The Los Angeles Times has posted a column by UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman. The column that captures just how disconnected legal analysis has become in the Trump era. Litman in the column admits, to his credit, that the precedent overwhelmingly opposes a denial of motion to dismiss. However, Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department — a goal disconnected from the inescapable legal precedent (and thus the judicial obligations) presented by the motion. There is a word for using hearing to gratuitously “make trouble” for the Executive Branch: judicial activism. I have previously written about the need to dismiss the Flynn case and criticized those who dismiss new evidence of wrongdoing by the prosecutors.
Litman’s column follows the pattern of not even discussing the allegations facing the prosecutors or the new information. There is no mention of the possible false statements or withheld evidence in the case. There is no mention of new evidence showing findings of no criminality but high-level interventions to keep the investigation alive. The case is presented again in an immaculate fashion where the impropriety of the Justice Department is presented as established and beyond question. While I have admitted to coming to these disputes with the bias of a long-standing criminal defense attorney, I at least acknowledge the opposing arguments on the merits.
However, the most disconcerting part of the column is that the merits seem secondary to the point:
“Still, Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
Litman acknowledges that Sullivan has no real choice but to grant the motion to dismiss since a denial “would go against the grain of federal court rulings, in particular from Sullivan’s own D.C. Court of Appeals, which specify that dismissing criminal charges “lie[s] squarely within the ken of prosecutorial discretion.” Yet, despite worrying about the “assault on the rule of law,” Litman encourages Sullivan to use a hearing on the motion to “make trouble” for the Administration.
Let’s unpack that statement because, while I consider it wrong, it is far more honest and direct than many commentators. Litman is saying that the outcome of the motion seems pretty cut and dry, as I have previously written in columns. The precedent is clear and Sullivan would likely be rapidly reversed in a denial. Most judges are careful not to exceed the question before it. If the law is clear on the motion, the question is the authority of the court to use a hearing to seek to cause trouble or embarrassment for the Administration. That would effectively amount to the staging of a hearing for a purpose other than the merits of the legal question before the Court.
Litman also heralds the appointment of former federal judge, John Gleeson, to argue against the motion (and consider a perjury charge against Flynn) without even mentioning the highly controversial notion of such third party arguments in a criminal case. Again, the law in this area is detached from the ability to use such appointments to cause trouble for the Administration.
Litman’s premise is that, while the law favors the government’s motion,
“Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
That sounds a lot like using a hearing on a motion for a purpose other than the merits, to engineer an ugly scene for the Administration simply because the Court has the defendant as a captive in the courtroom.
Litman then seems to untethered his writing from his prior legal analysis that the law in the area is clearly in favor of the motion.
“But Sullivan needn’t deny or attack the principle of prosecutorial discretion; he can simply deny the motion on the grounds that the government’s arguments don’t hold water. The DOJ claims there is new evidence that supports dismissal, but none has been cited. It says there was no basis for questioning Flynn in the first place, but the predicate for suspecting Flynn is clear — the intercepted phone calls — as the department’s own inspector general expressly found.”
So, let’s unpack again. The law is clear that the Justice Department should make this determination that it cannot ethically prosecute the case. However, the Court could deny the motion by finding that, despite the recognition of prosecutorial discretion, the Court believes it can prosecute the case … but that is not a denial of prosecutorial discretion.
This position is supported by the conclusory statement that “[t]he DOJ claims there is new evidence that supports dismissal, but none has been cited.” With all due respect to Litman, that is simply not true. The Justice Department and the defense have presented highly disturbing allegations of prosecutors who refused to drop the investigation even after no criminality was found against Flynn. They also detailed how high-ranking prosecutors turned to the flagrantly unconstitutional Logan Act as the final option to come up with a crime, any crime, to allege against the incoming National Security Adviser. Litman may not be bothered by such evidence but it was presented.
Once you acknowledge that the law is clear on the discretion of the Justice Department to dismiss its own criminal case, the rest is just sport. This is a moment that many, including Litman, seem to relish:
“If [Judge Sullivan] elects to use the the power at his disposal, one judge could accomplish what Congress, multiple inspectors general, and a majority of the electorate have not been able to do — hold the president and his allies accountable for their contemptuous disregard for the rule of law.”
So, again to his credit, Litman is at least being honest that this is about using a courtroom to “hold the president and his allies accountable.” The problem is that the person “accomplishing what Congress . . and the majority of the electorate have not been able to do” is an Article III judge who is supposed to stay clear of politics and political questions. If one is truly concerned with the “rule of law,” that is one rule that you might not cavalierly toss aside.
Update: Mr. Litman responded to this blog with a series of tweets and I think that his view should be included in response. (I would also like to respond to those points).
His first point is that my blog is based on “a series of obtuse misreadings of the oped.” I will have to leave that to the reader but I quoted Litman extensively. I fail to see out it is obtuse to note that Litman is asking the court to accomplish “what Congress . . and the majority of the electorate have not been able to do.”
Litman also states that “the DOJ has advanced a series of factual and legal arguments that don’t withstand scrutiny, as so many people have pointed out.” That is a legitimate argument but not the one that Litman made. Rather he said “[t]he DOJ claims there is new evidence that supports dismissal, but none has been cited.” It is cited and is part of the record of the Court. Litman just does not buy the argument, which is perfectly fair. My point was only that he was suggesting no such evidence was referenced by the DOJ.
Litman says “it’s a serious mischaracterization of that legal argument to say, as you repeatedly do, that the oped advocates departing from the law or, worse, that it acknowledges that Sullivan “has no real choice but to grant the motion.” Here is what Litman said in the column:
“He could simply deny the government’s motion and proceed to sentence Flynn, which would have been the next step in the case if the government hadn’t dropped its dismissal bomb.
However, that would go against the grain of federal court rulings , in particular from Sullivan’s own D.C. Court of Appeals, which has specified that dismissing criminal charges ‘lie[s] squarely within the ken of prosecutorial discretion.'”
He also said “That sounds like a grant of open-ended judicial discretion, but courts have interpreted it to provide judges very little leeway to reject the government’s decisions to dismiss charges in a criminal case.” That sounds a lot like having no real choice on the motion. Litman then explains how the court can make this tough on the Administration and even deny the motion.
Litman also objects that “[y]ou again grossly distort the oped to suggest that an evidentiary hearing would be “for a purpose other than the merits of the legal question before the Court.” Again here is what Litman actually said:
“Still, Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the DOJ. It could result in making public the transcripts of the calls Flynn made to the Russians and then lied about. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
He then ends his column by encouraging Sullivan to do what the election and the Congress failed to do “hold the president and his allies accountable for their contemptuous disregard for the rule of law.” He does not explain how responding to Trump’s “allies” or the election should be relevant to a court’s legal analysis or proceedings.
He also objects “you take me to task for not mentioning the ‘highly controversial notion of third party arguments in a criminal case. The controversy is essentially invented by you, and your tweet about it is citation-free.” Actually, the tweet is citation free but not the links in the blog. Moreover, the controversy has been reported by many, including critics of the President. Even NBC called this “unusual”and a group of Attorneys General also called out the practice and called for the dismissal of the action. Judge Sullivan himself rejected this possibility earlier in this very case, as I previously discussed. Sullivan rejected such a request on Dec. 20, 2017, stating that “the Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. … Options exist for a private citizen to express his views about matters of public interest, but the court’s docket is not an available option.” Thus, I cannot claim to have “invented” this controversy. Indeed, while, as Litman says I may be “a very lonely voice in the wilderness” on some sites that Professor Litman frequents, I am actually not alone in raising these points.
Finally, Litman states that “there are many instances, including Rule 42, where the courts use amici in a criminal case.” That is news to me. I have been a criminal defense counsel for over three decades and I have never seen such amicus at a trial proceeding on sentencing or dismissal. Indeed, Judge Sullivan himself noted that it is not normally “an available option.” There are amicus filings that commonly occur on appeal or civil cases but that is not the point here. I could be wrong that this is a routine practice as Professor Litman suggests but I remain skeptical. Like many criminal defense attorneys, I view such third party argument on the trial level before sentencing to be a dangerous, rare, and controversial practice.
