks they can’t make their case anymore. But the DOJ deciding they can’t make their case is not the same thing as “Flynn did not commit perjury”. Even Flynn isn’t claiming he didn’t lie.

                1. For the record, perjury is lying before the court. (Not lying to the FBI) And it seems that the “perjury” is Flynn pleading guilty.

                  Now, it seems like that’s a bit of a Catch-22. Innocent people plead guilty all the time. But if they’re innocent and they plead guilty, now they’re guilty of perjury. So, innocent people who plead guilty can never actually be innocent. Once they plead guilty, they’re either guilty of the original crime, or guilty of perjury by pleading guilty to a crime they are innocent of.

          3. Innocent people plead guilty all the time. Here’s a good rundown of the many reasons why:

            The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice

            https://www.cato.org/publications/commentary/devils-bargain-how-plea-agreements-never-contemplated-framers-undermine-justice

            1. Indeed. Currently, the primary argument for Flynn’s guilt is that he pled guilty… Regardless of the fact that often innocent people plead guilty.

              1. Not only did Flynn plead guilty, he expressly admitted the elements of the offense in his colloquy with the Court at his truncated sentencing hearing.

                1. Of course he did. He can’t very well plead guilty, then -when directly asked by the judge – say he didn’t do what the judge thought he was pleading guilty to, now can he?
                  Same with every other innocent person that pleads guilty any way.

                  1. It’s a wonderful Catch-22 there.

      4. There is no presumption of innocence — or, rather, I should say that the presumption has been overcome — after a guilty plea.

  6. The more unusual the judge’s actions, the greater the likelihood he will be overturned on appeal. Of course, the DC Circuit is split 7 Dem to 4 Rep appointed judges. Assuming the judges vote in a partisan manner, this case will end up in the Supreme Court…eventually.

    Judge Sullivan has found a way to make this case last until after Election Day. I guess the rule will be that in DC, Republicans will always be held to a higher standard, where even the Judge is eager for a conviction (not to mention the highly partisan juries one is likely to get in the District). A Republican getting charged with a crime in DC has about the same chance of acquittal as an African American in the worst days of the Jim Crow south.

    1. There is DC Circuit precedent on point. Any refusal to dismiss will meet a quick reversal and maybe even a writ.

      The only things I can see working for Sullivan are (1) delay and (2) purporting to dismiss without prejudice.

      1. I’ve never come withing a whif of federal litigation practice, but I do enjoy the stories.

        If I had to guess, he’s going to make the government squirm and then write a grumpy dismissal.

        1. You’re probably right.

      2. I have practiced in District Court. And I’ve had a judge who ignores the law and regulations to decide in a taxpayer’s favor (in tax litigation). I actually had a judge who decided that a spreadsheet written who-knows-when qualifies as contemporaneous evidence of a business expense. The government gave the taxpayer 70% of the expense asserted (but not proven). The judge gave him 100%.

        1. Federal judge stories are always lit.

      3. There is DC Circuit precedent on point.

        There is, but it’s not what you think it is. (Hint: not Fokker.)

        1. The Smith case is also super-broad.

          And there’s USSC dicta on this issue as well. There really isn’t any reservoir of discretion among Article III judges to keep cases going without prosecutors. (And again, it would be unconstitutional if there were.)

          1. Your own personal constitutional theory is a lot less interesting than you thought it would be.

            1. It’s not a personal constitutional theory. As Buckley v. Valeo says, “executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution”.

              And Morrison v. Olson clearly states that the only reason the independent counsel statute does not violate Separation of Powers is because the IC remains a part of the executive branch. A judge can’t hold a position as a prosecutor.

    2. Moff,

      Are you sure about that? Only Republicans get convicted in DC? Ever heard of Rostenkowski,

        1. Weiner was tried in NY.

      1. Fair point. I ain’t going to try and make the “no true Scotsman” argument.

        1. For some reason, I thought Rostenkowski was tried in Illinois. But he was tried in DC.

  7. “Perhaps the renewed attention being brought to Rule 48(a) through the Flynn case will create broader interest in ensuring that crime victims’ views are always heard before a judge considers whether to grant a dismissal motion.”

    I don’t see how this particular case will do that as there is no victim here.

    1. Not quite true; There’s no victim here except for Flynn and his family.

      1. He admitted to guilt, how is he a victim?

        1. He was coerced into admitting guilt despite being innocent. That’s how he’s the victim.

          1. In this case, I think technically he probably is guilty but the law itself is unjust.

            The way t he law on “lying” to the FBI is written, misstatements due to faulty memory are just as culpable as a deliberate attempt to fool the FBI.

            1. No. He probably isn’t guilty.

              1. The original (now conveniently deleted and lost) FD 302s apparently were exonerating. Flynn appeared to be honest and forthright to the two FBI agents questioning him (Peter Strzok and Joe Pietka). The 302s were later amended to remove the exonerating evidence, by Strzok working with his lover, Lisa Page, who apparently did the heavy editing, and then the 302s were personally approved by DD Andy McCabe, whom Page worked directly for, before being submitted, weeks late, to the FBI’s computer system. This was the same DD McCabe who called up Flynn to set up his interview by Strzok and Pietka, told him he didn’t need an attorney, picked the two agents, and dispatched them to the WH for the interview with Flynn. For better than two years the prosecutors denied the existence of earlier 302s that showed that Flynn had not been lying.

              2. Another required element of the crime is materiality. Flynn’s misrememberance of his conversation could not have been legally material for several reasons. First and foremost the FBI had the transcript of the call. Comey, McCabe, Strzok, Pietka, and probably even Lisa Page, had seen it. So apparently had half the White House, from President Obama and VP Biden down (Biden apparently had his own unmasked copy, and Obama brought it up with Comey and DAG Yates). But Flynn didn’t. He never saw it until years later. The FBI people knowing the contents of the actual telephone call from the unmasked FISA transcript means that whatever Flynn said about the call could not have been misleading to the FBI about contents of the call.

              Moreover, the FBI’s Wash DC Field Office had determined that there was no evidence of Flynn’s collusion with the Russian govt, and put in the paperwork to shut down the Hurricane Razor (Flynn) investigation. This was overridden by Strzok on orders from the “7th Floor”, meaning DD McCabe and/or D Comey. This means that the interview was done pursuant to an investigation lacking predication. And for a statement to be material it has to affect a legitimately predicated investigation. It didn’t.

              1. And the reverse vampires were in on it too!

                1. Must really suck to have all this evidence finally coming out now. I guess non sequiturs are all you’ve got left.

                  1. It’s not a non sequitur if the reverse vampires were in on it. How do you know they weren’t also in love with Lisa Page? Who is to say President Obama isn’t a reverse vampire? A person who would doctor their own birth certificate is exactly the type to be in league with reverse vampires.

                    1. The denial is strong within NToJ….

              2. At least you have one decent quality in a human being:

                An active imagination.

                Sadly you have zero ethics or morals, but we can’t all be normal.

              3. 1) None of that long rambling drunken paragraph is true. There are no other 302s. The 302s produced to Flynn before he pleaded informed him that Strzok and Pientka did not detect indicia of dishonesty. You don’t know this because Sidney Powell is flooding the zone with nutbar stuff, but Sullivan already reviewed the evidence and rejected all these claims last December.

                2) You are playing bad Internet lawyer. It doesn’t matter legally whether the FBI knew from the beginning that he was lying. That’s irrelevant to the element of materiality, as every federal court to have considered the matter has said. This is not a new argument. It is not a winning argument.

                “Legitimately predicated investigation” is a made up term. It is not part of the statute. All that 18 U.S.C. § 1001 requires is that it be about a “matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Were Flynn’s secret dealings with the Russian government a matter within the jurisdiction of the executive branch of the Government of the United States? Yes. Moreover, the Field Office was not in possession of information about those dealings at the time it made its recommendation. Strzok was. So since he had more evidence, he thought it needed to be investigated.

                1. “1) None of that long rambling drunken paragraph is true. There are no other 302s.”

                  Incorrect.
                  The Hill, 5/11, “Why dismiss the Flynn case? Because the FBI can’t prove it.”

                  “In weirdness that signaled trouble, the FBI refused to disclose the 302 to Flynn’s defense. When pressed by the court, the FBI eventually produced a 302, not of Flynn’s interview, but of Strzok’s “exit interview” — when he was being terminated — which purported to summarize Flynn’s interview. This raised more questions. Finally, the FBI produced not one but two Flynn 302s: the first labeled a “deliberative” document (clearly, because Flynn’s statements were extensively edited); the second generated later, when the FBI realized it had mistakenly left the “deliberative” label on the first. (The two 302s are the same, except for the label.)”

                2. What is the basis for your claim that Strzok knew more than The FBI WFO did? As for predication, read the DOJ memo in support for their motion to dismiss. They make the two points on materiality that I made – that there was not, at the time of the interview, a legitimate ongoing investigation that Flynn could have interfered with through lying, and that even if he had been lying, it was irrelevant, because the FBI knew before interviewing Flynn what was said during his phone call with the Russian Ambassador. Note, your §1001 citation cleverly cut off before the three relevant subsections of the state that all require materiality.

