Jump to content
horn4life

Flynn Walks.. DOJ drops case

Recommended Posts

Posted (edited)

I understand about 9 words on this page.

Edited by Biff Tannen
god dammit. last page. fuck it, I'm leaving it

Share this post


Link to post
Share on other sites
1 minute ago, Biff Tannen said:

I understand about 9 words on this page.

LOL, the statement could be quite prescient...stay tuned!

Share this post


Link to post
Share on other sites
16 minutes ago, PsychMike said:

Holy shit I learned another new word!

 

 

Great tweet, Norm.  Except the dissent doesn't say that.  And I don't think Sullivan can seek review.

Share this post


Link to post
Share on other sites

So, Sullivan can prove how political he is by appealing to the Supreme Court, correct?  Does appealing and delaying the inevitable help his chances to be elevated to the Supreme Court when Trump loses or does it make him look like a sore loser? 

 

 

Share this post


Link to post
Share on other sites
17 minutes ago, orangecat92 said:

So, Sullivan can prove how political he is by appealing to the Supreme Court, correct?  Does appealing and delaying the inevitable help his chances to be elevated to the Supreme Court when Trump loses or does it make him look like a sore loser? 

 

 

Speaking of Trump losing, hypothetically, if he did lose in Nov. and we get a normal AG again, can this go back to trial? Or does whatever the hell is going on here protect Flynn from double jeopardy?

Share this post


Link to post
Share on other sites

In case any of y'all wondered whether I was being hyperbolic about this administration 100% placing itself above the law, and destroying the Rule of Law.....this is exactly how it happens.  The President orders the AG to act as his personal attorney and use the power of the government to protect his political allies -- that's a good way to take the Republic closer to its death, which at this point, seems inevitable.

Share this post


Link to post
Share on other sites
4 hours ago, Lagunamadre said:

Speaking of Trump losing, hypothetically, if he did lose in Nov. and we get a normal AG again, can this go back to trial? Or does whatever the hell is going on here protect Flynn from double jeopardy?

Jeopardy has attached to this offense.  If there was sufficient evidence to indict him for the Turkey stuff, he could be tried for that.

Share this post


Link to post
Share on other sites
13 minutes ago, Brisketexan said:

In case any of y'all wondered whether I was being hyperbolic about this administration 100% placing itself above the law, and destroying the Rule of Law.....this is exactly how it happens.  The President orders the AG to act as his personal attorney and use the power of the government to protect his political allies -- that's a good way to take the Republic closer to its death, which at this point, seems inevitable.

The really revolting thing about this is that, as far as I can tell, Flynn isn't really a political ally.

This was done to assist in preserving the illusion that there was no misconduct with Russia by the Trump administration.

Share this post


Link to post
Share on other sites
1 minute ago, TwiceHorn said:

The really revolting thing about this is that, as far as I can tell, Flynn isn't really a political ally.

This was done to assist in preserving the illusion that there was no misconduct with Russia by the Trump administration.

There's no situation in which the admin WON'T choose to flush the country down the shitter for even the barest of what they think is political advantage.

Trump would 100% nuke California if he thought it would gain him +1 net electoral votes.

Share this post


Link to post
Share on other sites
9 hours ago, TwiceHorn said:

That surprises me a bit.  I think that was the almost inevitable conclusion, but surprised the court did it via mandamus.  Which seems to be the gist of the dissent.

It is not terribly surprising that Rao authored the opinion,  Not only is she a Trump appointee, but she has zero real world litigation experience.  I'm kind of surprised she could get anyone to go along with her.

The other judge was GWHB appointee, in other words a Republican. They always eventually do what they are told to do.

Share this post


Link to post
Share on other sites
1 hour ago, PsychMike said:

 

They should move for an en banc hearing and if they do they will win. Fucker ain’t free yet. Then its off to the Supremes...

Share this post


Link to post
Share on other sites
2 minutes ago, JimmyJames said:

The other judge was GWHB appointee, in other words a Republican. They always eventually do what they are told to do.

Sullivan was first appointed to the bench by Reagan, then the DC Court of Appeals by GWHB.  To the D DC by Clinton.

Share this post


Link to post
Share on other sites
10 minutes ago, JimmyJames said:

They should move for an en banc hearing and if they do they will win. Fucker ain’t free yet. Then its off to the Supremes...

I don't think Sullivan has standing to do anything.  Neither the defense nor the government is going to move for rehearing or petition for cert.

I think it's sua sponte en banc or nothing, which means nothing.

This isn't going to the Supreme Court.

