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Flynn Walks.. DOJ drops case


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10 minutes ago, Longhorn_Fan68 said:

translation for us luddites?

Judge Sullivan’s lawyers make a very compelling argument. The grant of mandamus in this fashion is not only unprecedented, it’s completely bizarre. Essentially, Flynn’s attorneys asked the DC Court to rule on an issue that was not fully resolved. It’s the type of thing that on its face is wrong (assuming we’re following precedent).

I think the DC court will hear it again and deny mandamus. It’ll get sent back to the court for Judge Gleason to do his briefing. The guv may still get their motion to dismiss granted (Gleason finds no error) but they aren’t going to do it by mandamus.

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13 minutes ago, Texaspython said:

Judge Sullivan’s lawyers make a very compelling argument. The grant of mandamus in this fashion is not only unprecedented, it’s completely bizarre. Essentially, Flynn’s attorneys asked the DC Court to rule on an issue that was not fully resolved. It’s the type of thing that on its face is wrong (assuming we’re following precedent).

I think the DC court will hear it again and deny mandamus. It’ll get sent back to the court for Judge Gleason to do his briefing. The guv may still get their motion to dismiss granted (Gleason finds no error) but they aren’t going to do it by mandamus.

Minor quibble, I think Gleeson completed his assignment in that he wrote a scathing brief undermining the government's position and reasoning.

I suppose there's a response and reply in order, but maybe not.

But overall, that's what I meant about Sullivan getting to dig into it more, make some findings and make a ruling, either dismissing the case presumably reaming out the government, or denying the dismissal and setting it for sentencing, which would provoke another mandamus that could be granted on similar grounds to the one we've already seen, which jumps the gun in a major way by going straight to dismissal when the trial judge hasn't ruled either way.

I'm not even 100% sure Sullivan has standing to make this petition. While the entirety of a mandamus proceeding questions his order, and they asked for briefing from him, I don't think he's technically an appellee, or respondent.  I don't know for sure, though.

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39 minutes ago, Longhorn_Fan68 said:

translation for us luddites?

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

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18 minutes ago, JBJ said:

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

JBJ,

Much better explanation than mine.

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29 minutes ago, JBJ said:

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

Good point on the procedure.

In a lot of ways it seems to be a slam dunk because the majority exceeded mandamus jurisdiction, there's a partisan majority going the other way, and the ease with which that majority can be invoked to vote in favor of hearing it again.

But, observers have noted, and I posted an article about it upthread, that the DC Circuit has been extraordinarily disinclined to grant rehearings.

Also, I don't think anyone explained that a "rehearing" is a do over of the appeal, with maybe even new briefing, likely argument in front of all 11 (I believe) judges, and a new opinion of those judges replacing the opinion of the three-judge panel.

Edited by TwiceHorn
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12 minutes ago, TwiceHorn said:

Good point on the procedure.

In a lot of ways it seems to be a slam dunk because the majority exceeded mandamus jurisdiction, there's a partisan majority going the other way, and the ease with which that majority can be invoked to vote in favor of hearing it again.

But, observers have noted, and I posted an article about it upthread, that the DC Circuit has been extraordinarily disinclined to grant rehearings.

Also, I don't think anyone explained that a "rehearing" is a do over of the appeal, with maybe even new briefing, likely argument in front of all 11 (I believe) judges, and a new opinion of those judges replacing the opinion of the three-judge panel.

That’s true but I have to think that opinion burned enough Judges asses on the DC court to warrant a rehearing. If nothing else but to keep the peace.

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That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

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8 minutes ago, TwiceHorn said:

That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

That's completely fine.  Let justice as the judge sees be done whatever it may be.

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On 7/30/2020 at 12:33 PM, TwiceHorn said:

That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

This, sort of.  Let's say the en banc vote is strictly down party lines, proving a court can be just as political as any other politician or institution.   Then Sullivan makes the case last long enough that the case is still going as the debates near.  Trump will not want to pardon Flynn before the election.   Flynn's attorneys appeal to the supreme court and the court rules for Flynn, just before the election.  The supreme court hears arguments October 5,6,7,13, and 14.  That's it before the election, unless you count the day before the election.  Sullivan's objective is to make the case last in his court until October 14.  I don't think he can do that.   Maybe he gets sick and has to go on FMLA or something like that.  So, my fearless forecast is that the supreme court hears the arguments October 7, 13, or 14, and hands down the ruling sometime before the end of October.  Game over.  

