Criminal Law

Michael Luttig on How the D.C. Circuit Should Handle the Flynn Case

A former federal judge (and Supreme Court short-lister) on what Judge Emmett Sullivan (and his critics) got right, and got wrong

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There are no shortage of opinions on the Michael Flynn case. President Trump's former National Security Advisor wants to withdraw his guilty plea and the Department of Justice now wants to dismiss the case, despite Flynn's prior plea and a judicial ruling affirming the Department's original theory of the case. Rather than grant the government's motion to dismiss, Judge Emmet Sullivan has sought briefing from amici and appointed retired judge John Gleeson to argue against the motion. In response, Flynn's attorneys are seeking a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit to force dismissal of the case, and the D.C. Circuit has ordered Judge Sullivan to respond to this petition.

What should the D.C. Circuit do? Today's Washington Post features an op-ed by the Honorable J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit appointed by President George H. W. Bush and one-time Supreme Court short-lister.

Judge Luttig is critical of Judge Sullivan's handling of the case. At the same time, he rejects the core argument of Judge Sullivan's critics, that Sullivan is obligated to grant the Justice Department's motion to dismiss. After all, that's not what Rule 48 of the Federal Rules of Criminal Procedure says or means.

Judge Luttig writes:

The rule of law instructs that U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn's case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government's dismissal request. This authority stems from the federal criminal rules of procedure and the trial judge's inherent authority. If this authority were properly exercised, the judge's refusal to dismiss the case would not impermissibly usurp the executive's exclusive constitutional power to decide whether to bring or maintain a criminal prosecution.

Judge Luttig believes Judge Sullivan erred by inviting amici submissions and appointing Judge Gleeson to argue against dismissal. In his view the D.C. Circuit should grant the writ insofar as it seeks a reversal of these orders. According to Judge Luttig, the D.C. Circuit should also consider whether the case should be remanded to a different district court judge.

Judge Luttig concludes:

Were either Sullivan or another judge eventually to decide that it would be contrary to the public interest to dismiss the prosecution or that to do so would undermine the integrity of the judicial process, that judgment could be appealed.

The appeals court would then confront a novel and nettlesome question. The trial court has indisputable, but very limited, power to refuse the government's request. Here, because the government contends that the case should be dismissed because of its own confessed misconduct, and therefore the government's prosecutorial interest is at its zenith, it would be exceedingly difficult for a court to substitute its view and override the government's contrary assessment. Under our Constitution, the decision whether to prosecute to the final stages of conviction and sentence is committed wholly and exclusively to the executive branch of the government — almost.

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  1. I don’t see how inviting amici could be outside a of judge’s purview.

    Indeed, the very multitude of opinions would seem to mitigate towards an in-depth inquiry.

    1. Because they are, essentially, a third party with no actual stake in the litigation. The courts have been fairly unanimous over time – criminal litigation is between the government and the defendant. Except this time the two parties agree to dismiss.

      What makes this so different this time, from what happens dozens, maybe hundreds of times every working day around the country? The politics.

      1. That’s true of all amici. And amici are liberally allowed, even in criminal cases.

        Asking for more information and opinions doesn’t bring harm to anyone.

        1. The chosen amicus Gleason has already indicated in a WaPo brief that he wants to see the defendant harmed.

          1. WaPo brief?

            WTF?

            1. WaPo op-Ed. I was being Sarcastic. I thought you would recognize it 😉

          2. Judge Luther’s opinion ignores the fact the government’s motion is based on false claims and flip-flops its position of bare weeks ago without any factual basis.

            The information cited as “new” in the motion isn’t new to the government. They had it when they argued Flynn’s prosecution was justified and his convictions should be upheld. This also isn’t because of a different perspective by a different prosecutor: Barr’s appointee O’Shea was the DA when the government argued that mere weeks ago.

            So Sullivan is perfectly right to question why the government is doing this, and appointing an amici means the issues will actually have an adversarial test.

            1. Flip flop? You make it sound arbitrary and capricious.

              But to a great extent it was based on new evidence, much of it by the investigation run by USA Jensen. Evidence that had been intentionally hidden by the prosecutors, and the FBI. There is nothing wrong with the government changing its mind and deciding to dismiss charges, based on substantial new evidence. Moreover, they discovered that there was absolutely no evidence in the record supporting one of the required elements of the crime – that the false statements were material. With that discovery, they could no longer support conviction, because that support requires a belief that all elements be provable beyond a reasonable doubt. At that point, it was their ethical duty to move to dismiss.

              1. Bruce,
                Was it based to a great extent on new evidence? Perhaps.
                Was it based on Barr being a whore, and being stuck well up Trump’s colon? Also, perhaps.
                Sounds like a court would be well-advised to get more information, in order to maintain the appearance of impartiality and fairness. It’s odd that one side is fighting this tooth-and-nail . . . if the govt’s new, “Barr standard,” position is so strong, one thinks it could withstand a little judicial scrutiny.
                And it doesn’t matter really…eventually this case will make its way to the Sup. Ct, where 5 conservative activist judges will rule on Trump’s behalf. Like Trump’s taxes, or the grand jury testimony/evidence, it really doesn’t matter what the flood of lower-court and appellate judges say or think.

              2. But to a great extent it was based on new evidence,

                False. Not only wasn’t there new evidence, but nothing that Jensen pointed out was evidence at all.

                Moreover, they discovered that there was absolutely no evidence in the record supporting one of the required elements of the crime – that the false statements were material.

                They discovered no such thing. And talking about “evidence in the record” just shows your incoherence, because there is no record because there was no trial.

                1. The only reason it isnt new evidence is that the FBI knew it existed all the time.

                  It is however, new evidence to the defendent and to the court.

                  1. It’s not new and it’s not evidence. So, I think that mathematically adds up to not new evidence.

                    1. The district court, prior to accepting the plea, must find a factual basis for all elements of the offense, including materiality. The instant court did so, based in part on colloquy with the accused.

                    2. You are very obviously not following the case very carefully. Much of the new evidence was unearthed by USA Jensen in their investigation of the Flynn prosecution and only became available to the defendant, the court, and most of the DOD this year, well over three years since the §1001 perjury trap was sprung on Gen Flynn.

                      Here are some of the “new” facts that you claim don’t exist:
                      – there were no unresolved facts supporting a criminal investigation of Flynn at the time. The FBI field office filed to close the investigation. This was overridden for apparently political reasons by the “7th Floor”, meaning Comey and McCabe.
                      – CD AD Priestap (boss of the two agents sent -Strzok and Pientka) asked at the time whether the purpose of the meeting was legitimately investigative, or a perjury trap. He voted to inform Flynn that he should have WH counsel present and that he was vulnerable to §1001 prosecution. He was overridden by DD McCabe. Priestap’s hand written notes only became public a month or two ago.
                      – the setup of the meeting was highly irregular, without those warnings, and the meeting was intentionally kept from the knowledge of DOJ in general, and Obama holdover DAG Yates in particular, until after the fact. She claimed to have been shocked.
                      – no evidence of materiality (required element of §1001) was ever submitted to the court. All they had was Flynn’s admission, but he was in no position to make the admission (not having the information that the DOJ and FBI had), thus the requirement for facts to support the element. The judge screwed this up, putting it off a couple times.
                      – the original DD 302s from the interview were filed the same day by Pientka, and reviewed the next by DAG Yates, but never submitted to the defense. Instead, the 302s supplied to the defense were the ones edited more than a month later by Strzok and Page, and approved by DD McCabe. This version had exonerating evidence excised. Until sometime this year, neither the defendant, nor the public, knew that the two agents interviewing Flynn found him credible and did not detect any attempts at lying (and that Pientka had been dispatched the previous summer to a function where Flynn spoke to get a baseline for just this purpose).
                      – the prosecutors forced an unwaivable conflict of interest by threatening to charge his attorneys for a FARA violation. The deal struck by those defense attorneys included that the charges against them were dropped by Flynn pleading guilty.
                      – moreover, the prosecutors forced Flynn to commit perjury by stating that there were no side deals, when his guilty plea ended up getting FARA charges against his attorneys, and more importantly to Flynn, his son, dropped.

                      There is, of course, more. The point is that the Jensen investigation unearthed significant evidence that there was no legitimate criminal reason to have been investigating Flynn at the time, that his supposed misstatements were never material, and that both the FBI personnel and DOJ prosecutors violated multiple internal rules and ethical guidelines throughout the process.

                      How much of that did you know a year ago? How much did Flynn’s new attorneys know when they took over his case from the Covington attorneys, who appear to have ignored that unwaivable conflict of interest?

                2. Odd that USA Jensen thinks there is evidence and that it is new. Exculpatory material is evidence, and it is new to those who matter: The defense and the court. The evidence would be admissible but has not yet been admitted as a result of prosecutorial misconduct. As for evidence in the record, the plea hearing and subsequent hearings were extensive and on the record; ergo, there is “evidence in the record.”

            2. “The information cited as “new” in the motion isn’t new to the government.”

              OK, that’s just stupid. Yes, the prosecutors who were framing Flynn knew about the evidence that he was innocent, and that they were concealing it from the defense. (And the rest of the government.) That means that when they’re kicked off the case the rest of the government couldn’t drop the prosecution?

              Just stupid.

              1. Brett : “Yes, the prosecutors who were framing Flynn knew about the evidence that he was innocent”

                (1) What evidence Flynn was innocent? He lied to the FBI; he pled guilty to lying to the FBI.

                (2) How framed? Right up to signing with the Trump administration, Flynn liberally sold his services to governments around the world, including Putin’s Russia. He also repeatedly failed to follow transparency laws for U.S. citizens acting as a foreign agent. Flynn didn’t get U.S. military authorization for his Russia payout (as he was required to do), failed to register as a representative of foreign governments (as he was required to do) and failed to disclose payments from other countries (as he was required to do).

                All this was known by the time he became National Security Advisor. The worst of Flynn’s whoring would be discovered later by Mueller; no one then knew he sat-in on multiple meetings to discuss kidnapping a Turkish dissent. But even at the time it was clear Flynn had brazenly sold himself to foreign regimes and not disclosed all the details.

                So the first thing he does as NSA is talk to the Russian government (his old employer) and then lie about the call to multiple White House officials – including the Vice President himself. In what world wouldn’t that be investigated?

                (3) Flynn was allowed to cop a plea for lying to the FBI in lieu of facing multiple other charges. Remember : He broke every law on the books re registering as a foreign agent. There was even talk of conspiracy charges over the plot to snatch Gulen, given Flynn had attended a meeting to negotiate the price for his services for the kidnapping.

                1. “(1) What evidence Flynn was innocent? He lied to the FBI; he pled guilty to lying to the FBI. ”

                  For starters, that the interviewing agents didn’t think he’d lied.

                  (2) Yes, you’ve got him here. And you’ve got so many people in Washington on this that if you jailed them all the place would be a ghost town. I’m fine with going after them all. I’m a little less fine with letting them all go. Selective prosecution? Not so keen on that.

                  (3) Flynn was forced to cop a plea for lying to the FBI in lieu of them also bankrupting his family.

                  Bottom line here, the only thing they actually went after him on was lying, and that was a frameup.

                  1. Excellent. I haven’t seen the “Yes, he broke several laws but since I claim without evidence that everyone does it, and you clearly aren’t prosecuting literally everyone, that nobody can be fairly prosecuted for it” argument since grade school.

                    Brilliant piece of bullshit. You’re sixty fucking plus years old and this is your best argument? Christ.

                    1. Doesn’t matter, he wasn’t charged with that.

                      If you want to criticize bullshit arguments then that’s the most bullshit argument there is: If he wasn’t guilty of that then he was guilty of something else.

                    2. Kazinksi, maybe you should try following the discussion before adding your input.

                      Did anyone actually say he was being prosecuted for that? No. Therefore the discussion about whether he could be prosecuted for those things, and Brett’s idiotic argument against whether someone can or should be prosecuted for such behavior, is purely hypothetical.

                      And in Brett’s case, stupid.

                      Thank you for your worthless input based on poor comprehension.

                  2. Brett Bellmore “For starters, that the interviewing agents didn’t think he’d lied”

                    No, Brett; let’s give that nonsense a rest. The agents noted Flynn did not show signs of lying, which is entirely different from the established fact he lied. Let me walk you thru it : (a) Those same agents listened to the tape of Flynn’s conversation. (b) They asked Flynn about that conversation. (c) Flynn lied about that conversation. So what ya think? Flynn’s brazenness trumped the evidence of what they heard on the tapes?

                    Re (2) : I pointed to real grounds for concern about a man holding one of the most sensitive national security positions in the government – easily in the top-five. Granted, this was before evidence emerged just how sleazy Flynn is, but basis for an investigation was already amply present. You reply how? With some vague “everybody does it” style stuff. That’s stepping back quite a bit from your “framed” nonsense.

                    Re (3) : Yeah. Criminals get treated pretty poorly in the criminal justice system – I’ve noticed that.

                    Your last throwaway point attempts to regain ground lost in the vacuity of Response (2) above. As in: “I may not be able to defend it, but damn if I can’t keep asserting it” Go right ahead, but it’s got kind of a hollow sound.

                    1. “No, Brett; let’s give that nonsense a rest. The agents noted Flynn did not show signs of lying, which is entirely different from the established fact he lied. Let me walk you thru it : (a) Those same agents listened to the tape of Flynn’s conversation. (b) They asked Flynn about that conversation. (c) Flynn lied about that conversation. So what ya think? Flynn’s brazenness trumped the evidence of what they heard on the tapes?”

                      Let’s be clear about this: “Lie” and “Wrong” are not synonyms. It’s perfectly possible to say something that’s factually wrong, and not be lying. You could, for instance, have an imperfect memory.

                      Flynn had no reason to lie about a conversation he would have known was recorded. But unless you’ve got an eidetic memory, you’re going to make mistakes about what was discussed on the phone months earlier.

                    2. Flynn is hoist by his own petard, to wit: his admissions to the district court that he knowingly lied to the FBI.

                    3. Brett Bellmore : “you’re going to make mistakes about what was discussed on the phone months earlier”

                      You know, Brett, I’m a think’n you need to brush up on the timeline here. In just one month & two days, Flynn (a) lied to White House officials about the call, (b) lied to the Vice President about the call, (c) lied to the FBI about the call.

                      Sorry, but this wasn’t some hazy event of yore. Flynn was lying about this within days of the event. Also, please recall this call wasn’t idle chatter with a passerby while idly waiting for the A-Train. It was the National Security Advisor of the United States talking to the ambassador from the Russian Federation.

                      Supporting a politician, sir, shouldn’t require you be gullible & ill-informed.

                    4. Sorry. Still no evidence that Flynn lied to the two FBI agents – Strzok and Pientka. They believed at the time that he had been truthful. Pientka had even been dispatched the previous summer to hear Flynn speak to build a baseline for just that purpose. That is part of the evidence withheld until this year by the government. It had apparently been removed from the FD 302s submitted to Flynn’s defense attorneys under orders of DD McCabe.

          3. The chosen amicus Gleason has already indicated in a WaPo brief that he wants to see the defendant harmed.

            False — that’s not what the WaPo piece said — and also irrelevant. An amicus is not a neutral expert, so it doesn’t matter if he has opinions one way or the other.