Share this post


Link to post
Share on other sites
31 minutes ago, Brisketexan said:

In case any of y'all wondered whether I was being hyperbolic about this administration 100% placing itself above the law, and destroying the Rule of Law.....this is exactly how it happens.  The President orders the AG to act as his personal attorney and use the power of the government to protect his political allies -- that's a good way to take the Republic closer to its death, which at this point, seems inevitable.

Are you suggesting we are in a state of anarchy?  

Share this post


Link to post
Share on other sites
They should move for an en banc hearing and if they do they will win. Fucker ain’t free yet. Then its off to the Supremes...

Is it? I’d think en banc would result (at most) in withdrawing the mandamus order to dismiss. Then Sullivan would have the chance to hear arguments and make a ruling. Then it’d potentially be appealed to the DC Circuit. Wouldn’t get to the Supremes unless DC decides the DOJ couldn’t withdraw charges?

Maybe I’m wrong though. This is such a unique situation, I don’t think anybody really knows the answer

Share this post


Link to post
Share on other sites
2 minutes ago, SquishMitten said:


Is it? I’d think en banc would result (at most) in withdrawing the mandamus order to dismiss. Then Sullivan would have the chance to hear arguments and make a ruling. Then it’d potentially be appealed to the DC Circuit. Wouldn’t get to the Supremes unless DC decides the DOJ couldn’t withdraw charges?

Maybe I’m wrong though. This is such a unique situation, I don’t think anybody really knows the answer

Yeah, it would have to go back down, Sullivan decline to dismiss, then probably mandamus again, with a better footing.  Then if that's denied, appeal of the final judgment of conviction.  That could potentially make it to the Supreme Court, but not this one.

Share this post


Link to post
Share on other sites
21 minutes ago, TwiceHorn said:

Sullivan was first appointed to the bench by Reagan, then the DC Court of Appeals by GWHB.  To the D DC by Clinton.

Goddammit.  GHWB.  Don't know if I was affected by your typo or just did it again.  I'm a typo machine on this forum, while I'm not in real life.

Share this post


Link to post
Share on other sites
9 hours ago, Chuckie Finster said:

Edited because I have no legal background, but this all just seems so dirty.

It is.

Share this post


Link to post
Share on other sites
24 minutes ago, TwiceHorn said:

I don't think Sullivan has standing to do anything.  Neither the defense nor the government is going to move for rehearing or petition for cert.

I think it's sua sponte en banc or nothing, which means nothing.

This isn't going to the Supreme Court.

He has the standing of a federal district judge to ignore a writ of mandamus if he wants to, which of course never, ever happens, but then again this is trump America, then when he does the defense appeals or I guess files another writ. Who the fuck really knows.

Such a fucked up country nowadays thanks to trump and his dipshit supporters.

Share this post


Link to post
Share on other sites
11 hours ago, CowboyFred said:

 

I don't even know what to think anymore.  I understand that as a matter of law this is the correct decision but this case doesn't really pass the smell test (especially with the way things are in this country).  Question on the mandamus: Is via mandamus not the correct avenue for dismissing the case because the higher court is kicking it back down to the lower court to enforce/order the dismissal?  I didn't read the order before the appeal or look too much into it to see what exactly was ordered to take place in this appeal.  I picked a hell of a time to jump into a legal career.

I disagree that as a matter of law this is the correct decision. 

The majority's opinion is absolute garbage. The amicus brief - and, I assume, the response to the mandamus petition - makes it clear that one of the reasons the rule requires leave of court is to protect against just the kind of bullshit going on here. 

The majority cites dicta that the "principal object" of the rule is to preclude prosecutorial harrassment, but twists that into being the only situation in which review is appropriate. 

Hiding behind the skirt of the "presumption of prosecutorial regularity," in order to prevent a hearing on the question of whether that is rebutted here, is complete bullshit. 

And, as has been argued up-thread, mandamus is 100% not appropriate here. The majority's concerns about the DOJ having to reveal details of their internal deliberations is some particularly weak ass shit. This aspect alone requires reversal of this order. 

Rao is a hack. A truly horrible opinion. 

Share this post


Link to post
Share on other sites

I am a big proponent of due process safeguards that protect the accused - as found in the Constitution and the law. That is a core value of this nation.

Don't give a damn who the accused might be. That is irrelevant. The due process safeguards protect us all - and the power of the state is immense. 

The district court judge has a duty to obey the Court of Appeals - subject to any appellate type review or revisit of the order. 

I read the dissent as a ripeness issue - wait for the judge to decide and then appeal. Emergency writs play an important role in accessing the judiciary's equitable power. Courts of Appeal has every right to grant them at any point. Sometimes it is the only way to get a trial court to act. This is an ugly case for our judicial system. It needs to end sooner than later. 

Share this post


Link to post
Share on other sites
5 minutes ago, washparkhorn said:

I am a big proponent of due process safeguards that protect the accused - as found in the Constitution and the law. That is a core value of this nation.

