Judge Sullivan To Consider Perjury Charge Against Flynn

1280px-Emmet_G._Sullivan_2012Federal Judge Emmet Sullivan has issued a couple of extraordinary orders in the case of former National Security Adviser Michael Flynn after the Justice Department moved to dismiss the case.  Sullivan has not only decided to allow third parties to argue against an uncontested motion in a criminal case, but he has appointed retired judge John Gleeson to argue against dismissal and address whether Flynn should face a perjury charge from the Court itself. I have practiced in front of Judge Sullivan for many years.  I have repeatedly praised him and expressed my respect for his demeanor and directness. However, these orders raised deeply troubling questions of judicial overreach and enmity.  Despite my admiration for Judge Sullivan, I believe he is moving well outside of the navigational beacons for judicial action and could be committing reversible errors if he denies the unopposed motion or moves forward on this perjury claim.

I was critical of Judge Sullivan’s earlier order allowing the filing of amicus briefing in this case. There is no rule allowing for such third party briefing and Judge Sullivan previously rejected such briefing.  He was right then and wrong now.  While common in civil cases, such third party arguments raise troubling concerns in criminal cases as courts allow the public to argue for enhanced punishments or other measures.  It is particularly troubling when the Justice Department itself not only found evidence of prosecutorial abuse but concluded that it cannot ethically proceed with the prosecution.  Sullivan is effectively creating a dispute in a case where the defense and prosecution agree that a case should be dismissed.

My concerns have deepened with the latest order:

“Upon consideration of the entire record in this case, it is hereby ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss,” the judge wrote.  “[I]t is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.”

The suggestion that Flynn could be charged with perjury for seeking to withdraw a plea is highly disconcerting. As a criminal defense attorney, my concern is that such a claim could be made in thousands of cases where defendants have sought to withdraw such pleas or allegations of prosecutorial abuse have been raised for dismissal.

The use of Gleeson both to argue against the motion and review possible perjury charges.  One role is as an advocate while the other seems to be something like a quasi-special master.  Gleeson is also a troubling choice given his public criticism of the Administration over the Flynn case.

The perjury charge would be based on 18 U.S.C. § 401, which states:

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
(1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2)Misbehavior of any of its officers in their official transactions;
(3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Sullivan knows that such a charge would not be prosecuted by the Justice Department. However, Criminal Procedure Rule 42 states that such cases are to be prosecuted by the government “unless the interest of justice requires the appointment of another attorney … If the government declines the request, the court must appoint another attorney to prosecute the contempt.”

Such an extraordinary action would occur in the context of an already troubling record. Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason, including an earlier blog column here. He is now allowing third parties to make arguments in a criminal case on an unopposed motion and exploring a charge that he might be able to bring against Flynn.  Judge Sullivan would not only ignore the agreement of the parties, the judgment of the Department of Justice, but effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions.  A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge.

 

510 thoughts on “Judge Sullivan To Consider Perjury Charge Against Flynn”

  1. Jon, I take it you weren’t one of the signers of the petition against Barr’s creation of a Flynn dumpster fire?

  2. *Turley should address US v. Fokker in a future version of this blog*

    Quoting an article from the Harvard Law Review:

    “… three recent district court decisions have attempted to assert a more substantive role for the court — declaring that an Article III judge is not a “potted plant”3. United States v. HSBC Bank USA, N.A., No. 12-CR-763, 2013 WL 3306161, at *5 (E.D.N.Y. July 1, 2013); see also United States v. Saena Tech Corp., 140 F. Supp. 3d 11, 33 (D.D.C. 2015) (quoting HSBC Bank, 2013 WL 3306161, at *5). or “rubber stamp”4. United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 164 (D.D.C. 2015). when reviewing DPAs.

    “The D.C. Circuit subsequently curtailed these efforts in United States v. Fokker Services B.V.,5. 818 F.3d 733 (D.C. Cir. 2016). in which it held that to preserve “the Executive’s long-settled primacy over charging,”6.Id. at 743. a court is not authorized to reject a DPA based on a finding that the “charging decisions” and “conditions agreed to in the DPA” are inadequate.7.Id. at 747. By ostensibly precluding judicial review of a DPA’s negotiated terms, the D.C. Circuit overcorrected and reinforced the executive branch’s unchecked discretion over DPAs by reassuring prosecutors that future courts will rubber stamp such agreements.”

    “……as a matter of established law, the judiciary is not to second-guess the Executive’s decisions of “whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges.”

    Source:

    https://harvardlawreview.org/2017/01/united-states-v-fokker-services-b-v/

    1. I don’t see that DPA’s relate to 48a dismissals. A court is supposed to take an interest in a 48a dismissal if it has concerns that it is being used to harass the defendant. And there are no such concerns here.

    2. CLEAR LAW AND SULLIVAN IS IGNORING IT

      if he presumes to change himself from a judge into a prosecutor then he is a usurper

      the appeals court must immediately correct this error– they too are not “potted plants”

      Or, if not then extrajudicial means may be needed to rectify his illegal usurpation of role

      article III tyrants like Sullivan are clearly corrupt

    3. Moreover, the DC Circuit quoted the relevant Fokker holding with approval just last year in the Scantlebury case.

      “[T]he ‘leave of court’ authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).