        2. “amici are liberally allowed, even in criminal cases”

          At the trial court level? Maybe but I have read people on both sides saying it is unusual.

          1. I’ve not seen it at the trial court level, but I have seen special masters at that level.

            That is also not germane to Bruce’s concerns.

          2. Amici may be unusual at the trial court level, but I have seen them and they are permitted.

        3. No – amici are almost never allowed at the trial level in criminal cases brought in the federal courts. Allowed in the appeals courts (based on the record from the lower court) ? Yes. Very decidedly. But trial courts? Almost never.

          1. Bruce Hayden : “No – amici are almost never allowed at the trial level..”

            Bruce Hayden : “…Almost never….”

            If you’re suggesting this an unusual case, I think everyone will agree with you – beginning with Judge Sullivan and ending with the 2,000 former Justice Department and FBI officials who signed an open letter strongly critical of Attorney General William Barr’s decision to abandon the prosecution of Michael Flynn, calling his action “extraordinarily rare, if not unprecedented.”

            As in “almost never”, eh?

        4. Yes, amici are often allowed. “Allowed,” because they are interested parties who request the opportunity to provide additional information that may assist the court. In this case, the court appointed a specific amicus and directed them exactly what arguments to raise. That’s not allowing an amicus, that’s appointing a new prosecutor, which is not allowed.

          1. You are completely wrong. Judge Sullivan instructed Gleeson what issues to address, not what arguments to raise. And that’s not being a prosecutor; that’s being an amicus. The Supreme Court itself routinely appoints someone to argue one side of an issue when one of the parties isn’t willing to.

            1. David, he told him to address an entirely new criminal charge not raised by the actual prosecutors. In what way is that not appointing his own prosecutor?

              1. He did not instruct Gleeson to comb through the U.S. Code to find something to charge Flynn with; he would indeed not have the power to do that. But judges have the inherent power to punish contempt. That is not being a prosecutor; that’s part of the judicial function.

        5. Amici are liberally allowed in civil cases, not in criminal cases. The judge is stretching this case out. As for not bringing harm to anyone….lawyers are not cheap. Every time the judge refuses to end this case, it costs the defendant more money. I have had opposing counsel accuse me of using the process to punish their client. That sure as heck looks like what Judge Sullivan is doing to Ryan.

          1. I’d have more sympathy for your position if it wasn’t the defense, making all the motions to dismiss etc. Flynn could have taken his chances at the first sentencing hearing then appealed the sentence. By now at the very least he would have been pardoned.

          2. Yeah, this is crap. It’s hard to deny that this is a case with some serious stuff going on, it’s not abuse of process to want to look into it, and if the DoJ refuses to do their part…

        6. “Asking for more information and opinions doesn’t bring harm to anyone.”

          Yes it does. At a minimum it increases Flynn’s legal fees, and delays his case’s dismissal (which I think id the inevitable result).

          It also causes continuing mental anguish for Flynn.

          Those are “harm,” aren’t they?

      2. It’s true that criminal litigation is between the government and the defendant.

        It would be wrong, for example, for the defendant to accept a guilty plea offered by an amicus purporting to stand in the shoes of the defendant. Likewise a trial court ought not permit an amicus to file a superseding indictment on behalf of the prosecution. That would be elevating a would-be friend of the court to the status of a litigant before the court, and in the defendant’s case, in criminal jeopardy.

        But that’s not this. Nothing any amicus says is binding upon the court in the same way as filings and other in-court actions by the litigants might be. If your argument were correct, Mr. Hayden — and it’s not — then no amicus brief could ever properly be received.

        1. Bah. Apologies for an editing error above. I meant to write: “It would be wrong for the court to accept a guilty plea offered by an amicus purporting to stand in the shoes of the defendant.”

    2. “Indeed, the very multitude of opinions would seem to mitigate towards an in-depth inquiry.”

      Would that have been true for the 24 times that the judge previously refused to do so in this case? Do new circumstances call for new practices?
      A question for you. Defense motions must be truthful right? I mean, they can’t be purposefully untrue right? The motions to dismiss are pretty damning to the prosecution, even if only half of the claims are correct.

      1. Refused to do what?

        I’m not talking about the merits; I’m going to wait until the judge actually rules on the merits before I have an opinion on that.

        1. Judge Sullivan has repeatedly and publicly refused amici briefs. I don’t think its 24 times, though.

          The idea that he would suddenly reverse course and ask for them for the prosecution after repeatedly denying them from the defense smacks of judicial misconduct. Sullivan’s prejudgement of the case was extreme from the beginning. The fact that he has essentially hired his own prosecutor is mind-boggling.

          1. Reversing course is a judge’s prerogative. It does not smack of misconduct.
            And one must admit the facts on the ground changed pretty materially.

            Our system is designed to be adversarial. Until he finally rules, attacking Sullivan for making an inquiry smacks of being objective-oriented.

            1. On the other hand, a judge hiring his own defense attorney to defend his actions before the circuit court looks like he’s worried about misconduct

              1. No – it’s how you deal with a mandamus like this. You want him to represent himself?

                1. Why would he be unable to explain his own reasoning for his decision? There isn’t a criminal or even civil prosecution of him ongoing. The appelate court is asking him “Why, exactly, are you doing this?” He is the only one who WOULD know and he needs outside counsel to explain?

                  I’ve never once heard of a judge hiring outside counsel to answer questions posed by a superior court. Can you cite an example of it happening?

                  1. 1) hiring an attorney is never evidence of guilt. FFS.
                    2) One should not represent oneself
                    3) You don’t get to decide if it’s an easy order.

                    I’ve not heard of anything like this, but it’s definitely not worth an adverse presumption, unless you’ve already made on and are looking to rationalize.

                    1. 1) It’s not “evidence”. But it looks very odd, and somewhat suspicious in these circumstances.

                      Let’s run an analogy. You’re a junior associate at a law firm. You make a number of decisions on a case. Your boss brings you into her office and asks “Explain yourself on why you made these decisions”. You then say “One second, let me bring in my defense attorney to answer for me”.

                      2) Judges “represent” themselves all the time in these types of situations.

                      3) You’ve still not provided an example.

                    2. 1) You’re doing the equivalent of arguing that taking the 5th means you’re guilty. Or attacking defense attorneys for doing their job. Do better.
                      This is not an inter-workplace review. If your partner were a judge asking you in their official capacity that’d change the situation.

                      2) It doesn’t matter what judges do all the time, insisting a judge must represent themselves is bad business.

                      3) Read my final paragraph above once again.

                    3. “1) hiring an attorney is never evidence of guilt. FFS.
                      2) One should not represent oneself
                      3) You don’t get to decide if it’s an easy order.”

                      He’s accused of nothing.

                      He’s being asked WHY he ruled as he did. Which, you know, a judge should know. Is it common for judges to lawyer up when a court asks them to explain their decision?

                      I’ll note — if it was, you could cite an example.

                    4. What are you arguing with you ‘this isn’t common’ point, damikesc? That this shows the judge is surely guilty of something, or that the judge shouldn’t be allowed to retain counsel? Or some third point?

                      Because at this point all I’m seeing is frantic hadwringing, with no thesis at all.

                    5. I think the point here is that the judge should not need assistance of counsel merely to explain his own actions. He should be able to adequately explain them, or else he shouldn’t have taken them.

                      The only way this makes any sense is if he thinks he’s placed himself in some legal/professional jeopardy already, and needs help navigating it.

                      And, yes, retaining counsel does not legally amount to a confession of guilty. As a practical matter, though, people can draw inferences from it, and probably should.

                2. As Damikesc notes.

                  “I’ve never once heard of a judge hiring outside counsel to answer questions posed by a superior court. Can you cite an example of it happening?”

                  1. So what? He’s entitled to the best representation.

                    1. Why exactly does he need “representation”?

                    2. Because he is the Respondent in a court proceeding.

                    3. He’s entitled to the best representation.

                      At whose expense?

                  2. Ordinarily, DOJ would represent a judge who was respondent in a mandamus case. That’s obviously not going to be possible in this case.

                    Personally, I hope the court of Appeals hands Sullivan his head, but I don’t see any problem with his seeking counsel before the fair hearing that leads to that happy outcome

                  3. “I’ve never once heard of a judge hiring outside counsel to answer questions posed by a superior court. Can you cite an example of it happening?”

                    Yes, I can.

                    1. Thank you for the example. Much appreciated. However, the full case would’ve been better than a twitter posted page shot. and indeed tells a little bit of a different story

                      https://law.justia.com/cases/federal/appellate-courts/ca7/09-2264/09-2264-2009-07-10-opinion-2011-02-25.html

                      Notably, the court was not simply asking questions. In the case you have cited, the government was actively seeking that the Judge recuse from the case for bias as well as violations of the rules and procedures. (The judge was removed).

                      Now, the government has not, to my knowledge, demanded the Judge in the Flynn case recuse himself. But, that may be coming, perhaps, based on the judge’s unusual actions. Perhaps the judge is just anticipating being asked to recuse himself, and jumping the gun?

                    2. Nice new goalposts, AL.

                    3. Dear Sarcastro,

                      You may have missed it, but the goalposts didn’t change. David didn’t actually give a correct example.

                      He gave an example for a different situation, when the government demanded the judge recuse themselves. Not when the judge was simply asked to explain their reasoning.

                    4. You may have missed it, but the goalposts didn’t change. David didn’t actually give a correct example.

                      Except I absolutely gave a correct example. The question was whether a judge ever hired outside counsel to answer questions posed by a superior court. I cited a case where a judge hired outside counsel to answer questions posed by a superior court. Whether the question was whether the judge should recuse himself or not is unimportant. (You know that recusal is not an accusation of wrongdoing, right?)

                      And of course most requests for mandamus relief involve recusal issues, because most other issues are not suitable for mandamus. And most other such times, the appeals court does not need to hear from the judge because one of the litigants will defend the judicial order being questioned.

                      So you’ve basically asked, “Prove to me that something happens, but only in situations that I’ve so narrowly defined so they never come up.”

                    5. David,

                      No, you did not give a correct example. A demand a judge recuse themselves from a case by the prosecution is not the same as a request from the circuit court that a judge explain their reasoning.

                      This may be a rare case. But that doesn’t excuse you giving an incorrect example of it happening.

                    6. AL, this is written down right here, chief. And requoted as well.

                      Old goal posts: As Damikesc notes.

                      “I’ve never once heard of a judge hiring outside counsel to answer questions posed by a superior court. Can you cite an example of it happening?”

                      New goal posts: A demand a judge recuse themselves from a case by the prosecution is not the same as a request from the circuit court that a judge explain their reasoning.

                      Own it.

                  4. I don’t have a problem with the judge hiring outside counsel. I once represented a judge in a mandamus action to the Ohio Supreme Court (though I was working as an assistant prosecuting attorney in that county at the time).

                    1. Would you be willing to tell us why the judge hired outside counsel? Was it simply to respond to a request from the circuit court for an explanation?

                    2. AL, are you arguing that a judge has no right to retain counsel when before a court?

                      Or that we should make an adverse assumption when a judge hires a lawyer?

                      Looks to me like for all your ‘anyone who disagrees with me hates criminal justice reform’ rhetoric, you’re quite willing to do a great deal of violence to the rule of law to defend your guy.

            2. “And one must admit the facts on the ground changed pretty materially.”

              The changed facts are prosecutorial confession of significant wrongdoing against the defendant.

              Hell, when they said “We lost the 302’s”, Sullivan’s response was that “Stuff gets lost. It happens”. In what other criminal inquiry would the prosecution admitting they lost key documentation that served as the backbone of their case be excused by a judge by “Stuff gets lost”?

              1. That’s one way to see the changed facts. Some see it another way.

                As for forms getting lost, that happens all the freaking time in cases, and is excused all the time. I saw it in my brief stint at prosecution clinic myself.

                1. “That’s one way to see the changed facts. Some see it another way.”

                  The other way is…what?

                  The prosecution ADMITS they did it. There isn’t another way to view it in a CRIMINAL trial.

                  “As for forms getting lost, that happens all the freaking time in cases, and is excused all the time. I saw it in my brief stint at prosecution clinic myself.”

                  Feel free to cite a case where a prosecutor loses a key piece of evidence and the court basically gives them a pass. This would be a blatant violation of the defendant’s rights in such a case.

                  From “fruit of the poisoned tree” to “well, shit happens”. Lovely.

                  1. The other way is that this is a bad faith political decision. Doesn’t take a lot to find signs of that. Look at all the prosecutors who wouldn’t sign the memo.

                    You think the form is a key piece of evidence in this case? That’s not how the DoJ presented it’s withdrawal. And you’re rather begging the question, no?

                    1. What part of the documents handed over to the defense after long delays indicates that there WAS NOT unfair treatment of Flynn?

                      The FBI says he lied to agents. The form where the lie “occurred” would be, you know, KEY evidence.

                    2. The burden for spoliation is high, and definitely not met here.

                      The DoJ, and Flynn, both said he lied to agents. The DoJ argues it wasn’t material.

                    3. “The burden for spoliation is high”

                      The burden for spoliation is high? That’s your response when the FBI goes to extraordinary lengths to delete from their archives a document central to a prosecution?

                      So high it can’t ever be met, I guess you mean.

                    4. Turns out we’re not sure that happened Brett.

                      Your response to my stating what the law is? Pound on the table and appeal to outrage.

                      Weak.

                2. Yes, forms get lost. But they lost the only real evidence of the alleged crime. Or, to probably be a bit more accurate, it was very likely deliberately deleted by FBI top management. The FBI apparently has a change management system for controlling changes to FD 302s. Original 302s are supposed to be filed w/I 5 days of an interview. SA Pientka apparently filed them later in the day of the interview. That copy, seen the next day by DAG Yates, is the one that went missing. But that would require deletion from their Sentinel change management system and that would require top level credentials. Probably Director or DD credentials. And that too should have bee documented.

                  Let me add that part of the 5 day rule for filing original 302s is to make them admissible as an exception to the Hearsay Rule. Neither of the sets of 302s provided the defense would be admissible, because they wouldn’t qualify under that exception. Rather, they would be inadmissible hearsay. And the prosecution couldn’t really correct this problem by putting the agents involved in the stand to testify as to theIr contents, or what happened at the interview because that would open up the question of where the original 302s had gone, as well as the fact that the lead agent, Peter Strzok, had been fired by then for cause.

                  Bottom line is the only admissible evidence of Flynn’s guilt was lost, and most likely intentionally destroyed, by the government (I.e. the FBI).

                  1. Very likely. Sure. Keep speculating; you’re in deep.

                    1. Have you ever had to dismiss a criminal case because your evidence was F’ed up by someone else? I have.

                    2. I haven’t. That sounds like it sucks.

                      But that has little to do with Bruce spinning out a whole conspiracy out of half truths and ‘likely’ suppositions.

                  2. And, normally, were the destruction on the other side of the case, spoliation would be invoked, and the presumption would be it was destroyed because it was harmful to their case.

                    I see no reason the same shouldn’t be done here: Destroying the original 302 should be taken to indicate that it proved his innocence, not his guilt.