Don't give a damn who the accused might be. That is irrelevant. The due process safeguards protect us all - and the power of the state is immense. 

The district court judge has a duty to obey the Court of Appeals - subject to any appellate type review or revisit of the order. 

I read the dissent as a ripeness issue - wait for the judge to decide and then appeal. Emergency writs play an important role in accessing the judiciary's equitable power. Courts of Appeal has every right to grant them at any point. Sometimes it is the only way to get a trial court to act. This is an ugly case for our judicial system. It needs to end sooner than later. 

It's not ripeness in the usual sense. It's the way mandamus works or is supposed to work. 

From the debate over the non-mandamus aspects of the opinion, it's clear that any opinion on the degree of discretion the trial court has over a motion to dismiss would have been better founded had the trial court actually exercised that discretion, for better or worse, and the appellate court exercised its usual jurisdiction in the event he did not dismiss it.

But all this foofaraw about the public interest is bullshit.  The public interest is really represented by the prosecution.  The defendant's interest is represented by the defense.  The judiciary mediates the interests in applying the law.  I'm not convinced that it can or ever should "take over" the public interest in a prosecution when the party with the public interest in the first instance abdicates.  If the public doesn't like it, it has the vote.

The judiciary never operates without being invoked by either a private party or the government.  It has very limited role in "representing the public interest" and generally does so in rather indirect or passive ways, as by predictably and "fairly" administering the law in disputes.

That means, basically, that the judiciary has no role in maintaining a prosecution that the parties want to dismiss.  That's just the way it's got to be.

It's not all that ugly for the judicial system, it is grotesque for the DOJ.

Share this post


Link to post
Share on other sites
18 minutes ago, washparkhorn said:

I agree. A judge taking over for the prosecution (hyperbole) is a huge red flag.

It's not all that hyperbolic, in my opinion.

There is a notion that once guilt is established (by plea or by trial), the prosecution and defense "drop out" to some degree, and the judiciary (the judge) "takes over" for imposing a sentence.  And there the judge is representing the public interest and the judiciary has a role that is more prominent.

I bought that for a while, but after mulling it, find it unpersuasive.

The judge imposes a sentence established by Congress, even moreso with the Sentencing Guidelines established by Congress and the executive via the Sentencing Commission (in fact, Congress would like to specify the sentence to the month and day if it constitutionally could, further reducing the judge's role to umpire performing ministerial acts).  So, in sentencing, the post-trial proceeding, Congress represents the public interest via the statutory sentence range and guidelines, along with the prosecution in this more specific application, and the defense continues to represent the defendant, and the two parties continue to fiercely advocate. And despite appearances to the contrary, the judge still neutrally mediates the interests of them all.

Share this post


Link to post
Share on other sites
1 hour ago, washparkhorn said:

 Emergency writs play an important role in accessing the judiciary's equitable power. Courts of Appeal has every right to grant them at any point. 

What? No. It's well established that the requested relief cannot be obtained by direct appeal. 

You're saying that appellate courts can mandamus trial courts in the middle of the proceedings, obviating the necessity of an appeal? 

Share this post


Link to post
Share on other sites
45 minutes ago, Hookah Horns said:

What? No. It's well established that the requested relief cannot be obtained by direct appeal. 

You're saying that appellate courts can mandamus trial courts in the middle of the proceedings, obviating the necessity of an appeal? 

We have higher court emergency writs that compel a lower court to act in the middle of a proceeding. I used them quite a bit when I did criminal work. They are not unusual - especially in a criminal case. 

Share this post


Link to post
Share on other sites

Federal mandamus is a bit more limited in application than some of the state court writs.  In the civil area, it gets used mostly on venue transfers  and discovery things like privilege and the occasional oddball ruling that may be beyond a judges power.

Share this post


Link to post
Share on other sites
14 hours ago, Brisketexan said:

There's no situation in which the admin WON'T choose to flush the country down the shitter for even the barest of what they think is political advantage.

Trump would 100% nuke California if he thought it would gain him +1 net electoral votes.

That would indirectly get him +55 electoral votes, so let's not give him any ideas. I need my wine country. 

Share this post


Link to post
Share on other sites
On 6/24/2020 at 7:08 PM, SquishMitten said:

Is it? I’d think en banc would result (at most) in withdrawing the mandamus order to dismiss. Then Sullivan would have the chance to hear arguments and make a ruling. Then it’d potentially be appealed to the DC Circuit. Wouldn’t get to the Supremes unless DC decides the DOJ couldn’t withdraw charges?