                  You are indirectly citing the archaic Logan Act, not used in court for over 150 years, as predication, with Flynn dealing with the Russians. Very Lawfare of you. But that issue too was addressed by the DOJ. The prosecutors couldn’t charge Flynn with it, because they did not have a reasonable belief that they could prove it beyond a reasonable doubt, nor that it would survive a 1st Amdt challenge. In any case, Flynn was the designated incoming NSA of the Trump Administration during the transition. Talking to foreign leaders was part of his job at the time. And, notably, Presidential transitions are federally funded, so that a new Administration can hit the ground running. In other words, he was receiving a federal paycheck at the time. He was essentially a federal employee at the time operating within his job description.

                  1. What is the basis for your claim that Strzok knew more than The FBI WFO did?

                    The testimony of Strzok and Comey. I can’t locate Strzok’s right now, but here’s Comey:

                    “At that point, we had an open counterintelligence investigation on Mr. Flynn, and it had been open since the summertime, and we were very close to closing it. In fact, I had — I think I had authorized it to be closed at the end of January, beginning — excuse me, end of December, beginning of January. And we kept it open once we became aware of these communications.”

                    that even if he had been lying, it was irrelevant, because the FBI knew before interviewing Flynn what was said during his phone call with the Russian Ambassador. Note, your §1001 citation cleverly cut off before the three relevant subsections of the state that all require materiality.

                    I reiterate that every court to consider the matter and there are a lot has rejected this theory of materiality. It doesn’t matter, legally, whether the FBI knew what was said. You are guilty of violating 18 USC § 1001 even if the FBI knows every single fact that you were lying about, even if your lie therefore does not affect their investigation in the slightest. It is not an obstruction statute that requires proof that their investigation was hindered.

                    You are indirectly citing the archaic Logan Act, not used in court for over 150 years, as predication,

                    I was not. I am willing to cite the Logan Act because, as a statute on the books, it is a valid basis for investigation, regardless of how archaic or rarely used it is. I was not, however, alluding to it. I was talking about the CI investigation into Russian activity.

                    The prosecutors couldn’t charge Flynn with it, because they did not have a reasonable belief that they could prove it beyond a reasonable doubt,

                    Irrelevant. 18 USC § 1001 does not depend on whether the person is guilty of a crime, or whether prosecutors decide it would be too hard to prosecute the crime.

                    And, notably, Presidential transitions are federally funded, so that a new Administration can hit the ground running. In other words, he was receiving a federal paycheck at the time. He was essentially a federal employee at the time operating within his job description.

                    No. He was not a “federal employee,” any more than half the country is because their payroll is being funded by the federal PPP program. Moreover, it would not matter if he were because “federal employees” are not authorized to conduct foreign policy. Only the president and those the president designates are.

                3. Here is the actual statute:

                  18 USC § 1001
                  (a) 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.

                  Note that there are essentially three elements to the crime:
                  1) knowing and willful
                  2) misstatement (etc) of a
                  3) material fact.

                  1. Maybe I should add that while the statute doesn’t explicitly require a legitimate investigation, materiality does. If the interviewers asked Flynn what color his tie was the day before, he said red, and the correct answer was green, that misstatement was almost assuredly not material, because it almost assuredly didn’t affect an ongoing legitimate function of the government. A predicated criminal or counterintelligence investigation is most typically a legitimate function of government. A perjury trap probably is not.

                    So, I ask my critics again, to explain how Flynn supposedly lying about his call with the Russian Ambassador was material, when the two FBI agents dispatched to interview him on the call had seen the transcript of the call, as well as their supervisors (D Comey, DD McCabe, and CD AD Priestap, along with DAG Yates, VP Biden, and apparently even President Obama himself)?

                    1. The above is almost right, except that you have conflated the issue of materiality with the jurisdictional issue (that the matter be within the jurisdiction of any part of the government). But while you are correct that the hypothetical lie about the tie is likely not material, you are not correct about why. You say that it “didn’t affect an ongoing legitimate function of government.”

                      But that’s not the test. It doesn’t matter whether it affected diddlysquat. The test is whether it’s the type of statement that could affect the government’s conduct. I’m going to steal this from Ken White to save myself the time of preparing the string cite:

                      United States v. Mercedes, 401 F. App’x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already “ruled out the possibility of relying on the statement”); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) (“A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false.”); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) “It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false.” (“The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement can be material even if the agent to whom it is made knows that it is false.”); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988)(“A false statement can be material even if the agent to whom it is made knows that it is false.”); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) (“Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.”) United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) (“Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”)

                      The lie about the tie’s color almost certainly could never affect any government action. Therefore, it’s not material. But a lie about a conversation with the Russians certainly could affect government action. It doesn’t matter whether it actually did. I reiterate: no court has ever accepted your argument (which is oft made).

                    2. The statute explicitly requires not a “legitimate investigation” (or any investigation at all), but merely that the subject matter of the lie be a matter within the jurisdiction of any part of the government.

                      If an FBI agent asks his neighbor whether the neighbor let his dog crap on his lawn, and the neighbor lies and says no, that’s not a violation not because no investigation had been opened but because it’s not a matter within the jurisdiction of the federal government in the first place. But that’s a substantive test, not a paperwork test.

              4. “The 302s were later amended to remove the exonerating evidence, by Strzok working with his lover, Lisa Page,”

                While Strzok was saying, “Oh Lisa Lisa…” and Page was saying, “Right There! Yeeeaaaassss!”

            2. The original Form 302 has disappeared, along with the evidence to prove that Flynn was lying beyond a reasonable doubt.

              We now know that Peter Strzok and Lisa Page edited the Form 302 – even though Page was not part of the interview – and misrepresented it as the original. There are text messages where they argue about which edits to make!!!

              1. And the worst part is, the left wingers on this comment thread will simply proceed as if all that evidence didn’t exist, no matter how many times it’s pointed out to them.

              2. I’d love to get Peter Strzok and Lisa Page on the stand about this.

                “So, you edited the 302. Why did you edit it? How did you edit it?”

                Any of the responses look really bad.
                1. “I don’t recall”
                2. “I take the fifth”

                1. I would further ask Lisa Page:
                  Why did you help edit the 302s, since you weren’t present at the interview?
                  Why did you need approval by your boss, DD McCade before the edited 302s could be submitted?

              3. Fan fiction again.

                1. This is precisely the sort of reply you’d expect from a reverse vampire.

                2. Here’s the fan fiction for you, Sarcastro. It’s good reading:

                  https://www.realclearinvestigations.com/articles/2020/05/08/new_red_flags_emerge_from_fbis_handling_of_flynn_case_123520.html

                  The new Flynn documents shed light on what happened during the unusual three weeks composing the 302. They include texts between Strzok and FBI lawyer Lisa Page, who were communicating extensively during an extramarital affair in interchanges revealing anti-Trump bias and resulting in their later dismissal from Mueller’s investigation.

                  In one text, dated February 10, Strzok tells Page he is heavily editing Pientka’s 302 form to the point he’s “trying not to completely re-write” it. Other messages reveal that Page, who did not attend the interview, reviewed the 302 form and made editing suggestions. On February 14, Page texts Strzok, “Is Andy good with the 302?” – presumably referring to FBI deputy director Andrew McCabe. The next day, February 15, the Flynn 302 was officially submitted and filed with the FBI.

                  FBI supervisors like Strzok, however, are not supposed to rewrite other agents’ 302 forms. Nor are 302 forms supposed to be edited by FBI personnel who were not present at the interview, and both of these things happened in the Flynn case.

                  1. That…sounds like it’s describing the standard coordination process.

                    Providing suggested edits to the action officer != editing yourself.

          2. At the time he was “coerced” into admitting guilt, wasn’t he represented by one of the most prominent white-collar criminal law firms in Washington? Should it matter that he had legal representation?

            1. Legal representation by a firm (Covington) that had been compromised by the prosecutors by being threatened with criminal prosecution for preparing the FARA application that the Mueller prosecutors were also threatening Flynn with as well as that of Flynn’s son who was also being threatened. They then appear to have advised Flynn, in his guilty plea, to state to the court that there were nosied deals involved, when there obviously were, to keep the prosecutors from prosecuting both Flynn’s son, and importantly, Covington. Withdrawal by the law firm was presumably mandatory, due to unwaivable conflicts of interest, the second the law firm became aware that they could be criminally liable for their FARA work for Flynn. Yet, they didn’t, until fired by Flynn, when he brought in replacement counsel.

              Moreover, one partner in the firm was former AG Holder who had refused to fire lead prosecutor Brandon Van Grack for previous instances of prosecurial abuse.

              1. “They then appear to have advised Flynn, in his guilty plea, to state to the court that there were SIDE deals involved, when there obviously were…”

                1. Heh, “no” side deals? Yes, I heard about that.

                  By rights, the prosecutors themselves should be up on charges of suborning perjury.

                  The problem is, even now Trump has only a very limited degree of control over the DOJ, which is institutionally corrupt. If he starts going after dirty prosecutors, that’s not guaranteed to be a fight he wins, because he doesn’t really have enough allies in the DOJ.

                  1. Back in 2000, I was working as an assistant prosecutor. I had just read an article about how the US DOJ, Civil Rights Division, under the leadership of Acting Assistant Attorney General Deval Patrick, would bring civil actions against employers, then threaten them with criminal indictments unless they settled the case under terms set by the DOJ. I started to ask my boss about this. He misunderstood my question (he thought I was proposing a course of action). He got very angry and yelled at me: “If I ever find that you’ve done that, I will have you charged with extortion!”

                    1. Oh, Short Deval…

                    2. If that was done in D.C., I would think it would violate Rule 8.4(g) of the D.C. Rules of Professional Conduct (unless we start playing games about the meaning of the word “solely”).