  3. Flynn’s treatment is a microcosm of American justice in the entirety of the Russia Collusion farce; this is what happens when criminals are controlling government, media, and the courts. Trump Derangement Syndrome is real, and its sufferers are incapable of caring about the consequences of their criminal actions — or even of being exposed as criminals.

    I say “never interrupt your enemy when they are making a mistake”. If all Trump’s enemies now behave as Sullivan does, and do so on a broad scale, loudly proclaiming their love and allegiance to the Obama and Clinton sycophancy circles, the revolution Trump represents will be permanent.

  4. This “sua sponte” order certainly will be one for discussion in law school classes! Some of us have become very jaded as the result of the antics of the political class. To see the judiciary take this step is appalling! It makes us wonder why justice is so elusive.

    1. Some of us have become very jaded as the result of the antics of the political class. To see the judiciary take this step is appalling!
      ____________________________________________________
      What exactly is wrong with the judge asking an independent investigator to examine the facts and render an opinion on what transpired.

      Why is the DOJ so afraid of an open and transparent investigation of what transpired in the fishy Flynn plea deal?

        1. jinn – would you like to be in Flynn’s shoes right now?
          ________________________________________________
          What has that got to do with anything?

          The question was why is the Trump DOJ so afraid of thorough examination of how Flynn came to be prosecuted for lying after the FBI had determined that he had not lied.

      1. Jinn, you seem to have no idea about the job of a Judge, or a prosecutor. Did you feel the same way when James Comey said that no charges would be brought against Hillary Clinton? Were you in favor of a third party looking into the facts and deciding whether a case should be brought? I didn’t think so.

        Prof. Turley believes that Judge Sullivan could be committing “reversible error,” in this ruling. The professor is being kind. Judge Sullivan should be brought up on ethical charges for violating his oath of office. We have had people come before courts through
        history, and plead guilty. When it was later determined that the person pleaded under improper pressure from the prosecution,,
        the defendant was never charged with perjury for withdrawing a guilty plea.

        Judge Sullivan, it appears, is acting in a dictatorial fashion, far beyond the bounds of the court’s authority. It is as if the very thought of Gen. Flynn going free, is a personal affront to him.

        The Judge’s prior conduct, in asking for a “treason,” charge, (which has the death penalty as punishment), was totally out of bounds. I have seen judicial misconduct in my time, but the actions of this judge go far beyond the pale.

        In criminal court, there are only two parties. The prosecution and the defense. The judge is merely there to listen to the facts and the evidence given by both parties, and make a determination.

        When both parties decide that proceeding with the matter would be a travesty of justice, and both agree to a dismissal, it is not the place of any judge to decide otherwise.

        There is more to this judge’s actions than we presently know about, but this must be further investigated by the chief justice of that circuit and by the DOJ, to determine why this judge is not abiding by the law and in the best interests of blind justice. Gen. Flynn should not become the victim of this Judge, as he has already been the victim of an unscrupulous group of people in the highest level of our government.

        In days gone by, when justice was at the end of a rope, the system turned to the crowd and asked what should be done with this person. When the crowd said “hang him,” the person was hung.

        That is exactly the kind of justice that Judge Sullivan seems to be suggesting in the case of Gen. Flynn.

        1. Prof. Turley believes that Judge Sullivan could be committing “reversible error,” in this ruling.
          ___________________________________________________
          Turley knows that he is spouting BS

          How is having a independent 3rd party examine the facts going to result in a reversible error? You and Turley apparently don’t want to hear the facts.

          1. It’s not going to result in reversible error because, before there’s anything to reverse, the case will be dismissed after mandamus by the DC Circuit.

              1. The problem facing the court is the judge is expected to base its decision based on the intent of the government but he doesn’t know what the government is up to. The government has been lying to his court for years and all of those years were after pres. Trump was in charge. The government has proven to the judge it cannot be trusted to reveal the true facts. So its seems perfectly reasonable to discover the facts before making a decision whether to allow the dismissal.

            1. It’s not going to result in reversible error because, before there’s anything to reverse, the case will be dismissed after mandamus by the DC Circuit.
              _________________________________________________
              You might well be correct….
              What Sullivan has done may expose corruption that runs very deep. The establishment may not like that and quash it.

        2. When both parties decide that proceeding with the matter would be a travesty of justice, and both agree to a dismissal, it is not the place of any judge to decide otherwise.
          ______________________________________________________

          The judge has the right to figure out how and why this travesty of justice landed in his court and wasted so much of the court’s time
          for years on end.

          It isn’t just Flynn that lied to the judge. Mueller and two DOJ lawyers that piy their names on the plea deal also lied to the judge and what is worse both sides had the evidence that cleared Flynn and both sides concealed that evidence from the court.

      2. Jinn:
        What exactly is wrong with the judge asking an independent investigator to examine the facts and render an opinion on what transpired.”
        ***********************
        Everything. It’s called letting the parties direct their own case. they know the facts and the law as well as things that decide cases that don’t have to made public. Injecting a third party complicates an already complicated situation. And if we do, who needs the judge in the first place?

        1. It’s called letting the parties direct their own case. they know the facts and the law
          ____________________________________________________

          Yes that nails the problem exactly. The judge is beginning to realize that both the prosecution and Flynn concealed the facts that the FBI had determined that Flynn had committed no crime.

          the Judge is well within his right to determine why this fraudulent plea deal has been clogging up his court for years.