                    1. Seeing Brett and Bruce discuss law is like watching two squirrels provide exposition on the Aeneid while juggling flaming chainsaws.

                    2. No such presumption arises in federal courts when evidence becomes unavailable, even evidence favorable to the accused. Bad faith is required to be shown.

                      Are you seriously contending that Flynn did not lie, notwithstanding his admissions of doing so? Even if it was not documented in a 302, the agents could testify to having heard Flynn´s account, having compared it to the audio tape, and having observed the discrepancy.

              2. The changed facts are prosecutorial confession of significant wrongdoing against the defendant.

                They did no such thing. Barr was very careful not to do that, because he knew that it would result in Sullivan having extensive hearings on the subject, and that’s not what Barr wanted. He wanted it swept under the rug.

                Hell, when they said “We lost the 302’s”, Sullivan’s response was that “Stuff gets lost. It happens”.

                The problem is, you’re lying. Or more likely you didn’t bother to do your own research and are just repeating someone else who lied to you.

                The DOJ didn’t say that — never said that — and Sullivan didn’t respond to the thing they didn’t say that way. Sullivan made an offhand comment at a court conference about allegations of missing documents, and then said that he’d wait to hear from the government about those allegations. After he heard from the government, he ruled that the defense had gotten everything and that there were no mysterious missing 302s.

                1. Oh, damn. I had not cottoned to the fact that there are no missing forms.

                  1. “There are no missing forms” in the sense that the forms exist, but there are in the sense that the evidence indicates that the original versions of them were deleted from the system after they were altered. Despite the system being designed to prevent exactly that from happening.

                    Unfortunately, and too typical of government evidence destructiondata retention systems, the system wasn’t quite designed to make that impossible, just to require permission from somebody high up.

                  2. Because there are missing forms. What DN keeps falsely claiming are the original 302s are actually a 302 written months after the interview (after editing by Page and unknown others), or the 302 written during the exit brief of Strzok – again, months later.

                    The DoJ has claimed that the Mueller team had the originals, and they lost them. This is a statement they made in court. DN is conflating the different documents.

                    1. a 302 written months after the interview

                      No. That is completely untrue. The 302 was dated the day of the interview (January 24) and then filed on February 15.

                      Even if you pretend or contend the filing date is what matters, February 15 – January 24 is 3 weeks, not “months.” You don’t know what you’re talking about.

          2. The difference, imo, is that, with previous amici, the parties themselves adequately represented both sides of the debate. He’s accepting an amicus only to take a side not advocated by the parties.

            1. The “problem” is that the defendant has rights. The judge has stretched this case out; litigation is not cheap and this is a burden to the defendant. Not to mention the emotional stress. Have you ever been sued or been a defendant in a criminal case? It’s not fun. Thankfully, I never have…but I have represented defendants and it is stressful to the extreme.
              At some point, a defendant has a right to insist that the case against him end, especially if there are problems with the evidence held by the prosecutor.

          3. He refused amici because the parties were in contention.

            Powell praised him for appointing a Special Master in the Enron or Stevens case.

        2. Sarcastr0, you might find this incredible…but I happen to agree about this = I’m going to wait until the judge actually rules on the merits before I have an opinion on that

          I re-read the comments under the rule 48e posting a while back. In particular, ‘Beldar’ and ‘Dilan Esper’. We may (emphasis on may) actually have an exception on our hands. But…

          Doesn’t the entire question of dismissal turn on the question of prosecutorial misconduct and the Brady material?

          1. You and I actually agree on a lot, especially on procedural questions like this one.

            The DoJ is not dismissing based on a Brady violation, no. It’s much more fuzzy than that – as I understand it they’re saying that upon review Flynn’s lies were not material, and so there should never have been a prosecution.

            1. Yep, it turns out there wasn’t a crime after all to convict Flynn of.

              Think of it like convicting someone for murder, then the murder “victim” shows up afterwards, just fine.

              The prosecution might say…Well, there’s no crime here. We were wrong to prosecute. We need to drop the charges.

              1. A.L. — Murder is a state offense, state rules, but what do bar ethics rules say about the victim walking into the courtroom and a judge refusing the motion to dismiss?

                There is also this: https://sidneypowell.com/wp-content/uploads/2020/05/USCA20-5143-Doc.-1844061-BRIEF-for-the-STATES-as-AMICI-CURIAE-SUPPORTING-PETITIONER.pdf

                1. Murder can also be a federal crime. Regardless, state or murder, the analogy stands.

                2. but what do bar ethics rules say about the victim walking into the courtroom and a judge refusing the motion to dismiss?

                  Bar ethics rules don’t say anything about judicial conduct.

                  And Judge Sullivan hasn’t refused anything. He’s holding a hearing on the motion to dismiss.

                  1. And should the judge dismiss if the government says “There hasn’t been a crime”? Use a clear cut example, for example the murder analogy above, if you wish.

                    1. No. Because otherwise ‘leave of the court’ is a nullity.

                      But a similar, albeit more narrow question, is part of what the judge is determining, and part of why he got a learned amicus.

                    2. Sarcastro,

                      So you’re telling me that if the government gets a guilty plea out of someone for murder and then the murder “victim” literally walks into the courtroom alive and well.

                      And the government goes “We made a mistake, there’s no crime here, please dismiss the case.” And the defense goes “Yes, dismiss the case, my client wishes to withdraw their guilty plea”

                      The judge should NOT dismiss the case? Are you freaking insane?

                    3. AL, look at how far your hypothetical has wandered.

                      I leave why as an exercise for the reader.

                    4. The hypothetical was the OP in this subthread. There’s no wandering.

                      You simply appear to think that people convicted of crimes that don’t actually exist should still suffer. Which is cruel and unusual.

                  2. Um, OK. But that hypothetical is not germane to the discussion on this thread about leave of the court’s general meaning.

                    And screw your saying I don’t care about criminal justice. First, this thread is about what the law IS, not what it ought to be. Second, you are begging the question. I think in this case the DoJ is taking a dive at Trump’s behest.

                    Making exceptions to practice is not how you get reform.

            2. Yeah, I tend to be a hard-ass on rules…just ask my grown children. 🙂

              This one is really strange. This judge has been in the middle of some interesting cases, and he’s seen up close how prosecutorial misconduct can occur (trial of Senator Stevens). Maybe there is some public interest tie here that escapes me.

              Personally, I think the process just has to play out. I have to believe that our system is designed in such a way that it will work out in the end.

              BTW, I also think your prediction – Judge Sullivan will write a grumpy dismissal – will come true.

              1. I agreed with Sarcastro too about the grumpy dismissal, but now I am not so sure.

                Sullivan has clearly taken sides and escalated the matter.

                1. What’s changed since last week?

                  1. Nothing, he’d clearly taken sides last week.

                    1. Kevin seems to have become convinced between now and then. The only thing I’ve seen change is the amount of right-wing dungeon being thrown down the course.

              2. He is also 71 — Massachusetts requires judges to retire at age 70, I believe other states are similar, and it’s always possible he’s “lost it.”

                1. “He’s 71, and therefore not a stable genius like my 73 year old orange hero.”

                  FTFY.

          2. The district court has already rejected the defendant´s Brady claims. In any event, the remedy for a Brady violation is a trial with the exculpatory material presented to the trier of fact.

    3. Just at the beginning of the month Kagen issued a issued a unanimous opinion saying judges should limit their rulings to the arguments made by the parties and are not permitted to appoint amici to make the arguments the justices would like to hear.

      From Scotusblog:
      Opinion analysis: Lawyers should lawyer, judges should judge – The court remands Sineneng-Smith
      GABRIEL CHIN MAY 7, 2020 4:24 PM
      The Supreme Court today resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the U.S. Court of Appeals for the 9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties.”

      The Flynn guilty plea was invalid, both parties agree, and there is clear evidence from Covington emails that there were terms undisclosed to the court as required, namely that Michael Jr. would not be prosecuted if Flynn plead guilty. Covington’s emails also show that Flynn was asserting his innocence up until the DOJ started threatening his family. He can’t be charged with perjury (especially by the judge)for succumbing to improper threats like that.

      Without the guilty plea the DOJ has no case, even if their contention the “lies” weren’t material are rejected. If Sullivan doesn’t dismiss, then the alternative is a trial, and the DOJ would have to go to trial with the improperly edited 302, Strzok and Page explaining to the jury what and why they altered it, or taking the 5th.

      But under Sineneng-Smith, appointing amici to make arguments that the judge wants to hear because the parties aren’t making them isn’t an option.

      1. Just at the beginning of the month Kagen issued a issued a unanimous opinion saying judges should limit their rulings to the arguments made by the parties and are not permitted to appoint amici to make the arguments the justices would like to hear.

        False.

        1. Another issue may be that the DOJ is trying to get out of this case before it has to admit to serious wrongdoing by the prosecutors. As a former prosecutor, I say let them pay the price for their errors. If they were in good faith, let them be. It would not be the first time that the “client” (in this case, the FBI) did not disclose everything to the litigators handling the case.

          1. I’d get behind that. Really dig into what the FBI policies and practices are.

          2. That’s bullshit. Saying that FBI wrong-doing doesn’t implicate the prosecution because you can’t prove the DOJ knew is not a serious argument. If the case is flawed it’s the government’s case, not just the attorney who is making the arguments now.

            1. You’re conflating the issue of whether the defendant’s rights were violated/whether the government collectively did something wrong with the issue of whether the prosecutor did something wrong.

              If a police officer plants drugs on someone and then “finds” them and the person is arrested and prosecuted as a result, then the person’s rights have been violated. And the police officer and government did something wrong. But the prosecutor didn’t, if he had no way to know that the cop had done this.

              (To be clear, I am speaking abstractly; I am in no way arguing or conceding that this hypothetical is analogous to the current situation.)

          3. Another issue may be that the DOJ is trying to get out of this case before it has to admit to serious wrongdoing by the prosecutors.

            Almost, but not quite. The DOJ is trying to get out of this case before it has to concede that there was no serious wrongdoing.

            We know from the fallout of the Stevens prosecution that Sullivan would reinstate the Spanish Inquisition to go after the prosecutors if they had actually done something wrong. But that would involve an independent inquiry, not controlled in any way by Trump/Barr. They are desperate to avoid that, because then their whole Made For Twitter conspiracy theory falls apart.

        2. False? I guess I had one detail wrong: it was Ginsburg’s opinion, not Kagen’s.

          Tell me what else I got wrong:
          “Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.
          The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”
          … vacated and remanded.
          GINSBURG, J., delivered the opinion for a unanimous Court.

          1. That wasn’t the main “detail” you got wrong. The main detail you got wrong was your claim that the court said that “appointing amici to make arguments that the judge wants to hear because the parties aren’t making them isn’t an option.” That isn’t even close to right. That’s the only reason to appoint an amicus, and Sineneng Smith went out of its way to explain that appointing amici is perfectly fine. What the Ninth Circuit did wrong in Sineneng Smith is that it appointed amici to raise issues — not make arguments — that the parties did not. But that’s not remotely applicable here. The government’s motion raised the issue of whether dismissal was appropriate. That’s what Sullivan appointed Gleeson to address.

            (You also got wrong the claim that “If Sullivan doesn’t dismiss, then the alternative is a trial.” The alternative is sentencing Flynn. There’s no need for a trial because Flynn already pleaded guilty. You also got wrong that there was an “improperly edited 302.”)

        3. That’s helpful, DN, why don’t you elaborate?

          You’re right, “false” because it was GInsberg, not Kagan.

          “One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … 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.””

          1. That’s helpful, DN, why don’t you elaborate?

            […]

            and when [cases arise, courts] normally decide only questions presented by the parties.””

            Sullivan is deciding a question presented by the parties.

  2. This case is important no matter which side of the political aisle you are on. This was Federal court, so Flynn was required to swear when he pleaded guilty that he did so without coercion, and with full knowledge of the consequences of his action. If that wasn’t true then Flynn did indeed commit perjury.

    What Judge Sullivan must determine is whether a) political influence by the Trump administration prompted the Justice Dept’s decision to drop the case, or b) whether prosecutors withheld exculpatory evidence and coerced a guilty plea.

    1. ” b) whether prosecutors withheld exculpatory evidence and coerced a guilty plea.”

      I am pretty sure Sullivan knows this – which begs the question as to what is his motive.

      AS Damikesc below notes – “Don’t get how a court can get around a prosecutor confessing to misconduct in continuing a trial. This seems to be Sullivan’s goal.”

      1. Exactly — and isn’t a judge supposed to say something when he sees proprietorial misconduct?

        1. This judge has said something: Every time evidence of prosecutorial misconduct has surfaced, this judge has raged at the defendant.

          1. I know — and aren’t there ethical rules as to what the judge should be doing?

          2. There has been precisely zero such evidence in this case.

            1. Denial ain’t just a river in Egypt. But it’s still not an argument.

            2. David Nieporent
              May.26.2020 at 1:57 pm
              “There has been precisely zero such evidence in this case.”

              Curious David – what planet have you been living on the last couple of years?

              1. The one where there hasn’t been any evidence of misconduct.

                To be sure, there has been evidence of things people disapprove of (but only, of course, when applied to Flynn), such as not recording interviews, not giving warnings about lying to them, not encouraging him to get a lawyer, prosecuting for lies that didn’t affect the investigation because they already knew the answer, etc. And I share those sentiments, and would be happy to see them changed as a matter of policy and law. But doing these things now, when there are no laws against them, doesn’t constitute “misconduct.”

                1. “There hasn’t been any evidence of misconduct.”

                  Then proceeds to recount some of the misconduct. But only some of it. Deletion of the original version of the 302 form is pretty serious.

                  1. As DMN noted, there is no evidence of the deletion of the 302.

                    I don’t know if he’s correct, but I would like to see evidence of that now.

                2. What about agreeing to drop an investigation into person B if person A pleads guilty? If the FBI/prosecutors had any evidence the Michael G. Flynn (Flynn’s son) was involved in anything illegal it should pursue that investigation REGARDLESS of whether Flynn senior pleads guilty or not. What seems more likely to me is the FBI/prosecutors told Flynn senior either plead out or we’ll hound your son until we find something–and they can ALWAYS find something. Does that sound like misconduct to you?

                  1. A hypothetical situation in which the government threatens to charge someone who hasn’t committed a crime would indeed sound like misconduct. A situation in which the government threatens to charge someone who has committed a crime, on the other hand, falls in the things-people-disapprove-of-only-when-happening-to-Flynn-but-that-aren’t-misconduct category.

                    Setting aside that Flynn swore under oath that there wasn’t any deal to protect his son, why are people so sure it happened that way rather than the reverse? The FBI investigates Flynn and his son; prosecutors come to Flynn’s attorneys and say, “We’re going to charge your client with such-and-such,” and Flynn says, “I’ll plead guilty and cooperate with you if you leave my son alone.”

            3. Two completely non-responses to DMN’s note that so far Brett’s just made a bare assertion without backing it up.

            4. David, you are unhinged. You are so partisan that you are completely blind to the obvious, overt, PROVEN prosecutorial misconduct. Have you read ANY of the recently released documents? Or even the footnotes and exhibits in She’s motion to dismiss? Holy cow.