In the end, despite our disagreements, I am glad that Professor Litman responded. You can read his tweets in context here. This is no doubt a spirited disagreement between academics but I believe that it is a worthy debate to have. Indeed, one of my main objections is that academics often mischaracterize the debate and the underlying law in failing acknowledge such countervailing arguments, as I noted in another posting today.
Professor Litman has contributed greatly to the legal academy and, while I strongly disagree with his column and later defense, I believe all of the readers should give them the most serious consideration.
The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
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This is where Litman runs off the rails. Nobody who believed that Flynn lied to the FBI is smart. They are just partisan hacks who wanted to believe it was true despite the fact that it was always unbelievable. Flynn knew the FBI had listened to the call and Flynn knew he had no reason to lie.
What the DOJ is now claiming about the phone call and FBI interview is likely going to be shown to be accurate (if we ever get to see the evidence). That of course raises the obvious question of how the DOJ turned that into a crime in the first place. The DOJ wrote a false statement of offense and Flynn agreed with the false statements presented by the DOJ to the court in the plea deal.
The judge has been given a new set of facts that contradict the old set of facts the case was based on. Obviously, if the DOJ is required to explain how that happened it will cause them some trouble.
Judicial activism is way too kind of a word to describe the behavior in this case. Judicial activism can refer to differences in constitutional interpretation, statutory construction and case law. But the parties having the disagreement appreciate they are at least moored to these documents in some manner.
Sullivan has shown a complete disregard for the law.
How so? Sentencing is both a judicial prerogative and responsibility.as is the upholding of judicial integrity. Barr has unleashed a 3 ring circus almost without precedent and it smacks of the very type cases Rule 48 (a) was written for.
A history of the writing of the Rule follows at the link.
“Abstract
The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”
But the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive’s decision to abandon a case.
To be clear, there may be good reason for the district court to grant the Government’s motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48’s forgotten history.”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674
“the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States.”
That is patently false, as evidenced by United States v. Fokker — the 2016 case the judge absurdly used for his order.
In addition:
“Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is
not an available option.”
Judge Sullivan
Why he put that better than anybody.
Fokker was a deferred prosecution case, not a twice pled guilty case.
You ignore the history of the writing of Rule 48 (a) which by the linked research was all about corrupt prosecutors and connected defendants. Helllooo!
You also ignore the highly unusual circumstances where the prosecutors all bailed on an action by a political appointee intervening for his boss. You really think that should not be reviewed?
By the way, the case is in sentencing phase where the judge takes over.
“Fokker was a deferred prosecution case, not a twice pled guilty case.”
Again, merely for purposes of entertainment with regard to your posts on this issue Fokker itself doesn’t make that distinction remotely relevant on its 48a discussion. Neither does Rinaldi. Under this absurd extrapolation, there is no such thing as case law ore precedent.
“he put that better than anybody.”
Did he?
Harry Litman has responded to Turley’s column (https://twitter.com/harrylitman/status/1263489974709583872 ) and says “you [Turley] take me to task for not mentioning the “highly controversial” notion of third party arguments in a criminal case. The controversy is essentially invented by you, and your tweet about it is citation-free. there are many instances, inc Rule 42, where the courts use amici in a criminal case.”
So perhaps Judge Sullivan’s claim was false, or perhaps he meant it to be restricted to context that isn’t clear to me, and it’s true in context. I’m not a lawyer and don’t know the caselaw well enough to judge that.
some commentators like Litman make this overly complicated. it is actually very simple. i’ll use analogy to show how preposterous this is to practicing lawyers.
a basketball game. the time is running on the clock. for whatever reason, the coach on the home team tells the players to all sit down. they do. the coach forfeits. the UMPIRE DOES NOT LIKE THIS. NOR DOES HALF THE FANS. THEY HOLLER. THE UMPIRE FEAR THE FANS. HE ORDERS THE COACH TO EXPLAIN HIMSELF. the players sit on the bench waiting to go home.
AS IF THIS IS NOT SILLY ENOUGH, THEN THE JUDGE ASKS A FAN TO COME FORWARD AND EXPLAIN WHY THE COACH SHOULD NOT HAVE FORFEITED.
see how stupid this is?
Except that your analogy doesn’t work. Judges aren’t simply referees. As a simple example, two teams can’t go to a ref and agree to an outcome without playing a game, whereas prosecutor and defendant can go to a judge with a plea deal without having a jury trial. Judges can and do ask for amici to file briefs.
So no, I don’t see how stupid it is.
Judges *are* simply referees.
No, they aren’t. Maybe you’re not thinking about the full range of actions that judges can and do take as part of their work.
You’re quite the tool. Included in the full range of actions for a police officer, is to fire their weapon. And using your logic, it shouldn’t matter in the least who gets in the way.
LOL at the evidenceless and false claim that “using your logic, it shouldn’t matter in the least who gets in the way.” And the insult is the cherry on top.
Kurtz, not a terrible metaphor, works in some ways. I think it works better if the coach leaves and the AD tells the players to sit down after he’s seen in the lobby with Arnold Rothstein.
Committ – did Littman claim Turley was not using cites and then didn’t use cites himself? Hmmmmmmmmm??????????
I don’t expect the same level of detail in tweets as in a column. If you do, OK.
Committ – if you are calling someone out for details, I expect the same level of detail. Fair is fair.
Book, is that little essay all ya got? Againt that you have the LAW
“he outcome of the motion seems pretty cut and dry, as I have previously written in columns. The precedent is clear and Sullivan would likely be rapidly reversed in a denial. ”
THIS ONE’S A SLAM DUNK
SULLIVAN IS MAKING A FOOL OF HIMSELF AND THE JUDICIARY
THE FBI ABUSED ITS POWERS AND BARR IS A HERO FOR RETRACTING THIS
KURTZ , EVERYTHING YOU JUST SAID IS B…S….
Your turn
Book I understand you have a personal feeling about this matter. Maybe this makes you very mad. I can understand that.
But, for other folks, I am just explaining it in laymen’s terms, to counteract your obfuscation of a simple thing.
Yeah Kurtz, clear to see your cool dispassionate attitude about it. Typing in caps and suggesting an armed revolution is the only remedy goes along with it.
The precedent is clear and Sullivan would likely be rapidly reversed in a denial.
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Any one that thinks denial of the motion is the judge’s objective, has not been paying attention to anything the judge has said.
“Sullivan has shown a complete disregard for the law.”
Can you give an example?
that is somebody else’s remark. i think Sullivan is not disregarding all law, just disregarding the law he doesn’t like.
this is the essence of partiality, and the cornerstone virtue of a judge is impartiality
Sullivan makes a mockery of the black robes of the partisan judiciary– to serve his arrogance and the orders of his partisan masters.
and how ironic since lifetime tenure of article III fed judges was supposed to make them non-partisan
we see that didn’t really work out quite as well as intended
Judicial activism is way too kind of a word to describe the behavior in this case
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What describes this case best is that many people are scared sh!tless to find out the facts of the case. They will invent all kinds of contorted arguments in the hope that it will help thwart the possibility that the facts will be revealed. They hope that a higher power will intervene to shut it all down before the facts can be revealed.
The judge loses immunity from tort liability if he acts (or continues to act) in the clear absence of jurisdiction. If not for the sake of justice, Judge Sullivan might at least consider acting in his personal self-interest.
Remember when Chief Justice Roberts said that there are no conservative justices and there are no liberal justices. I believe he said that with a strait face.
What Roberts actually said was “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Committ – Roberts’ drugs really kicked in that day. 😉
Still not true…
Roberts is paid to be the top. He has to try and maintain the facade of integrity and impartiality. That’s his paycheck or else.