          1. Jinn:
            The court needs to butt out when the parties resolve their case. He’s the referee not the coach. Sullivan precipitated this problem when he forced Flynn to plead under oath. Pleas, as you know, are not statements of fact rather they are signals to the government that the accused is invoking his right to have the case proven against him. Sullivan is playing grand juror or executioner — jobs he can’t lawfully perform.

            1. The court needs to butt out when the parties resolve their case
              __________________________________________________
              When the parties bring a fraudulent case that wastes the courts time the judge certainly has a tight to figure out what is going on.

              1. Saying you sound like Seth is a way of saying you are full of crap
                _____________________________________________
                So its what you do when you have no facts?

      3. Jinn, I think the key words from your post here are INDEPENDENT and TRANSPARENT. How do you think you would get a fair and transparent airing from the retired judge selected by a judge who suggested that Flynn should be charged with Treason. So WRONG on so many fronts, that the judge tried to walk back his open courtroom statement, after his law clerks spoke with him.

        1. I think the key words from your post here are INDEPENDENT and TRANSPARENT. How do you think you would get a fair and transparent airing from the retired judge selected by a judge who suggested that Flynn should be charged with Treason.
          _________________________________________________

          The suggestion that Flynn should be charged with treason was the result of the judge being given a false set of facts by the parties of a case before him. Of course, this is exactly why the judge needs an independent 3rd party to examine the facts because he is pissed off that the parties in a case have all been lying to him for so long. There is a definite need for someone who is not emotionally involved to review the facts.

      4. “Why is the DOJ so afraid of an open and transparent investigation of what transpired in the fishy Flynn plea deal?”

        “Justice delayed is justice denied”

        1. “Justice delayed is justice denied”
          _________________________________________________
          The parties in this case have been stalling for years.

          And now when the judge discovers that both the prosecution and defense have been lying to the court for years both parties suddenly want the case quickly dismissed and swept under the rug

      5. This also from our resident Jinn. Either he’s evolved on the issue, or the jinn in him is doing what jinn’s do: cause disruption and chaos.

        ordered the clerk of the court to “add Covington & Burling LLP (‘Covington’) as an interested party
        ______________________________________________________
        Covington is an interested party, they hid exculpatory evidence from the court and they are the ones who we are now being told that coaxed Flynn to swear an oath to the court that the false statements in the plea deal were true.

        It should be obvious to anybody that the DOJ is also an interested party as it was the DOJ and its prosecutors that invented the false story that Flynn had denied (to the FBI) discussing sanctions with Kislyak.

        Flynn did lie to the court under oath about the facts in the plea deal, but his lawyers and the prosecution told him to do it. And its not possible to dig into the facts without uncovering that evidence.

      6. You mean aside from the fact that there is already supposed to be an independent arbiter to render an opinion — i.e., Judge Sullivan?

        And aside from the fact that federal courts aren’t authorized to “investigate” anything, ever?

        And aside from the fact that the motion to dismiss immediately deprived the court of jurisdiction to do anything other than the ministerial act of ordering the dismissal?

  5. Here is the world that bythebullsh!t lives in:

    Rastus T. Jones is on trial for selling crack cocaine. He cops to a plea. Come to find out, there was illegal search by the po po! Rastus withdraws his plea and the honest prosecutor moves to dismiss the case when it comes out. BUT, the judge says, “But what about all the cocaine??? I want to appoint another judge to argue against dismissing the charges!”

    Obviously, the judge is bonkers and has crossed the line. But, since Rastus is one of the very rare crack cocaine sellers who is a Republican, bythebullsh!t will PRETEND not to notice that things are badly out of whack here. So will all the other Democratic Party shills here.

    Sooo, please ignore their frantic spinning and shilling and just look at the facts. And this is even worse than the Rastus example because there was no underlying crime with Flynn.

    Squeeky Fromm
    Girl Reporter

  6. Is this the redux to Catch 22? Flynn pleads guilty to a “crime” both mccabe and matt axelrod told [?testified?] muler the fbi didnt believe happened. flynn now says he didnt lie. sullivan accepts flynn is now telling the truth so charges him w perjury for pleading guilty to a crime he DIDNT commit!!!

    1. Flynn pleads guilty to a “crime” both mccabe and matt axelrod told [?testified?] muler the fbi didnt believe happened. flynn now says he didnt lie. sullivan accepts flynn is now telling the truth so charges him w perjury for pleading guilty to a crime he DIDNT commit!!!
      ______________________________________________________
      You got the facts close to right.

      The judge has suspected for a long time that something is rotten in this plea deal. During his first sentencing hearing more than a year ago the judge made Flynn take an oath and swear a second time that he had lied to the FBI and that the FBI had not tricked him in any way.

      The judge is not just pissed at Flynn. He is also pissed at the prosecutors. Both Flynn and the prosecutors hid the evidence that the FBI had cleared Flynn of any wrong doing.
      The judge is rightfully pissed that after all these years the evidence that was withheld that clears Flynn is now being presented and the prosecutors are now telling the judge to just ignore the whole fraudulent mess and let it slide.

