It is bad enough when a judge refuses to let out your client from a plea deal but it is worse when he then suggests that his lawyer is a plagiarist to boot. That however is what former National Security Adviser Michael Flynn and his counsel, Sidney Powell, faced in the 92 page order of U.S. District Court Judge Emmet Sullivan. Flynn has been trying to get out of his plea bargain in light of new information of improper conduct by the FBI in its Russia investigation as well as exculpatory information regarding his guilt. Many of us have criticized the prosecution of Flynn who pleaded guilty to a single false statement in interviews with the FBI. In addition, Flynn may not want to be sentenced by Sullivan whose last major hearing included false allegations against Flynn and dramatic condemnations. One can certainly understand Sullivan’s refusal to let Flynn get out of a plea that he willingly entered. However, the opinion contained an attack on his counsel that seemed gratuitous and unsupported.
Sidney Powell is a former prosecutor with extensive criminal justice experience. She was the subject of a curious part of the long opinion.
Early on, Judge Sullivan dedicates a separate section to suggest that counsel has committed an unethical act:
A.Ethical Concerns with Mr. Flynn’s Brief
The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution.CompareDef.’s Br., ECF No. 109 at 11-12,15-16, 15 n.21, with Brief of the New York Council of DefenseLawyers et al. as Amici Curiae Supporting Petitioner,Brown v.United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22.
The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R.8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)).“[C]itation to authority is absolutely required when language is borrowed.”United States v. Bowen, 194 F. App’x 393, 402 n.3(6th Cir. 2006);accordLCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.”Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77 n.2 (D.D.C.2006).
Wait. Powell cited and had a hyperlink to the source of that material, but it warrants a section accusing her of plagiarism and ethical violations?
It is particularly ironic because I have often faced cut and pastes from prosecutors in briefs. I even had a case where a warrant for electronic surveillance contained a cut and paste that referred to the facts of an entirely different case (it was still signed by the court). I just do not understand why an insufficient citation warranted such a public lashing and suggestion of unethical conduct.
Powell says that “the plagiarism accusation makes no sense.” She maintains that she used her own prior briefings and a brief written by a friend who was in fact cited.
The criticism in the opinion will likely deepen the unease of Flynn in having the sentencing under Judge Sullivan. However, the court said that it will proceed with precisely such a hearing on January 28, 2020.
Most likely he was jealous that Powell has a bigger microphone.
The disgraceful comments this judge made a year ago (which he took back sheepishly) echo behind this next move by Sullivan. He clearly lives in an echo chamber.
What scares me is these people can’t seem to hear themselves. We do not live in the Matlock era. This is almost 2020 and FBI agents didn’t record their interview with Flynn? no, they took notes and got busted fudging with them. But Sidney Powell gets chastised for some irrelevant side note by this ridiculous judge. Truth be told, I’m glad if this had to happen they had to be so obvious about it all. “THESE PEOPLE ARE STUPID. NOTHING CAN STOP WHAT IS COMING.”
Sullivan and Barrett seem really coo coo. Or is it Choo Choo for railroading.
Judge Sullivan is very biased and reveals his Democrat biased. His rulings have been all negative against anything to do with Pres. Trump and he has been over ruled.
I suspect Powell/Flynn can appeal Sullivan’s rulings and will win in an appeal.
Its a sad day when some Judges allow their biased and anti Trump feelings determine how they rule.
In the end, Pres. Trump should Pardon all those who have committed no crime and were set up by a corrupt FBI/DOJ/Democrats.
“I just do not understand why an insufficient citation warranted such a public lashing and suggestion of unethical conduct.”
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Sullivan is quite obviously mad — in every sense. Get his guy off the bench. He’s picking fly specks out of pepper while the Republic burns.
sorry, can’t! lifetime tenure ya know.
and they say the POTUS abuses his powers.
Good behavior?
Democrat judges are more often than not just as biased, smear-minded, and vile as the Democrats that appointed them. Judge Emmet shows that he is far BELOW the law. We all know that Flynn was entrapped by Democrats and FBI/NSA etc that were trying to put pressure on President Trump’s appointees to “sing” not in a search for the truth but in the search to coerce people to make up false allegations about Pres. Trump. Flynn didn’t WILLINGLY agree to the charges – these FBI agents like Strock, McCabe, Comey, etc did everything they could to bankrupt him and threaten his family. The Struck, McCabe, Comey cabal are fascist thugs if you’ve ever seen any.