Maybe I’m wrong though. This is such a unique situation, I don’t think anybody really knows the answer

If a judge calls for the mandamus petition to be reheard en banc, I doubt it gets overturned but it's closer to 50/50.  Scratching Gleeson from the case won't get overturned, just the right to a hearing.

If the call is for the case to be heard en banc, it gets dismissed like 5 minutes ago.  Probably unanimously.  This really is that unambiguous.

Share this post


Link to post
Share on other sites
9 minutes ago, JBJ said:

If a judge calls for the mandamus petition to be reheard en banc, I doubt it gets overturned but it's closer to 50/50.  Scratching Gleeson from the case won't get overturned, just the right to a hearing.

If the call is for the case to be heard en banc, it gets dismissed like 5 minutes ago.  Probably unanimously.  This really is that unambiguous.

Well, they can't change the fact that it's a mandamus petition.  On rehearing, I would think that most of the judges would agree that a dismissal order, as a mandamus remedy, is probably beyond mandamus jurisdiction.

The only question(s) appropriate for resolution on mandamus is whether Sullivan can order a) a hearing of any kind (likely) b) appointment of amicus/ad litem (a little fuzzier but still kind of depends on what he does with it) before actually taking up the dismiss/deny question.

So it goes back to the trial court with orders outlining how much Sullivan can embarrass the DOJ/administration before dismissing.

What's kind of funny here is that it's usually liberal-type judges that sidestep procedural rules to get at the "meat of the issue" -- whether Sullivan must dismiss -- while conservatives tend to insist on following the rigors of mandamus procedure to push off the bigger decision.  No side necessarily has the high ground on these issues, but there is a kind of typical bag of tricks.

Share this post


Link to post
Share on other sites
39 minutes ago, TwiceHorn said:

The only question(s) appropriate for resolution on mandamus is whether Sullivan can order a) a hearing of any kind (likely) b) appointment of amicus/ad litem (a little fuzzier but still kind of depends on what he does with it) before actually taking up the dismiss/deny question.

I agree with (a) as fuzzy but the majority did a good job explaining why they were "jumping the gun" on this.    The issue is contained within the statement "a hearing of any kind."

A simple ministerial hearing would be okay.  In oral, all 3 judges seemed to be okay with the idea of a hearing.  Ultimately, the hearing planned was undermined by  Sullivan's own actions towards it.

My simple translation of the majority on this point is "we don't have to wait to see if the hearing is inappropriate because he's already taken numerous inappropriate actions towards the hearing."  I find that to be a solid argument.  Especially in light of the fact all reasonable posters here thought it would end up being "re-mandamused" after the fact.

(b) Isn't fuzzy in this case because we've already seen how it was handled.  It was highly questionable on its face to begin with and that was assuming Gleeson wasn't going to be an asshat.

Share this post


Link to post
Share on other sites
Posted (edited)
22 minutes ago, JBJ said:

I agree with (a) as fuzzy but the majority did a good job explaining why they were "jumping the gun" on this.    The issue is contained within the statement "a hearing of any kind."

A simple ministerial hearing would be okay.  In oral, all 3 judges seemed to be okay with the idea of a hearing.  Ultimately, the hearing planned was undermined by  Sullivan's own actions towards it.

My simple translation of the majority on this point is "we don't have to wait to see if the hearing is inappropriate because he's already taken numerous inappropriate actions towards the hearing."  I find that to be a solid argument.  Especially in light of the fact all reasonable posters here thought it would end up being "re-mandamused" after the fact.

(b) Isn't fuzzy in this case because we've already seen how it was handled.  It was highly questionable on its face to begin with and that was assuming Gleeson wasn't going to be an asshat.

Here's the thing though.  In my mind, when you have circumscribed procedures like mandamus, you don't get to "predict" what may happen with the hearing or the dismissal, and then rule based on the predicted impermissible outcome, no matter how likely it may seem. 

You can obiter dictum about how you will rule on "direct" appeal or on subsequent mandamus if the prediction comes true, but you can't short-circuit the mandamus procedure by ordering an outcome that has not come to pass.

Otherwise, why have a mandamus procedure at all?  Just call it some kind of plenary interlocutory appeal.  Of course, once that happens, litigation will grind to a halt with such appeals, which is why mandamus is as circumscribed as it is.  

As an engineer, I struggled with the elevation of procedure over substance many times in the study of law, and in the practice.  But most of the time when it happens, there is a decent reason for it.

I do think the order to show cause about perjury in the plea documents was ultra vires and should have been squashed. Sullivan's remedy there was to refer it to the US Attorney for potential prosecution. And maybe the amicus order as well, as a violation of the party presentation rule.  But it should have stopped there.