Regular Americans are starting to get it. Now the old tricks the FBI used on racketeers and murderers like Sam Giancana are being used on patriotic Americans executing their lawful duties on behalf of the United States. Because partisan howlers and maniacs push the Peter Sztrokes forward to do it. And some of them do, quite willingly.
The FBI’s lack of impartiality is even more troubling than the judiciary’s. The key thing to understand is that the Democrat leadership would lynch everybody who does not go along with them if they had the power.
The only way that is feasible, to stop this madness, is a massive turnout for Trump and Republicans in the elections in November. The margin of victory must be large or it will be 4 more years of disgraceful sabotage.
The FBI’s lack of impartiality is even more troubling than the judiciary’s.
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Stop trying to blame the FBI for something they did not do.
The FBI investigators believed Flynn committed no crime.
The FBI had also reached the conclusion that there had been no collusion between the Russia and the Trump campaign,
In May 2017 the Russia investigation was taken from the FBI and the DOJ took complete control. After that happened the stories of collusion and obstruction and lying to the FBI and Congress were invented by the DOJ. The DOJ is now trying to frame the FBI for what they did.
Bythebook:
So it would be fair to assume that when Trump leaves office in January 2025, and hypothetically is followed by a Dem as President, it will be fine for Trump’s team to kneecap the incoming transition team, nail them to the wall for restarting the nefarious lifeline to the mullahs in Tehran, and investigate them for all the foreign money ($CCP) they raised in the campaign, even if it takes years. You are now OK with this approach.
In your new world, they can enlist the CIA/NSA/DOJ to do this and never reveal anything to the incoming team until the indictments are ready to roll. Then when the White House shifts again, 4-8 years later, and this nasty cycle repeats.
This is the world the Dems have ushered in with this panic-driven assault on an election outcome they did not like. This is the real legacy Obama has left us with — a future of ever-decreasing trust and comity preventing us from coming together to tackle our challenges.
Gramscian Damage continues to poison our politics and our “elites” are doing the devil’s work to tear us apart — the CCP will be most pleased. The WORST leadership class in American history — Franklin would say we have already lost our Republic. (http://esr.ibiblio.org/?p=260)
Midway, your problem is that the IG has found – and even Barr has recently confirmed by inaction – that the investigation into the Trump campaign, which was kept secret from voters while a renewed one into Hillary was not – that’s your supposed “Deep State” at work – was not politically motivated. Comey, Rosenstein, and Mueller are all – or were at the time – Republicans and only the 1st was active while Obama and Biden held office.
Your lack of trust is well groomed by partisan politicians but based on thin air.
Despite what these people and CNN say in public. This is what they say under oath which proves they are liars.
No Evidence of Trump Russia Collusion:
“I never saw any direct empirical evidence that the Trump campaign or someone in it was plotting/conspiring with the Russians to meddle with the election” ___DNI James Clapper 2017. “
“I am not in possession of anything—I am not in possession and didn’t read or absorb information that came from out of the intelligence community,” ___UN Abassador Samantha Power
“To the best of my recollection, there wasn’t anything smoking” …“I don’t recall intelligence that I would consider evidence to that effect that I saw…conspiracy prior to my departure.”… “I don’t recall intelligence that I would consider evidence to that effect that I saw…conspiracy prior to my departure.” __NSA Susan Rice
Democrats were proven corrupt with the revelations that so many of them lied for 1000 days to the American public (Shiff, Schumer, Brennan, Rice, Comey) when they knew that under oath that NO ONE believed or had proof of ANY collusion. These Democrats and their minions like this judge will lie and use any tactics possible to get power. The American people should be aware that they have been lied to by these Democrats for 3 years. And it certainly won’t stop any time soon or until the Press stops lying as well
“under oath … NO ONE believed or had proof of ANY collusion”
The Mueller Report includes evidence of conspiracy, though he didn’t think there was enough to bring charges (an opinion that other lawyers disagree with). And plenty of sections in the transcripts are still redacted, so we can’t possibly know what was said in those sections.
CommitToHonest ….:
“The Mueller Report includes evidence of conspiracy, though he didn’t think there was enough to bring charges (an opinion that other lawyers disagree with).”
**********************
I have evidence that you might be commenting in good faith but not enough to bring the charge (an opinion most anyone who reads you agrees with).
The Mueller Report includes evidence of conspiracy
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But it is phony contrived evidence that is designed to fall apart if you poke at it.
just like the Flynn prosecution was designed to fall apart.
“it is phony contrived evidence that is designed to fall apart if you poke at it.”
A claim you make without providing any evidence for it.
What is your actual evidence for this (not more opinions, but evidence: quotes from testimony under oath, etc.)?
“it is phony contrived evidence that is designed to fall apart if you poke at it.”
A claim you make without providing any evidence for it.
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Many of the stories have not yet fallen apart. mostly because they have yet to be subjected to scrutiny
The Cory Lewendowski story is a good example of one that was poked at and fell apart. It was a huge flop after Lewendowski testified to his version of the facts.
The Flynn lied-to-the-FBI story is another one that you are witnessing fall apart.
But we have been through the evidence and you have shown you are impervious to evidence. The story is unbelievable on its face. The evidence shows Flynn knew the FBI had listened to the call and that Flynn knew there was no reason to lie. But you prefer to ignore the evidence. You also choose to ignore the statements from the FBI agents who talked to Flynn.
So in the Mueller Report what is the evidence that Flynn lied? There is none. Mueller only points to the statement of offense that Flynn previously swore was true but now is saying is false. The problem is Mueller invented that bogus statement which is the Reports sole evidence in support of the Flynn-lied-to-FBI story and the report leaves out all the exculpatory evidence (which is all the evidence). Mueller invented a story and then he points to his story as evidence that the story is true.
LOL that you quote part of my comment, but you omit the part that says “What is your actual evidence for this (not more opinions, but evidence: quotes from testimony under oath, etc.)?,” and then you proceed to give more opinions without presenting any actual evidence.
then you proceed to give more opinions without presenting any actual evidence.
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When you don’t like the facts you claim it is opinion.
The Flynn-lied-to-the-FBI story is like the other phony stories in the Mueller Report.
The case against Flynn is feeble, flimsy and sloppy. The only people in the whole world who buy that story are fanatics so blinded by hatred and bias that they can’t see straight. And unfortunately you are one of those people.
Democrats were proven corrupt with the revelations that so many of them lied for 1000 days to the American public (Shiff, Schumer, Brennan, Rice, Comey) when they knew that under oath that NO ONE believed or had proof of ANY collusion.
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Democrats may have lied about it but so did Mueller and Mueller was not employed by Democrats. Mueller was employed by the Trump administration. And Mueller was the one who created the phony stories about collusion and obstruction that the stupid Democrats believed were true.
I do not even get the guy’s logic. It would be embarrassing for the previous administration, correct?
“Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department”
No, he doesn’t. It’s striking that Turley quotes Litman — “Sullivan doesn’t have to deny the motion to make trouble for the department” — and then misrepresents it. Litman isn’t arguing that Sullivan *should* make trouble, but that some of Sullivan’s choices *would* make trouble. This isn’t the only place in the column that Turley takes a “would” claim and pretends it’s a “should” claim.
“Litman acknowledges that Sullivan has no real choice but to grant the motion to dismiss since a denial ‘would go against the grain of federal court rulings, in particular from Sullivan’s own D.C. Court of Appeals, which specify that dismissing criminal charges “lie[s] squarely within the ken of prosecutorial discretion.”‘”
No, actually, what Litman said was “[Sullivan] could simply deny the government’s motion and proceed to sentence Flynn, which would have been the next step in the case if the government hadn’t dropped its dismissal bomb. That, however, would go against the grain of federal court rulings, in particular from Sullivan’s own D.C. Court of Appeals, which specify that dismissing criminal charges ‘lie[s] squarely within the ken of prosecutorial discretion.’”