              1. ThePublius, DMN makes a distinction between what should be misconduct and what is misconduct.

                And I have read analyses of the recently released documents…there is nothing new there.

      2. He knows there wasn’t any exculpatory information withheld.

        He also knows the other charges Flynn avoided by pleading guilty, and the evidence that supports those. They aren’t mentioned in the Barr-O’Shea motion, just as that motion fails to explain how information the DOJ had weeks ago when it said the opposite is somehow new.

        1. “He knows there wasn’t any exculpatory information withheld.”

          Yes there was:

          “New court documents filed under seal include significant exculpatory information about Michael Flynn, President Donald Trump’s former National Security Adviser, an FBI official familiar with the situation told The Federalist on Friday. ”

          https://thefederalist.com/2020/04/24/newly-filed-court-documents-include-exculpatory-evidence-for-michael-flynn/

    2. “a) political influence by the Trump administration prompted the Justice Dept’s decision to drop the case, or b) whether prosecutors withheld exculpatory evidence and coerced a guilty plea.”

      It’s not an either-or. It’s perfectly possible that prosecutors withheld exculpatory evidence, and political influence by the Trump administration caused them to move for dismissal on that basis.

      1. That sounds like a plausible scenario: the Trump DOJ has come to realise that exercising political influence was wrong.

        1. The Obama DOJ probably knew this too, but being staffed by Eric Holder, the most racist and partisan Attorney General in a along time, saw political prosecutions as a feature, not a bug.

    3. First, the claim is that the Justice Department threatened to prosecute his family if he didn’t plead guilty. Do you think that’s not coercion?

      Secondly, can you think of a single case where a guilty plea has lead to a perjury charge? That’s almost never done, even in the classic false confession to protect a family member.

      Finally, the fact is simple. He did lie, but the questions should never have been asked. The questions were deliberately being put forth after the case was wrapped up with the clear and explicit purpose of coercing a lie so he could be either fired or prosecuted. Furthermore, the matter under discussion was well within the scope of his authority to discuss with the Russian ambassador.

      1. “Finally, the fact is simple. He did lie, but the questions should never have been asked. ”

        The interviewing agents didn’t even think that. They though he’d suffered a failure to have perfect memory. That’s why that stupid “302” form had to be rewritten over and over.

      2. FWIW, threats to prosecute others isn’t considered any more coercion than threats to add an additional charge. Factually, I agree that they shouldn’t be the same thing (and that plea bargaining about a third party should be unethical), but the US Supreme Court has explicitly affirmed the practice.

      3. And, no, it isn’t clear that Flynn lied at all. That claim was based on the heavily edited FD 302s, with since fired DD McCade overseeing and approving the changes. They couldn’t show actual lying. All that they could show was that Lynn claimed not to remember. And the two interviewing agents found him credible at the time. That latter is part of what was removed from the 302s on DD McCabe’s orders several weeks later.

        As a reminder, McCabe is the one who set up the §1001 perjury Trap in the first place, by bypassing long established DOJ/FBI protocol to go through the WH Council’s office to set up interviews of WH staff, by telling Flynn he didn’t need a lawyer, lying to him about the purpose of the meeting, directing that the agents not give Flynn a §1001 warning about lying to them, and to keep him unguarded and unsuspecting as they interviewed Flynn. All over the objections of CD AD Priestap, and behind the back of the DOJ that didn’t discover it until that evening. BTW the same DD McCabe, whose wife had taken almost $750k in campaign contributions put together by long term Clinton bagman, Terry McAuliffe.

        1. Once again, most of those facts are completely made up.

          1. Then provide evidence. You post a lot, claiming others are lying, but even when links to court documents are provided to you, you just ignore it.

            1. It’s Bruce’s responsibility to prove his bullshit is actually true, rather than the other way around. He’s the one making factual claims, so it’s his job to prove them when questioned.

              1. This is a comment thread on a blog, not a court of law or a panel of scientific inquiry. Bruce’s assertions are well know, and well documented. David just says “not true” or “completely made up” or “lie” when things don’t fit his narrative, in a terse, contrarian, and annoying manner.

                1. David is generally correct, while Bruce is generally a liar.

                  The burden of proof is a philosophical subject, and is not constrained to courts of law or scientific panels.

                  If you can’t handle the idea that you should be able to prove your point when challenged, then just STFU and know that people aren’t going to believe what you say or give two fucks about how strongly you argue that you don’t have to prove anything you’re arguing.

                  1. David is the one who is generally lying, and doesn’t ever offer any evidence to support his assertions.

                    And, I’m not saying one need’t prove their point; Bruce substantiates his assertions, David does not.

                    1. Bruce has substantiated nothing. ALL of his posts in this thread are ipse dixit.

          2. most of those facts are completely made up

            By jove, you’re right! It was $675k, which is not even in the same ballpark as “nearly $750k.”

          3. David, your refutations of these assertions are total lies. You lie like a rug. You always say others are lying, but you never reference any of the evidence they provide.

            1. Awesome and substantive post.

              You think he’s lying, provide evidence to backup the folks he says are lying.

              1. Gee, interesting that you never reply that way to David’s one-liners accusing others of lying.

              2. I’m going to use that line!

      4. The claim is they threatened to prosecute his son, who worked for Flynn and his company and was part of his crimes in being an unregistered foreign agent and plotting to kidnap a legal resident of the U.S.

      5. As much as I hate to say it y’all, while losing the original 302s are pretty bad, think about what you are saying.

        You are accusing the FBI agents of deliberately, clearly, and explicitly committing perjury on a tracked system where data can be found and where contradictory testimony existed. I’m not buying that without proof.

        Secondly, while losing the original forms means there was no contemporaneous record, the new forms are essentially a deposition of the agents. They are eyewitness testimony. Now, it is weaker, and I definitely think the loss of data is frustrating, but trying to act like the loss of these forms is an automatic win just isn’t true.

        1. Yes, we are precisely accusing them of that. On a tracked system where data can be found, and, evidently, deleted, too. Since it was.

          Look, the only plausible reason for the 302 system is to permit the FBI to commit perjury. Relying on notes hand written after the fact, when recording devices exist, are cheap and ubiquitous? Give me a break: The 302s exist so that they can be falsified.

          1. I am surprised that the FBI is still allowed to use this procedure. I’ve seen cases in state courts where the lack of an audio (or video) recording was grounds for excluding evidence.

      6. I believe the point is if this judge doesn’t pursue the truth we’ll never know what it is. We can speculate, like we know all the pundits will, and we can get statements from “high-ranking justice department officials,” etc., etc. But none of that will carry the gravitas of a federal judge getting past the pond scum.

    4. Why should political influence be relevant in dismissing the case, but not I filing it in the first place?

      The reality is that the prosecution in the first place was completely politically motivated:
      1) The two FBI agents who interviewed Flynn in the first place didn’t believe that he had lied to them.
      2) At the time of the interview, there was no longer a factual basis for investigating Flynn. The DC Field office had done their research, and determine that there were no facts that they could find justifying them keeping open the Crossfire Razor (Flynn), and put it the paperwork to close the investigation.
      3) This was overruled by their supervisor, CD DAD Strzok, on orders from the “7th Floor” – specific orders by either Dir Comey and/or DD McCabe. No justification was ever given, no facts ever provided, to support their decision, thus showing the political leadership of the agency making what was very apparently a political decision to continue the investigation. Let me reiterate, at the time of the interview there were no known, then or now, facts that would support the investigation of Flynn.
      3. The private handwritten notes by CD AG Priestap show that those involved (At a minimum, McCabe, Page, Priestap, Strzok, Pientka) knew that there was no legitimate investigatory reason to have The two FBI agents (Strzok and Pientka) interview NSA Flynn at the White House, but rather it was for the purpose of getting Flynn jailed or fired in effectively a perjury trap.
      4. The DOJ decided, with the concurrence of Obama Administration holdover, DAG Yates, shortly thereafter, not to prosecute Flynn for lack of evidence, for Logan Act, FARA, or §1001 lying to federal officials violations. One of the reasons cited was lack of evidence.
      5. This was ignored by the Mueller prosecutors well after they knew that there had been no Russian collusion by Flynn, Trump, or any in Trump’s campaign.
      6. The entire Mueller special counsel investigation violated DOJ rules and the statues supporting such. It was not based on any actual questions of fact, but rather on political research and fake evidence funded and pushed by Trump’s political opponent, and almost completely discredited by the time that Mueller was appointed. The DOJ knew that there was no credible evidence supporting the appointment of Mueller, but the public didn’t. And that was what was important. Other than Mueller, it was staffed by strident political operatives as prosecutors, led by Andrew Weissman, who had attended what was supposed to have been Clinton’s victory party.

      1. None of what you just wrote is true.

        Get out of the idiot rightwing bubble.

        1. At this point denial ain’t just a river, it’s overflowing its banks.

          1. Then bring some evidence of any of the long lists of BS assertions Bruce has been bringing here today, Brett.

            I don’t know that all of it is false, but a lot of what Bruce wrote up there looks to be made up.

            1. For instance:

              House Intel report: McCabe said agents who interviewed Flynn ‘didn’t think he was lying’

              “The House Intelligence Committee on Friday released a newly unredacted section of its final Russia report detailing testimony from former senior FBI officials about the probe into former national security adviser Michael Flynn and his contacts with a top Russian diplomat.

              The unredacted portion of the report, written by Republicans on the panel, details testimony from former FBI Director James Comey and his then-deputy, Andrew McCabe. The report says McCabe, in particular, testified that the two agents who interviewed Flynn “didn’t think he was lying.””

              1. Are you seriously contending that Flynn did not lie, notwithstanding his admissions of doing so? Even if it was not documented in a 302, the agents could testify to having heard Flynn´s account, having compared it to the audio tape, and having observed the discrepancy.

                1. Audio tape? What audio tape? Please post a link to the audio, or a transcript.

                  Ha, ha, ha. Talk about not paying attention.

            2. Or, how about this?

              Handwritten FBI notes.

              They were discussing, basically, entrapping him.

              1. Your first stop should be a dictionary, followed by a deep study of what entrapment actually is.

                Because you’re wildly off the mark. Moon-made-of-cheese levels of wrong.

              2. Brett, ‘though in the non-legal vernacular it may be referred to as entrapment, it’s not legally entrapment. It was a trap, yes, but to catch Flynn in a lie, and then charge him with that.

        2. David, you are wrong.

          Example. Item 1. From the Shea motion to dismiss: “After the interview, the FBIagents expressed uncertainty as to whether Mr. Flynn had lied. See Ex. 4 at 5. FBI agents reported to their leadership that Mr. Flynn exhibited a “very sure demeanor” and “did not give any indicators of deception.” Ex.13 at 3. Both of the agents “had the impression at the time that Flynn was not lying or did not think he was lying.” Id.”

          The references in the exhibits are direct evidence to support this.

          David, why do you lie?

          1. …This is your evidence? Credibility impressions?!

            LOL.

    5. Judge Sullivan also has to decide whether all elements of the crime have support in the record. The key one here is materiality. The judge probably should have had Flynn admit, under oath to the materiality of his allegedly false statements. He apparently failed to do so, mentioning it, but then going on to do something else. Thus, there is no evidence in the record supporting this required element of the alleged crime.

      Of course, even if Flynn had admitted under oath that his allegedly false statements were material, the DOJ has pointed out that he was in no position to make that determination, and thus make that admission, because the DOJ (and FBI) had all of the information on the underlying investigation(s) that his alleged lies would have had to interfere with to be material. He had none of it. He couldn’t have knowingly admitted to materiality, because he had no evidence one way or another.

      Moreover, of course, the allegedly false statements would have had to affect an investigation to be material. But in this case, the government knew exactly what he had said on the phone call, because they had a transcripts of the call. Flynn never did. Whatever Flynn said or didn’t say about the contents of the phone call couldn’t affect their understanding of what was said because they already knew exactly what he had said. The only purpose of asking him in the interview about what he said in the phone call was to catch him in their §1001 perjury trap.

      1. What is going on with you…you’re just making things up about the law at this point.

        1. Why don’t you refute what he says, then, point by point. A blanket “you’re wrong” is worthless.

          1. Dude, the guy making stuff up has to back it up.

            But I can tell you that adding a materiality colloquy Flynn’s plea doesn’t matter when you’re disputing the plea.

            Materiality is not a subjective determination to be made by the DoJ either.

            And §1001 is not a perjury trap.

    6. That’s not all, the prosecution has to disclose all the terms of the plea to the court.

      They didn’t.

      So if you want to hold Flynn to the standard that when he is being coerced then he can’t lie about being coerced, then there should be a whole lot greater consequences for a prosecutor that is doing the coercion and also lying to the judge about it.

      Under that theory lying about be coerced is perjury should result in VanGrack being charged too.

      1. You keep using the word coercion. I don´t think it means what you think it means.

        1. Sidney Powell uses it:
          “A defense filing two weeks ago accused Van Grack of “incredible malfeasance” and of coercing Flynn’s guilty plea in the fall of 2017 by making “baseless threats” to indict Flynn’s son, Michael G. Flynn Jr.”

          Maybe she doesn’t mean what she thinks it means, or you maybe it’s you.

          1. A defense filing is not really evidence of much.

  3. Don’t get how a court can get around a prosecutor confessing to misconduct in continuing a trial. This seems to be Sullivan’s goal.

    …and I REALLY don’t get why he needs a lawyer to explain his decision-making, especially since there is literally zero risk of criminal prosecution or possible civil litigation to be brought against him personally.

    1. … no risk of criminal prosecution..,

      That we know of. I wonder if Sullivan knows where his own skeletons are buried and is feeling the heat.

      1. It’d be irresponsible not to speculate!

        1. Fair is fair.

          In open court a few months ago, Sullivan irresponsibly speculated that Flynn – a decorated General – had committed treason against his own country.

          Judges, like Generals can be owed respect up to a point. In the last week, Sullivan has crossed his Rubicon.

          1. Kevin, your rationalizing making stuff up is just weak. It’s not about respect for a person, it’s about sticking to reality.

            Your outrage about the treason inquiry is also misplaced and ..convenient. That was a sentencing hearing, no one said boo about it at the time.

            Personally, I think he did commit treason – secretly lobbying to Trump on behalf of adversarial powers ain’t softball.

            I’m not going to advocate throwing him in jail without due process over it. What’s a little light treason these day, after all?

            1. I appreciate your personal feelings about Flynn’s “treason”, but note the absence of accompanying criminal charges. The “treason” was so grave that Mueller recommended no prison time!

              You seem to be revealing yourself as another supporter of political prosecutions. Be careful what you wish for..,

              1. You keep saying political prosecution. I don’t think it is.

                And you keep saying careful what you wish for. This is not clever – it just brings to light your towering hypocrisy. As though lock her up wasn’t wallowing in exactly that kind of BS to a much greater depth.

                As for whether it’s treason. You do know that what the facts are and what’s prosecutable are two different things, yes? This is why I’m not yelling lock him up. Unlike a bunch on the other side.