Sullivan in all likelihood should have been able to hold a hearing, barbecue the government a bit, and then say "I don't like it, I think the government's reasons are pretextual, but I am bound to dismiss this case."  That commentary is, in my opinion, the limit of a district court's discretion on a motion to dismiss.  Maybe also the ability to sanction attorneys for filing documents taking wildly inconsistent positions.

Edited by TwiceHorn

Share this post


Link to post
Share on other sites
Posted (edited)
56 minutes ago, TwiceHorn said:

Here's the thing though.  In my mind, when you have circumscribed procedures like mandamus, you don't get to "predict" what may happen with the hearing or the dismissal, and then rule based on the predicted impermissible outcome, no matter how likely it may seem. 

You can obiter dictum about how you will rule on "direct" appeal or on subsequent mandamus if the prediction comes true, but you can't short-circuit the mandamus procedure by ordering an outcome that has not come to pass.

Otherwise, why have a mandamus procedure at all?  Just call it some kind of plenary interlocutory appeal.  Of course, once that happens, litigation will grind to a halt with such appeals, which is why mandamus is as circumscribed as it is.  

As an engineer, I struggled with the elevation of procedure over substance many times in the study of law, and in the practice.  But most of the time when it happens, there is a decent reason for it.

But they didn't need to predict.  Sullivan was asking for a certain kind of hearing in his response. 

Sullivan's argued: "someone needs to fill the adverserial gap," "[the court needs to] fill the void created by this breakdown in the adversarial process," "questions remain whether Mr Flynn should be subject to any sanction," "separation of powers considerations may be different once cases move past pending charges," "protection of sentencing authority [should be] reserved to the judge."

He was asking for a certain type of hearing for his clear abuses to be allowed to continued.  It doesn't require a prediction of the outcome to halt this.

Edited by JBJ

Share this post


Link to post
Share on other sites
Posted (edited)
21 minutes ago, JBJ said:

But they didn't need to predict.  Sullivan was asking for a certain kind of hearing in his response. 

Sullivan's argued: "someone needs to fill the adverserial gap," "[the court needs to] fill the void created by this breakdown in the adversarial process," "questions remain whether Mr Flynn should be subject to any sanction," "separation of powers considerations may be different once cases move past pending charges," "protection of sentencing authority [should be] reserved to the judge."

He was asking for a certain type of hearing for his clear abuses to be allowed to continued.  It doesn't require a prediction of the outcome to halt this.

Fine.  Trash the show cause and the amicus.  Rao still impermissibly predicted an outcome of the dismissal motion.

Don't order dismissal.  That exceeds mandamus jurisdiction.

And, this underscores that, although Rao may be or is a complete political hack, the root of this decision is lack of respect for appellate jurisdiction and the limits thereof.

Edited by TwiceHorn

Share this post


Link to post
Share on other sites

I buy that.  Vacate Gleeson and the hearing.  Tell Sullivan to rule (and not how to rule) while using stern words.

Share this post


Link to post
Share on other sites
Posted (edited)

I still think he gets to have some fun at the hearing.

The Court: "Mr. Prosecutor, your arguments in support of dismissal are almost diametrically opposed to those made to this court earlier in connection with Mr. Flynn's motions to dismiss. Arguments that the court found persuasive and found as facts.  You realize that do you not?  Do you have any further explanations for this sudden reversal?  Is there something the government is not sharing with the court?"

Barr/Trump Stooge: "Uh, um.  We have reconsidered, your honor."

The Court: "Ah well, nevertheless, the court finds the government's reversal extremely troubling and its behavior here less than candid.  I believe the stated reasons are pretextual and the real reasons for this dismissal are being hidden from the court and the public.  But, as I read the law and as the DC Circuit has virtually commanded me, I must reluctantly grant the government's motion and dismiss the information against Mr. Flynn.  Mr. Flynn, you are free to leave.  Consider yourself very lucky."

"Mr. Prosecutor, I am ordering your boss, Mr. Shea, to appear personally and show cause why he should not be sanctioned for the government's behavior in this case."

Edited by TwiceHorn

Share this post


Link to post
Share on other sites
15 minutes ago, TwiceHorn said:

I still think he gets to have some fun at the hearing.

The Court: "Mr. Prosecutor, your arguments in support of dismissal are almost diametrically opposed to those made to this court earlier in connection with Mr. Flynn's motions to dismiss. Arguments that the court found persuasive and found as facts.  You realize that do you not?  Do you have any further explanations for this sudden reversal?  Is there something the government is not sharing with the court?"

Barr/Trump Stooge: "Uh, um.  We have reconsidered, your honor."

The Court: "Ah well, nevertheless, the court finds the government's reversal extremely troubling and its behavior here less than candid.  I believe the stated reasons are pretextual and the real reasons for this dismissal are being hidden from the court and the public.  But, as I read the law and as the DC Circuit has virtually commanded me, I must reluctantly grant the government's motion and dismiss the information against Mr. Flynn.  Mr. Flynn, you are free to leave.  Consider yourself very lucky."