Turley omits the first sentence and then pretends that a statement about denying the government’s motion *as if the government hadn’t submitted a motion to dismiss* is a statement about denying the government’s motion *for any reason*. And Litman makes clear in the next sentence that that wasn’t his argument: “Sullivan needn’t deny or attack the principle of prosecutorial discretion; he can simply deny the motion on the grounds that the government’s arguments don’t hold water.” And Turley knows that, because he later quotes it.
“There is no mention of new evidence …”
That would be because the evidence that the DOJ submitted isn’t new to the DOJ. Here’s a good discussion: https://www.emptywheel.net/2020/05/07/to-justify-dismissing-mike-flynns-prosecution-timothy-shea-claims-information-doj-has-always-had-is-new/
“There is no mention of new evidence …”
That would be because the evidence that the DOJ submitted isn’t new to the DOJ.
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The evidence the DOJ submitted isn’t new to Flynn either.
The DOJ is still withholding evidence from the court,
The DOJ has the original FBI notes and the transcript of the phone calls,
That is the evidence that the court needs to see.
That is the evidence that the court needs to see.
Why does the court need to see what you allege they are withholding? The DOJ has dropped the charges and their attorney’s have been proven to have violated the defendant’s rights by withholding exculpatory evidence,.in defiance of Sullivan’s own orders. Is there not sufficient evidence of prosecutorial misconduct for Sullivan to vacate Flynn’s coerced plea, dismiss the case and put this back into the hands of the Executive branch? Is it the role of Sullivan to use his court to investigate the Executive branch?
Is there not sufficient evidence of prosecutorial misconduct for Sullivan to vacate Flynn’s coerced plea
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There may be enough evidence of prosecutorial misconduct in his court to support a finding of contempt.
I expect low brow clodhoppers to sometimes prevail in local, small town politics, but it’s chilling to see the same type of naked, crass motivations prance across the national stage mouthed by “illustrious men of the law” such as Litman.
And the pretentious names, “bythebook” and “CommitToHonestDiscussion”. Why not, “TheOnlyHonestManinTheRoom” or “HighMoralGround”. It’s convenient when the moniker assures you of the purity of the posters motives and very soul, just in case the argument itself fails.
RME. If you have evidence that I said something dishonest, present it. If you think it’s pretentious for me to say that I’m committed to honest discussion and want other people to also be committed to honest discussion, that’s pretty sad.
Like me, she probably does not reply to you because you are a shill, and conversation is pointless with a shill. You are not here to shed light, but to shed darkness and distraction.
Might as well argue with some bot online as with you, bythebullsh!t, Seth, and a few others.
Squeeky Fromm
Girl Reporter
As I told her, I think the insults that people post generally say at least as much about the person who posts the insult as the person s/he’s trying to insult.
Is everyone who has a different view than you a “shill” as far as you’re concerned? If so, that would be pretty sad. There are honest and sincere people through the political spectrum.
Heresy here committ. You weren’t here but numerous regular posters literally celebrated schadenfrude over the murder of a blameless white couple who had adapted a black child who when grown up fell in with a bad crowd. Got what was coming to them was the consensus.
That’s who you’re often talking to here.
See how Book talks down to the Deplorables?
?? Are racist lawyers and college grads who cheer on the murder of blameless middles aged couples “deplorables”?
I’m not getting this one.
I didn’t cheer their murder, nor did I mourn it. It was just one of thousands of similar crimes committed here for decades. You get used to such crimes after a while. Sad but true.
The story did bear some similarity, however, to those old fashioned stories where a “missionary couple” would go off on an errand of Christianizing or some other errand of cvilization, whether to Africa or Micronesia, and end up getting boiled in a pot.
What sort of story? Oh, they used to abound. here was the last one of note
Michael Rockefeller, went off to collect artifacts, and was literally eaten by cannibals he wanted to “study.”
https://en.wikipedia.org/wiki/Michael_Rockefeller
yes, the story actually is a type
Kurtz, I don’t remember you being one of those who cheered that murder. If the shoe doesn’t fit, don’t wear it.
“Michael Rockefeller, went off to collect artifacts, and was literally eaten by cannibals he wanted to “study.” ”
Weren’t the cannibals just trying to be helpful and give the guy a hands-on demonstration?
Say, book, I have a great book for you. Since you like to read. It is considered a classic. If you make it through, you will get a sense of the futility of trying to Westernize those who are not of the West.
“Heart of Darkness (1899) is a novella by Polish-English novelist Joseph Conrad about a narrated voyage up the Congo River”
I read it 40+ years ago. I wouldn’t take it’s meaning as you do.
it’s a matter of continuing debate and relevance
https://www.newyorker.com/magazine/1995/11/06/the-trouble-with-heart-of-darkness
Thanks for the link. I’ll read it later.
Book’s arrogance is a head-scratcher. His batting average over the last 3 years is a disgrace and yet he keeps stepping up to the plate as if the ball is sitting on a tee. What he doesn’t realize is there are rules and he’s been getting in the box without a bat. He’s a narcissist through and through.
No. I disagree with TIA on things, and enigmainblack. I do not think either of them are shills.
But I do think you are a shill.
Squeeky Fromm
Girl Reporter
>>And the pretentious names, “bythebook” and “CommitToHonestDiscussion”. Why not, “TheOnlyHonestManinTheRoom” or “HighMoralGround”<<
Excellent and funny post.
Well, the shills are out early this morning. How do you defend the indefensible? With gusto and denials!
No, Litman said exactly what Turley said he said. It is sad, and morbidly fascinating, to see a law professor at a supposedly top college and former U.S. Attorney praise wanton lawlessness based on phony and conclusory grounds.
In spite of what the shills say here (Deny! Deny!Deny!), and Litman, the current DOJ did set forth the grounds on which it seeks dismissal.
In fact, here is the Motion -all 108 pages of it! With documents!
https://int.nyt.com/data/documenthelper/6936-michael-flynn-motion-to-dismiss/fa06f5e13a0ec71843b6/optimized/full.pdf
Squeeky Fromm
Girl Reporter
https://www.latimes.com/opinion/story/2020-05-21/michael-flynn-emmet-sullivan-william-barr-donald-trump-justice-department
No, Litman said exactly what Turley said he said.
____________________________________________________
Oh stop lying. What the judge is doing is indeed making trouble for the DOJ, no doubt about that but there is no evidence that Litman is saying that should be the sole purpose of what the judge is doing. Turley is clearly misrepresenting what Litman wrote.
The judge is trying to find out how this fraudulent plea deal ended up in his court and more important to discourage such fraud from ever being tried in his court again, Doing that appears to be causing trouble for lots of people who don’t want to hear the facts.
Personally I don’t think Sullivan believes Flynn is guilty. Statements the judge has made in past hearings implied that he didn’t believe the story he was being fed.
The social nexus which has the Democratic Party as its electoral vehicle has a number of components. Each component is run by bad, dishonorable people. The question is, how do you keep a constitutional republic going when half the political spectrum is occupied by a criminal organization, and a criminal organization which bothers half the electorate not at all. This will not end well.
Dude, your 2/5ths is run by Trump. Is there someone more dishonorable?
Look in the mirror, and you’ll find someone.
Litman: “We can’t prove it, but we know he’s guilty”.
Christine, Litman didn’t say that though we know he’s guilty because he pled guilty twice. In any case, let’s vet it and we’ll know.
we know he’s guilty because he pled guilty twice.
_____________________________________________________
That is your delusion. It don’t think that Sullivan shares that delusion.
We spied everything, lied, cheated and stole from this man, threatened his family, coerced him into the corner and while holding a gun to his head made him say “I did”, twice, or we’d have chopped off his legs additional. Now we want everyone to believe he did something wrong, not us, because he said “I did”, twice.
Gen. Flynn’s guilty plea is nothing more than a coerced confession. Coerced by our own government. You know, the one that is supposed to stand for liberty and justice for all!
“commentators”: tch, tch, too many syllables. I thought lawyers were paid by the word, not how long those were.