            2. Who is the adversarial power…Turkey? Aren’t they a NATO ally? 🙂

              1. Both Turkey and Russia. And yeah, both are adversarial.

                Saudi Arabia is also an ally and…I have a hard time thinking of a more adversarial country.

                1. And there was no evidence found by the FBI that would have implicated Trump as colluding with either Turkey or Russia (or Saudi Arabia), while he was Trump’s designated NSA. That is why the DC Field Office tried to close dow their Crossfire Razor investigation.

                  1. Whoops. Should have been:

                    “ And there was no evidence found by the FBI that would have implicated FLYNN as colluding with either Turkey or Russia (or Saudi Arabia), while he was Trump’s designated NSA. That is why the DC Field Office tried to close dow their Crossfire Razor investigation.”

                    1. You’re just off on a fan-fiction lark all over this thread.

                      They got Flynn for lying and so didn’t reach the other charges, but he definitely lied about his status as a paid lobbyist even as he used is position in the incoming administration to lobby the President.

                      That’s not something in American’s interest.

            3. “Your outrage about the treason inquiry is also misplaced and ..convenient. That was a sentencing hearing, no one said boo about it at the time.”

              I’m sure every defense attorney relishes the idea of calling out a judge something like this, and thinks it’s in the best interest of his client at sentencing time.

          2. In open court a few months ago, Sullivan irresponsibly speculated that Flynn – a decorated General – had committed treason against his own country.

            He did no such thing.

            And who the hell cares if he’s a general? He’s a kook and a crook.

            1. There’s so much denial in this thread we should be watching out for crocodiles. He damned well did do exactly that, right on the public record.

            2. Wrong again, David. Sullivan did, indeed, on Tuesday, Dec 17, tell Flynn he had sold out his country, and asked the prosecutors if they had considered prosecuting him for treason. In the very next court session, Sullivan walked back his comments and apologized.

              David, why do you lie?

              1. I used to respect David N, but of late, his TDS has made him blind and pathetic.

              2. I like how you put in precise detail to try to bolster your credibility, but don’t bother to get it right. There wasn’t any “Tuesday, Dec. 17.” There was a hearing before Sullivan on Tuesday, December 18.

                He did say to Flynn about his work for Turkey, “Arguably, you sold your country out.” Which is certainly true. He did not, however, say that Flynn had committed treason. (Flynn secretly working for the Turkish government and lying about it, which Flynn admitted to doing, was a crime — a crime that the government let him skate on with the sweetheart deal they had given him — but not remotely treason.)

    2. There was no trial.

  4. If the government can make this motion to reverse a conviction based on revelations of prior misconduct by the government, wouldn’t they also be obligated to account for whether this motion is evidence of present misconduct by the government?

    After all the case was brought by the original prosecutors and the evidence was sufficient to induce the defendant to plead guilty. Twice. While advised by highly qualified counsel. I haven’t read that any of the evidence was actually false.

    If anyone looks at this timeline and sees an improper and/or political motivation to prosecute Flynn, then there is a far more obvious case of impropriety for this motion to drop charges. Even more than Flynn, Barr has been determined to be a politically motivated liar by other federal courts and I am sure that Sullivan is aware of this. There is no way to argue that this motion is not Barr’s.

    So in this case there is nobody serving the public interests except the judge. The uncorrupted prosecutors have been obliged to leave. The DoJ is clearly serving the interests of the president who obviously doesn’t care about the rule of law in any way except what benefits him personally.

    Normally, government misconduct is clearly reason to reverse and dismiss. But this situation isn’t normal.

    So yeah, calling in another judge to review is totally the right call.

    1. Orbital Mechanics approves of political prosecutions. But only of his opponents! He has standards, after all.

    2. Concur = Normally, government misconduct is clearly reason to reverse and dismiss. But this situation isn’t normal.

      My question…what exactly is the definition of the public interest? Is this not in the eye of the beholder?

    3. “After all the case was brought by the original prosecutors and the evidence was sufficient to induce the defendant to plead guilty. Twice. While advised by highly qualified counsel. I haven’t read that any of the evidence was actually false.”

      Counsel with a profound conflict of interest (https://www.politico.com/news/2020/01/29/flynn-legal-team-withdraw-guilty-plea-109126) and one can plead guilty for crimes one does not commit — for example, if the cost of defending oneself is too onerous to actually pay. Or the prosecutors threatening to harass one’s family…both of which apply here.

      1. One can enter a best interest plea of guilty while maintaining one´s innocence pursuant to North Carolina v. Alford. That is not what Flynn did. He admitted his culpability expressly on multiple occasions.

    4. “If the government can make this motion to reverse a conviction based on revelations of prior misconduct by the government, wouldn’t they also be obligated to account for whether this motion is evidence of present misconduct by the government?”

      I’d go this far: The government would have a stronger position here if they were publicly pursuing actions against the principles in the alleged prosecutorial misconduct.

      “After all the case was brought by the original prosecutors and the evidence was sufficient to induce the defendant to plead guilty. Twice. While advised by highly qualified counsel. I haven’t read that any of the evidence was actually false.”

      Then you haven’t been reading enough. There’s evidence the 302 form was altered and then the original destroyed, for one thing.

      But, of course, Sullivan knows all of this. He just doesn’t care.

      1. I’d go this far: The government would have a stronger position here if they were publicly pursuing actions against the principles in the alleged prosecutorial misconduct.

        For once, you’ve got it right (other than misspelling principals). But they aren’t, because they don’t have any case at all against them because it’s all a fabrication.

        Note that while Powell is ranting about misconduct, the DOJ never mentioned that in their motion.

        1. You’re wrong again, David.

          In this case “principles” is correct.

          “A principle is a rule, a law, a guideline, or a fact.
          A principal is the headmaster of a school or a person who’s in charge of certain things in a company.
          Principal is also an adjective that means original, first, or most important.”

          1. No, I’m right again. When one is talking about a person involved in a situation, one uses the term principal. He was talking about a person. (“Pursuing action against the principals in the alleged prosecutorial misconduct.”)

    5. “After all the case was brought by the original prosecutors and the evidence was sufficient to induce the defendant to plead guilty. Twice. While advised by highly qualified counsel.”

      Are you contending that if a prosecutor were to bring a charge against someone that could result in a 20-year prison sentence, her lawyer said the evidence was a toss-up, and the prosecution made a plea offer of time served for a guilty plea to a lesser offense, that it’s impossible that a person who thought she was innocent would take the plea deal, rather than spending a couple hundred thousand dollars on attorneys’ fees, and that her attorney couldn’t possibly recommend the plea deal as his safest course of action?

      Do you think that every guilty plea in the country happens because the defendant believes themselves to be guilty? That no one ever pleads guilty because they’d rather reduce possible damage that a trial could result in? Or just plead guilty to get the hell out of jail? If you do, I think you should talk to some public defenders.

  5. What everyone seems to ignore is the fact that we are not dealing with prosecutorial discretion in a pending criminal case. With the Flynn case the situation is that the prosecution’s case is over. Flynn pleaded guilty and was found guilty and the trial has now moved to the punishment phase.

    But now the prosecution wants to pretend that none of that happened and essentially the prosecution wants to take on the role of the appellate court and dismiss the conviction. That is incorrect as a matter of law and as a matter of jurisprudence. Overturning a conviction or dismissing a conviction is the sole authority of the court, not the prosecution.

    And remember, the prosecution’s basis here is not so much prosecutorial misconduct as it is that the prosecution has changed its mind and decided the while Flynn lied the lies were not material to an investigation, a complete and unexplained reversal of its earlier position.

    Judge Sullivan has every right to do what he is doing. We have a justice system, not a system of royal perogative.

    1. Another supporter of political prosecutions.

      Be careful what you wish for.

    2. So, we should NEVER allow a guilty plea to be withdrawn?

      I mean, the Central Park Five pled guilty, after all…

      1. I mean, the Central Park Five pled guilty, after all…

        I mean, they didn’t, so your track record of being wrong is intact.

        1. They all pled guilty to assault. It must be rough to play “mentally superior” when you are anything but.

          1. I mean, they didn’t. Repeating it doesn’t make it more convincing. In the wake of the attack, which had led to mass hysteria in the city, the police rounded up lots of people for lots of crimes in Central Park. Some people did indeed plead guilty to committing various assaults, though not of the Central Park Jogger. But none of the Central Park Five pleaded guilty to anything.

            (The great civil libertarian Donald Trump, of course, called for the death penalty, and still hasn’t admitted he was wrong.)

            1. They may not have pled guilty. They did confess to the crimes, on video camera…

    3. “ Judge Sullivan has every right to do what he is doing. We have a justice system, not a system of royal perogative.”

      Sorry. Article II § 1 gives the power to decide whether to prosecute or not completely to the President, and through delegation, to the DOJ. It’s called “Separation of Powers”. Sullivan is trying to usurp Executive Power.

      One reason to give the President these powers instead of judges is that he is elected and term limited. That means that he is responsible to the electorate. The Judiciary have life terms, and are thus not responsible to anyone. That is far closure to your claimed royal prerogatives.

      1. It’s not that bright a line.

        Morrison v. Olson approves Congress allowing judges to pick a prosecutor. Now Congress hasn’t acted here and I don’t think the Rules Committee has the same power Congress has.

    4. “we are not dealing with prosecutorial discretion in a pending criminal case”

      Wrong. Its pending until the sentence is handed down.

      1. Let’s see. The case was prosecuted. The defedant pleaded guilty. Oh, and then what happened. Well the President put in place a lackey AG who over-ruled the career prosecutors and decided that while the defendant lied and admitted to lying, the lying was ok.

        And this should not be investigated!??

        Well probably not in any fomer USSR state, but in America we have a system of Justice, not royal perogative. The President could have pardoned Flynn but was too cowardly to go that route.

        Corrupt intent is corruption.

    5. You have to chuckle at the sleight of hand. “With the Flynn case the situation is that the prosecution’s case is over.” The case itself, of course, goes on and on: pending motions to dismiss, amici of all sorts invited to add their 2c, next oral arguments July 16, no end in sight. But the *prosecutions’s* case is over. Got it.

    6. “With the Flynn case the situation is that the prosecution’s case is over.”

      Not really. Who is going to defend the appeal and any habeas petitions?

      1. Whoever Biden appoints as the US Attorney for D.C.

        …except that when one pleads guilty, one waives almost all appeal and habeas rights.

        1. Did you read the case that you linked to earlier?

    7. Sure, and we haven’t ever seen cases here on Reason, where prosecutorial or police misconduct was discovered *after* the defendants had been tried, convicted and in jail for years, and the cases get re-opened, either for new trials, or for just long enough to throw the case out completely.

      1. According to David here…no. It never happened.

  6. Sullivan has shown his bias from the beginning. He began with a vitriolic speech about Flynn being a traitor. Then, he has attempted to appoint his own prosecutor after the federal government has shown that it was a false prosecution (to the point that it was fairly clearly entrapment of a political opponent, little short of treason itself) to begin with.

    This is pure malfeasance. Malpractice to the point that I believe we need to see about impeachment.

    1. He began with a vitriolic speech about Flynn being a traitor.

      I don’t suppose that you could prove that any such thing actually happened? (Or, as we used to say at the old Volokh Conspiracy: “Cite?”)

      1. Try an Internet search for “Flynn Sullivan treason”.

        It’s an amazing technology.

      2. Martinned: they’re lying. Here’s the actual text of the exchange:

        “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. He suggested it, realized he was treading in deep doo doo, and walked it back. But you can’t pretend he didn’t, in fact, suggest it in the first place.

          1. So the story has shifted from a “vitriolic speech” to a “suggestion”? (And of course by “suggestion” you mean “inquiry”?)

            1. Hypothetically, are you an imbecile and moron of questionable birth? I’m not saying you are, mind you, I’m just making a suggestion that perhaps your IQ may be low enough to qualify as mentally disabled. Just a question, mind you…

            2. David, if you read the entire transcript you will see it was, indeed, a vitriolic speech. Contrary to what you portray, Sullivan’s statements walking back his treason comments and apologizing were in the session after the break, not immediately after he went on the tirade.

          2. The judge appears to have been inquiring into just how much of a sweet deal Flynn received, a legitimate inquiry.

          3. Maybe. But what he didn’t do was make “a vitriolic speech about Flynn being a traitor.”

    2. He began with a vitriolic speech about Flynn being a traitor.

      He didn’t. You’ve been misled by liars.

      Then, he has attempted to appoint his own prosecutor

      He hasn’t.

      after the federal government has shown that it was a false prosecution

      It hasn’t.

      (to the point that it was fairly clearly entrapment

      It was absolutely clearly nothing remotely resembling entrapment.

      of a political opponent

      What are you talking about? Flynn wasn’t anyone’s political opponent.

      little short of treason itself)

      It’s not in the same universe as treason. They could have all conspired to murder Flynn and it wouldn’t be anything like treason.

      This is pure malfeasance. Malpractice to the point that I believe we need to see about impeachment.

      Yes, but you’re stupid.

      1. “”He began with a vitriolic speech about Flynn being a traitor.”

        He didn’t. You’ve been misled by liars.”

        Yes, he did. He went on for eight minutes, upbraiding Flynn from written remarks.

        You can deny it, but that makes you the liar.

        1. I don’t know where your “eight minutes” factoid comes from, but of course he upbraided Flynn. Flynn was a convicted criminal about to be sentenced. Do you think judges in those situations generally pat such people on the head and discuss their shared love of Sudoku?

          But he didn’t make a vitriolic speech about Flynn being a traitor, which is what I said. You should try to read what I write.

          1. For a full eight minutes, U.S. District Judge Emmet G. Sullivan read aloud an inventory of Michael Flynn’s lies — describing his “disgust” that President Trump’s national security adviser sought to deceive FBI agents while “on the premises of the White House.”

            https://www.washingtonpost.com/politics/im-not-hiding-my-disgust-or-my-disdain-veteran-judge-upends-hopes-of-trump-allies-as-he-spotlights-flynns-misdeeds/2018/12/18/6fe78382-02f1-11e9-b5df-5d3874f1ac36_story.html

            And I never said “traitor.” You should try to read what I write.

            1. And I never said “traitor.” You should try to read what I write.

              You damn well did. In response to Ben’s comment that Sullivan “began with a vitriolic speech about Flynn being a traitor,” I said that it didn’t happen, and you said, “Yes, it did.” Your “it” is a pronoun referring to Sullivan calling him a traitor.

              And as I said above: of course Sullivan criticized Flynn; Flynn is a convicted criminal. But he didn’t call him a traitor. Not once, let alone for eight minutes.

  7. I also find it amusing that he is investigating perjury charges against Flynn…which the prosecutors never actually filed in the first place.

    1. Perhaps you should look up what perjury is. I suspect that would clear up your confusion.

      Maybe.

      1. You DN, and Sarc all seem to be tapdancing like crazy over what the meaning of “is” is. The big picture seems pretty simple:
        1. Flynn was coerced into pleading guilty to lying.
        2. He later sought to retract that guilty plea, because he didn’t lie.
        3. The DOJ sought to dismiss the case because they agreed he didn’t lie.
        4. The judge then, sua sponte, tries to figure out some way to keep the music going by instead charging Flynn with… wait for it… lying about lying.