"Mr. Prosecutor, I am ordering your boss, Mr. Shea, to appear personally and show cause why he should not be sanctioned for the government's behavior in this case."

that would be fucking awesome to watch and see reactions in real time.

Share this post


Link to post
Share on other sites
30 minutes ago, CowboyFred said:

that would be fucking awesome to watch and see reactions in real time.

We may still get it.  Or a form of it.

Share this post


Link to post
Share on other sites

Justice is great, especially when an attorney sends a confidential letter to the Attorney General asking him to just take care of their client, and he does want they want.

https://www.nytimes.com/2020/06/28/us/politics/michael-flynn-sidney-powell.html

 

Quote

Sidney Powell, a firebrand lawyer whose pugnacious Fox News appearances had earned her numerous private phone conversations with President Trump, sent a letter last year to Attorney General William P. Barr about her soon-to-be new client, Michael T. Flynn.

Asking for “utmost confidentiality,” Ms. Powell told Mr. Barr that the case against Mr. Flynn, the president’s former national security adviser who had pleaded guilty to lying to the F.B.I., smacked of “corruption of our beloved government institutions for what appears to be political purposes.” She asked the attorney general to appoint an outsider to review the case, confident that such scrutiny would justify ending it.

 

Quote

Mr. Barr did what she wanted. He appointed a U.S. attorney six months later to scour the Flynn case file with a skeptical eye for documents that could be turned over as helpful to the defense. Ultimately, Mr. Barr directed the department to drop the charge, one of his numerous steps undercutting the work of the Russia investigation and the special counsel, Robert S. Mueller III.

The private correspondence between Ms. Powell and Mr. Barr, disclosed in a little-noticed court filing last fall, was the first step toward a once-obscure lawyer and a powerful attorney general finding common cause in a battle to dismantle the legacy of the investigations into President Trump and his allies.

 

Quote

Ms. Powell’s slash-and-burn approach — accusing the federal law enforcement machinery of concocting a case against her client — failed in the courtroom last year when a judge rejected her claims. But the same strategy, which she amplified in frequent media appearances, succeeded in turning Mr. Flynn’s case into a cause for Mr. Trump’s supporters and in securing the review ordered by Mr. Barr that provided her with fresh ammunition.

Mr. Barr’s subsequent decision to drop the charge against Mr. Flynn threw the Justice Department into turmoil and set up a high-stakes battle pitting the attorney general and Ms. Powell against the trial judge, Emmet G. Sullivan, who opened a review of the move.

 

Spoiler

Ms. Powell and her client won a significant victory on Wednesday when a divided appeals court panel — in a surprise ruling written by Judge Neomi Rao, a former White House official whom Mr. Trump appointed to the bench — ordered Judge Sullivan to drop the case without scrutiny. Judge Sullivan suspended his review but has not dismissed the charge, suggesting that the extraordinary legal and political saga is not yet over.

Ms. Powell declined to discuss her conversations with the White House or her correspondence with Mr. Barr. But she said in an email that she had long considered “prosecutorial misconduct and overreach” a problem and that she viewed Mr. Flynn as a victim of it.

At its core, Mr. Flynn’s case is a drama about who gets to mete out justice in the Trump era, upending the prosecution of a man who twice had admitted guilt.

“It’s hard to think of anything remotely like this,” said David Alan Sklansky, a Stanford University law professor and former federal prosecutor. “The Justice Department has taken somebody who has twice pleaded guilty, in a case where the trial judge has considered and already rejected claims of government wrongdoing, and prosecutors now say we’d like to dismiss the case and don’t think it should have been brought in the first place.”

When Mr. Flynn stood in Judge Sullivan’s courtroom on Dec. 18, 2018, his legal odyssey appeared to be over. He had struck a favorable deal with Mr. Mueller’s prosecutors to cooperate after admitting to lying to F.B.I. agents about conversations with the Russian ambassador in late 2016. In exchange, prosecutors were recommending he receive no prison time and not be prosecuted for separate offenses related to his lobbying for Turkish government without registering as an agent of a foreign power.

But he did not go quietly. His defense team, in a memo laying out what sentence he should receive, also floated the notion that Mr. Flynn had been set up. F.B.I. agents had used several different tactics to essentially trick Mr. Flynn, a retired Army three-star general, into making false statements, the memo suggested.