  8. In this particular case, I have seen comments in those dens of iniquity occupied by the great right wing conspiracy, that it is particularly wicked that Judge Sullivan has chosen to appoint someone as an amicus who was already come out strong, publicly and at length against the DoJ’s motion to drop the case against Flynn.

    Leaving only the husk of that point behind – ie the decision to appoint as an amicus someone with a firmly established opinion – I am wondering what the pros and cons are in the general case.

    1. appointing a known, firm, Big Endian as amicus, when the two actual parties to the case are Little Endians, should at least guarantee that the judge does get a fullthroated, wholehearted, presentation of the Big Endian case. Although good lawyers are supposed to be able to argue cases from both, or all, directions, the realities are that arguing a case you’re not that persuaded by yourself is much harder than arguing as a true believer. Though it may be wise to tone it down a notch if you’re the sort who gets over excited.

    2. On the other hand, a judge will only be asking for an amicus if he believes that the DoJ may not be doing its job properly. The role of the amicus is therefore to make the case that, perhaps, the DoJ ought to be putting. But here we come to the difference between prosecution and defense. The defense is supposed to be trying its damnedest, within the rules, to get their guy off. They’re not supposed to be pulling legitimate punches. The prosecutor however is not supposed to be winning the case at all costs, within therules. He’s supposed to be trying to get justice done. If he doesn’t think he can prove guilt beyond a reasonable doubt, but nevertheless thinks his slinky advocacy will be able to persuade the jury, he’s not supposed to go ahead. So to the extent that the amicus is acting as a shadow DoJ prosecutor, having a fullthroated Big Endian, rather than a sober advocate for justice, may be going too far.

    3. The judge’s presumed problem in this case – the fear that the prosecution is caving for improper reasons – seems less likely to be a common one than the other way round, ie the defense caving for improper reasons. eg the prosecution blackmailing the defendant with the threat of enormous jail time, or of charges against family members. How common is it, in practice, when prosecutor and defense agree on a guilty plea, for the judge to appoint an amicus to represent the position that the guilty plea should not be accepted ?

    1. That portion of Sullivan’s order was defensible. You want an amicus who will advocate the other side aggressively.

      Threatening a perjury charge was un-judicial, however.

      1. In a case of a motion to dismiss a criminal prosecution, if you are going to have an amicus, wouldn’t in be preferable to have an amicus who will make an honest evaluation of the case against the defendant, rather than an amicus that already has a strong view?

        1. Doesn’t your question assume that the DOJ will not submit a brief in support of its motion to dismiss? Is there anything wrong with the trial judge have access to strong advocacy on both sides of the issue?

        2. Naah, judges are used to adversarial positions.

      2. Threatening a perjury charge was un-judicial, however.

        I have to say I’m rather looking forward to seeing how the amicus makes the perjury case, if he does. It seems to me that in order to do so, he will have to show that the statements Flynn made in his guilty plea were false, and that he knew they were false.

        But any half decent attempt at doing this will make it much harder for the amicus to make his case on the first point – that the DoJ is wrong to be dropping the prosecution.

        Perhaps Judge Sullivan would have been better advised to appoint two different amici, to make the two arguments separately.

        1. It would have been better if he had not mentioned perjury at all, and let the amicus come up with whatever arguments he thinks are best.

          1. Is being prosecuted for the allocution after withdrawing a guilty plea at all common?

            1. Is reaffirming one’s guilt under oath after seemingly calling it into question, and being expressly asked, “Are you recanting?” and “Do you want to consult with counsel” and “Would you like to consult with other counsel?” and “So you’re accepting responsibility?” at all common?

        2. Moreover, the plea agreement was no doubt drafted by the prosecutors who likely had full knowledge of the call transcript, as well as the 302s submitted to document the interview, etc. this would presumably open them up to a charge of suborning perjury, and ethical charges of being untruthful with the court. Ditto for his Covington attorneys.

      3. “Threatening a perjury charge was un-judicial, however.”

        Seems like poor tactics. What if he issues an show-cause order and Flynn doesn’t oppose? Practically speaking, holding Flynn in contempt for his allocation is tantamount to finding him factually innocent of the lying to Congress charge. I’m not sure what a sentencing hearing for Flynn for falsely pleading guilty would look like, and it would be politically easy for Trump to pardon him for that.

        1. “politically easy for Trump to pardon him for that.”

          No one votes over pardons.

          Flynn is getting a pardon if needed in November anyways.

        2. I guess he is guilty of being a Republican. I did not know that this was a crime.

          1. I mean, so is Judge Sullivan. Or at least appointed by them.

            Come on, I’ve been enjoying your stories about how wacky federal judges are and how much we need criminal justice reform. Do you really think this is partisan, and not the usual proprietorial mania that the FBI has been into for decades and decafs, aided by Congress and with the American People mostly looking the other way?

            1. “I mean, so is Judge Sullivan. Or at least appointed by them.”

              Both sides appoint Judge Sullivan.

              1. Fair point; but does not really take away from my main point.

            2. Sullivan was appointed to his District Judge post by Clinton.

      4. “defensible”

        Maybe, of course the Fed Criminal Rules do not provide for amicus.

        1. So what? Article III includes the power.

          Article III courts have all the power that common law courts had at the time of the founding of the country. That includes appointing amici and receiving their briefs.

  9. I think at the end of the day, the Judge will grant the motion to dismiss. I think that this is an example where the ability to plead guilty can be problematic. In some European Courts, the defendant can never plead guilty. Doing so absolves the prosecution of their duties to prove their case.

  10. The problem of course is that until there is a conviction there is not a victim. Do you agree or not that Jussie Smollett was the victim of an attack?

    That case showed the fallacy of Professor Cassell’s belief that there are never false reports of crime, and if someone is charged, they are automatically guilty.

    1. No one was ever charged with attacking Jussie Smollett. More broadly, the government is already required to show probable cause that (among other things) a crime actually occurred before a case can be brought to trial.

      1. Remember you can get an indictment against a ham sandwich.

        1. And, of course, we also remember that the indictment of the ham sandwich is only by the grand jury, where no defense is allowed.
          CONVICTING the ham sandwich in open court with a defense counsel has never actually happened.

        2. The part where the government must establish that a crime actually occurred is typically a pretrial hearing where the defense is represented by counsel.

  11. Judge Sullivan has made himself look dumber and more political each step of the way.

    1. Guys, we’ve lost ML…

  12. The government is the victim here. If they choose to dismiss, I see no rational grounds for the judge to object. Moreover, the requirement for the judge to approve dismissals was created to prevent the government from dismissing and refiling cases they were about to lose. If for example, the government faces a nearly certain loss in a motion to suppress it’s main evidence in the case, requiring judicial approval prevents the government from dismissing its case before the ruling and then refiling later in hopes of getting a more friendly judge or bankrupting the defendant into pleading guilty when he has a legitimate suppression motion. The rule was created more to protect defendants than it was to protect victims or prevent the government from declining to prosecute.

    Beyond that, Judge Sullivan can rule however he wants. And the AG is under no obligation to enforce those rulings. If Sullivan wants to declare Flynn in contempt, fine. That declaration means nothing if DOJ refuses to enforce it or have the Federal Marshals arrest Flynn. And there is nothing Sullivan can do to force the AG to enforce such an order.

    Any attempt to declare Flynn in contempt or try to bring perjury charges against him is blatantly unconstitutional. The judiciary does not bring charges or decide what cases are or are not prosecuted. That discretion lies exclusively with the executive. Sullivan had no authority to usurp that power and decide the government must pursue a case it has chosen to dismiss. The judiciary has the power to dismiss unlawful cases brought by the government. It does not have the power to force the government to bring a criminal case where it has chosen not to do so.

    1. I’m not sure that’s quite right on the “leave of court” language in Rule 48(a), because another provision prohibits dismissals without the defendant’s consent.

      But it’s definitely clear that courts have construed “leave of court” to give the trial court judge basically no discretion. And it’s pretty clear to me that this is correct, because, as I said above, absent an independent counsel statute from Congress, there’s no practical way to cut the DOJ out of a prosecution decision without running into huge separation of powers problems. A District Judge can’t run a prosecution and really has no power to appoint someone who can.

      1. And by the way, fantasies of disobedience of judicial orders are not helpful. Really, ever. I know that there’s a sort of anarchist streak in people where they fantasize about bringing down the whole supposedly corrupt system, but if Sullivan does something, Flynn is going to seek relief from the DC Circuit, whose precedent is on Flynn’s side.

        1. It is not a fantasy. It is part of the separation of powers. There is a give and take among the three branches. And one branch is not obligated to obey the other in all circumstances. Yes, ignoring a judge is a drastic measure. But it is not an unthinkable measure and an appropriate one in rare circumstances. Sometimes judges exceed their authority to such a degree the other branches have an obligation to refuse to enforce the order.

          The Constitution did create and was not intended to create judicial tyranny. We are sadly getting dangerously close to that today. If there ever was a time that federal judges need to be shown the limits of their power, it is today. We are long past due for holding the judicial branch to some sort of limits and accountability to the other branches. This is actually a very good opportunity to do so. It is a single case involving a minor and victimless crime. It is a perfect situation for the executive to ignore a lawless federal judge.

          1. It is not a fantasy. It is part of the separation of powers. There is a give and take among the three branches. And one branch is not obligated to obey the other in all circumstances. Yes, ignoring a judge is a drastic measure.