“commenters”
Commenters make comments. Commentators make commentary.
Commentary is comments with an agenda.
You can’t have a Banana Republic without some people who are bananas. Litman is bananas. But what is fascinating about him, is how oblivious he is to what he is saying.
Like I have said numerous times, a lot of higher-up Democrats are sociopaths. Like Bad Wrestlers, who know they cheated but don’t care because – hey, they won! Now in wrestling, it is a show. But like characters in any good fiction, they represent how some people really behave. For example, Lady MacBeth and Hillary Clinton.
Litman is “I don’t care what the law is, as long as we win and cause Trump a problem.” This would be bad in a typical citizen, but in a former U.S. Attorney??? This is how, and why, Flynn was prosecuted in the first place.
Squeeky Fromm
Girl Reporter
Nice.
JTs column is dishonest because of the repeated falsehoods I noted below, but also in his misrepresentation of the column by Litman that he is rebutting. Link below
Litman only agrees with JT that Sullivan by precedent may almost certainly not go to sentencing with Flynn, ignoring the Barr motion. However, he does say it is entirely within his power – and reasonable – to either hold a hearing on the evidence or hold Flynn in contempt of court for his previous statements. JT ignores these 2 options as if Litman has conceded the legal issues and is now just a bomb thrower. That is false and I encourage any and all to read the column – link below.
JT – “Once you acknowledge that the law is clear on the discretion of the Justice Department to dismiss its own criminal case, the rest is just sport.” Indeed, except Litman does not agree with JT on the law or the evidence.
One other misrepresentation – JT says Litman is ignoring the evidence. False. Read the column.
https://www.latimes.com/opinion/story/2020-05-21/michael-flynn-emmet-sullivan-william-barr-donald-trump-justice-department
I have half a mind to write the Chair of the GWU Law School and ask him to remind Turley that the ABA’s Model Rules of Professional Conduct include “It is professional misconduct for a lawyer to: … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The conduct isn’t limited to courtrooms. What especially concerns me is that Turley doesn’t correct his misrepresentations even when they’re posted to his Corrections page.
“half a mind”..that explains a lot.
Christine, you’ve yet to demonstrate a quarter of a mind after being personally invited to be specific on your complaints about Litman’s column..
A simple request however – if you are only going to post snark, can you at least strive to be clever and amusing? There’s plenty of dumb s… here already.
I think the insults that people post generally say at least as much about the person who posts the insult as the person s/he’s trying to insult.
Should you need the definition of the expression I used: https://www.dictionary.com/browse/half-a-mind
So aptly put!
To be clear, to Chrisitine.
Really? Gleeson wouldn’t be left standing for a start…In fact there would be no Amicis left for Sullivan to choose from.
Committed:
“I have half a mind to write the Chair of the GWU Law School and ask him to remind Turley …”
***********************
If you threatened me or my employment on my blog, I’d offer to kick your arse and then ban you from it.
How does someone “kick [the] arse” of an online commenter? Gosh, my rear end hurts just thinking about it.
And if he wants to ban me, that’s totally fine with me. It doesn’t change the fact that he’s a law professor. As a lawyer, he has a duty to abide by the ABA’s Rules of Professional Conduct, and as a faculty member, he has a duty to exhibit intellectual integrity. He isn’t doing that on his website, where his columns have way too many factual errors / too much faulty reasoning, and (this is the main problem) he chooses not to correct them even when they’re identified on his Corrections page. He only seems to correct typos.
For the record, a Chair reminding a faculty member of his professional responsibilities is not a “threat” to anyone’s employment, unless the person persists in ignoring their responsibilities. It especially isn’t a threat for a tenured faculty member like Turley.
But feel free to email Turley with a link to my comment, if you’d like to see me banned. Maybe that way he’ll see and consider his professional responsibility to correct errors of fact and reasoning when they’re identified.
lol, nobody has a duty to abide by any ABA whatevers except for ABA employees.
A licensed lawyer only has to abide by the state codes in which he is licensed in.
the ABA “model code” is just that. a model, from a private association, with zero governmental authority whatsoever.
obviously Commit is not a lawyer
ps profs like Turley also have a thing called “tenure” which protects them from trivialities.
I’ve already said I’m not a lawyer.
He’s admitted to the DC Bar and DC’s Rules of Professional Conduct say the same thing.
He teaches law school students who will work around the country, so the ABA’s model rules are relevant to his work.
I already noted that he has tenure. Tenure does not protect professors from feedback from their Dept Chair. (I’m not a lawyer, but I’ve taught and carried out research at Research I universities — this refers to the university’s Carnegie classification, and GWU is R1.)
“As a lawyer, he has a duty to abide by the ABA’s Rules of Professional Conduct…”
Sounds like a 15 year old brat that just read his first textbook on philosophy and is now a genius with experience and wisdom.
Turley even provides a place for corrections. Instead of gratitude for the use of a free list and an open place to list corrections you throw a tantrum.
However, he does say it is entirely within his power – and reasonable – to either hold a hearing on the evidence or hold Flynn in contempt of court for his previous statements.
This is domestic lawfare weed whacking. Just because the power exists does not make it reasonable to use it. Litman isn’t advocating for actual justice. Litman is advocating for Sullivan to weaponize his Art. III powers against this administration.
Let us make “Trouble” for the Democrats. Fire anybody who votes Democrat, Don’t buy products sold by Democrats, Don’t educate your children in Democrat run Universities or grade schools, Home School.
Litman knows the Judge is wrong but the hatred of Trump, Trump synodrome, is driving the Left, never Trumpers crazy. Wait until Sullivan is over turned and lectured by the Appeals Court or Supreme Court. The main street media and the left will just go nuts. Trump wins again
False. Read Litman’s column. JT is misrepresenting it.
I did read it. It’s worse than JT relates. They are breaking down the gates and we are reminded that there is no moral system, no rule of law, that can constrain immoral men. Moral systems are only for moral men.
Can you be specific Christine? I can.
That’s really not much of a challenge since the first sentence is “The Trump administration — which has made a signature achievement of eluding accountability for all manner of lawless and corrupt conduct” is nothing more than a wordy way of saying “We can’t prove it but we know he’s guilty, so let’s proceed.” A person’s guilt or innocence is determined in American Jurisprudence by evidence weighed in the balance. Oh..wait, just one more investigation and you will “get them”. And I doubt that being specific will be enough or the point be taken. This whole charade is nothing more than a demonstration of the inability of any moral system to constrain immoral men, for long. Oh, and if you stack up 2,000 Litmans..it doesn’t make anything “more right”.
Christine, you don’t have to agree with the sentiments of a writer to get to the meat of their argument., which you like JT avoid. The column is about the legal options the writer sees for Sullivan and lists 2 available. Care to comment?
One would expect those with a pretense to moral high ground – well who doesn’t – would welcome an airing of the multiple issues this case presents, including misconduct by the FBI and DOJ alleged by Flynn’s team, the President and millions of Americans, and a corrupt power play by the President and the DOJ apparently suspected by the judge and alleged by millions of Americans including ex-DOJ.
At stake is a possibly innocent man and the legitimacy of our legal system.
Let’s see the evidence.
Litman admits the dismissal of the charges is unavoidable. he just explores how it can be delayed and exploited for political gain. this is despicable disregard for the rights of the accused.
however, it’s instructive. The Trumpers, right wingers, patriots, etc., need to fully understand the deep disregard the Democratic leadership has for individual outcomes and Enlightenment fancies like “rights’ and so forth.
This is shaping up to be tribal warfare in the end. Just as I have been saying for years. The unwillingness of the Democratic leadership faction which believes it has time and numbers on its side, and so has little disregard for the conventions of the past such as I described, the simple notion that when the government abandons a case, the charges are dismissed– the most simple bedrock notion of how criminal justice works– this blatant disregard for our civic traditions, virtually guarantees that the non-kinetic, information and economic factional warfare of today, will eventually go hot
No, he doesn’t He admits that to go to sentencing while ignoring or overruling the motion without a hearing is not possible or automatically reversible.