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On 8/1/2020 at 12:57 AM, orangecat92 said:

This, sort of.  Let's say the en banc vote is strictly down party lines, proving a court can be just as political as any other politician or institution.   Then Sullivan makes the case last long enough that the case is still going as the debates near.  Trump will not want to pardon Flynn before the election.   Flynn's attorneys appeal to the supreme court and the court rules for Flynn, just before the election.  The supreme court hears arguments October 5,6,7,13, and 14.  That's it before the election, unless you count the day before the election.  Sullivan's objective is to make the case last in his court until October 14.  I don't think he can do that.   Maybe he gets sick and has to go on FMLA or something like that.  So, my fearless forecast is that the supreme court hears the arguments October 7, 13, or 14, and hands down the ruling sometime before the end of October.  Game over.  

Well, I think the most likely outcome is that the DC Circuit reverses the decision ordering him to dismiss the case, but strongly suggests that that is the only permissible outcome.  It also approves or disapproves of the whole amicus procedure.  I am uncertain of the outcome there.

That then gives the parties a period of time to petition for cert, which can take 90 days plus, plus, plus depending on how quickly the parties act (DOJ presumably would want to go fast, fast).  I suspect that it would be denied, as mandamus is a lousy thing to take to the Supreme Court, being fact bound and interlocutory.  Or maybe to speed things up, they skip cert entirely on the mandamus and wait for a final judgment.

In any event, I think it probably permits Sullivan to hold a hearing on the motion to dismiss to "flesh things out further."  He can sit on a decision for quite a while after any hearing.

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  • 2 weeks later...
On 8/2/2020 at 3:30 PM, orangecat92 said:

Do you think Sullivan can make the case last through October 14? 

 

 

Hmmm.  Maybe?  

I might guess that the mandate from the DC Circuit doesn't hit the district court until September, so yeah.  He might even hold off for the parties to seek cert, although I he doesn't need to.

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Saw this summarizing/referring to a Conway op-ed in the WaPo (paywall). https://www.salon.com/2020/08/19/george-conway-no-serious-criminal-lawyer-would-buy-justice-departments-defense-of-michael-flynn_partner/

Also, here's an audio and auto-generated transcript of the oral argument.  I read in The Federalist (ugh) that it was four hours long and focused mostly on the propriety of granting mandamus in advance of any ruling.  https://www.c-span.org/video/?474473-1/michael-flynn-perjury-dismissal-case-rehearing

Apparently, toward the end, the SG argued that it should be returned to Sullivan for a ruling setting a deadline for same.  That isn't entirely clear from the transcript. 

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Also, Timothy Shea, the 90-day interim USA for DC, who signed the motion to dismiss when others apparently refused, has been indicted along with Bannon for a fraudulent wall-funding scheme.

Wonder what that does to the "presumption of regularity."

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  • 2 weeks later...

Per curiam opinion, with only Rao and Henderson, the original panel "majority," dissenting.  https://www.cadc.uscourts.gov/internet/opinions.nsf/777940F1C81FD47E852585D5005DADCB/$file/20-5143.pdf

Almost entirely procedural:  

Quote

When ordinary appellate review (or even, as here, further proceedings before the District Court) remains available, the writ may not issue unless the petitioner ‚Äúidentif[ies] some ‚Äėirreparable‚Äô injury that will go unredressed if he does not secure mandamus relief.‚ÄĚ

Very little to say about the Rule 48 standard or the amicus procedure of the district court.  Does suggest that mandamus relief may become appropriate depending on what happens in the district court.  But everything depends on what happens in the district court.

Solid 8-2 slapdown of Rao.  

 

Edited by TwiceHorn
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7 minutes ago, TwiceHorn said:

Per curiam opinion, with only Rao and Henderson, the original panel "majority," dissenting.  https://www.cadc.uscourts.gov/internet/opinions.nsf/777940F1C81FD47E852585D5005DADCB/$file/20-5143.pdf

Almost entirely procedural:  

Very little to say about the Rule 48 standard or the amicus procedure of the district court.  Does suggest that mandamus relief may become appropriate depending on what happens in the district court.  But everything depends on what happens in the district court.

Solid 8-2 slapdown of Rao.  

 

Per curium is pretty funny. Means the idiots  who are now dissenting were so wrong, which they were, we are not even going to bother with authoring an opinion about this nonsense. 