            It’s more than a “drastic measure”. It’s illegal. You heard me. Illegal. There is no room under the rule of law for “I don’t agree with a judge’s decision, therefore I will ignore it”. That’s why we have appellate courts.

            You might not like what you call “judicial tyranny”, but “anyone who characterizes a decision as illegal can ignore it” is far, far worse. It’s anarchy.

            And it’s unnecessary. The DC Circuit has caselaw friendly to him. Only a true idiot would put himself in contempt of court when the law is on his side on appeal.

            1. A world in which people feel free to ignore judicial decision is anarchy. That is true. But a world in which people obey judicial decisions regardless of morality or their larger legality is just as bad. Your example of the extreem is anarchy. The counter example of that is the Nuremberg Judge trials. Totalitarian governments of all sorts are fanatics about giving legal cover to their murderous actions. The Nazis were no exception. It would have been illegal for the judges involved in the cases at issue in that trial to have ruled any other way than they did. Indeed, they were following a long and great tradition of German jurisprudence.

              This is not to say Judge Sullivan is the equivelent to the German judges on trial at Nuremberg or that this situation is the same as that. It is not. So, don’t claim Godwin here. The point is that it is not as simple as “that is illegal”. That is a stupid and simplistic answer. Something being illegal doesn’t mean it isn’t the right thing to do in some circumstances. The judges order here would be illegal. The only thing “illegal” about enforcing it is the idea that all judicial orders must be followed until another court rules them illegal. Yes, that is a part of the rule of law but it isn’t a very big part. If a judicial order is obviously unconstitutional, the executive should ignore it. If you disagree with their opinion about such an order, the remedy is available at the ballot box.

              Can this power be abused? Absolutely it can. But all powers can be abused. That is why law and government in practice is so hard. The point at which an order becomes so patently illegal that it must be ignored is very hard to determine and there is rarely a clear answer. But that is how life is. And saying “but that is illegal” is just an act of stupidity and begging the question.

              1. A world in which people feel free to ignore judicial decision is anarchy. That is true. But a world in which people obey judicial decisions regardless of morality or their larger legality is just as bad.

                This may be the single most ridiculous sentence ever typed in the comments threads of this blog.

                1. This may be the single most ridiculous sentence ever typed in the comments threads of this blog.

                  That is because you are an idiot apparently. Is it your opinion that it is everyone’s duty to obey any law no matter how immoral or violation it is of the constitution? If the judge ordered Flynn held in contempt because he didn’t like his religious views, you think the AG should just follow that order and lock Flynn up?

                  If you think that, please God tell me you are not a lawyer or anything that gives you any authority over anyone. The good news is that there is no way you believe that. You just lost the argument and are resorting to name calling and posturing. “That is ridiculous” is an even worse argument than “that is illegal”.

                  Frankly, you are unworthy of my further attention. Come back when you are smart enough to warrant it. As it is, you are just boring me and it isn’t enough of a challenge to defeat you.

            2. Dilan: It’s more than a “drastic measure”. It’s illegal. You heard me. Illegal. There is no room under the rule of law for “I don’t agree with a judge’s decision, therefore I will ignore it”. That’s why we have appellate courts.

              What about cases like Cruikshank and the Slaughterhouse cases?

      2. Yes it takes the defendant’s consent as well. But that doesn’t mean judicial consent isn’t there as a final protection for the defendant.

  13. Everybody knows that nobody pleads guilty voluntarily and the plea bargaining process is inherently coercive. People often do less time if they confess to a crime than they would if they asserted their innocence were acquitted.

    We should stop pretending that theses guilty pleas represent anything factual.

    1. I agree with TwelveInchPianist that we should stop pretending that things Michael Flynn says are factual.

      1. “I agree with TwelveInchPianist that we should stop pretending that things Michael Flynn says are factual.”

        1. I’m no fan of Flynn, but sure, gloss over a major flaw in our justice system because if fits your politics in this case.

        2. Your snark is sub-par. You’ve been arguing this entire thread that we should take Flynn’s allocation at face value.

        1. 1. What is it you think my politics are in this case? If you’re on the side of “gloss[ing] over a major flaw in our justice system” what’s the contra view? Do you think I’m pro major flaws in our justice system?

          2. What is “Flynn’s allocation”? I don’t know what this means.

          1. He mis-spelled allocution

            1. Or to be more charitable, autocorrect.

              1. I’ll take the charity, thanks. I hope it was autocorrect.

          2. “What is it you think my politics are in this case?”

            I think you want to see Flynn punished regardless of the credibility of his allocution.

            “Do you think I’m pro major flaws in our justice system?”

            Anyone who says, “He pled guilty” as if it were probative of actual guilt is pro major flaws in our justice system.

            1. I still don’t know which allocution you’re referring to. His sentencing statement? I think Flynn lied to the FBI. Not exclusively because they said he did it, not exclusively because he said he did it, and not exclusively because I’ve never seen him deny it. But the evidence is overwhelming that Flynn lied to the FBI. Do I want to see him “punished”? Sure, but I’m not trying to throw the book at him. Was it the worst crime in history? No. Was the lie a justifiable basis for the White House shitcanning him? Absolutely. But in the end what does it matter to me (or anybody)? He was always going to get pardoned.

              1. He could very well have lied to the FBI. All I’m saying is that as a general rule, and in this case, we should give almost no weight to guilty pleas, and the accompanying forced confessions, when trying to determine what the facts of a particular case are.

    2. “Everybody knows that nobody pleads guilty voluntarily”

      Not really true; Happens in traffic court all the time. Also occasionally in crimes of passion where the defendant is genuinely remorseful.

      But if you wanted to say that better than 90% of guilty pleas in criminal cases were coerced, I wouldn’t argue.

  14. Some thoughts:
    1) Isn’t the DC Circuit’s rule concerning the standard to be applied controlling in the DC District Courts, no matter what other Circuits have said?;
    2) Flynn’s natural argument would seem to be: “At first I thought I might have been guilty, but after reviewing the Brady material which the DOJ wrongfully withheld from me, I can see that the statements involved were not material (as DOJ now admits) so I want to withdraw the plea induced by Brady violations”;
    3) Isn’t the motion to withdraw the Plea still pending?: and
    4) Isn’t Sidney Powell going to continue beating the tar out of the government, and seeking testimony from everyone up to Obama who was invovled in taking down her client, if the motion to dismiss is not granted, and doesn’t the government get to avoid such a scene by moving to dismiss?

  15. “While Judge Sullivan may have been acting within his authority to seek an amicus view, this is a curious case in which to exercise such detailed scrutiny over Government dismissal motion.”

    You serious, Clark?

    It’s a major, high-profile prosecution and dismissal. It’s difficult to imagine a better basis for allowing amicus to come in. I think Judge Sullivan should (and will) dismiss the case. But the underlying issues (alleged pressure from the government, interference with the court’s resources, alleged prosecutorial misconduct, and so on) is exactly why you’d want to dot an i and cross a t.

    1. What does it being high profile have to do with it? You allow amicus briefs when there are outside parties genuine interests in a decision. That means medical organizations submitting briefs on HIPAA cases or civil liberties organizations submitting briefs on interpretation of the Civil Rights Act. There are no other parties that have any sorts of those interests here. This is an ordinary lying to investigators case. It has no larger legal significance to any other cases and no effects beyond the defendant. Sorry but “Orange man bad” is not a reason to allow for outside parties to effectively argue and intervene in a case.

      1. “What does it being high profile have to do with it? You allow amicus briefs when there are outside parties genuine interests in a decision.”

        The fact that it is “high profile” is why it implicates “outside parties [with] genuine interests”.

        “It has no larger legal significance…”

        Really? So you’re saying that allegations of prosecutorial misconduct against Flynn are of no larger significance?

        1. Legally, they are not of any larger significance. Are they of political significance? Sure. But political significance is not legal significance. To the extent there was or was not misconduct in this case isn’t an issue that is examined by or affected by amicus briefs. Amicus briefs are about the law in the case. They do not argue the facts.

          To say it again, you caring about the case doesn’t mean you are interested in the case or there is any reason to let you file an amicus brief.

          1. “…you caring about the case…”

            Is of as much significance (legal or otherwise) as you pretending to not care about the case. The issue is whether there are people who care about the case. That’s one reason to have the amicus.

            In addition to hearing a case in which the judge is going to be second-guessed regardless what he does, having an amicus offers another benefit. If he intends to accept the dismissal, but the prosecution and defendant are in agreement, getting briefing on the other side legitimizes the later dismissal because there can be no claim that the people weren’t heard. It will weaken claims that this was a political railroad, that Barr poisoned the DOJ and forced it to submit, etc. Because the court will have heard the DOJ’s best arguments for why dismissal is improper, and yet the court will have nonetheless dismissed.

    2. But the underlying issues (alleged pressure from the government, interference with the court’s resources, alleged prosecutorial misconduct, and so on) is exactly why you’d want to dot an i and cross a t.

      Well, maybe. But if the court really wanted to make sure all those matters were put to bed properly, it would appoint an amicus who was just as interested in whether there had been prosecutorial misconduct (at any stage) as in whether Flynn should be prosecuted for perjury.

      Unless the judge is planning to appoint a second amicus to look into prosecutorial misconduct, including that alleged prior to the last few days.

      1. Why would the judge need a separate amicus to argue the interests of dismissal? The DOJ and the defendant are there to support their agreement on the matter.

  16. I have to wonder if all these intensely held opinions making Flynn out to be the victim here would hold if it was Hillary Clinton he was working for.