The Flynn defense team was trying to have it both ways, and Judge Sullivan was furious. He grilled Mr. Flynn about whether he was truly taking responsibility for his crimes and even suggested — before retracting the notion — that Mr. Flynn had been a traitor to his country. When it appeared that Judge Sullivan might send Mr. Flynn to prison, going beyond the original recommendation of prosecutors, Mr. Flynn and his lawyer, Robert K. Kelner, decided to postpone the sentencing so he could continue to cooperate with prosecutors.

Judge Sullivan, appointed to the Federal District Court by President Bill Clinton, has a reputation as a hard-nosed jurist with a disdain for prosecutorial misconduct. He is known for taking guilty pleas seriously, and he reminded Mr. Kelner that he had never accepted one from someone who maintained he was not guilty and that he didn’t “intend to start today.”

In his legal pivot, Mr. Flynn had channeled the campaign led by Mr. Trump and his allies that had portrayed the Russia investigation as a “witch hunt” and a plot to sabotage his presidency. Since Mr. Flynn had first pleaded guilty in 2017, Republicans in Congress had taken up a campaign to undermine the case against him and portray him as a victim of overzealous prosecutors.

Some legal experts speculated at the time that Mr. Flynn was accepting guilt to pocket a sentence without prison time while also preserving the possibility that Mr. Trump might pardon him. His legal strategy would, soon enough, become even more radical: that he was innocent all along.

One of Mr. Flynn’s most vocal defenders was Ms. Powell, a Texas-based former federal prosecutor who had made no secret about her view that the Russia investigation was a sham. She appeared frequently on Fox News and had a website hawking T-shirts mocking Mr. Mueller’s team as “creeps on a mission.”

In early 2018, not long after Mr. Flynn’s original guilty plea, Ms. Powell wrote an op-ed alleging that “extraordinary manipulation by powerful people led to the creation of Robert Mueller’s continuing investigation and prosecution of General Michael Flynn.” She exhorted Mr. Flynn to drop his guilty plea and, ironically, praised Judge Sullivan, who had just taken over the case.

She called him the “perfect judge” for it because of his handling years earlier of the corruption case against former Senator Ted Stevens, Republican of Alaska. In that case, Judge Sullivan had been so furious after the Justice Department disclosed that it had failed to turn over evidence potentially helpful to the defense that he opened an ethics investigation into the prosecutors.

The department ended up asking Judge Sullivan to dismiss the case despite having won a guilty verdict — an outcome Ms. Powell seemed to view as a road map for Mr. Flynn.

Her television advocacy on behalf of Mr. Flynn appears to have had an influential viewer: the president. The two spoke five times in 2019, during the months before she officially took on Mr. Flynn as a client, according to a person familiar with the calls.

It is unclear what they discussed, but when Ms. Powell persuaded Mr. Flynn and his family to drop his original legal team and allow her to take up the case, the president was thrilled.

“General Michael Flynn, the 33 year war hero who has served with distinction, has not retained a good lawyer, he has retained a GREAT LAWYER, Sidney Powell,” Mr. Trump tweeted on June 13, 2019. “Best Wishes and Good Luck to them both!”

She previewed her defense strategy in the secret letter to Mr. Barr, asking him to begin a hunt for materials that the department could turn over. “At the end of this internal review, we believe there will be ample justification for the department to follow the precedent of the Ted Stevens case and move to dismiss the prosecution of General Flynn in the interest of justice,” she wrote.

As Mr. Flynn’s lawyer, she began demanding that the Justice Department turn over more files, including documents that were tangential to her client’s case but promoted other right-wing conspiracy theories about the Russia investigation.

She accused the F.B.I. and prosecutors of engaging in a litany of misconduct that “impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea.”

Exasperated prosecutors attacked Ms. Powell’s legal strategy, saying the “defendant and his new counsel are in search of a result, not the facts.”

She also made clear that her client was done helping the Justice Department. Almost immediately after she began representing Mr. Flynn, he changed his story in a prosecution in Virginia against his former business partner about their work for Turkey. Prosecutors decided against calling him as a witness, significantly weakening their case.

Months later, it was Ms. Powell’s defense of Mr. Flynn that was collapsing.

In December, Judge Sullivan delivered a stinging rebuke to her wide-ranging claims of prosecutorial misconduct and other accusations. In a 92-page opinion, he marched through her allegations and rejected each one.

It turned out that Judge Sullivan was not the savior that Ms. Powell was looking for; he even ruled that Mr. Flynn was no Ted Stevens.

But in a different way, her strategy had been a success: The case had become a political cause. While Judge Sullivan rejected Ms. Powell’s claims of material law enforcement misconduct as baseless, Fox News and other conservative news outlets had amplified them along the way.

“One of the things that General Flynn wanted to do, he thought it was critically important that we empty out the swamp of all the senior intelligence folks that are in Washington, D.C.,” Representative Devin Nunes, the California Republican on the Intelligence Committee who has been a staunch supporter of Mr. Trump and his theories, said to applause at the Conservative Political Action Conference in February. “So they had a real reason to get rid of General Flynn.”