        You can cutely label that “perjury” all you want, but I suspect that sort of thing gets prosecuted about as often as the Logan Act.

        1. The DOJ did not agree that he didn’t lie. They “agreed” — and I like how you make it sound as if this were an adversarial proceeding rather than Bill Barr taking a dive for political reasons — that they couldn’t prove beyond a reasonable doubt that his lies were material, and then they threw in an argument that they weren’t sure they could prove beyond a reasonable doubt that his lies were knowing.

          It’s impossible to overstate how corrupt Barr’s conduct here is. Flynn was being investigated for crimes A, B, and C. The prosecutors reached a plea bargain with him where he’d only be charged for C, the least serious of those crimes, in exchange for his cooperation. So they agree not to pursue A and B at all. Then he admits guilt to C and he half-assedly cooperates, and the prosecutors point this out to the court, and his attorney has a tantrum about it, saying that they breached their deal by pointing this out to the court. (They hadn’t.)

          Then Barr comes in and says, “You know, even though we don’t need to prove anything because he admitted guilt, I don’t think we could prove that he committed C, so let’s just drop that charge. Pay no attention to the A and B crimes that he also committed that we were only overlooking because of this deal we had reached with him.”

  8. You can preen all you like about the theory of the case having been affirmed. But the reality is that there was pretty gross prosecutorial misconduct involved. It was brought for blatantly partisan reasons, on completely manufactured evidence, with active corruption of the judicial system at the top of the FBI. To keep up the pretense that the case is legitimate, you either need to be ignoring the revelations out of the DOJ over the last year, esp from IG Horowitz, AG Barr, and USA Jensen, or are just putting fingers in your ears and going “na, na, na”.

    1. Flynn’s phone call with the Russian Ambassador was completely legitimate, and what you would expect for him as incoming NSA.
    2, With recent revelations, the FBI’s possession of the transcript probably violated Flynn’s 4th Amdt rights (it appears to have been an FBI recording that was not pursuant to a FISA warrant).
    3. The investigation of Flynn, at the time of the interview was not (any longer) based on any reasonable suspicion. The FBI field office had tried to close it out for lack of reason, to be summarily overruled by the FBI’s “7th Floor” (Dir and DD) for political reasons.
    4. The perjury trap was planned for the previous June when one of the agents involved was sent to an event with Flynn to get a baseline.
    5. And, indeed, right after the interview neither agent involved believed that Flynn was lying.
    6. The original FD 302s of the interview, transcribed later in the day of the interview, have never been produced to the defense. They have disappeared from the FBI change management system designed to prevent that, and maintain the trail of evidence, with required top level approval. The evidence that they existed comes, at a minimum, from the original agent (Pientka) as well as DAG Sally Yates, who saw them the next day.
    7. The 302s provided the defense had been heavily edited weeks later, under supervision of DD McCabe’s top attorney, until personally approved for filing by him.
    8. The same DD McCabe who lied to Flynn about the purpose of the meeting, told Flynn he didn’t need an attorney present, then instructed the two agents he sent over to the WH not to warn Flynn about the §1001 consequences of lying to the agents, not to let him see the transcript of the call they had, and to keep him from being suspicious.
    9. The supervisor of the two agents (CD AD Priestap) asked at the time in the group planning the interview whether the purpose of the interview was to find the truth, or get Flynn fired or removed from the Trump White House. He supported following FBI protocol, which would have required going through the WH staff, as well as giving Flynn warnings about having an attorney present and §1001 exposure for lying to the FBI. He was overruled by DD McCabe.
    10. DAG Yates found out about the interview later that day, and was apparently horrified.
    11. Dir Comey, on the other hand, publicly gloated about pulling a fast one on the WH.
    12. No evidence of materiality, one of the required elements of the §1001 violation was ever introduced into the record. Very likely a judicial oversight on the part of the judge.
    13. Flynn’s purported lies (which the two agents involved didn’t believe happened) could not have been legally material, since the FBI knew the actual contents of the phone call from the transcript. He did not.
    14. Very little of this was ever supplied to the defense as Brady information, despite Judge Sullivan’s standing court order to the contrary.
    15. The prosecutors regularly lied about the existence of various pieces of exonerating evidence, and only provided it to the defense when caught in their lies.
    16. There was no legitimate reason to believe that they could prove the charge beyond a reasonable doubt, thus violating DOJ rules and the 5th Amdt by filing the charges.

    It stinks. And those of you trying to defend it would be screaming even more loudly than Flynn’s defenders, if it had happened to your guy, and not the opposition.

    1. Some of these, notably numbers 8 and 11, are fairly weak (do you think Flynn, a senior staffer and general, doesn’t know his basic rights and responsibilities?). 15 needs to be much more specific. 16 should be kept as conclusion, not a point.

      Some of the rest are completely and utterly inexcusable, which, if true, not only make Flynn innocent, but make numerous Justice Department officials guilty as sin. Shortening the list to remove the weak points will concentrate the good ones.

      1. “(do you think Flynn, a senior staffer and general, doesn’t know his basic rights and responsibilities?)”

        So because he knows, or should know it, he doesn’t get the warning that other people do? Do you feel the same way about Miranda warnings (after all, everyone has seen plenty of cop shows, so everyone knows their basic rights guaranteed by the 5th & 6th Amendments)?

        1. So because he knows, or should know it, he doesn’t get the warning that other people do?

          Nobody gets that warning.

          Do you feel the same way about Miranda warnings

          Despite what you see on TV, criminals don’t get Miranda warnings when they’re arrested. (Only if they’re being custodially interrogated, and that’s because the Supreme Court requires that as a condition of using their statements.)

          1. I’ve seen a lot of case paper with a lot of people getting that warning (and generated some of it myself). So pardon me if I don’t believe your blanket, “Nobody gets that warning.”

            I’m wondering where the TV cameras were when I saw criminals getting Mirandized. Are there production companies who should have been getting releases from me? Where are my damn checks!

    2. Yelling bad faith won’t get you anywhere, except some warm partisan feelz.

      A bunch of those are indeed awful, but also the FBI’s standard procedure. If you even for a moment talked about reform, or about anyone other than Flynn this has happened to (see: the war on drugs) I might believe you cared about anything more than standard pro-Trump BS.

      1. Yelling bad faith? He came up with a 16 point list which, if true, seems to clearly indicate bad faith.

        For example, “The original FD 302s of the interview, transcribed later in the day of the interview, have never been produced to the defense. They have disappeared from the FBI change management system designed to prevent that, and maintain the trail of evidence, with required top level approval.”

        Do you know if this is correct? That certainly doesn’t sound like something the FBI does all the time, does it?

        1. It’s a list that’s largely FBI SOP. None of it proves bad faith, only that the FBI has been unjust and slipshod for a while now.

          But he’s not using it to reform the FBI, is he? He’s using it for a narrow partisan win. And that’s why I’m unimpressed.

          1. That’s bad reasoning, my friend. The first step is to stop it in the specific case, then we work to a general solution.

            In fact, if the DOJ or the courts begin routinely rejecting cases for this sort of sloppiness, then that will cause the agency to shape up regardless of any other measure. Isn’t that the basic reasoning for exclusion of improperly obtained evidence?

            1. No, that’s not the first step. Getting rid of the pressure just allows the problem to continue.

              And I think you know it.

              1. Which pressure would that be?
                What I am seeing is the pressure to win at all costs. Many people have said that if the FBI investigates you, they will not stop until you are guilty of something.

                The solution I see is to penalize the agents for railroading people, for being sloppy. Give them a penalty they can’t justify taking for “the right cause”. Make malpractice cost them the whole case.

                You seem to have a different solution in mind. Care to share what it is?

        2. Actually, it sounds to me like something the FBI probably DOES do all the time. Why did you suppose they use written notes instead of recordings, anyway?

          Written notes are easier to falsify after the fact.

          But that it’s a common offense should have people noticing that relishing an opportunity to reform the system, not crowing, “Sucks to be you!”

          1. Yeah, I’m with you, Brett! Lets fix the FBI!

            Lets not use this as an excuse to give special treatment to a Trump ally.

            1. “Special treatment” consisting of protecting his civil rights.

              1. Special treatment consisting of ignoring the civil rights of everyone else the FBI’s dealt with.

                1. Nobody’s proposing to ignore all the FBI’s wrongdoing in other cases. What we’re proposing is that we not let Flynn be wronged because it’s not important to solve the injustice right in front of us if it doesn’t solve everybody’s injustice.

                  1. Are you reading? EVERYONE here is ignoring all the FBI’s wrongdoing. You’re the only one other then myself and DMN who has mentioned anyone other than Flynn.

                    Some are justifying this by saying this is some first step, which is almost insulting since they don’t really have a plan beyond letting Flynn go.

            2. I’m not advocating special treatment for a Trump ally. I’m advocating fixing the system starting with the case at hand.

              This sort of abuse is probably routine. This extensive proof of the abuse? Not so much.

              Let’s just this to extract maximum reforms, not make sure Flynn takes the fall and then think about doing it.

              1. You know that once this case is gone, there won’t be any reforms.

                The way you do reforms is not piecemeal exceptions.

      2. “A bunch of those are indeed awful, but also the FBI’s standard procedure. If you even for a moment talked about reform, or about anyone other than Flynn this has happened to (see: the war on drugs) I might believe you cared about anything more than standard pro-Trump BS.”

        So, concrete examples of FBI malfeasance are now bad because “Well, you ignored other claims with far less proof of misconduct than this”?

        1. It’s what he’s using it in service of. Ignoring everyone else this has effected for decades, he’s just looking out for his guy. He’s outraged! But only for his guy.

          And he’s intimating bad faith and political prosecution based on FBI SOP. Tin foil never adds much good to a special pleading argument.

          1. Which is worse? “Only for his guy”, or “not even for his guy”?

            You can use this case as a pry bar to rip the lid off on a festering situation, and maybe get some reforms, or you can exploit the festering situation as an excuse to screw over an innocent guy who’s on the other side.

            You picked the second.

            1. No one here is doing what you describe, except maybe you and I.

              If you think this nonsense will lead to any kind of reform at the FBI, you’re vastly more optimistic than I am.

              1. At least I want it to, you want the abuse to be successful.

              2. We don’t usually get to see the abuse in technicolor. Exposing this will get a lot more people on board for real reform of the FBI. As the larger picture emerges maybe the same will happen to the CIA the DOJ and the NSA. And for the record: re the FBI I want to burn it down and start over.

                1. The problem is, since the abuse was partisan in motive, half the people start out happy with it.

                  1. Begging the question will get you loads of interesting places.

        2. Have you been stalking him, in person and online, such that you can say, “If you even for a moment talked about reform,” and have it mean anything but “even for a moment, sometime in the last five minutes of the discussion of this specific case, talked about reform in general, rather than just how the specifics of this case clearly violate the civil rights of the defendant in this case”?

          This is a thing I’ve seen time and time again on the internet, where people say things like, “You didn’t talk about X in your 20 word post, so clearly you’re racist.” Why no, he didn’t. Why would you expect someone to preface everything they say in any forum with a litany of their good deeds and links to all their good words on the subject, just to establish their bona fides as a supporter of the cause?

          1. All I have is this thread, and it’s not looking too good.

      3. Instead of welcoming a potential ally, you accuse him of just partisan bias. Smart strategy there, dude!

        Many on this blog are libertarian-leaning and are generally opposed to law enforcement and judicial misconduct. But why try to make allies with these icky people!

        1. Because I’m not a fool, Kevin. I can tell what this is. And I know efforts to reform the FBI will not continue.

          Trump is blatantly using the DoJ as a reelection instrument, you think he cares about collateral damage?!

          1. Oh, so this is based on the mind reading class that you took in law school. God forbid that anyone would ever be outraged by political prosecutions!

            Can you read Warren Buffett’s mind and tell me what investments he is now considering? I would like to buy them in advance.

            1. Do you think this will lead to a reform of the FBI? Do you really?

              1. Whether or not we think it will lead to successful reform, should we ignore the FBI’s malfeasance in this high-profile case, just because the target of the malfeasance is someone whose politics we disagree with?

                Seeing the FBI slapped around for their civil-rights-violating SOP in this high-profile case might raise awareness among right-leaning law-and-order types who currently think that law enforcement can do no wrong, and if the cops are looking at you, you must be a bad guy. I guess you’re not interested in that, even though it’s another step on the road to reform.

                1. Yeah, the way to get reform is to use an event to create reform, not to just smooth the event over and then go at reform once no one cares anymore.

          2. Because I’m not a fool, Kevin. I can tell what this is. And I know efforts to reform the FBI will not continue.

            Objection, assumes facts not in evidence. What efforts to reform the FBI? Have you seen one GOP legislator introduce a single bill? Have you even seen Barr or Wray announce a single policy change? Have you seen Barr appoint an outside U.S. attorney to review a single prosecution not related to Trump? The efforts are to get a crony of Trump’s off, nothing more. They’re perfectly fine with using these tactics against everyone else.

      4. A 4th Amd. violations is not merely “bad faith.”

        “If you even for a moment talked about reform, or about anyone other than Flynn this has happened to (see: the war on drugs) I might believe you cared about anything more than standard pro-Trump BS.”

        I don’t believe that you follow this person closely enough to verify anything you’re accusing him of. Even if you did, you can’t weasel out of an accusation of wrongdoing by the FBI and DOJ by saying that an anonymous internet commenter isn’t sufficiently outraged by similar acts on other occasions. Grow the fuck up.

        1. I have followed this thread. Only Brett and myself have talked for a moment about FBI reform in any general sense.

          1. This post isn’t about FBI reform. FBI reform has no sway on dismissing this case. FBI reform is useless unless the Director of FBI, and the Deputy Director of the FBI deigns to follow new rules, being they refused to follow procedures in place to prevent the Flynn fiasco.

            1. You’re scope requires special pleading.

              I’m going to resist that.

        2. What Fourth Amendment violation? Who/what was searched or seized?

    3. #6, the disappearance of the original Form 302 should have been sufficient to dismiss the case.

      1. Basing the law on your own sense of outrage won’t get you very far, Kevin.

        1. Flynn’s “crime” was materially lying to the FBI. The original interview form has disappeared. Not a problem? Can you cite cases where this key piece of evidence could not be produced?

          1. Kevin, you are not describing what the law is. You’re just pretending that what you think should happen is what the law says.

            A lost form scotching the case is not how the law operates.

            1. “A lost form scotching the case is not how the law operates.”

              According to the comment above, which I have no idea if it is true or not, the form was removed from the case management system with high-level approval.

              1. The DoJ should maybe mention that in their brief if so.

                1. They didn’t, because their major argument is lack of materiality show in the record. The (apparently) intentionally deleted 302s go to the lying element of the crime, not to the materiality element. They would have to build a record for prosecutorial misbehavior. That would be messy. This isn’t. This sort of decision is part of “prosecutorial discretion”.

                2. And, indeed, I’d complain about that aspect. The administration appears to be trying to let Flynn off the hook on the cheap, without going after the perpetrators or engaging in systematic reform.