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Some additional fun tidbits.

The opinion notes that neither the government nor Flynn objected in the trial court to the appointment of amicus or any other aspect of the Rule 48 dismissal proceedings.  A hint that it might be waived, or subject to plain error review on a real appeal.

Also notes that it decided upon en banc review sua sponte based on the circuit judge's suggestion rather than the petition by Sullivan, so it need not consider whether Sullivan is a party entitled to seek en banc review, which was kind of a question I had.

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A nice mouthful of french and latin.  But I have always wondered a bit about the judge's role in a mandamus proceeding, because it directly questions the judge's actions and basically calls them FUBAR.  The opinion indicates that it is entirely proper for the judge to participate when invited to do so by the court of appeals, but it remains unclear whether s/he is a party entitled to appeal or request rehearing.

Also, the opinion did suggest that the amicus procedure ia probably ok, citing some authority, which I didn't really catch on the first pass.

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Not sure where to put this but breaking on wapo... 

"Court dismisses House lawsuit seeking to enforce a subpoena of former White House counsel Donald McGahn" 

Eta - "A federal appeals court on Monday dismissed a House lawsuit seeking to force President Trump’s former White House counsel Donald McGahn to comply with a Congressional subpoena, saying Congress has not passed a law expressly authorizing it to sue to enforce its subpoenas."

 

Edited by Doc Sam Beckett
Cholas 4 life
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58 minutes ago, TwiceHorn said:

Also notes that it decided upon en banc review sua sponte based on the circuit judge's suggestion rather than the petition by Sullivan, so it need not consider whether Sullivan is a party entitled to seek en banc review, which was kind of a question I had.

I'm about this far into the decision.  (First pages)

It's never a good start to change known facts in the introduction in order to avoid what is probably the most interesting question. 

Also, a per curiam opinion....

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1 hour ago, Doc Sam Beckett said:

Not sure where to put this but breaking on wapo... 

"Court dismisses House lawsuit seeking to enforce a subpoena of former White House counsel Donald McGahn" 

Eta - "A federal appeals court on Monday dismissed a House lawsuit seeking to force President Trump’s former White House counsel Donald McGahn to comply with a Congressional subpoena, saying Congress has not passed a law expressly authorizing it to sue to enforce its subpoenas."

 

Law and Crime has a good writeup on the decision

Quote

University of Texas law professor¬†Steve Vladeck¬†called the decision ‚Äústunning,‚ÄĚ saying he expected the issue to be appealed and taken up by the court‚Äôs full panel of judges (the full D.C. Circuit¬†rejected¬†Michael Flynn‚Äôs¬†emergency petition for a writ of mandamus on Monday).

‚ÄúJudge Griffith is having a busy last day. Here‚Äôs his stunning opinion for a 2-1 panel holding that the House lacks a cause of action to enforce its subpoena against Don McGahn,‚ÄĚ Vladeck tweeted. ‚ÄúHis prior ruling that the House lacked standing went en banc. This will too.‚ÄĚ

The same three-judge panel ruled earlier this year that federal courts are prohibited from resolving subpoena disputes between the legislative and executive branches. The Court’s initial decision, which severely curbed Congress’s executive oversight capabilities, was later overturned by the full slate of judges on the court in a 7-2 en banc decision. The Court reasoned the House committee had standing to seek enforcement of the subpoena for McGahn.

 

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45 minutes ago, JBJ said:

I'm about this far into the decision.  (First pages)

It's never a good start to change known facts in the introduction in order to avoid what is probably the most interesting question. 

Also, a per curiam opinion....

Self quote.

The rest of the decision is basically that the judge needs to rule or for other options to be exhausted before a writ is appropriate.  Which was what we expected.

They kind of dance around the question of the amicii: it's allowed for now, but might not be later (same as above).

----

Okay, they do address the judge's petition later.  They say a petition for writ is not an "appeal."  They ignore that the standard is "any stage of litigation."

I think that there could be a place carved out for judges to challenge a writ, but it doesn't exist right now (it doesn't exist one way or the other, preventing or allowing, in any clear rule).

----

I thought maybe I was confused, so I looked up the rehearing order.  It starts: "Upon consideration of the petition for rehearing en banc..."  That might be why no judge was willing to put their name on this.  The rest is pretty uncontroversial.