    No, I lied. I don’t have to wonder.

    1. And why wasn’t he a victim?

      What was the purpose of FBI DD McCabe sending two agents to the WH to covertly interrogate Flynn on a conversation that he had had with the Russian ambassador, when Comey, McCade, and the two agents sent over to do the interview knew exactly what was said on the call, because they had read the unmasked FISA transcript of the call, something that Flynn didn’t see until published in the WaPo? As FBI CD AD Bill Priestap essentially asked in his recently released written notes – whether it was to find out if he had violated the Logan Act by talking to the Russian ambassador during the Trump transition, or to get him fired?

      1. I fail to see what is nefarious about investigating agents knowing the correct answers to the questions they ask.

        Nor is there anything wrong with the FBI interviewing him in the first place because it was their job to do so and he was and has been shown to be a relevant player.

        As for Flynn, he could have said I don’t recall that contact until or unless he was reminded of it. And he could have still said that after even though it would have caused him problems if he took actions based on the contents of the call and the investigators knew about that as well.

        Instead he chose to lie.

        1. What’s nefarious about it is that the only legitimate purpose of asking questions is to obtain information, and they already had the information.

          So, literally the only purpose of the interview was to catch Flynn in a miss-statement in order that he could be prosecuted for perjury.

          And that they discouraged him from having counsel present, violated normal protocol to avoid having counsel present, and didn’t permit him to consult records, is pretty conclusive proof that they were just trolling for a miss-statement that could be construed to be perjury.

          Which we independently know because we have written records now indicating that was the goal.

          1. What’s nefarious about it is that the only legitimate purpose of asking questions is to obtain information, and they already had the information.

            As discussed above, that is not right as a matter of law. It is not right as a matter of logic, either. A legitimate purpose of asking questions is to see how the other person answers; whether they lie tells you a lot.

            For example: Husband comes home late from work. Wife asks him where he was. (Wife already knows the answer, because a friend of hers had texted her and said, “Hey, I happened to see your husband at such-and-such bar tonight.”) If the Husband says, “I went to such-and-such bar with my co-workers after work,” then the wife may conclude that it was perfectly innocent. if the Husband says, “I was working late at the office,” then this may lead the wife to reasonably suspect he’s having an affair and was at the bar with his girlfriend.

            The fact that she already knew the answer to the question she asked is actually crucial to her learning what she needs to know. And note that if she had instead directly confronted him and said, “I know you were at such-and-such bar tonight; why were you there?” she would not gain the insight she was seeking.

            Similarly, asking Flynn what he said to the Russian ambassador to see how he would answer is perfectly legitimate. If he tells the truth, fine, maybe nothing to see there. But if he lies, then we have to wonder why. (And note that in this case, they already knew that Flynn had lied to Pence about the call, which gave them extra reason to be suspicious.)

            1. You seem to be trying to talk your way around the fact that whether or not he lied, the bottom line is that lying, per se, was immaterial to a legitimate purpose of the interview. Discovering what was said in the phone call would have been material to determining his relationship with the Russians (except, of course, by then, the knew that there wasn’t one). But whether or not he lied about it doesn’t affect the question of that alleged relationship. Of course, as the DOJ memo points out, they already know what was said on the phone call, because everyone involved, on the FBI side, had apparently seen the unmasked FISA intercepted transcripts of the call.

              1. I seem to be trying to explain the law to you. You seem to want to apply your own personal law that does not match the one used by the courts.

                1. Which one? The one on materiality?

                2. Not quite sure what you are trying to explain to me. Materiality is an element that needs to be proven beyond a reasonable doubt for a § 1001 conviction. The DOJ has stated that part of their reason that they moved to dismiss is that they could not prove materiality of the misstatements beyond a reasonable doubt. They are the ones who asserted the arguments I am making in court.

                  In your post, you suggest that it is just fine to ask Flynn questions that they know the answer to see if he lied, because that has importance in itself. But then you or someone else here claims that there is no such thing as a perjury trap. You can’t have your cake and eat it too.

                  Moreover, Flynn at the time was talking to dozens and dozens of foreign counterparts a day during the Presidential transition. That was his job. It shouldn’t be a surprise to anyone that he didn’t remember everything he had said to everyone during those hectic times. He apparently admitted this at the time to his FBI interviewers, and thanked them for reminding him of stuff he got wrong. (Which of course goes to the knowingly and willingly element of the crime too).

                  In any case, you need (according to the DOJ memo) more than that his misstatements might be interesting, merely for their falseness, to prove materiality here. You are essentially suggesting unlimited green lighting of perjury traps for what they might possibly disclose about the person being interviewed. Maybe that is the way it is done by federal prosecutors and FBI agents, but if it is, the message from the top of the DOJ is to stop doing it. This practice of using perjury traps to ensnare their targets just reduces the public’s trust in the Department. Their position appears to be to look at the underlying investigation, see what facts are being sought, and then look at how any misstatements affect the investigation. If the misstatements impede the investigation, then § 1001 prosecution might be appropriate. These misstatements couldn’t impede the investigation because everyone on the government’s side (at least from Obama down to Pietka) knew what he had said to the Russian ambassador, because they had seen the unmasked FISA transcripts of the call.

                  1. Not quite sure what you are trying to explain to me. Materiality is an element that needs to be proven beyond a reasonable doubt for a § 1001 conviction.

                    Right. But materiality does not turn on whether they knew the answer before they asked the question.

                    Moreover, Flynn at the time was talking to dozens and dozens of foreign counterparts a day during the Presidential transition. That was his job. It shouldn’t be a surprise to anyone that he didn’t remember everything he had said to everyone during those hectic times.

                    I routinely forget whether I spoke to the Russian Ambassador to the United States about sanctions imposed on Russia and Russia’s retaliatory response. I mean, what with speaking to my dry cleaner about when my suit will be ready, the arcade where my son wants to have his next birthday party, and my brothers about what to get our dad for Father’s Day, who can keep it all straight?

                    In any case, as I keep explaining, “I forgot” is an argument Flynn could’ve raised at trial. He forfeited it by pleading guilty. You don’t get to both plead guilty and challenge the strength of the evidence. Pick a lane.

                    In your post, you suggest that it is just fine to ask Flynn questions that they know the answer to see if he lied, because that has importance in itself. But then you or someone else here claims that there is no such thing as a perjury trap. You can’t have your cake and eat it too.

                    Right. What’s the ‘trap’ there? If he tells the truth, nothing happens. (As Scalia noted, innocent people don’t even face a lemma.)

                    If the misstatements impede the investigation, then § 1001 prosecution might be appropriate. These misstatements couldn’t impede the investigation because everyone on the government’s side (at least from Obama down to Pietka) knew what he had said to the Russian ambassador,

                    I don’t know how many times I can tell you that this isn’t the law. (As Scalia also noted, paraphrasing, it would seem weird to make lying to the FBI a crime only if the agent you’re talking to is gullible.)

            2. David Nieporent: A legitimate purpose of asking questions is to see how the other person answers; whether they lie tells you a lot.

              So you’re admitting then that the FBI tried to entrap Flynn in a lie.

              Sigh, I remember the days when you were libertarian-ish… or maybe I just misunderstood.

              1. DMN has said many times he’s describing what is legal and standard procedure, not endorsing it.

                This is shabby behavior, the FBI should be made to stop it, and it’s also not and has never been grounds for dismissal.

              2. So you’re admitting then that the FBI tried to entrap Flynn in a lie.

                To quote Oz, “I’d call that a radical interpretation of the text.” Asking someone a question to see if they will tell the truth or not is not “trying to entrap them in a lie.” (Setting aside the misuse of the word “entrap,” nothing in that suggests that you want them to lie.)

      2. Bruce Hayden : “What was the purpose of FBI DD McCabe sending two agents to the WH to covertly interrogate Flynn on a conversation that he had had with the Russian ambassador…..”

        Are you joking? Let’s review the sordid recent history of Michael G. Flynn:

        (1) In the year before his involvement in Trump campaign and appointment as National Security Advisor, Flynn had been busy selling his behind to foreign governments around the world, sometimes in unsavory ways. This includes the meeting with Turkish officials in September 2016 where a plan was discussed to kidnap someone given residency in the U.S. and smuggle him out of the country to Turkey. But it also included payments from Russia. For instance, 40K from the Russian government bought praise for Russia Today and a seat by Putin’s side during a public ceremony. More Russia money purchased Flynn’s lobbying for U.S. support in a proposed multinational venture to transfer nuclear technology to the Saudis.

        (2) U.S. law requires transparency when its citizens represent a foreign government, but Flynn repeatedly failed to follow the law. He did not register as a foreign agent, or disclose foreign payment. By the time he was appointed National Security Advisor he’d already been caught-out several times not following the law. Mueller would uncover still more.

        (3) So a man who accepted payment for service to the Russian government & failed to disclose it gets one of the sensitive appointments in the government re national security. The very first thing he does is make promises to the Russian Ambassador and THEN lie about those promises to multiple White House officials including the Vice President.

        In what universe would those facts NOT be grounds for FBI concern? You see this a lot in Trump conspiratorial victim-hood myth. The reasoning always depends on the Trump Administration being held to a much lesser standard than any of his predessors.

        1. They had the transcript of the call. If it had been a legit inquiry into aspects of the call instead of just a perjury trap they could have started by giving him the transcript and saying that they wanted some clarification about some items. That they never disclosed that they had the transcript shows that it was a gotcha game.