This political chorus had already been hard at work trying to undermine the conclusions of the voluminous special counsel’s report. Mr. Mueller concluded that Russia systematically tried to sabotage the 2016 election and that Mr. Trump’s advisers had welcomed the help — even if he there was insufficient evidence of a criminal conspiracy. He also found numerous times when Mr. Trump tried to impede the Russia investigation, but chose not to determine whether the president had illegally obstructed justice.

Weeks after Judge Sullivan rejected Ms. Powell’s assertions of prosecutorial misconduct and was preparing to sentence Mr. Flynn, Ms. Powell persuaded her client to ask to withdraw his guilty plea and declare to the judge that he was innocent.

Meanwhile, Mr. Barr was moving to take direct control over the United States Attorney’s Office for the District of Columbia, which was handling several politically charged matters.

Mr. Barr maneuvered the Senate-confirmed U.S. attorney, Jessie K. Liu, into leaving early, and imposed his own aide, Timothy J. Shea, as the acting head of the office. At the same time, he appointed the U.S. attorney for St. Louis, Jeffrey B. Jensen, to examine the Flynn case.

It was exactly what Ms. Powell had asked Mr. Barr to do in her secret letter six months earlier.

Mr. Jensen scoured F.B.I. files in search of anything that could be construed as so-called Brady material — information Mr. Flynn could use to argue that he was not guilty — which had been withheld from the defense. He found several files.

Many fell into a category of things that made the F.B.I. look heavy-handed, but did not change the narrow issue of whether Mr. Flynn made false statements to the agents who questioned him.

But Ms. Powell seized on the revelations as proof that prosecutors had improperly withheld exculpatory evidence, justifying a dismissal of the case. Mr. Barr directed his department to file a motion to dismiss the charge.

The remarkable decision infuriated some Justice Department officials and stunned legal experts. Mr. Barr defended it last week in an interview with NPR as appropriate.

It also forced a showdown with Judge Sullivan, who had no intention of abandoning the case so easily.

The judge ordered a new review, appointing John Gleeson, a former mafia prosecutor and a retired federal judge from Brooklyn, to argue against the Justice Department’s motion. In a scathing memo, Mr. Gleeson urged Judge Sullivan to sentence Mr. Flynn anyway, over prosecutors’ objections.

Trying to head that off, Ms. Powell asked an appeals panel to order Judge Sullivan to end the case without any review of the motivation or legitimacy of the request. Legal experts widely scoffed at her tactic, noting that such orders are supposed to be reserved for rare problems where no other option exists.

But Ms. Powell’s gambit led to a stroke of luck. The case was randomly assigned to a three-judge panel that included Judge Rao and Judge Karen L. Henderson, a 1990 appointee of President George Bush, who have both proved more willing than most of their colleagues to interpret the law in Mr. Trump’s favor in politically charged cases.

In a 2-to-1 ruling, the panel ordered Judge Sullivan to shut down the case immediately, saying he had no authority to scrutinize the basis for Mr. Barr’s decision. The dissenting judge on the panel accused his colleagues of “grievously” overstepping their authority.

The ruling turned on a technical question rather than the merits of the case, and it remains to be seen whether the full appeals court will let it stand.

But Mr. Trump and his allies have already declared victory, inaccurately portraying the decision as proof that Mr. Flynn has been exonerated and should never have been charged.

 

 

Share this post


Link to post
Share on other sites

Pretty good article.  I think we all missed Powell's letter(s) to Barr, which apparently have been public for a while.

Share this post


Link to post
Share on other sites

Is there anything to the argument that the plea or admission of guilt was reached without information withheld by the prosecution?  If that happens, new shit come to light man /Lebowski, doesn't that allow the plea ad/or admission of guilt to be rescinded?  Especially since the case was put on hold.  Be honest.

 

Share this post


Link to post
Share on other sites

Good find.

The DC Circuit is comprised of a majority D appointees, by one.  If this rehearing is granted, the case would be decided by the entire DC Circuit.

Odds are pretty good of a different outcome, just by virtue of diluting Judge Rao's vote.  Not one that grants Sullivan free rein, exactly, but one that gives him more leeway to dig into it, at least.

The odds of it being granted are fairly slim, though.

Share this post


Link to post
Share on other sites

mpu


Football ... Basketball ... Baseball ... Other Sports ... Recruiting ... Gambling ... Movies & TV ... Music ... Hobbies ... Lulz ... Food & Travel ... Daily Texan ... Help ... For Sale ... Politics ... Board Discussion
×
×
  • Create New...