From the previously linked history of Rule 48.
“…. A leading case concerning federal prosecutors’ nolle prosequi power,
United States v. Woody,9 put in stark relief the judge’s dilemma when
facing apparent improprieties. There, the Government indicted a young
Montanan named Franklin H. Woody for embezzlement while working
as a federal tax collector. Id. But young Mr. Woody was no ordinary
defendant. The Woody Family was one of the first White families to
settle in Montana.10 His grandfather was Missoula’s first mayor, a
stern district judge known for his “antipathy to persons charged with
crime.”11 His father was a personal friend of the Governor12 and had
served as Montana’s Assistant Attorney General (and later, ironically,
as General Counsel for the Montana Taxpayer’s Association).13
Eventually, the United States moved to dismiss the indictment. Among
the reasons offered by the Assistant United States Attorney, the
defendant was “of a prominent pioneer family, . . . [was] studying law
in a California university, . . . and thus his ‘career as a lawyer [would]
be spoiled’” if the case proceeded.14 Moreover, “the government’s losses
ha[d] been reimbursed,” presumably by Mr. Woody or his kin.
The district judge made no secret of his displeasure. He wrote
that such “reasons” were transparently dubious, “savor[ing] altogether
too much of some variety of prestige and influence (family, friends, or
money) that too often enables their possessors to violate the laws with
impunity.”16 Such a dismissal would undermine the Judiciary, for it
would “incite, if . . . not justify, the too common reproach that criminal
law is for none but the poor, friendless, and uninfluential.” Id. This
belief in “disparity in treatment of offenders,” in turn, undermined
“courts, law, and order; and, in so far as it is well founded, the basis of
it is a pernicious evil, and abhorrent to justice.” Id.
Yet the judge was powerless to do anything about it. Under
existing law, the federal prosecutor had:
absolute control over criminal prosecutions, and [could]
dismiss or refuse to prosecute, any of them at his
discretion. The responsibility [was] wholly his. . . . The
court [could not] control him, unless, as in some states, it
[was] given the power by statute.17
Thus, the district court was compelled to grant the motion, “albeit
reluctantly.”18 The court’s opinion was carried in newspapers across
the state.19
The dilemma faced by the district judge in Woody was well
known in legal circles when the Rules of Criminal Procedure were
developed (1941-1944). Several months after the Supreme Court
appointed an Advisory Committee to draft the rules in February 1941,
another federal district judge in California penned an impassioned plea
for the federal courts to adopt a new approach to dismissals. Quoting at
length from Woody, Judge Leon Yankwich urged that it was critical to
grant judges greater “control . . . over criminal proceedings” so they
would not be similarly “compelled to grant the dismissal of an indictment [when such a dismissal] savored too much of favoritism.”20
Echoing the judge in Woody, Judge Yankwich argued:
The people of the United States may be done as great a
disservice by discontinuing as by continuing a
prosecution. The community tests criminal justice by what
judges do. We are responsible for the errors which the
zealous prosecutor induces us to commit. And their
misconduct . . . is chargeable to us.
So we should have a control commensurate with
this responsibility, in order that the action taken in
continuing or discontinuing a prosecution can be truly
said to be the action of the court. It is not such at the
present time.21
In short order that would change…..
….In February 1941, the Supreme Court appointed an Advisory Committee
composed of eighteen prominent legal figures to draft the federal
criminal rules. Although the Court appeared to be unaware of this fact
when it decided Rinaldi in 1977, the work of the Advisory Committee
(including its communications with the Court and members of the
broader legal community) sheds significant insight into the purpose of
Rule 48(a)’s “leave of court” provision. Most importantly, the historical
record makes clear that what became Rule 48(a) had almost nothing to
do with the rights of the accused23; instead, the final text was understood as vesting district judges with the power to limit
unwarranted dismissals by corruptly motivated prosecutors.
The question whether the trial court should wield the power to
deny a motion to dismiss first prompted debate at the Advisory
Committee’s January 13, 1942 meeting. From the outset, the Advisory
Committee’s concern focused on the possibility that improper political
influence might spur a prosecutor’s decision to drop a case. Harvard
Law School professor Murray Seasongood first raised the issue:
Mr. Chairman, this raises an important question of policy;
that is, whether it shall be necessary to get the approval
of the judge before the indictment may be nolled. I
understand in many States it is necessary to get the
consent of the judge. I have seen cases nolled which in my
opinion should not have been nolled. I have seen some
cases nolled after intercession from Washington; also
some gross income tax fraud cases.24
The Advisory Committee’s secretary, former Assistant Attorney
General Alexander Holtzoff, was the leading voice against such a
requirement. He countered that while requiring the “consent of the
court” might be necessary in state court, because “the average county
prosecutor is steeped in politics in the first place,” federal prosecutors
were immune to such untoward pressures.25 A skeptical Aaron
Youngquist (himself a formal federal prosecutor) countered: “You don’t
have the same degree, perhaps.”26 An initial vote on requiring the
court’s approval for a dismissal resulted in a 7-7 tie.27 As a compromise,
the Committee abandoned the leave-of-court requirement, but
approved draft language requiring that prosecutors first place on the
record the reasons for any dismissal.28
The Committee first an sent an “unpublished” draft of its work
to the Supreme Court in May 1942.33 In this initial version, the Rule
for dismissals gave prosecutors the power to dismiss a case without the
court’s permission (while requiring a statement of reasons).34 On June
10, 1942, the Court returned comments, offering “the first expression of
the Court’s thinking on the Rules [that] helped shape the later
Preliminary Drafts that were issued to the public.”35 The Court was
skeptical:
Rule 24. This rule apparently gives the Attorney
General or the United States Attorney unqualified
authority to nolle pros a case without consent of the court.
Is this now the law, and in any event should it be the law,
any more than that the Government can confess error in
a criminal case without the consent of the court? See
Young v. United States, decided this term.36
In the recent case to which the Court directed the Advisory Committee’s
attention, the Court explained that “a confession [of error by the
Government] does not relieve this Court of the performance of the
judicial function. The considered judgment of the law enforcement
officers that reversible error has been committed is entitled to great
weight, but our judicial obligations compel us to examine independently
the errors confessed.”37 Emphasizing the need to ensure that every
criminal proceeding in fact “promotes a well-ordered society,” the Court
rejected the suggestion that “the enforcing officers” of the law alone
should be entrusted with representing the public interest; rather,
“[t]hat interest is entrusted to our consideration and protection as
well.”38 ….
,,,,,The final version of the Rules prescribed by the Supreme Court
(transmitted to the Attorney General and Congress in December 1944)
largely adopted the Advisory Committee’s proposals.49 But there was a
significant change to rules governing the dismissal of cases. In the final version of Rule 48(a), the Court eliminated the requirement that
prosecutors provide a “statement of the reasons” for a dismissal,
imposing instead a requirement that prosecutors obtain “leave of
court.” The Court thus resolved years of debate by taking the path
championed by Seasongood and the Advisory Committee’s dissenters:
it armed the district judge with a powerful tool to halt corrupt or
politically motivated dismissals of cases…..”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674
blah blah blah. listen, the legal system is adversarial. the prosecutor is the one who speaks for the state. not third parties. this is our system,. when the prosecutors abandon a case, the judge is left with no choice but dismissal.
this is all very simple. what the angry reposting of the same content over and over by book reminds us, is that Democrat leadership has marked this fair outcome for the attention of their minions on the internet. they are tasked with saying that the sunset of this case is actually the dawn, that down is up, and what is over has only begun. the present interlocutor Book is executing his orders to try and flog this one and tie us down intellectually.
this reminds me of Hitler’s orders to Von Paulus. Adopt a hedgehog defense! IE, we know you are a goner, but we have more important fish to fry elsewhere, so you tie the enemy down as long as you can over there.