          1. I love how Trumpkins swing widely from “He can’t possibly be guilty because as an experienced intelligence official he would never have lied because he would have known that the call was recorded” to “They should have told him that the call had been recorded.”

            But what’s the “gotcha”? All he had to do was tell the truth.

            But even if they wanted to catch him lying, that’s normal FBI behavior, not something concocted to get Flynn.

            1. Only “Trumpkins” are concerned about abuse by the FBI? Damn, that’s stupid.

              Even the agents interviewing Flynn didn’t think he lied. For you to get this far into this conversation and not know that indicates a complete lack of either curiosity or integrity.

              1. Trumpkins aren’t actually concerned about abuse by the FBI. I can tell because they’ve just discovered these tactics, and have their facts all wrong.

                I expect y’all will forget your outrage the moment Flynn falls out of the news.

                This is not about a miscarriage of justice, it’s about defending your guy.

                1. Says Mr. “Don’t accuse me of bad faith.”

                  1. It’s a rebutting presumption. Note: not rebutting merely by disagreeing with me.

                    I explain why I think that. Do you disagree with my observations, or the deduction associated therewith?

                    1. Trump fired Flynn for allegedly lying to Pence so Flynn is not linked to supporting Trump, other than to expose the actors who were active in promoting the Russia hoax. So yes this is a concern about a miscarriage of justice.

                      Let’s turn this around: why are you, David and rest of the lefties here so invested in seeing this guy punished? This isn’t like nailing Don Jr. or Ivanka for something. You aren’t going to get your senile candidate over the line because Flynn goes down. I am at odds with most of your views but I have never accused you of being mean-spirited, but wanting this poor bastard to go down is just that.

                    2. Flynn is not linked to supporting Trump
                      LOL.

                      Now, I haven’t really looked into the crimes he’s accused of, so I care more about the blatant special pleading we have here.

                      But I gather Flynn did some bad national security stuff, which would seem a fine and patriotic reason that people would want him punished.
                      Funny you’d think this has to be about some electoral gain. I hope you don’t see the world so myopically!

                    3. “Now, I haven’t really looked into the crimes he’s accused of…”

                      Huh? After all this and you say that? Let me help you here. He wasn’t accused of crimes in the plural, he was accused of lying to the FBI in a single interview. So grb’s catalog of Flynn’s sins notwithstanding he wasn’t accused of any crimes related to them, and a Rachel Maddow rant forms the basis for Sullivan accusing Flynn of treasonous activity.

                    4. No one is talking about the merits.

                      This is not a discussion about the merits.

              2. Even the agents interviewing Flynn didn’t think he lied.

                No. They knew for a fact that he had lied, because they had the transcript. They didn’t think he had shown physical indicia of deception, which is not the same thing.

                1. And how then did they determine that he had “knowingly and willfully” made materially false statements to them if he hadn’t “shown physical indicia of deception“?

                  1. How does one ever know what’s in someone else’s head?

                    Your argument is that nobody can ever be convicted of perjury because the person can always say, “It was a honest mistake; I just forgot,” and we cannot determine otherwise?

                    (Sans confession, I guess, except in this case a confession apparently doesn’t count either.)

            2. Well this Trumpkin can’t recall having said any of that. They only should have told him about the transcript if they wanted to conduct a legitimate interview. Maybe you’re used to running perjury traps so it seems okey dokey to you but to most reasonable and sane people it seems like prosecutorial misconduct.

              Besides they said he seemed truthful during the interview. What did he lie about?

              You also seem to be forgetting that they discussed using the interview to get him to lie so that they could prosecute him or get him fired. You talk a lot about honor and acting honorably and yet you endorse this crap. I thought you had hit a low point when you kept maintaining that Burisma wanted Hunter for his business experience and knowledge but apparently not.

            3. But what’s the “gotcha”? All he had to do was tell the truth.

              I agree that the way to avoid perjury traps is to not commit perjury. (And the way to avoid false statement traps is to not make false statements.)

              That’s absolutely true. And if you need to, you can take the 5th as well.

              But there’s a milder claim about these things that is true. Which is there’s a big difference between prosecuting false statements when someone is trying to obstruct an investigation or a court proceeding, and trying to create false statement crimes by getting people to lie.

              While I have no doubt that the second category is prosecutable, it’s also scummy in terms of the government conduct involved. It’s creating crime.

              In a perfect world, there would be an affirmative defense to these crimes that if you could show there wasn’t a legitimate investigatory purpose and they were just trying to get you to lie, there’s no crime.

              1. And here, here there was no evidence of trying to obstruct a legitimate investigation, but there was evidence that the investigation was not legitimate, and that the purpose of the interview (without informing Flynn that they had the transcript and showing it to them) was as a perjury trap.

                1. You understand that “perjury trap” isn’t really a thing, right?

                  1. FBI CD AD Bill Priestap on 1/23/2017 (handwritten note from meeting that included DD Andrew McCabe and CD DAD Peter Strzok planning the visit by Strzok and Pietka of NSA Flynn at the White House):

                    “What is our goal. Truth/Admission or to get him to lie, so that we can prosecute him or get him fired.“

                    Part of his point was that if your goal is truth, then you show the transcript to the target (Flynn). You only don’t show it to him if the goal of the interview is to prosecute him for lying. The previous day, he had signed onto the agreed upon strategy of not showing the transcript to Flynn. He slept on it, and essentially reversed his position. He apparently angered his boss, DD McCade, for not being a team player over this.

                    So no, the trap was not for perjury, per se, but rather for making false statements to government officials under 18 USC § 1001. But, sorry, it was still generically a “perjury trap”.

                  2. David, of course a perjury trap is a thing.

                    Indeed, my comment defined it pretty well- when the government is after a false statement prosecution rather than facts when it questions someone.

              2. Another thing. People lie or misstate facts on a regular basis. For example, yesterday my wife called, asked where I was, and why I wasn’t home yet. I told her of the long line, but I had what she wanted, and was heading home. In reality I was finishing one of my comments here. Or, way back when I was a federal employee, there were those who routinely took sick time for personal time (I wasn’t one of them). That too was lying. Should lying to any federal official in any subject be a felony? Under oath? Maybe. That is actual perjury. But not under oath? Most here I think would say “no”. We really don’t want to fill our prisons with people who fudged their timesheets a bit by mischaracterizing the reason they were taking A day or two of leave. That is part of why one of the required elements of a § 1001 conviction is materiality.

                The obvious purpose of the FBI interview of Flynn was to catch him in a misstatement that could be used to get Flynn either fired or jailed. (And, no, he had not yet been fired for lying to VP Pence, when he was interviewed by the FBI, or he wouldn’t have been the NSA at the time, so the argument that his lying to Pence was justification for the perjury trap doesn’t work). AS FBI CD AD Bill Priestap asked at the time – was the purpose determining the truth, or to get Flynn fired? This was in relation to the question of whether or not to show Flynn the transcript of the call, or not.

                The FBI did several things that point to the only purpose of the visit Of the two agents to the WH to meet with Flynn being a perjury trap. First, the junior agent had been sent to an event months before where Flynn was speaking to get a baseline on him. Secondly, DD McCabe called Flynn up and set up an informal meeting with the two agents. It was perfectly logical for them to meet with him, since the senior agent, Peter Strzok, was the Deputy Associate Director (DAD) of the Counterintelligence Division (CD) by then, and Flynn could expect to be working with him in the future. McCabe suggested that it was going to be informal, and lawyers would just get in the way. A couple of coworkers who could expect to be working together in the future. And the two agents were instructed to make Flynn comfortable, which they did. They specifically and intentionally didn’t tell Flynn that he was the target of an investigation, nor that any misstatements he made to them might violate 18 USC § 1001. Instead, they made sure that he believed that it was just three colleagues, who would probably be working together in the future, getting together to get to know each other better.

                Which is why many called it a perjury trap. There was obviously no other reason for the FBI agents to have visited Flynn that day, than to catch him making a misstatement, so that he could be fired or prosecuted.

                1. We really don’t want to fill our prisons with people who fudged their timesheets a bit by mischaracterizing the reason they were taking A day or two of leave. That is part of why one of the required elements of a § 1001 conviction is materiality.

                  We don’t, which is why we wouldn’t prosecute for that, but I don’t understand how you think that forging information on a timesheet isn’t material. It is, in fact, a violation of § 1001.

        2. Hey, grb, did you speak to Robert Mueller about all of these Flynn crimes? Evidently not, because Mueller didn’t charge Flynn with any of them.

          What a lost opportunity for you.

    2. I wish the same standards had been applied to Clinton and her staff. If they had been, then I wouldn’t be complaining about Flynn’s treatment.
      Look at an older case, remember Sandy Berger sneaking materials out of the National Archive? The archivists saw him do this. They reported it to the FBI. Berger was questioned. His answers were not consistent with the information provided by the archivists. Berger was allowed to plead guilty to a misdemeanor, pay a fine, and surrender his law license. Nice deal. But the FBI had him dead to rights lying to them…but they chose not to prosecute.

      1. Filegate; Clinton’s smartest move during his entire administration. Kept paying dividends for years.

      2. You mean like the FBI re-opening a closed investigation? Or the NY office non-stop leaking to Giuliani?

        The FBI sucks; it’s not partisan. Not many on here look like they really want to address that.

        1. The field agents who interviewed Flynn played it straight but were overruled from above. The higher-ups didn’t overrule them just because of general suckiness. Why would anyone at the FBI care one way or the other about Flynn? There’s something missing here but I just can’t put my finger on it. Who could possibly have had it in for Flynn?