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  • 2 weeks later...

The court-appointed amicus curiae brief isn't very generous to DOJ

Quote

To describe the Government‚Äôs Motion to Dismiss as irregular would be a study in understatement. In the United States, Presidents do not orchestrate pressure campaigns to get the Justice Department to drop charges against defendants who have pleaded guilty‚ÄĒtwice, before two different judges‚ÄĒand whose guilt is obvious. And the Justice Department does not seek to dismiss criminal charges on grounds riddled with legal and factual error, then argue that the validity of those grounds cannot even be briefed to the Court that accepted the defendant‚Äôs guilty plea. Nor does the Justice Department make a practice of attacking its own prior filings in a case, as well as judicial opinions ruling in its favor, all while asserting that the normal rules should be set aside for a defendant who is openly favored by the President.

Yet that is exactly what has unfolded here.

 

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  • 3 weeks later...

Government has started:

1) Judge can't deny dismissal for non-factual pretext or disagreement on the facts.

2) The 3 primary witnesses have been (1) fired for lying under oath in this case (2) convicted of falsifying court documents in a related case (3) fired for impropriety in handling this case.

3) Summary of exclupatory information and FBI/DOJ corruption.  (Not read, previously filed.)

Sullivan questions letter from defense attorney.  Goverment answer that it welcomes letters pointing to potential misconduct or irregulaties.  Sullivan wants to schedule a meeting on it.  Defense says response came from lead prosecutor saying that Brady evidence was not being withheld.  Defense points to other public letters to the DOJ of similar nature.  Sullivan asks if other discussions have taken place.   Defense replies it requested WH council that no pardon be given.

----

Sullivan acknowledges previous objections from the defense:

1) to Gleeson specifically and generally all amicii.  Judges denies objection, and in so many words recommends filing a writ.

2) Defense requests judge recuse himself.  Long list of reasons.  Sullivan responds to some, requests defense to file a motion to recuse.

3) Objection of previous made statements over whether Flynn cooperated with government in other cases until the point of making false statements.  Sullivan acknowledges the discrepancy of fact.

----

Sullivan questions government:

1) Should court attempt to resolve the motion to withdraw before proceeding?

A) Maybe.  Courts can't sentence a guilty plea where the defendant maintains his innocence, the general way to proceed is dismissal and retrial.  Government admits that "off-the-book" agreements that may invalidate the plea and must be considered by the court.  Right to withdraw even extends beyond sentencing even thought the limits narrow.

2) Can government point to similar cases of plea withdrawl?

A) Names cases.  Sullivan himself presided over a re-review of 28 cases where plea withdrawls were incorrectly denied.

3) On what authority can the court grants the Rule 48 motion without prejudice?

A) Governments stance is that judge can grant it with or without prejudice.

4) Sullivan asks whether the FARA non-charge is prosecutable following dismissal.

A) Yes (...many words but my audio is jumbled.)

5) Sullivan asks about materiality.

A) Materiality can't be based on hypothetical realities.  The interview was not related to any current investigation.  FBI scrambled to justify interview post-hoc.  FBI whistleblower and direct witness denies materiality of interview.

6) Brady material has been a mess.

A) Demands for Brady were thought to be limited to sentencing in the plea colloquy phase of the case.

7) Trumps tweets.

A) Case was not handled by tweet.  Gleeson's accusations for favoritism by tweet aren't valid.  The tweets questions whether the prosecution is just which is a valid concern.  Tweets make our job harder as media draws correlations that aren't true.

8: Why does no SCO prosecutor sign off on the dismissal?

A) A SCO prosecutor doesn't exist in this case.  US Atty office is prosecuting.  Motion was filed after pre-approval from various offices (FBI, DOJ, etc).

9) Rule 48 rehash.

A) There has been no Rule 48 denial ever without the defendent opposing.

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Gleeson:

(Something was said here that I missed)

ES) If court denied Gov motion, shouldn't it acknowledge the motion to withdrawl?

JG) The court cannot sentence someone maintaining innocence.  But the court should not acknowledge the claim of innocence in this case due to the duration of plea colloquy.

JG) There are hints of impropriety - Flynn was advisor of president, president tweeted on case, media reported on potential pardon.  FBI needs to maintain independence from WH.  Tweets make that job harder - same for rest of DOJ.