Kurtz, you’re all “precedent, this is automatic” until you’re shown proof it isn’t precedent and automatic and in fact the concerns Sullivan has are ones that go back to the writing of the rule 48 and the SC. You either care about precedent, origins, serious legal issues, or you just care about Trump.
Well-said. What I don’t get is the very dramatic disconnect between the former Judge Sullivan and the Judge today. Makes me think they have his family tied up in the basement or something. Something stinks. If the prosecution wants to drop the charges, that should be sufficient. If there were no case, there would be no judge. So, can this or any other judge go back on cases where the prosecution has dropped the charges and attempt to “do justice” him or herself as it pleases them? What a nightmare that would be. This guy’s approach cannot be allowed to stand, but it sure would be interesting to know why he’s taking it.
The only statement I question is:”With all due respect to Litman”
Wait until Sullivan is over turned and lectured by the Appeals Court or Supreme Court.
______________________________________________________________________
What order do you believe will be overturned?
Once again JT’s premise is based on repeated falsehoods – a disturbingly regular feature of his columns:
“….The Justice Department and the defense have presented highly disturbing allegations of prosecutors who refused to drop the investigation even after no criminality was found against Flynn. They also detailed how high-ranking prosecutors turned to the flagrantly unconstitutional Logan Act as the final option to come up with a crime, any crime, to allege against the incoming National Security Adviser. Litman may not be bothered by such evidence but it was presented….”
The Flynn meeting with the Russian Ambassador occurred after the FBI parked his file for consideration. They could have closed it and wouldn’t have made any difference. The interview was material to an ongoing investigation into the Trump campaign in which he was a major player.
The Logan Act is neither the only reason for questioning Flynn, nor is “flagrantly unconstitutional”, even if JT wishes it were. It is a law on the books, modified as recently as 1994 by Congress, and further modifications were part of a crime bill in Congress in 2007 which did not pass for unrelated reasons.
How about cutting the BS JT? You should know all this by now. You’re not before a jury, you’re trying to convince intelligent readers – or maybe not – who can look things up.
Citizens of good will on both sides should wish this smelly DOJ “pardon” vetted before another railroad job like the Senate Impeachment trial. What are you afraid of.
Your name, “by the book,” is about as accurate as Susan Rice’s faux email to herself that has recently been discovered. Whenever the left flaunts the law or the rules, they immediately rush to call their actions “by the book.”
Unfortunately, your disdain for Prof. Tuley, whenever his legal opinions do not reflect your own ideas of what you “feel” should be the case, rather than go with the law and reality, is stunning.
By his own words, the Trump hating professor said that by law the case should be dismissed by Sullivan. But, because of his total hatred of our President, the Judge should just abuse his position, and make trouble for the “Trump Justice Department.”
Whatever your political agenda is, the fact that you want to destroy our legal system for political purposes, should be disturbing to any fair minded American.
The Professor, who is pushing for this Judge to break all the legal rules, should not be teaching law to anyone in America. His idea of the legal system, would be better taught in China or Iran.
Read the column Justice. Litman does not concede the legal grounds as JT alleges and that could not be more clear.
You on the other hand seem to favor a government where the powerful operate on another set of laws and no one is allowed to look at it. Move to Central America.
I would totally move to Costa Rica if I thought I could afford it. Not yet, hopefully one day. We can meet on the beaches of Nicoya and surf. Can you surf, book? I can
I am also looking into retirement in Vietnam. Of all places. I know it sounds crazy but it’s cheap and the Communists of Vietnam appear to operate a more orderly and safe society than the socalled “blue states” of America that threaten to make this place into a hellhole.
Nha Trang perhaps?
“…Susan Rice’s faux email to herself that has recently been discovered”
ROFL.
It’s not a “faux email,” it was never lost (it has been in the National Archives), and it wasn’t “recently … discovered” (as is clear from this letter from Sen. Grassley to Susan Rice about it over 2 years ago: https://www.grassley.senate.gov/news/news-releases/grassley-graham-uncover-unusual-email-sent-susan-rice-herself-president-trump-s ).
“the fact that you [Litman] want to destroy our legal system for political purposes…”
It’s not a fact. It’s your opinion. Best not to confuse facts and opinions.
That can be your new moniker “CitizenofGoodWill” ..and the “other” guy will be “badwill”. So we know who is right.
Book lol, you keep on with this stuff about the Logan act. the idea that the Logan act is unconstitutional is actually a majority view among constitutional scholars.
But it takes a case to go to bar and then conviction and then appeal to create an opportunity for a judicial declaration that it is unconstitutional to happen.
and Logan convictions are so rare, and so fraught, that hasn’t happened., Yet. And the Flynn investigation was another disaster that proves the point. What Sztroke did actually discredited the Logan act MORE than a judicial declaration of its unconstitutionality. It PROVED IT IN ACTION. a pathetic excuse to harass, annoy, and entrap a lawful officer of an incoming administration in the execution of his duties, motivated by political bias among a certain FBI faction.
application to a different target of rhetorical posturing under the Logan act:
https://reason.com/2019/05/14/the-logan-act-is-awful-and-no-its-not-going-to-be-used-against-john-kerry/
Hillary also wanted Tulsi Gabbard charged with it. Another bogus notion.
However, in a future tyranny, the Logan act could be useful. So maybe it will stay on the books by agreement of both sides.
Interesting opinion Kurtz, but the Logan Act is a law on the book and FBI agents are not trained to consider the constitutionality of the laws they are sworn to uphold before doing so. I think you would agree, that’s a good thing.
PS Kurtz. Read this:
From the previously linked history of Rule 48.
“…. A leading case concerning federal prosecutors’ nolle prosequi power,
United States v. Woody,9 put in stark relief the judge’s dilemma when
facing apparent improprieties. There, the Government indicted a young
Montanan named Franklin H. Woody for embezzlement while working
as a federal tax collector. Id. But young Mr. Woody was no ordinary
defendant. The Woody Family was one of the first White families to
settle in Montana.10 His grandfather was Missoula’s first mayor, a
stern district judge known for his “antipathy to persons charged with
crime.”11 His father was a personal friend of the Governor12 and had
served as Montana’s Assistant Attorney General (and later, ironically,
as General Counsel for the Montana Taxpayer’s Association).13
Eventually, the United States moved to dismiss the indictment. Among
the reasons offered by the Assistant United States Attorney, the
defendant was “of a prominent pioneer family, . . . [was] studying law
in a California university, . . . and thus his ‘career as a lawyer [would]
be spoiled’” if the case proceeded.14 Moreover, “the government’s losses
ha[d] been reimbursed,” presumably by Mr. Woody or his kin.
The district judge made no secret of his displeasure. He wrote
that such “reasons” were transparently dubious, “savor[ing] altogether
too much of some variety of prestige and influence (family, friends, or
money) that too often enables their possessors to violate the laws with
impunity.”16 Such a dismissal would undermine the Judiciary, for it
would “incite, if . . . not justify, the too common reproach that criminal
law is for none but the poor, friendless, and uninfluential.” Id. This
belief in “disparity in treatment of offenders,” in turn, undermined
“courts, law, and order; and, in so far as it is well founded, the basis of
it is a pernicious evil, and abhorrent to justice.” Id.
Yet the judge was powerless to do anything about it. Under
existing law, the federal prosecutor had:
absolute control over criminal prosecutions, and [could]
dismiss or refuse to prosecute, any of them at his
discretion. The responsibility [was] wholly his. . . . The
court [could not] control him, unless, as in some states, it
[was] given the power by statute.17
Thus, the district court was compelled to grant the motion, “albeit
reluctantly.”18 The court’s opinion was carried in newspapers across
the state.19
The dilemma faced by the district judge in Woody was well
known in legal circles when the Rules of Criminal Procedure were
developed (1941-1944). Several months after the Supreme Court
appointed an Advisory Committee to draft the rules in February 1941,
another federal district judge in California penned an impassioned plea
for the federal courts to adopt a new approach to dismissals. Quoting at
length from Woody, Judge Leon Yankwich urged that it was critical to
grant judges greater “control . . . over criminal proceedings” so they
would not be similarly “compelled to grant the dismissal of an indictment [when such a dismissal] savored too much of favoritism.”20
Echoing the judge in Woody, Judge Yankwich argued:
The people of the United States may be done as great a
disservice by discontinuing as by continuing a
prosecution. The community tests criminal justice by what
judges do. We are responsible for the errors which the
zealous prosecutor induces us to commit. And their
misconduct . . . is chargeable to us.