  7. Sullivan is obviously off the rails here, and running amok. This earlier case looks to me like it applies:
    ————–
    DC Circuit Court overrules Judge Leon in Fokker DPA case

    Richard L. Cassin
    April 6, 2016
    4:18 pm

    United States Circuit Judge Sri SrinivasanA three-judge federal appeals court said Tuesday the DOJ’s settlement with Fokker Services B.V. for alleged sanctions violations could go ahead after a district court judge rejected the arrangement as “anemic.”

    The U.S. Court of Appeals in Washington, DC said prosecutors and not judges make decisions to enter into deferred prosecution agreement with corporate defendants.

    In February 2015, federal district court judge Richard Leon refused to approve the settlement. He said the proposed $21 million penalty was “grossly disproportionate to the gravity of Fokker Sercvices’ conduct in a post-911 world.”

    Holland-based Fokker Services admitted in a 2014 plea deal that it made more than 1,100 illegal shipments of aircraft parts, technology, and services worth $21 million to Iran, Sudan, and Burma.

    In the settlement, Fokker agreed to forfeit $10.5 million and pay a civil fine of $10.5 million.

    The settlement included an 18-month deferred prosecution agreement. Fokker Services promised to enhance its trade sanctions compliance.

    In his February 5, 2015 opinion (pdf), Judge Leon said:

    In my judgment, it would undermine the public’s confidence in the administration of justice and promote disrespect for the law for it to see a defendant prosecuted so anemically for engaging in such egregious conduct for such a sustained period of time and for the benefit of one of our country’s worst enemies.

    Fokker appealed Judge Leon’s ruling.

    Tuesday’s appellate opinion (pdf) written by Circuit Judge Sri Srinivasan said, “The Constitution allocates primacy in criminal charging decisions to the Executive Branch.”

    In an FCPA case, Judge Leon in 2012 rejected a proposed $10 million civil settlement between the SEC and IBM. He said IBM should be required to report all accounting violations and not just FCPA anti-bribery problems.

    He approved a revised IBM settlement in mid 2013. The new terms included enhanced reporting by IBM to the court about its compliance program and any potential FCPA violations.

    In its opinion Tuesday, the appeals court said: “It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.”

    The DOJ uses deferred prosecution agreements to resolve most corporate FCPA cases. DPAs typically run for three years. They usually impose a criminal fine and require enhanced compliance, training, cooperation, reporting, and sometimes appointment of an independent monitor.

    https://fcpablog.com/editors/bill-steinman/
    ————-
    Squeeky Fromm
    Girl Reporter

  8. “Judge Sullivan would not only ignore the agreement of the parties, the judgment of the Department of Justice, but effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions. A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge”

    That is what we get from judicial activists. Textbook definition

    Great analysis Prof Turley

    1. mj, no one in the DOJ signed on to this except AG Barr and 2 of his cronies. Previously Barr meddled similarly in Stone’s sentencing.

      You see the problem?

      1. No. And neither do you. You are just pretending to because you are a DNC shill, and this whole thing makes Obama and administration look far worse than Nixon. Hang it up. No one believes your crap, not even you.

        Squeeky Fromm
        Girl Reporter

        1. If you have any evidence that my statement you object to is untrue you are free to offer it Sadie Mae. Your opinion alone is worthless.

          1. Anon – the only place Squeeky might be wrong is that you might believe your own crap. Everything else she wrote is accurate.

            1. SKKKanKKKy’s bottom to the rescue, her is lucky to have you. Now if you could only drag your fat a$$ outdoors for some sunshine and give that seat cushion a breather.

                  1. mespo – I really want to know Natacha’s BMI since she has spent all that time fat shaming POTUS.

            2. Paul, if you honestly think Obama was worse than Nixon, you are hopelessly in the rightwing bubble.

              1. Ethan Edwards – yes, when you look at the scandals and the coup to overthrow the next President.

          2. BB- Bug Boy, when you assert a proposition the burden is on you to prove it; not on others to disprove it.

              1. Paul– Benson can be erratic and provacative at times but when I have engaged with him he has been pretty straightforward. He was mistaken about the impact of Indo- Europeans in Europe, thought I was referring to First Farmers, but didn’t do an irrational Book routine when I responded. On the other hand when I mentioned the Medieval Warm period he disagreed and provided good information that I am still reviewing. He is unusual but very different from Book or Seth. I enjoy disagreement when someone backs up a position.

      2. “mj, no one in the DOJ signed on to this except AG Barr and 2 of his cronies.”
        **********************

        Hahahaha. No one signed off on the contract except the company’s president and CEO. I move to dismiss the breach of contract case, Judge. Hahahaha

  9. What about citing the prosecution and the FBI under articles 2 & 3 above. #2: Misbehavior of any of its officers – by filing a dubious charge. #3: Disobedience of a lawful writ, rule or decree…. – Not providing exculpatory evidence in their possession. Or using undue threat/influence – threatening to charge Flynn’s son. We all ought to be very concerned about letting this type of behavior stand bythe most powerful law enforcement agencies in the world

    1. What about citing the prosecution and the FBI under articles 2 & 3 above. #2: Misbehavior of any of its officers – by filing a dubious charge.
      _______________________________________________________
      That looks like exactly what the judge is heading towards.

      Except that the judge can now clearly see that the FBI did not prosecute Flynn.
      The evidence the judge has recently been made aware of is that the FBI exonerated Flynn and then the prosecutors and Flynn entered into a fraudulent plea deal that was not supported by the FBI’s findings and what is worse both sides in this fraudulent plea deal hid the FBI’s findings from the judge.