                  I don’t know if that’s because they want to retain the capacity to commit similar injustices, or it’s because they’ve only got so much control over the DOJ, and don’t dare trigger an open rebellion this close to an election. Could be either or both.

                  But this I do know: Flynn was railroaded, framed, and the evidence for this has become overwhelming. Justice, individual justice, (The only sort of justice that actually exists in this world.) demands that he be let off the hook.

                  And I’m not going to advocate that he be screwed over more just because his getting off the hook isn’t accompanied by systematic reform. Even if I would prefer systematic reform.

                  1. But this I do know: Flynn was railroaded, framed, and the evidence for this has become overwhelming. Justice, individual justice, (The only sort of justice that actually exists in this world.) demands that he be let off the hook.

                    No – those are your partisan theories, completely disproven by the real-world facts.

                    Flynn had extremely capable lawyers. He lied to the FBI and admitted his guilt numerous times.

                    So he was not in fact railroaded, or framed.

                    He ADMITTED HIS GUILT.

                    1. If Flynn had such capable lawyers, how did so much exculpatory evidence came to light, after new lawyers asked for it?

                    2. If Flynn had such capable lawyers, how did so much exculpatory evidence came to light, after new lawyers asked for it?

                      No exculpatory evidence came to light.

                    3. HE WAS COERCED INTO “ADMITTING” HIS GUILT!

                    4. HE WAS COERCED INTO “ADMITTING” HIS GUILT!

                      Something around 90% of defendants plead guilty; every single one of those people was coerced into admitting his (or her) guilt. (Do you think they do it out of civic-mindedness?)

                  2. I don’t know if that’s because they want to retain the capacity to commit similar injustices, or it’s because they’ve only got so much control over the DOJ, and don’t dare trigger an open rebellion this close to an election. Could be either or both.

                    Or, the more parsimonious explanation: there wasn’t any misconduct, and therefore no perpetrators to “go after.”

                    But this I do know: Flynn was railroaded, framed, and the evidence for this has become overwhelming.

                    There is no evidence whatsoever for this. None. Zero. Zilch. You can’t point to a single thing showing he was “framed.” (“Railroaded” is a term of rhetoric, not law, so I won’t ask you to provide evidence of that.)

                    1. That’s not a parsimonious explanation, because it requires us to ignore all the evidence of misconduct.

                      Denial. You’ve just fixated on denying it all, because you can’t cope with the evidence of what happened.

                    2. Brett, none of it was misconduct. All of it was what SHOULD be misconduct but isn’t.

                      Quit conflating is and ought. You know better.

            2. Kevin, you are not describing what the law is.

              To be fair, he’s not describing the facts, either. There’s no missing 302.

              1. To be fair, you are lying.

              2. You can just remain silent so we don’t KNOW you don’t know what you’re talking about. Testimony under oath has shown there is a missing original 302.

                1. Really? Can you tell me who you think has testified under oath other than Michael Flynn?

            3. Prosecution losing/destroying evidence, is considered by the court to be exculpatory. That is the way the law works.

              1. It’s… not.

          2. I don’t like them losing original forms. It’s a pretty strong negative, and normal spoilage rules have the court assume that it negligently destroyed evidence should be read as negative for whomever lost it.

            However, it doesn’t mean they have no evidence. You still have the witness statements of the FBI. There is no hearsay involved with an agent saying “He told me X”. After all, the fact that person Y said X is the entire point of this case. It would only be hearsay if a second agent heard a first agent talk about it.

            If the case wasn’t so politically charged, yes they probably would have dropped the case over losing key evidence. However, it doesn’t mean that they had nothing at all.

        2. The primary piece of evidence not being produced isn’t an issue.

          GROW THE FUCK UP.

          1. Trenchant.

            I’m describing what the law is, as I learned it in my wrongful convictions class in law school.

            You’re describing what you want the law to be, based on your outraged partisan gut.

            1. “I’m describing what the law is, as I learned it in my wrongful convictions class in law school.”

              Hmm. I’ve never been to law school, but I’d think a wrongful convictions class would focus on post-sentencing convictions, on direct and collateral review. Did they cover many pre-sentencing cases?

              1. It discusses ways that a conviction may be attained wrongly, and what you can do about it. It went into the unreliability of eye witness testimony, shoddy forensic science, coerced confessions, etc.

                Part of that dealt with how prosecutors are allowed to lie, but can throw you in jail if you lie to them. That’s not reversible error. It’s not even error.

              2. Saying “I’ve never been to law school but here’s what I think law school coursework should cover” is what makes your comment art.

  9. I’d actually like to see the brief Gleeson would bring. I’d particularly like to see him use the logic in his own ruling in 2013 on it. But…for some reason, I think he’d ignore this logic on this “particular” case based on his current writing.

    FYI, here’s Gleeson on Rule 48a and such in 2013.

    “The government has absolute discretion to decide not to prosecute. ICC v.Brotherhood of Locomotive Engineers, 482 U.S. 270, 283 (1987) (“[I]t is entirely clear that the refusal to prosecute cannot be the subject of judicial review.”). Even a formal, written agreement to that effect, which is often referred to as a “non-prosecution agreement,” is not the business ofthe courts.6 In addition, the government has near-absolute power under Fed. R. Crim. P. 48(a) toextinguish a case that it has brought. See United States v. Pimentel, 932 F.2d 1029, 1033 n.5 (2dCir. 1991)”

    “But even if I were to reject the DPA, I would have no power to compel the government to prosecute the pending charges against
    HSBC to adjudication. To the contrary, as mentioned above, if the government moved under Fed. R. Crim. P. 48(a) to dismiss the Information, it would be an abuse of discretion not to grant
    that motion.”

    “Significant deference is owed the Executive Branch in matters pertaining to prosecutorial discretion. The Executive Branch alone is vested with the power to decide whether or not to prosecute. United States v. Bonnet-Grullon, 212 F.3d 692, 701 (2d Cir. 2000) (“It is well established that the decision as to what federal charges to bring against any given suspect is within the province of the Executive Branch of the government.”), superseded by statute on
    other grounds by United States v. Levia-Deras, 359 F.3d 183, 188 (2d Cir. 2004). The decision whether to seek a criminal conviction implicates a complex of factors that “do not lend themselves to resolution by the judiciary.” Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2d Cir. 1973) (stating that “the task of supervising prosecutorial decisions” would place reviewing courts “in the undesirable and injudicious posture of becoming
    ‘superprosecutors.’”). “

      1. You do understand that this insulates him from charges of bias if he makes a strong presentation against the DOJ’s position. Of course none of us know what his position will be. Either way, I am comfortable trusting the decisions of these judges.

    1. What a find…

      1. Oh yeah.

        1. I don’t know that he’s required to be an honest broker; he’s charged with arguing one side of the case, no?

          1. Yeah, but it is pretty ironic. Hopist upon his own petard. God knows that has happened to me from time to time.

    2. You know that there is absolutely nothing in that opinion that contradicts his presumed position here, right?

      1. Sullivan hasn’t presented a position. He has a binary choice and refuses to act. Refuse the DoJ petition to withdraw the plea deal. That’s with in his jurisdiction. But instead he is delaying justice. For NO stated reason. Next week a hired lawyer will tell the appeals court what Sullivan’s reasoning is. By his actions, Sullivan has no idea how to rule.

        1. Sullivan hasn’t presented a position.

          That’s okay, because the comment is in reference to Gleeson, not Sullivan.

          He has a binary choice and refuses to act.

          Refuses? You understand how courts work, right? (That’s a rhetorical question; I know you don’t.) One files a motion, and then judges eventually rule on them. I’ve been practicing for 20 years, and three weeks doesn’t even rise to the level of slow. When he hasn’t ruled on the motion in two years, then you can start to talk about “refusing” to act.

          1. Its a binary choice. Reject the motion to dismiss, or accept. The judge has all the evidence he is able to attain at this point. The judiciary does not do investigations, does not have the power to go in search of evidence not already in hand. The law is concise. The executive has plenary power to prosecute. The executive has spoken. The judge can refuse, but he posses no facts to support his refusal. So the judge refuses the motion to dismiss, the defendant files for immediate sentencing, so an appeal can be filed.
            You don’t need a law degree to see the judge is demonstrating he can abuse his power, and no desire to perform his duties.

          2. Whoa, seriously? = I’ve been practicing for 20 years, and three weeks doesn’t even rise to the level of slow. When he hasn’t ruled on the motion in two years, then you can start to talk about “refusing” to act.

            How often does that happen in reality? = two year delay to rule on a motion?

            I chuckled at the doesn’t even rise to the level of slow comment.

            1. How often does that happen in reality? = two year delay to rule on a motion?

              It’s not common that it takes that long, but it’s certainly not unheard of.

              Let’s see; off the top of my head I have a motion for default (unopposed) that’s been pending since October of 2018. I think that’s my longest current outstanding motion.

              1. Holy Moly! I would lose my mind.

    3. If you’re not citing cases that are factually and procedurally on point — that is, a government motion to dismiss a case after the announcement of a guilty plea and allocution by the defendant, but before final sentencing and entry of a final judgment of conviction imposing that sentence — then your arguments are at best by analogy. All those cases about prosecutorial discretion quite arguably apply only to prosecutorial decisions made earlier in the process.

      1. I’ve done that before in a previous post

        This case is just the logic from the guy the Judge wants to write a brief supporting him. It’ll be fun to see Gleeson reverse his logic.

        1. The facts are different, so no reversing of logic will be required.

          Sorry to disappoint.

          1. Consistency in like situations, even if the facts aren’t identical is a good thing. The fact always change between cases.

  10. Even though I commented already here, its still amusing to see all this angst [from both sides] over Flynn, who is not going to prison no matter what happens because of the pardon power.

    1. Some people – people on both sides – care about principles and truth, not just outcomes.

      I’ll never understand how you work, Bob.

      1. Yeah, but you’re obviously not one of them.

        1. Oh come off it, Brett. You find bad faith in what I’m arguing?

          1. Yeah, in your insistence that Flynn get screwed over, despite the overwhelming evidence that he was railroaded.

            The fact that people get screwed over all the time does not justify any individual case of screwing over.

            I’d like reform, but I’ll take justice without reform if that’s all I can get.

            1. I’m saying if you really believe he got screwed over, you should probably look at the FBI’s general policies and procedures.

              No one is.

              So I wonder if people think he got screwed over based on the facts, or based on their partisan feelz.

              1. Did you miss the fact that procedures and policies were ignored here.? Rules only control honest, honorable men. FBI leadership was neither.
                Procedure was to request an interview though White House counsel. Ignored. Procedure was to allow the subject to see the transcript of the call. Ignored. Procedure was to explain the statute about lying during a criminal investigation interview. Ignored.

                Why create more procedures and rules , when the ones in place are ignored? What reforms would you suggest? What reforms are needed that would be reform, if agents are not bound by the rules already in place?

                1. No procedures were ignored. Your sources are lying to you.

                  1. That’s strange. Comey said FBI procedure was to request an interview through the White House Counsel. Acting AG Yates was appalled because FBI/DoJ procedure to go through White House Counsel was not followed.
                    You are very sure about things you have no knowledge of.

      2. “principles and truth”

        Go to church if you want that dealt with. Its too abstract for criminal law.

        Other than Flynn’s bank account being decreased, all this hurry burry is meaningless, nobody is going to be affected no matter what the outcome.

        1. Thing is, my concern is far more personal.

          If somebody as connected as Flynn can be fucked over…what hope does a rando like me have?

          1. Not much. And this case won’t change that.

            1. Standing by and saying “Let him suffer because others have suffered” seems to be the single most anti-reform thought process humanly possible.

              Congrats.

              1. I’m saying if you indict the system without reforming it, in service of letting one guy off the hook, you don’t care about justice.

                1. I’m sure everybody here will get right on that reform as soon as they get elected to Congress or get their seat on a federal bench.

                2. No, pursuit of justice is allowing the screwing of one guy because so many others got screwed before. Totally logical position.

    2. That’s what the goal is — to force Trump to pardon.

      1. Given that we’re only 5 months from the election, there isn’t even a sentence yet, and Flynn will be able to work the appeals process before needing a pardon even if he does wind up losing on appeal, I don’t think there’s much chance of Trump being forced to pardon him until at least November 8th. At which point in time, Trump will either not care about optics because he’s got four more years, or not care about optics because he lost.

    3. Some people don’t like political misuse of the justice system. Making up a story about a future pardon doesn’t reverse Obama Administration corruption of the FBI.

      A justice system is one of the cornerstones of civilization. When everyone starts seeing it as merely another mafia-like organization backed up by a uniformed street gang, they’ll stop using it to referee disputes and go back to vendettas and blood feuds and jungle justice. And, most importantly, all these lawyers on this blog will lose prestige.

      1. A justice system is one of the cornerstones of civilization. When everyone starts seeing it as merely another mafia-like organization backed up by a uniformed street gang, they’ll stop using it to referee disputes and go back to vendettas and blood feuds and jungle justice. And, most importantly, all these lawyers on this blog will lose prestige.

        Correct. For the law and its agents to be respected, they must behave in respectable ways. Otherwise, they are just thugs with a badge.

    4. “Even though I commented already here, its still amusing to see all this angst [from both sides] over Flynn, who is not going to prison no matter what happens because of the pardon power.”

      Because what happens in one case has this funny tendency to crop up in other cases, thanks to a little thing called precedent. Whether I care about a particular case or not doesn’t really matter if I’m concerned about a principle of law that can affect cases I DO care about.

  11. No mandamus petition is ripe before the trial court has ruled — and here, the trial court hasn’t.

    Contra Judge Luttig, I believe the mandamus petition should be dismissed without prejudice. If Judge Sullivan ends up granting the government’s pending motion and dismissing the case — which, despite the attention Judge Sullivan has focused on this exceptional motion, is still by far the most likely ultimate result in the trial court — then any mandamus motion would be mooted.

    As for the court of appeals assigning the case to a different judge, there again the only proper bases for such a ruling would be the RULINGS of the trial court. You don’t replace a judge based on what he or she MIGHT DO, especially in an interlocutory emergency proceeding without a full record. Like it or not, Judge Sullivan is indeed developing a comprehensive record, which will afford the D.C. Circuit a proper opportunity to consider any later appeal if (but only if) Judge Sullivan refuses to grant the prosecution motion and instead enters judgment based upon the plea.

    1. Contra Judge Luttig, I believe the mandamus petition should be dismissed without prejudice. If Judge Sullivan ends up granting the government’s pending motion and dismissing the case — which, despite the attention Judge Sullivan has focused on this exceptional motion, is still by far the most likely ultimate result in the trial court — then any mandamus motion would be mooted.

      And if Sullivan ends up denying the motion, there’s still no reason for mandamus; he can sentence Flynn, and then Flynn can appeal in the ordinary course of things.

      1. I have noticed the legal eagles here, have not been able to find precedent to cite, supporting Sullivans request for amicus, or precedent of a judge hiring a lawyer to respond to a higher courts demand for a response.

        Sullivan’s delaying of a response to Flynns request to dismiss is infringing on the defendants guarantee to a speedy trial.

        1. Uh, a guilty plea waives speedy trial rights.

          1. Why isn’t Flynn sentenced so he can appeal? No disposition of the case until sentencing.
            How about those list of precedents supporting Flynn?