JG) On separation of powers: Court can deny dismissal for non-factual pretext if it believes it should.  Fokker only applies to privacy of prosecutorial discretion - rest is dicta.  Executive right to charge is absolute, right to dismiss is qualified.  Court can review errors of law even when executive admits to the errors.  Executive recourse to maintain charging discretion is to pardon.

(Court goes to recess.)

Edited by JBJ
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(back to Gleeson for statements)

1) Rehash of judges role in dismissal.

2) Materiality: doesn't have to apply to specific functions or actual activities.  Predication for interview isn't required.  Materiality has never been a serious concern for prosecutions to move forward.  Government doesn't need to show materiality, it can only determine itself.

3) Falsity: government doesn't need to prove falsity of statements.  Can use plea as evidence.

3) Perjury: Flynn pleading guilty is perjury because he doesn't think he is guilty.

4) Rehashes falsity.  Not remembering is making a false statement.

5) Government bias: agent bias doesn't matter unless they testify. Government can target whoever they choose for investigation and prosecution.  Government can even target constitutionally protected categories like race and gender.

6) Rehashes judges role in dismissal.

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Defense:

1) On withdrawal: previous defense had a conflict of interest, plea before Contreras has already been stricken by his recusal, no independent council at plea deal or plea hearing

ES states that he recommended separate council under the previous defense team.

Prosecutor ignored Giglio obligations, president improper role in investigations at the outset, Brady violations.

ES requests specific Brady violations

(Long list, I stopped listening)

ES states Contreras entanglements should be facts included as part of plea withdrawl.

A) They are.

ES) Dismissal with prejudice?

A) Violates Rinaldi to dismiss without prosecution.  Defendent would be subject to prosecutorial harrassment.

ES) Can court determine motives behind dismissal?

A) Court looks at the facts/law as they exist, not pretexts.

Statements: Government is allowed to recognize its past mistakes and reverse case.

Strok's atty filing is extrajudicial in this case.

This poitical prosecution is especially egrious injustice.

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Responses by government to Gleeson:

1) Court has no power to not dismiss under Fokker.  Gleeson calls Fokker dicta and he's wrong.

ES: Court has no role if there's agreement between prosecution and defense?

A) Judges role is to confirm dismissal comes from executive authority - bribes, other 3rd party influences are fair game. (I lost some audio here)

2) Rehash of Presidential tweets being about justice,  no requested favors

3) Rehash of FBI improprieties

ES: Similar dismissals for tainted investigations?

4) FBI errors this egregious don't get prosecuted.

-----

Gleeson responds: (his audio blows right now)

1) Prosecution should not be shocked that the FBI induced false statements. Questioning sufficiency of evidence is common.

2) Motion to dismiss is because DOJ believes original prosecution was a witchhunt.  Case is winnable still.

 

 

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47 minutes ago, JBJ said:

4) Rehashes falsity.  Not remembering is making a false statement.

Reading what I wrote, closer paraphrase would be "Saying you don't remember can be false if it is reasonable to believe that you actually do remember."

Edited by JBJ
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Jbj, about how long do you think the proceeding took?  Could you get a sense if ES already had his mind made up or not?

about how long do you think it should take for a ruling? Before Nov. 3, I think?

Is there a way for ES to win?  By win, I mean make a decision that will stick.

 

 

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On 9/30/2020 at 1:21 AM, orangecat92 said:

Jbj, about how long do you think the proceeding took?  Could you get a sense if ES already had his mind made up or not?

about how long do you think it should take for a ruling? Before Nov. 3, I think?

Is there a way for ES to win?  By win, I mean make a decision that will stick.

2-3 hours.

Government and Gleeson took the bulk of the time.  Flynn got very little time, but the main arguments don't really involve Flynn.

Sullivan's questioning seems to flesh out the option(s) for denying the government's motion, withdrawing the plea, and dismissing the case without prejudice.  But I don't think that betrays anything about where his mind is.  More often than not a judge is trying to draw out options not already being advocated.  His questions mostly fell in that category.

He was short and direct with Flynn's atty, but not hostile.  Seemed to really be discussing the topics with the US Attys.  He hardly spoke to Gleeson, neither to challenge nor wanting elaboration.

His only "win" by those terms is to dismiss on the government's motion.

-----

@immamac

Sullivan re-emphasized his order against reproductions of hearings in this case.  I don't think my posts qualify as reproductions, but that should be y'alls call.  This was an open hearing.

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