      So naturally the judge is a little bit peeved.

  10. The story that Flynn lied to the FBI has always been a fraud. The judge now has evidence that the FBI believed Flynn had committed no crime both before the interview and after the interview.

    The judge has become aware just recently that the plea deal is a fraud on the court. Flynn falsely told the court that he lied to the FBI.

    But Flynn is not alone in this Fraud on the Court. The Mueller team also knew that Flynn had not lied to the FBI. The judge should consider contempt charges against Mueller and the two DOJ attorneys that put their names on the fraudulent plea deal. Those attorneys also lied to the court.

    It should be obvious that this case should never have been filed and the judge is correct to attempt to get to the bottom of what happened. He should not just allow this obvious fraud to quietly go away.

    1. Flynn admitted under oath that he lied to the FBI. Sounds like you’re saying that Flynn committed perjury when he did that.

      1. Flynn admitted under oath that he lied to the FBI. Sounds like you’re saying that Flynn committed perjury when he did that.
        __________________________________________________
        What it sounds like is that both Flynn and the prosecutors lied to the court about the FBI interview.

        And what is much worse than that is both Flynn and the prosecutors concealed the evidence from the court that the FBI had cleared Flynn of any wrong doing.

        1. I’d love to read your evidence that “the prosecutors lied to the court about the FBI interview” and that “the FBI had cleared Flynn of any wrong doing.”

      2. Committed– Not perjury when a statement is coerced for the same reason a coerced change to a will is not vald.

        1. Young – how was Flynn coerced into stating twice under oath to Judge Sullivan that he had made material lies to the FBI during his interview?

          Sullivan worked pretty hard to make sure that Flynn understood what he was pleading to and that it would get him in trouble if he lied to the court (see, for example, pp. 7-10 of the sentencing transcript: https://www.justsecurity.org/wp-content/uploads/2018/12/121818am-USA-v-Michael-Flynn-Sentencing.pdf )

          1. Committed– Would you plead guilty if you were being waterboarded? You know you would. Should you be allowed to withdraw the plea when you know you are safe? Yes.

                1. Paul, even if that were true, it would be irrelevant to Young’s argument that Flynn’s statements to Judge Sullivan were “coerced.”

              1. Would you plead guilty if you lost your house, ran out of money, saw no end in sight and now your son was being threatened?

                I probably would as would many devoted fathers.

  11. JT – because it fits his opinion, not all considerations – skips over the fact that “the DOJ” here means AG Barr and crony USAs Shea and Jensen as there are no staff lawyers as part of this. Sullivan is forced to treat this as unique because it is and it reeks of political maneuvering by an AG already known for meddling in another federal case against his staff involving a Trump crony (Stone) and for misrepresenting the IC Mueller report for obvious political ends. He owes it to justice and the Dept of Justice to fully air this questionable, politicized, and highly suspicious motion.

    1. Yeah. Turley does that all the time. You by contrast always take the facts where they lead you. You never look at who’s in the White House, and work backwards from there to formulate your talking points.

      That’s why your comments are so informative.

      1. Then SteveJ, like I regularly do with JT, or others here who offer an opinion, you should try to present facts and a logical argument why I am wrong.

        For instance, what is factually or logically wrong in my post which you are here responding to. Take your time.

        1. Keeping in mind this is merely for my entertainment, and that you didn’t state any facts concerning the indictment in your comment, in contrast to Turley’s article, you have a legal phone call. You have legal phone call that occurred after the elections. And you have a legal phone call that occurred after the elections for which the F.B.I. already had the tapes. Now you can try and conspiracy theory your way out of that with the Logan Act and the Russians. And I’m sure you will. And I may or may not continue to amuse myself.

          It’s a tossup between you and the Stooges.

            1. Anonymous – the Three Stooges were funny until I was ten, after that they were just annoying.

          1. By legal, you mean he didn’t force a pay phone? He probably wasn’t murdering anyone while talking to the ambassador either, so there is that in his favor.

            What’s your point? Too embarrassing to clearly state?

    2. Well said. Just like someone w
      ho has not read the recently unveiled and released material in which the FBI admits to setting a perjury trap. Just like someone who uses CNN as his/her only (dubious) source of news.

      1. I read it Dallas. All options were listed – including a perjury trap – in the notes.

        ““What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired? If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it.”

        “If we’re seen as playing games, WH [White House] will be furious. Protect our institution by not playing games.”

        “We regularly show subjects evidence, with the goal of getting them to admit their wrongdoing. I don’t see how getting someone to admit their wrongdoing is going easy on him.”

        Sorry, but that is not “FBI admits to setting a perjury trap” as you allege.

        1. the official that wrote those notes was trying to discourage the obvious perjury trap stratagem

          the admission is implicit from the context

          you are just being obtuse. your method is never to concede any point no matter how obvious

          it’s why you people are so tiresome and this debate has become so meaningless. it’s just about the propaganda mission 24/7, there is no genuine conversation

          which is fine. let fall the fiction of reasoned public debate. this is an Enlightenment fiction anyhow. it always was. there is no “marketplace of ideas” except one in which a near-monopoly on the public megaphone drowns out all dissent.

          or if not a monopoly, at least an oligopoly. but it is a fiction, a pretense, a fanciful notion that democracy occurs with one man one vote. the power of money buys advertising, it buys newspapers, it buys tv time, it buys reporters and editors and professors, and all of those can drown out the socalled “citizens”

          the citizens, the deplorables, have power of numbers, but they need organization. organization comes from leadership. leadership too is for hire, it is human skill and those who have it come at a price. we will see if that leadership shows its face by the election. if it does, it will show its face by action and not endless talk and meaningless discourse with phony interlocutors

          1. Whatever that means Kurtz.

            I posted the notes and I’m the one being “obtuse”, while your predictable conclusion depends on mind reading.