          1. I don’t think that’s true.

            Even if it were true, higher up prosecutors telling lower folks what kind of tactics to use to get the job done is not some smoking gun, regardless of the target of the investigation.

            1. Depends on the purpose of the interview. Was it to investigate Flynn for collusion with the Russians (likely not, after the Washington DC field office had reported back that there was nothing to be found on Flynn), or set a perjury trap.

              I should note that the recently disclosed handwritten notes by FBI CD AD Bill Priestap had him asking just that question, in a meeting setting up the Flynn interview.

              1. And perjury traps are SOP for the FBI.

        2. The reason that the investigation was reopened was because new evidence had been discovered on Anthony Weiner’s laptop – a large number of the emails that Clinton and her attorneys had had deleted. Which, if any classified information was discovered there, would have been additional felonies.

          The FBI analyst who discovered the emails reported it up the chain (via the NYFO ASIC on Sept 28) to the Counterintelligence Division in DC, which had done the MYE Clinton email investigation. That meant to Peter Strzok. He sat on the emails for better than a month, trying to run out the election clock (justifying it by claiming lack of resources due to his also running the Crossfire Hurricane Trump collusion investigation). He didn’t make it. The analyst saw that the FBI failing to investigate the newly discovered, and previously deleted, Clinton emails until after the election would make the FBI look partisan. He went to several USAs in the SDNY office, and one of them finally got the attention of FBI D Comey, who panicked, for good reason. He knew that running out the clock, as Strzok was trying to do, would have damaged the reputation of the FBI. So, to show impartiality, he had the MYE Clinton email investigation reopened, but kept Strzok in charge, who didn’t find anything of interest, because he didn’t look very hard (his decision in June to accept paper, instead of electronic, copies of the emails on Clinton’s server made deduplication of the new emails a formidable project, since part of what is lost in paper copies is the metadata that allows for easy deduplication). Strzok dutifully reported back to Comey that there was nothing there, having randomly sampled 1-2% of the Weiner laptop emails.

    3. Maybe you should read Flynn’s filings since Sidney Powell started representing him. Then you can stop wondering.

  17. I don’t have a problem with the judge inquiring into the dismissal motion, but that should be limited to inquiring into the Government’s reason to dismiss and whether the defendant has any objections to it. Putting on a full hearing and appointing amici who have had no previous involvement in the case just seems to be wanting to put on a dog and pony show and drag the case out longer.

  18. I doubt it will happen, but in the interests of criminal justice reform, I would want the government grilled on all the other 1001 cases they are going to dismiss under their new materiality standard. I assume Judge Sullivan has them on his docket. Go through them and ask the US Attorney if he will be moving to dismiss them and ask why or why not. Order briefing for every 1001 case on his docket.

    Maybe ask for briefing on the status of 1001 cases nationwide.

    Heck, bring in the AG and ask if he’s going to revise DOJ guidelines on charging 1001 cases and conduct a review of ever 1001 case it has ever charged.

    1. Where are these 1001 other cases? I keep hearing the claims of how this is a new materiality standard but no one ever gives any examples of actual cases that violate it. Name me another case where the defendent was prosecuted for lying to investigators after it was revealed that the FBI had no probable cause for any underlying crime when they launched the interrogation in question and it was shown that the interrogation was launched for the specific purpose of getting the defendant to lie about something?

      I am not saying such a case doesn’t exist. It might. But, I think the people this is a new standard or that ordinarily these circumstances would not matter to the government have an obligation to point out such a case or preferably cases. So, please do.

      1. Where are these 1001 other cases?

        I think that “1001” isn’t a reference to a number of cases, but to the statute (18 U.S.C. § 1001) under which Flynn was charged.

        https://www.law.cornell.edu/uscode/text/18/1001

      2. The materiality standard isn’t new. It is just being enforced. 18 USC §1001 requires that misstatements be made willingly and knowingly, and that they be material.

        My theory is that the Mueller prosecutors cut a lot of corners, inspired by their close colleagues in the Lawfare Group. The idea, I think was that technicalities like materiality and knowingly/willfulness didn’t matter once they got a confession of guilt. They came at Flynn with three charges: FARA, Logan Act, and §1001 lying to a federal official. They couldn’t go to court with the FARA charge because 99% of the time such claims are settled administratively for a fine, plus they couldn’t show intent, because Flynn had used the Covington law firm to fill the form out. The Logan Act charge would have been laughed out of court. It hadn’t been tried in a century in a half, was considered a facial violation of the 1st Amdt by most legal scholars, and Flynn was working at the time, for Trump’s federally funded transition office, which meant that he was essentially getting a federal paycheck, and his call with the Russian Ambassador was well within his job description as incoming NSA. That left the §1001 charge of lying to federal officials, which was facially credible and wouldn’t be laughed out of court.

    2. “FBI Employee: “boom…how did the [witness] go”
      Agent 1: “Awesome. Lied his -ss off. Went from never inside the scif [sensitive compartmented information facility] at res, to looked in when it was being constructed, to removed the trash twice, to troubleshot the secure fax with HRC a couple times, to everytime there was a secure fax i did it with HRC. Ridic,”
      FBI Employee: “would be funny if he was the only guy charged n this deal”
      Agent 1: “I know. For 1001. Even if he said the truth and didnt have a clearance when handling the secure fax – aint noone gonna do sh-t””

      Charges were never filed for some reason….

      1. I’ve got bad news to you about most every FBI case…

        1. This is really not getting you very far you know.

          1. Hey, if it’s a special pleading fiesta, I’m going to continue to point it out.

  19. All this fuss over someone who will be pardoned in November even if the judge refuses to dismiss.

    1. They way Sullivan is acting, he might refuse to allow the President to pardon Flynn, or maybe he will hold the President in contempt.

    2. Yes.

      I’m wondering whether this isn’t yet another effort by the Resistance to shell its own feet.

      If the judge had just granted the DoJ’s motion to dismiss, Flynn “getting away with it” could be presented, by a compliant media, as that wicked Trumpist lickspittle AG interfering with justice. A perfectly acceptable soundbite result for the Resistance.

      But Judge Sullivan’s actions make it look like he’s determined that Flynn should be made to suffer (some more.) There are no doubt lots of people who firmly agree that Flynn should get it good and hard, and well done the judge. And also a lot of people who think precisely the opposite.

      But there are still a few registered voters sitting in the middle. If the music stops with “Barr helps Trump ally who pled guilty get off scot free” – the middle people are liable to drift in the “don’t like that” direction.

      But if the music carries on a few bars into “Judge goes bananas in effort to screw General” the drift is liable to go the other way.

      Barr’s intervention was not a great move from a narrow GOP electoral point of view (and no doubt he would say it wasn’t meant to be.) But Sullivan’s response risks swinging the needle the other way.

      And to be fair to Sullivan, I’m not sure his move is really about electoral politics either. I suspect he just loathes Flynn and Sidney Powell.

      1. Nobody is voting because of what happens to Flynn, either way.

    3. Why can’t the pardon be right away?

      If Trump agrees with his own prosecutor, then he wants Flynn relieved of the results of his conviction. Why not now not later?

      I know there’s an argument that pardons are only for guilty people. I don’t agree but would love to hear more discussion.

      1. Politics. Much better for the Administration if the court system does the deed, instead of Trump having to issue a pardon. This way, it looks bad for the Mueller prosecutors. A pardon, on the other hand, might look bad for Trump, esp looking forward to the upcoming election.

        1. I suppose that would be an excellent guess on the reason.

      1. I suppose it is at least mildly interesting that some who claims to be a lawyer is able to collect a paycheck for writing something so fatuously incorrect.

  20. Reading through the comments are interesting, but based on the cases cited, Sullivan does not have the authority to do what he’s doing. Whether we like what AG Barr did or not, Sullivan looks like he is usurping power.

    1. Exactly. I think the precedent of a judge effectively overruling the government’s decision to drop a prosecution and taking up the prosecution himself raises much larger and more important issues than anything involving Flynn personally. That is simply something that cannot be allowed to happen in a legal system that respects the rights of defendants or in a properly functioning Republic. Anyone who can’t see that is just putting their partisan politics and petty grudges ahead of their principles.

      1. What check is there on Sullivan? Is a motion to recuse something that can be used here?

        1. His decision can be appealed if he ultimately refuses the dismissal, and will likely be reversed. But since he seems to be just trying to put on a show, that won’t really help.

  21. Judge Cassel says in his blog post:

    “it is unclear why the Flynn case is suddenly attracting such broad attention”

    and

    “in this case, no “victim” exists”

    I confess I was floored by both statements. Surely the judge is aware of the recent startling revelations regarding the case, which clearly document that Flynn was entrapped, the entrapment was known at the highest levels of the executive branch and the FBI, and was directed and orchestrated by the FBI. And surely the judge is aware of the massive degree of prosecutorial misconduct in this case, not least of which is withholding exculpatory evidence. Isn’t that clear enough?

    As to victims – Flynn is the victim here! I know that the judge is generally referring to whomever the defendant may have victimized, but this case presents a turn of events, where the defendant becomes the victim, and the prosecutors the criminals.

    1. You’re playing bad lawyer again. Flynn was not entrapped. That’s a legal term, not used the same way you saw it on Law & Order one time.

      1. David, why do you have to be so insulting? You come across like the stereotypical adult child living in his mom’s basement, being a tough guy on the internet.