            1. Why isn’t Flynn sentenced so he can appeal?

              Because he asked that his sentencing be postponed.

  12. This is one of the more facts-free threads I’ve seen for a while.

    Lotta fan-fiction, and then when someone notes that it’s not supported, just bare responses about denial and that’s it.

    Flynn really does bring out the tin foil.

    1. Lots of facts that you have no desire to see.

    2. I’m glad you’ve read DN’s posts, but have you considered reading any of the other posts in the thread?

    3. Yep. The Russia hoax suckered a large number of people by playing on their natural tin foil propensities at a moment of great political angst, and the Flynn ambush and prosecution was a central part of that. Like Comey said, he never would have gotten away with in a normal moment.

  13. Judge Luttig, by the way, is now age 65, and is on no one’s short list for the SCOTUS anymore.

    He certainly was a “short-lister” for many SCOTUS vacancies, in part because he was the youngest circuit judge in the country upon the confirmation of his Fourth Circuit appointment by Bush-41 back in 1991. But he left the bench (to become general counsel and a senior VP for Boeing Co.) way back in 2006, after Bush-43 passed him over in favor of Chief Justice Roberts and Justice Alito in 2005.

  14. When Judge Sullivan refused any amicus filings in the Flynn proceedings, repeatedly I might add, he sealed his fate when he ordered such now.

    The Circuit Court precedence also says he must rubber-stamp the dropping of the charges.

  15. There is no doubt anymore, FBI leadership was corrupt. Comey, McCabe, and others on the 7th floor. That is documented in IG report(s). Wray’s silence and refusal to address systemic rogue agents, call his honesty into question.
    FBI agents were sent to interview Flynn by Comey. Comey ignored procedures in place to assure all actions are properly predicated, and executed. ( more reform measures will make agents honest…this time. Promise)
    Flynn agreed to the interview. He could have told the FBI to piss off and refused any questions. But put yourself in his place, the new incoming DNI. A person that needs to work closely with the FBI. It is not in his best interest to act like a prick, Flynn need cooperation from all intelligence agencies, including the FBI. To start off with an informal interveiw was a wise decision from Flynns perspective. But, as in the know, that Flynn was, he had no idea the level of corruption present on the 7th floor.
    Technically Flynn is at fault for not treating the interview as adversarial. But all of us would have likely taken the meeting in the same circumstances.
    The edited 302, tells us Flynn was honest for the begining. The FBI’s actions from the editing of the 302, till present, document the corruption of the agency.

    1. The edited 302, tells us Flynn was honest for the begining. The FBI’s actions from the editing of the 302, till present, document the corruption of the agency.

      I love incoherence from dumb people. Which is it? Did the edited 302 show his innocence or show the FBI’s corruption? It doesn’t make any sense to argue both. Unless you’re arguing that they’re such Keystone Kops that they edited it with the intention of framing him but accidentally forgot to do that.

      1. The edited, 302 edition #3 (or was there 4?) is the basis for Flynn lying. The origninal, by its destruction, says Flynn did not lie.
        This afternoon the transcript of the call Flynn call in question, cleared declassification.
        Why was the transcript not included in the prosecutions evidence? The Prosecution claim because it was classified, unavailable, but we now see declassification was very easy. Grenell has only been in office for less than 4 months, and has declassified reams of documents. So it was not an onerous process. Along with this document, reporting is, more documents showing the complete lack of predicate for any Russia investigation, including Flynn.

        1. Why was the transcript not included in the prosecutions evidence?

          WTF does that mean? What “prosecution’s evidence”? He. Pleaded. Guilty.

          Do people not understand how that works?

          1. David, I confess I’m confused by your comment here. Anyone who has watched My Cousin Vinny knows that discovery occurs before the trial, and that the prosecution is obligated to share all evidence, even that which may be exculpatory. In this case the prosecution did not do that, in many instances. This discovery process should have completed before any plea was entered. Isn’t that correct?

            1. Anyone who has watched My Cousin Vinny

              I think I see the problem here.

              This discovery process should have completed before any plea was entered. Isn’t that correct?

              No, it is not correct. First, note that there is no general pretrial discovery in the federal criminal system. (See, My Cousin Vinny, aside from being a Hollywood movie rather than a documentary, involves a prosecution under the Alabama Rules of Criminal Procedure.) Some narrow categories of things are required to be turned over. Among those is exculpatory evidence (I’m not sure why you say “even” exculpatory evidence; it’s especially exculpatory evidence. That’s the primary info that needs to be turned over. Exculpatory/impeachment evidence is constitutionally required to be disclosed; everything else is governed only by statute or the Federal Rules of Criminal Procedure.) But non-exculpatory evidence is definitely not required before a plea.

  16. David is the one who is generally lying, and doesn’t ever offer any evidence to support his assertions.

    And, I’m not saying one need’t prove their point; Bruce substantiates his assertions, David does not.

    1. above in wrong place

  17. Seldom have I seen as many of the partisans just call the other side liars and not engage around here, and I’ve seen some super partsian threads.

    I don’t know if it means the usual suspects have less than usual or if they’re getting worse with not interfacing with reality.

    1. I think it’s just that this case is so polarized. It all turns on a single judgement call: Was the Flynn case illegitimate when they got Flynn to lie?

      This is a single question. If “Yes”, then the entire case falls apart to the point where everyone involved should be criminally liable for a political prosecution. If “No”, then you are looking at a clear case of facts, which while it’s been taken a bit extreme, are completely legitimate, and the dropping of charges is undue political pressure on the justice system. There is little to no middle ground, and people who think the choice is clear are horrified with any other interpretation.

      You could compare it to abortion, where everything turns on whether or not you believe killing the fetus is murder. That one call brings you on one side or the other, and compromise is unthinkable.

      1. If “Yes”, then the entire case falls apart to the point where everyone involved should be criminally liable for a political prosecution.

        Uh, no. Despite what you might have gleaned from his twitter feed, there is no actual crime of “Making Trump Unhappy.”

        1. The Flynn interview is predicated on the Govt’s counter intelligence investigation about Russia working with the Trump campaign.

          Documents coming to light, and timelines developed through testimony under oath, are documenting the FBI along with the CIA and the State Dept. actively working to entrap Trump campaign associates in the Russian narrative.
          Flynn was a victim of that entrapment, along with a dozen other persons.
          Documents show agents closed the Flynn counter intel investigation, due to lack of any derogatory findings. But the 7th
          floor FBI did not officially close the investigation, and hatched the plan to entrap Flynn. The hand written extemporaneous notes from
          FBI Priestap (sp) ask that question. “is our goal to get him to lie or get him fired”? Those are predetermined goals, not fact finding activities.
          There was no predicate for the interview, no materiality to Flynns answers.
          The United States is structured to limit the power of government to abuse its citizens. This is a classic case of abuse of governemt power.

          1. actively working to entrap Trump campaign associates in the Russian narrative.

            You don’t know what entrapment means. Look it up.

            This is a classic case of partisans accusing the other side of abuse of cover. A venerable American tradition, I will allow you.

            1. There are two uses of the term entrapment, one legal and one colloquial. Many here us it colloquially, and then the legal snarks jump all over them, not to politely correct them, or draw attention to the colloquial versus legal difference, but to deride, mock, dismiss.

              Colloquially, Flynn was entrapped.

              1. No. There is no colloquial definition of entrapment. There’s just correct use of the term and incorrect use. (But more importantly, if you’re right that people are saying, “Well, he wasn’t legally entrapped, but I just kind of feel like colloquially he was entrapped,” then so what? This isn’t about your feelings. It’s about law.)

                “Your Honor, this case involves outrageous misconduct by the government in entrapping my client. This prosecution should be dismissed.”
                “Really? He was entrapped?”
                “Well, not legally, no. But, you know, it’s kinda like entrapment sorta.”
                “Okay, then! Case dismissed!”

          2. The US government attempted to entrap Papadopolous. Spy, Stephen Halper, working for CIA/MI6 worked Papadop, into a speaking engagement in England. While there Halper following orders, ran several spies at Papadop, attempting to get him to admitt the campaign was being aided by Russia. All of that failing, they (US govt agents) hooked him up with some “consulting” work in Israel. While in Israel, Papadop was handed $10,000 cash. Confused exactly what was happening and why, he smartly gave the Cash, to an Israel lawyer for safe keeping. When he landed at DC airport, he was set upon by FBI agents that searched all of his luggage, detained him for hours and finally let him go. Failing to find $10,000 that he failed to declare, but the FBI knew he was given.
            But that is not entrapment.
            Is this really the government you advocate for?

            1. The US government attempted to entrap Papadopolous. Stephen Halper, working for CIA/MI6 worked Papadop, into a speaking engagement in England. While there Halper following orders, ran several spies at Papadop, attempting to get him to admitt the campaign was being aided by Russia.

              This, of course, is not even in the same universe as entrapment.

              All of that failing, they (US govt agents) hooked him up with some “consulting” work in Israel. While in Israel, Papadop was handed $10,000 cash. Confused exactly what was happening and why,

              This would be much more questionable, but is unfortunately a work of fiction on Papadopoulos’s part. The U.S. government had nothing to do with his trip to Israel or to his work there, and he wasn’t confused about anything. It was a business deal he was trying to arrange. There’s documentary evidence about this — emails from George Papadopoulos himself.

              (Also, it wouldn’t actually be entrapment either; handing someone money isn’t coercing them into committing a crime. If he had carried it with him back to the U.S., all he had to do was declare it and it would have been entirely legal.)

              1. Papadop was invited to Isreal by Mifsud and/or Halper. Both being handled by MI6, they being directed my Clapper. The CIA can’t spy on us citizens, even abroad, but MI6 can. You need a cite for those Papadop e mails seeking work in Israel.

                1. Papadop was invited to Isreal by Mifsud and/or Halper.

                  No, he wasn’t.

      2. That is an interesting thesis, Ben. But I don’t know that I see it.

        Look at the arguments above. They don’t turn merely on that particular factual fulcrum, but rather on the entire chain of events in the prosecution up until right now. Not to mention turning on legal precedent.

        I’d note where almost all the practicing trial lawyers end up. (Bruce did patent practice, as I recall, but his arguments turn on factual differences from the common narrative)

    2. Seldom have I seen as many of the partisans just call the other side liars and not engage around here, and I’ve seen some super partsian threads.

      Supporting political prosecutions has a strange side effect of making many people angry for some reason.

  18. The rule of law instructs that U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn’s case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government’s dismissal request. This authority stems from the federal criminal rules of procedure and the trial judge’s inherent authority. If this authority were properly exercised, the judge’s refusal to dismiss the case would not impermissibly usurp the executive’s exclusive constitutional power to decide whether to bring or maintain a criminal prosecution.

    That paragraph contradicts itself. If it is the judge’s duty and obligation to judge the propriety of the government’s decision to dismiss a case, then that necessarily usurps the executive’s constitutional authority to decide whether to bring or maintain a criminal prosecution. Indeed, if that decision is subject to the review of a judge who has an obligation to stop it if he thinks it is improper, such authority is not exclusive.

    Of course, the authority is exclusive. That author admits that. And the federal rules for criminal procedure do not override the Constitution. And the Constitution grants the exclusive authority to make this decision to the executive.

    Understand that the dismissal is without prejudice. The decision to dismiss the case is subject to the review of Congress and ultimately the voters. If it is against justice or improper, the remedy is for Congress and the voters to force the executive to reverse it’s decision not for judges to usurp the power of the executive to enforce the law.

    1. “Understand that the dismissal is without prejudice. The decision to dismiss the case is subject to the review of Congress and ultimately the voters. If it is against justice or improper, the remedy is for Congress and the voters to force the executive to reverse it’s decision not for judges to usurp the power of the executive to enforce the law.”

      So he should be given a new trial, with the trial postponed until we find out whether a Democratic President is elected who wants to pursue the case?

      What about the right to a speedy trial? Or in this case a speedy retrial? The prosecution did this once, so presumably it still has the witnesses and exhibits it needs. If the original conviction is set aside, I’d say they need to hurry up if they want to try him again.

      1. All of that is subject to speedy trial and due process. The remedy for this is the voters holding the executive accountable for the decision. There is nothing that says the remedy has to be going back and reversing the decision. Our entire system is based on the idea that due process exists to protect the innocent and guilty alike and guilty men walking free sometimes is a necessary cost of doing that.

    2. That paragraph contradicts itself. If it is the judge’s duty and obligation to judge the propriety of the government’s decision to dismiss a case, then that necessarily usurps the executive’s constitutional authority to decide whether to bring or maintain a criminal prosecution. Indeed, if that decision is subject to the review of a judge who has an obligation to stop it if he thinks it is improper, such authority is not exclusive.

      Consider the question begged.

      Also, the question here isn’t whether to bring a prosecution; it’s whether to dismiss it after conviction.

      1. Consider you not understanding the question. The issue is not that it is being dismissed after conviction. It is being dismissed before sentencing and before the conclusion of the case. Rule 48 of the FRCP requires leave of court when the government “dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” So the fact that he pled guilty and is about to be sentenced makes no difference. We would be having this discussion and leave of court would be required to dismiss the complaint even before he pled guilty. The issues are the same in every case. Until he is sentenced and the case closed, the government has the discretion to dismiss the case.

        While his plea has been accepted, there isn’t a judgement entered until sentencing. So the government dismissing the case with consent of the defendant is no different than dismissing it during trial, the issue raised are the same. The government can back out up until judgement. The only issue is once there has been a plea or trial has started, they need the defendant’s consent to do so.

        If you don’t understand what is going on, just ask. I am sure me or someone will be happy to explain it to you. But, don’t act like a smug prick while making a stupid point. That is highly annoying.

        1. So the government dismissing the case with consent of the defendant is no different than dismissing it during trial, the issue raised are the same.

          No, the issues raised are not the same. If the judge refuses to dismiss the case during trial, then what’s he going to do — order the prosecutor to stand at the podium and call witnesses and introduce evidence and cross-examine defense witnesses? Even assuming for the sake of argument that the judge had authority to do that, it would be entirely unworkable. A judge can’t force someone to litigate.

          But at this juncture, that is no longer at issue. The prosecution has no role left to play.¹ Judge Sullivan does not need to compel the prosecutor to do anything if he denies the motion to dismiss. He can just proceed to impose a sentence.

          ¹Prosecutors can of course make sentencing recommendations, but (a) the prosecution already did that in this case, so doesn’t need to do so here, and (b) those are just recommendations. The only party making a decision is the judge.

    3. Let me give you a different, less contentious example where a judge denied dismissal. Not just a judge, but a circuit appeal court.

      In the monkey-selfie case. PETA sued the photographer demanding that the monkey had copyright. It went through both trial and appeal. After the appeal had been heard and argued in front of the circuit, PETA then made a settlement with the photographer and moved to dismiss. Their intent seems to be that PETA realized that the judges were going to remove their ability to sue in the place of animals and were trying to avoid that precedent being set.

      The Circuit court denied the motion to dismiss and ruled that animals didn’t have court standing and PETA couldn’t do any more lawsuits of the type.

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