            By the way, Barr’s cronies did not include their interview with Priestep – he wrote the notes – in their motion for some strange reason, yet, like you, purport to know their meaning. I’m sure the judge might have an interest in that item.

            :”WASHINGTON — A key former F.B.I. official cast doubt on the Justice Department’s case for dropping a criminal charge against President Trump’s former national security adviser Michael T. Flynn during an interview with investigators last week, according to people familiar with the investigation.

            Department officials reviewing the Flynn case interviewed Bill Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court…..”

            https://www.nytimes.com/2020/05/13/us/politics/bill-priestap-michael-flynn.html

          2. the official that wrote those notes was trying to discourage the obvious perjury trap stratagem

            the admission is implicit from the context
            __________________________________________________

            So what if the FBI wanted to set a perjury?
            Wanting something and getting it are not the same.
            Flynn was not entrapped for the simple reason that he was well aware that the FBI had a transcript of the phone call.

            The evidence both from Flynn’s recent recantation and from the FBI agents involved is that Flynn had never “falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia.”

            That story was a lie created by the prosecutors and confirmed by Flynn. So the judge wants to know why both parties came into his court agreeing to the same damn lie.

            The judge has asked Judge Gleeson to dig into the matter and uncover the facts. What I want to know is why are you opposed to that?

  12. Waal, it’s now up to the DC Circuit or the Supreme Court to issue a writ of mandamus or to force his recusal. His conduct has been egregious.

      1. JDW, I encourage you to read the linked paper on the history of the rules on 48 (a) and the intent of the commission which wrote it with input from the SC. Hint: The Flynn case is exactly the type where the judge is obligated to review – a connected defendant and the potential for corrupted prosecutors. This is the same requirement in place in many state courts.

        https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674

    1. Judge Sullivan is a sore loser.
      ____________________________________________________
      Judge Sullivan does not like to be jerked around by prosecutors in his court.

      I think it will be revealed that the judge is not pissed at Flynn so much as he is pissed off that the Trump DOJ has wasted so much of his court’s time with phony filings and is not going to let the DOJ just walk away scott free.

    2. You’re close.

      Sullivan, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson, Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry, Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch, Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,
      James E. Boasberg et al. are the

      enemy!

  13. At times we all feel like the world is against us before logic kicks in. For General Flynn he can legitimately feel like the world is against him. First Obama fires him, then he gets spied on, then unmasked, the FBI chase him, a prosecutor threatens his son unless he pleads guilty, at the sentencing the judge accuses him of being a traitor, prosecutorial abuses get revealed and the DOJ asks for the case to be dismissed but a judge decides to open up the case to anyone else that wants to attack General Flynn and then also add some more charges to boot.

    Flynn has a right to feel the world is against him….AT DIFFERENT TIMES TWO OF THE THREE BRANCHES OF GOVERNMENT HAVE BEEN.

  14. Sullivan’s action reeks of personal animus combined with political activism.
    The title “Judge” was purposefully omitted because he is a proving to be a disgrace to the profession which should be dispensing justice. Instead, he is perpetuating an injustice brought by political partisans.

  15. JT: “At some point, the court risks the appearance of assuming both prosecutorial and judicial functions.”

    The judge’s move is truly a beautiful thing for it exposes the depths to which our system has fallen…and, at the same time, we know Flynn will never spend a day in jail. It’s a freebie expose of a nation gone mad.

    1. My only fear is he tries to hold on for a change of power this fall, so the case can be reopened…

      However I think it cries to heaven this would be redressed, if nothing else by higher court reversal or writ of mandamus type intervention. This judge is clearly rogue and partisan and gone mad. This is evil.

      1. This judge is clearly rogue and partisan and gone mad. This is evil.
        ___________________________________________________
        It amazes me how many commenters are like wind up toys that just blurt out what they have been programmed to say.

        This commenter could not in a million years explain what the judge has done that is mad or evil. The judge hasn’t done anything at all but attempted to take a better look at the facts. The judge now knows that both the prosecution and defense have been blowing smoke up his ass for years and heaven forbid he should decide to figure out what is going on.

  16. “Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason”

    That’s why his stunts here are not surprising. He doesn’t want to admit how unmoored from reality his behavior has been.

    He wants to salvage at least some dignity here for himself.

    1. Sullivan correctly told Flynn he “sold your country out.” By telling the Russians in private to not take Obama’s election sanctions seriously he helped sell out our election integrity to help his boss.

      1. On a similar note, Lee Harvey Oswald was seen at the Kalamazoo Burger King. He was having a whopper with Elvis.

        1. Since Elvis and LHO are both dead, we’ll need some proof SteveJ.

          My statement has been proven – Flynn admitted to it – but still, if you wish to challenge it, go ahead. You’ll need some proof for that too.