        Do a google search with the terms Flynn and entrapment and tell me what you find. Here’s a sample:

        Washington Post, April 29, “Michael Flynn’s defense claims FBI notes show agents tried to entrap the former national security adviser.”
        “Flynn last year fired his initial defense team, however, and his new lawyers this winter moved to withdraw his guilty plea arguing that he was entrapped, given ineffective assistance by his initial counsel and is actually innocent.”

        So screw you and your insulting, snarky, and substantively incorrect replies. Do me a favor please, and don’t read or reply to anything I write.

        1. Have you thought that Flynn’s defense team was not making legal arguments? Everyone knows this was a pardon play.

          When a practicing attorney doesn’t seem to have a lot of patience for your hot legal take, it’s not terribly surprising.

          1. A practicing attorney with grace and class would be tolerant of an admitted non-lawyer, and offer his expert advice and opinion in a way that seeks to teach or guide. David has neither grace nor class, and while he may be a practicing attorney, he is a rather coarse and insulting person.

            Your remark is neither here nor there; I hardly deserve a nasty rebuke for using a term that’s all over the media and has been uttered in this exact context by Flynn’s lawyer, who I believe is also a practicing attorney.

            1. Weird how Trumpkins revel in their Dear Leader being a no-nonsense tell-it-like-it-is guy who doesn’t speak weaselly like politicians do, and then whine when they feel insulted.

              It is tiring to listen to the same nonsense over and over and over again by people playing lawyer. If you had said, “Hey, don’t these documents show entrapment?” I’d have patiently but patronizingly explained to you why they don’t. But you said, “these revelations clearly document that Flynn was entrapped,” when in fact they don’t come within the same zip code as showing entrapment. They don’t even show anything remotely resembling entrapment.

              1. David, I must admit that you are right on this, I’ve learned what entrapment is (at least superficially), a what a perjury trap might be, and I don’t any longer think that either of these apply. What the documents show is that the agents had a transcript of a several months old phone conversation and apparently went to see if they could catch Flynn contradicting something he said. They did, and charged him with lying to an agent.

                Cheers,

          2. And by the way, you’re exhibiting typical internet bullying behavior, acting as one of David acolytes. I’m sure he doesn’t need your help. Why don’t you just keep your nos out of it.

            1. LOL you’re one to tone police.

              You’re not asking for instructions from an expert, you’re coming in hot with a bunch of interlocking assumptions.

      2. Oh, and I’ll relay to Sidney Powell that she’s playing bad lawyer, and shouldn’t throw around terms she heard on Law & Order one time.

        1. She’s not so much playing bad lawyer as not playing lawyer at all. She’s playing let’s-get-Trump-to-let-my-client-go.

      3. Sen. Chuck Grassley (R-Iowa) on Thursday said there likely will be prosecutions in the fallout from Russiagate abuses. Grassley said on FOX News’ ‘Special Report’ that Michael Flynn was entrapped and this would not have been exposed without the work of Attorney General Bill Barr.

        “He was entrapped,” Grassley told host Bret Baier. “Entrapment is unconstitutional. It’s a violation of your due process.”

        1. Perjury traps are not what entrapment is, legally.

          If the FBI posed as Russians and kept badgering him to spy for them, that’s the legal entrapment scenario.

          1. I don’t quite follow. Is this about the distinction between “badgering” and “creating an opportunity to sin that you hope the mark will bite on ?

            Let’s take soliciting prostitution, cos why not ?

            Officer Carlita dresses up hooker style and waggles her tail in front of a desperate looking middle aged man, who offers her $250. On go the cuffs. That’s OK, not “badgering” just fly fishing ?

            1. While I would not call it “OK,” it is 100% legal and not anything close to entrapment. (Nor, contrary to what you might have seen on TV, does the hookercop have to tell the truth if asked, “Are you a cop?”)

          2. And just to elaborate on what Sarcastr0 said, the “badgering” has to be extreme. It has to be something sufficient to get a person of ordinary will to do something that they were otherwise unwilling to do.

        2. If Grassley (who is not a lawyer) said that, then Grassley was also incorrect.

        3. Chuck Grassley is… not a lawyer.

          1. Grassley just makes the laws, that’s all.

            1. Congressmen do not draft laws themselves.

            2. And? Even if that were relevant, which it isn’t, entrapment isn’t a statute; it’s a common law defense. Grassley had nothing to do with it.

  22. It sounds like the politicians treat each other much more fairly than the career prosecutors treat normal defendants. Maybe the problem is the career prosecutors. If they want things to be equitable, they can treat all defendants the way Barr treats Flynn.

  23. I have seen lots of quibbling on what the DOJ should do NOW, but I really have never seen an adequate defense of the entire Flynn ordeal. Its like a Russian doll of errors.

    Crossfire Hurricane was a lightly predicated investigation (I will not go all the way to calling it illegitimate), based on an Australian diplomat misunderstanding a joke made by Papadopolis which was common in conservative circles at the time (that every government but ours had Hillary’s emails). Plus the Steele Dossier. That the entire predication. Its light. By November of 2016 Steele was fired by the FBI and they had confirmed the dossier was disinformation. Hurricane should have been closed.

    Crossfire Razor, the Flynn subinvestigation, was unpredicated, and indeed the pretense for the investigation was, embarrassingly, the Logan Act.

    Then the interview was conducted and Flynn lied, probably. But it wasn’t material to anything, probably. The FBI fumbled its 302 procedures, and didn’t pursue this shaky case.

    Then Mueller is appointed, likely in contradiction of DOJ guidelines for appointment of a special prosecutor.

    Then the Mueller team prosecutes this case and fails to provide dozens of papers that are material to the case, including 302 revisions (which is overwhelming evidence of their botching of their standard procedures). Flynns attorneys should have conflicted themselves out, and there was a side plea agreement not in the official agreement that violates DOJ regulations (again).

    I just don’t see why anyone spends air defending this series of poor judgments by the FBI and DOJ.

  24. Since Judge Sullivan has decided to play games, maybe Barr should start playing games too. He should direct the prosecutors to go before Sullivan and say, very seriously, “We’ve changed our minds. We think that Flynn’s motion to withdraw his plea should be denied, and his sentencing should be expedited. We call for 5 years of hard time.” And then, when the wheels have churned and Sullivan sentences Flynn to whatever, and orders the bailiff to take Flynn away in cuffs, the door to the courtroom should fly open and a messenger from the White House yell out “Stop! I have a pardon signed by the president!”

    1. It would be even better if we lived in a monarchy, so that the messenger could announce, as at the climax of The Threepenny Opera, that the defendant had not only been pardoned, but had been given a title of nobility, a castle, and a pension.,

    2. “…maybe Barr should start playing games too.”

      Ha ha. Ha ha hahahahahahahaha. Whew, best laugh I’ve had in months. Yeah, we really should be worried that Whore Barr should *start* playing games.

      Your post does make sense if we had a time machine and went back in time until 34 seconds after Barr was put into his job.

      Hee . . . warning about Barr possibly playing games in the future. I laughed so hard; I think I wet myself a little.

  25. Came across this today, U.S. v. Sineneng-Smith, decided unanimously by SCOTUS last week:

    https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf

    Justice Ruth Bader Ginsburg, writing for a unanimous Court, held:

    “In our adversarial system of adjudication, we follow the principle of party presentation … [O]ur system “is designed around the premise that [parties represented by competent counsel] know what is best for them, and are reponsible for advancing the facts and argument entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment).”

    “In short: “[C]ourts are essentially passive instruments of government.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” Ibid.”

    So, if Sullivan is pursuing charges other than what the prosecutors brought, he’s in conflict with this decision.

    1. No. It’s really tiresome having to refute the same talking points over and over again. It’s bad enough when one Trumpkin pundit comes up with it, but then lots of people just spread it virally everywhere without having any understanding.

      Sullivan is addressing two things right now:
      1) Whether the case should be dismissed. That is a “question presented by the parties,” and therefore is nothing like Sineneng-Smith.

      2. Whether one of the parties committed perjury in his courtroom. That’s something courts always deal with, and has nothing to do with the Sineneng-Smith scenario. It’s an inherent power of the court to address that issue.

  26. Lol the judge is trying to fight a battle he has already lost. He clearly wants to punish Flynn but this will NOT be happening. Ever. Take the L. Worst case scenario Trump just pardons Flynn. Either way he will be escaping punishment and there will be no prison time.

    Deal with it. And to see so many pathetic posters gas light and suggest the judge asking if they thought about charging Flynn with treason isnt grounds for recusal is insane.

  27. “From the perspective of applying neutral principles to dismissal motions, it is unclear why the Flynn case is suddenly attracting such broad attention.”

    It shouldn’t be unclear. For example, from theopen letter Paul Cassell references:

    While it is rare for a court to deny the Department’s request to dismiss an indictment, if ever there were a case where the public interest counseled the court to take a long, hard look at the government’s explanation and the evidence, it is this one. Attorney General Barr’s repeated actions to use the Department as a tool to further President Trump’s personal and political interests have undermined any claim to the deference that courts usually apply to the Department’s decisions about whether or not to prosecute a case.

    And a bit later on:

    Our democracy depends on a Department of Justice that acts as an independent arbiter of equal justice, not as an arm of the president’s political apparatus.

    That raises the stakes in this case a bit above those in a typical case.

    1. Here is the link to the open letter I tried to link to above: https://medium.com/@dojalumni/doj-alumni-statement-on-flynn-case-7c38a9a945b9

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