My observation over many years is that a judge may create this type of diversion when he or she harbors serious doubts about the correctness of what they are doing on the substance of the case.
My observation after a long career clerking for a US district judge is that the opinion is sophomoric. The gratuitous and unwarranted accusation of plagiarism is just the most extreme example of an overly exuberant hand in the authorship. I could not conceive of a judge making written accusations of ethical lapses based on the generous use of cited sources. Any decent judge would invite such activity, not condemn it.
This judge accused Gen Flynn’s lawyer of plagerizing…herself?
She used a hyperlink to cite herself and her friend. This was a style error, not plagerism. It does not meet the definition of plagerism.
This means that, ironically, I question this judge’s judgement. What is his motivation? Could it be political bias?
I hope that Gen Flynn does not let this rest if the judge makes a partisan ruling. Keep fighting, Gen Flynn. A lot of us believe you were wronged, and are rooting for you. This shall not stand.
The judge is biased against Flynn and his lawyers. Clearly so. Persecution!
End lifetime tenure for article III judges, asap!
The real “plagiarism” is contained in the FISA applications….
Perhaps this is grounds for appeal on several fronts.
Perhaps grounds for removal from the bench, never to get on another.
Would not characterize ‘willingly entered’ as the appropriate phrase to use if my family were being threatened by dirty cops. They poisoned the tree and this Judge is trying to force him to drink hemlock.
Flynn comes from a different background than me even though similiar. Both military I had the advantage of graduating first in my class at police academy or he might have gone to internal Affairs … assuming at the time they were also not tainted. But then there was the same office in the Justice Department.
The threats themselves thought qualify as acts of terrorism and qualify the doers to be charged under the Patriot Act accordingly.
I think it’s time to drop the charade that a lot of people willingly enter plea deals in any practical sense of the matter. Flynn had already lost his house, was going to declare bankruptcy if he hasn’t already, and stood to lose a good deal more. My understanding is that his son was threatened with an investigation which ought to materialize, or not, regardless of a plea deal.
Flynn is fortunate. Most plea deals at the county level involve people who are in jail and can’t afford bail.
Over 90% of all cases are resolved with the plea deal. You can’t have a meaningful system of justice that way.
“The average American judge, as everyone knows, is a mere rabbinical automaton, with no more give and take in his mind than you will find in the mind of a terrier watching a rathole. He converts the law into a series of rubber-stamps, and brings them down upon the scalped skulls of the just and unjust alike. The alternative to him, as commonly conceived, is quite as bad—an uplifter in a black robe, eagerly gulping every new brand of Peruna that comes out, and converting his pulpit into a sort of soap-box.”
– H.L. Mencken
Come on, they can’t be all that good.
In his commentary on the legal profession, Mencken was the de Tocqueville of his age.
I think he went that route instead of accusing her of filing frivolous motions. Plus he’s pissed she’s been on social media and media venues for months literally “speaking for him”. I think her professional brown-nosing got her a solid and predictable kick in the ass. Sullivan proved his bias and prejudice against General Flynn on 12/18/18. Yet Sidney Powell has spent the last several months blatantly trying to kiss his ass. Homey don’t play that. Her bad. Oh well.
I think he went that route instead of accusing her of filing frivolous motions. Plus he’s pissed she’s been on social media and media venues for months literally “speaking for him”. I think her professional brown-nosing got her a kick in the ass. Sullivan proved his bias and prejudice against General Flynn on 12/18/18. Yet Sudney Powell has didn’t the last several months seemingly kissing his ass. Oh well.
You don’t suppose the government is pushing for a win after a week of losses? This sounds bogus.
Nah. Their firm is completely funded by the bottomless pit of taxpayer money. I believe the government just pushes for a win regardless of the losses.
C’mon! Outrageous!
Would Flynn have ever been indicted if the FBI hadn’t abused the FISA process?