          1. Anon – Elvis is working at my local Circle K. He still models for all those Elvis’ painted on velvet.

          2. Actually Elvis just got kicked off the site because the moderator has sworn to bail Allan out of all the jams he gets in. It’s a beautiful thing. Perfect, in fact.

    2. I wouldn’t rely on Turley’s claim about it. Instead of taking Turley’s claim, look at what Sullivan actually said:
      “Hypothetically, could he have been charged with treason?” and he then clarified that he asked questions about “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.” (https://www.justsecurity.org/wp-content/uploads/2018/12/121818am-USA-v-Michael-Flynn-Sentencing.pdf )

      That doesn’t strike me as “unmoored from reality.”

          1. No. You are an reincarnation of Joseph Goebbels and you will never admit in public that the Nazis have lost. That is not your job. You are not worth wasting electrons on.

            Squeeky Fromm
            Girl Reporter

            *BTW, if you are truly stupid and not a shill, then I apologize. I try not to pick on retards.

            1. Perhaps a better use of your electrons would be in regulatiing the use of ‘a’ and ‘an’ in your writing? I mean, in the spare moments between doing what you were so famous for at the Spahn ranch?

        1. Not only did I read the DOJ’s motion to dismiss the case against Michael Flynn, I’ve quoted from it in earlier columns to support some of my claims. Are you aware of the legal errors in the motion (e.g., that it misrepresents 18 U.S. Code § 1001 and — according to one of the people whose 302 was an exhibit — twists what she said: http://www.nytimes.com/2020/05/10/opinion/bill-barr-michael-flynn.html )?

          Glenn Greenwald presumably believes that “Jim @Comey was systematically corrupt,” but I don’t think the dismissal motion provides any evidence of that. Do you?

          1. Well if you don’t see it there, you don’t see it anywhere. Certainly no basis for a legitimate court to take an interest in a 48a dismissal where it is settled law that any interest in that area is based on concerns for the defendant.

            1. You’re assuming the thing you need to show: both that the motion and exhibits demonstrate that Comey “was systematically corrupt,” and now that if I “don’t see it there, you don’t see it anywhere.”

              I’m no fan of Comey’s. He made significant mistakes (e.g., in publicly reopening the Clinton investigation rather than waiting to see whether there was anything new that merited charges). But I don’t see systematic corruption. I’m certainly open to changing my mind in response to a good argument *with evidence*. You haven’t presented evidence, and Greenwald hasn’t either.

              As for “it is settled law that any interest in that area is based on concerns for the defendant,” I’m open to being convinced of that too (again: with evidence), but I have no reason to assume that possible political bias towards dismissing valid charges wouldn’t also be a concern. How did you go about searching the law on this?

              1. I’m not assuming anything. I just agree with Greenwald that the motion to dismiss is straightforward.
                It pretty much follows from the indictment itself. You have a legal phone call. You have a legal phone call that occurred after the elections. And it is a legal phone call that occurred after the elections for which the F.B.I. already had the tapes. And as a former D.I. Flynn knew they had the tapes. The indictment should have caused antenna’s to go up from the get go. Certainly not the basis of a 48a review. This is a decent enough write-up on the law.
                https://www.lawfareblog.com/justice-department-wants-drop-flynns-case-can-judge-say-no

                1. You say “I’m not assuming anything,” but just before that, you told me “Well if you don’t see it there, you don’t see it anywhere,” and that does indeed assume that evidence of Comey being “systematically corrupt” exists in the motion to dismiss and is so obvious that if I don’t see it, I won’t be able to see it, even if you are more explicit and provide good evidence. It’s a form of begging the question (iep.utm.edu/fallacy/#BeggingtheQuestion), where you assume the thing you need to show.

                  I have to wonder whether you and Greenwald read not only the motion, but also the exhibits. For example, do you buy Eisenberg’s story? (“When McCord and Eisenberg connected on the telephone on January 29, 2017, Eisenberg told McCord he had been in Flynn’s office prior to his sending the email to McCord and an assistant had switched his and Flynn’s telephones when giving them back. He explained they had the same password, so Eisenberg accidentally sent the email to McCord from Flynn’s phone.”) Both were on the NSC at that point, and they just happen to have the same password? (Personally, if I were on the NSC, I’d choose a really strong password for my phone, and it would be extremely unlikely that a colleague would also have that password.)

                  As for your comments about the phone call, the issues isn’t whether it was allowable for Flynn to call Kislyak (it was), but also what he said, and what he reported to others about the conversation. From the Mueller Report: “The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. … Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. The text message and email did not include sanctions as one of the topics discussed with Kislyak. Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.” (p. 172, footnote #s omitted). See where Flynn admitted to not being honest about the nature of the exchange because “it could be perceived as getting in the way of the Obama Administration’s foreign policy,” something that he had an obligation NOT to do, given that Obama was still President? He did it, and then he hid it, including from Pence and a bunch of other transition team members.

                  You say that the call was “legal.” But **lying about it** to the FBI was not legal.

                  Thanks for the Lawfare article. She says “To deny the government’s current motion, in other words, Sullivan would have to distinguish this case from broad and controlling precedent.” Seems to me that by inviting amici, Sullivan is exploring whether there’s a basis for distinguishing the case.

                  1. People will allow that he made false statements merely for the sake of argument. Nobody is convinced he did. But if he did and since the phone call was legal, where is the materiality to an investigation? How are his false statements material? Why was he interviewed at all? These were obvious questions that oozed out of the indictment. Barr’s dismissal answers them in a straight forward manner.

                    1. “Nobody is convinced he did [make false statements to the FBI]” is false, unless you think that everyone who has accused him of materially lying to the FBI is him/herself lying.

                      I believe he made material false statements to the FBI. Why? Because they have recordings of him making material false statements to the FBI (e.g., about whether he and Kislyak discussed sanctions from Obama and Russia not escalating in its response), they have copies of his FARA filings with material false statements, … I’m baffled that anyone could look at the evidence and claim that he didn’t make material false statements in situations where it’s illegal to do so.

                      “How are his false statements material? Why was he interviewed at all?”

                      Here’s one description of why, from “Bill Barr Twisted My Words In Dropping The Flynn Case. Here’s The Truth” (https://www.nytimes.com/2020/05/10/opinion/bill-barr-michael-flynn.html ), by Mary McCord, whose 302 is one of the exhibits appended to the motion to dismiss:

                      “… [There was] a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administration’s sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

                      “Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

                      “The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia — which the intelligence community had just assessed had sought to interfere in the U.S. presidential election — might have leverage over him.

                      “This is where the F.B.I. disagreed with the Justice Department’s preferred approach. The F.B.I. wasn’t ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat. …”

                      You may think that “Barr’s dismissal answers [the questions] in a straight forward manner,” but I think that Barr’s dismissal shows Barr making a dishonest argument. At the very least, shouldn’t Judge Sullivan want to know whether the dismissal motion is honest or if McCord’s criticism of it is?

                    2. SteveJ, since there was an ongoing investigation into a conspiracy between the Trump campaign and the Russians for them to help his election and since Flynn – a member of that campaign – talked to the Russian ambassador immediately following Obama’s imposition of sanctions on his country, followed the next day by Putin’s declaring he was cool with it, how would that conversation NOT be material to the investigation. and why would Flynn lie about it?

                  2. You do realize that the phone call was taped. And there was nothing said in the phone call that was illegal. Nobody has suggested otherwise. That is what makes the indictment about as self-contradictory as you can get. There was nothing in the phone call to investigate.

                    1. You got it Steve. A lot verbiage is thrown around to hide the truth. Flynn did nothing wrong. They are left with a he-said she-said argument and use a lot of verbiage in an attempt to prove something that they cannot prove.

                1. Incidentally, this is the F.B.I. we’re talking about you know.
                  _______________________________________________
                  Why are you talking about the FBI???

                  the FBI had nothing to do with the fraudulent plea deal that Mueller and Flynn cooked up and presented to the court.

                  The FBI never ever said Flynn denied asking Kislyak about sanctions. That false story that ended up in Sullivan’s court was entirely fabricated by Flynn and Mueller.

          2. The circle is tightening and becoming more visible. Is Mary McCord going to be just a blip on the surrounding screen or will she suddenly become linked into the circle? I think Mary McCord played a part in the ’Schiff whistleblower fraud. I wonder a lot about the pertinence of a lot of things she mentions in her op-ed.

            “On Monday General Flynn Attorney Sidney Powell tweeted out that the law firm Covington and Burling that mis-represented General Michael Flynn is resisting turning over all documents and specifically those of Eric Holder and Michael Chertoff discussing the Flynn case.”

    3. That’s why his stunts here are not surprising. He doesn’t want to admit how unmoored from reality his behavior has been.
      ________________________________________________________
      I think that is sorta close to the truth.
      the judge made his previous remarks based on a set of false facts that both the prosecution and the defense gave him. So now its seems reasonable that he wants to know what are the real facts.

      1. Was his rant at Flynn (at the opening) that Flynn had committed “treason” based on any facts either the defense of prosecution gave him?

        More recently, he chose to invite a hyper-partisan “lawfare” Clintonista, one who penned a WaPo editorial arguing the complete 180* opposite to opinions he rendered while serving as a judge. So Sullivan has not only felt comfortable holding forth with Rachel Maddow tier rants in court, threatening to “upgrade” the charge of lying to the FBI to “treason” during a sentencing hearing, he’s now refusing to let charges be withdrawn by the prosecution, in contravention of recent SCOTUS rulings, and his own previous rulings.

        Basically he’s forcing appeals to issue mandamus and intervene.

        So, let’s not pretend that there’s even a hint of good faith left in this judge’s behavior. This is an activist judge, one who would rather politicize his court than do his job. Maybe he wants his own show on MSNBC, but he certainly has no interest in his duty at this point.

        1. “So, let’s not pretend that there’s even a hint of good faith left in this judge’s behavior. This is an activist judge, one who would rather politicize his court than do his job. Maybe he wants his own show on MSNBC, but he certainly has no interest in his duty at this point.”

          Arsumbris, I have said something similar but much more hesitantly. I am glad you said it the way you did. I’m going to watch and see if you disappear or end up in the police columns.

          You are my guinea pig to tell me if I can post exactly how I feel. These people, Antifa, the politically correct Nazi’s and the rest of their ilk have kept many of us from saying what we believe. In fact we and the children now have to worry about our jobs. Some of the people I know and have met that have produced video’s for mass consumption have had to use phony names it the video wasn’t PC or they would lose their other jobs.

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