So we should have a control commensurate with
this responsibility, in order that the action taken in
continuing or discontinuing a prosecution can be truly
said to be the action of the court. It is not such at the
present time.21
In short order that would change…..
….In February 1941, the Supreme Court appointed an Advisory Committee
composed of eighteen prominent legal figures to draft the federal
criminal rules. Although the Court appeared to be unaware of this fact
when it decided Rinaldi in 1977, the work of the Advisory Committee
(including its communications with the Court and members of the
broader legal community) sheds significant insight into the purpose of
Rule 48(a)’s “leave of court” provision. Most importantly, the historical
record makes clear that what became Rule 48(a) had almost nothing to
do with the rights of the accused23; instead, the final text was understood as vesting district judges with the power to limit
unwarranted dismissals by corruptly motivated prosecutors.
The question whether the trial court should wield the power to
deny a motion to dismiss first prompted debate at the Advisory
Committee’s January 13, 1942 meeting. From the outset, the Advisory
Committee’s concern focused on the possibility that improper political
influence might spur a prosecutor’s decision to drop a case. Harvard
Law School professor Murray Seasongood first raised the issue:
Mr. Chairman, this raises an important question of policy;
that is, whether it shall be necessary to get the approval
of the judge before the indictment may be nolled. I
understand in many States it is necessary to get the
consent of the judge. I have seen cases nolled which in my
opinion should not have been nolled. I have seen some
cases nolled after intercession from Washington; also
some gross income tax fraud cases.24
The Advisory Committee’s secretary, former Assistant Attorney
General Alexander Holtzoff, was the leading voice against such a
requirement. He countered that while requiring the “consent of the
court” might be necessary in state court, because “the average county
prosecutor is steeped in politics in the first place,” federal prosecutors
were immune to such untoward pressures.25 A skeptical Aaron
Youngquist (himself a formal federal prosecutor) countered: “You don’t
have the same degree, perhaps.”26 An initial vote on requiring the
court’s approval for a dismissal resulted in a 7-7 tie.27 As a compromise,
the Committee abandoned the leave-of-court requirement, but
approved draft language requiring that prosecutors first place on the
record the reasons for any dismissal.28
The Committee first an sent an “unpublished” draft of its work
to the Supreme Court in May 1942.33 In this initial version, the Rule
for dismissals gave prosecutors the power to dismiss a case without the
court’s permission (while requiring a statement of reasons).34 On June
10, 1942, the Court returned comments, offering “the first expression of
the Court’s thinking on the Rules [that] helped shape the later
Preliminary Drafts that were issued to the public.”35 The Court was
skeptical:
Rule 24. This rule apparently gives the Attorney
General or the United States Attorney unqualified
authority to nolle pros a case without consent of the court.
Is this now the law, and in any event should it be the law,
any more than that the Government can confess error in
a criminal case without the consent of the court? See
Young v. United States, decided this term.36
In the recent case to which the Court directed the Advisory Committee’s
attention, the Court explained that “a confession [of error by the
Government] does not relieve this Court of the performance of the
judicial function. The considered judgment of the law enforcement
officers that reversible error has been committed is entitled to great
weight, but our judicial obligations compel us to examine independently
the errors confessed.”37 Emphasizing the need to ensure that every
criminal proceeding in fact “promotes a well-ordered society,” the Court
rejected the suggestion that “the enforcing officers” of the law alone
should be entrusted with representing the public interest; rather,
“[t]hat interest is entrusted to our consideration and protection as
well.”38 ….
,,,,,The final version of the Rules prescribed by the Supreme Court
(transmitted to the Attorney General and Congress in December 1944)
largely adopted the Advisory Committee’s proposals.49 But there was a
significant change to rules governing the dismissal of cases. In the final version of Rule 48(a), the Court eliminated the requirement that
prosecutors provide a “statement of the reasons” for a dismissal,
imposing instead a requirement that prosecutors obtain “leave of
court.” The Court thus resolved years of debate by taking the path
championed by Seasongood and the Advisory Committee’s dissenters:
it armed the district judge with a powerful tool to halt corrupt or
politically motivated dismissals of cases…..”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674
anyhow what this text recopied by book illustrates, is that the lifetime tenure federal judges, often want more power than they already have. which is enormous power, by the way.
for a long time, all along I’m sure, going right on back to the times of Marbury v Madison, they want to be able to act as prosecutors as well as judges. let’s hope their vain aspirations to become even more tyrannical fail.
I wonder how the new filter works. I have been posting various comments today and some seem to be swallowed up by the machine, and others make it through. Links to books seem to offend it now. I don’t want to complain about what i get here for free, but it’s confusing to see some posts appear fast and others, not at all.
Says nothing of the kind Kurtz. Not remotely.
You’ll make up anything to stay on the Trump train.
Have a nice trip.
There is a theory that Sullivan is just waiting until the Biden DoJ.
Litman is admitting that this whole thing is nothing more than a political manure show. Brazen.
No, he is not. Read the column.
Yes, I encourage everyone to read it. It’s worse than the Professor has related.
the Litman column is overly sophisticated nonsense
but you are clearly on the team for making what is a simple matter of “how things work” into a matter of “how we can all agree that two plus two equals five if we can just confuse the peasants into believing it.”
OK, how about this. Anyone can smell this deal from a mile away except those who spend too much time with their head up Trump’s a.s. That would be most of this board. This is precisely why Rule 48 was written.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674
The government has conceded. There is no case. Game over. The umpire simply has to hang up his striped shirt. Umpire Sullivan thinks he can command the players to remain on the field! What arrogance and what presumptuousness of you to believe that you could fool folks into misunderstanding this.
Or, perhaps, have other people fooled YOU into believing it, book? I had thought you were more cunning than that.
When he’s not channeling his son the prosecutor, he defaults to insults, profanity, and race card, which is why Darren banned him. Don’t think he’s that cunning.
Absurd’s specialty is insults based on imagined opponents. He’s generally incapable of arguing any point.
The problem Anon is that you are fully dishonest. All your other aliases are and were dishonest. Additionally you push a double standard so that what you think applies to one you don’t like you think it does not apply to one you do like. Add to that an insufficient education that involves learning how to think critically (not school years) and suddenly your delusions of grandeur appear where suddenly you believe you are the scholar and everyone else the fool.
It makes no difference who is doing the viewing. They can be on the right or on the left but to almost all you sound like a fool.
Allan,
I’ve been following this legal blog for years and one thing has become abundantly clear, Turley predominantly writes about the law from a justice position; Book and his ilk try to argue the law from a political position. This is why the latter continue to lose. No amount of critical thinking will help them succeed as long as their pursuit is political.
Olly, if they engaged Turley’s legal opinion with a different opinion based on their ideological principles the discussion would be interesting. Unfortunately, principles are not part of the debate with these participants. They rely mostly on mistruths either by omission or commission where principle seems to be absent and and their adherence to double standards seem to be their excuses for the inequality they demonstrate when evaluating the law.
Some of this group might (I emphasize might) be able to manage a better argument but they are hamstrung by the easy availability of quotes taken out of context that would otherwise prove them wrong.
Their lack of principles become exposed the moment they are challenged. The perfect example of that was Ukrainegate and the alleged QPQ. Now today, you’ve got 0’fer arguing the Flynn matter needs a full investigation and the Biden/Shokin/Burisma matter has no evidence that warrants an investigation. They act as though they alone are the deciders of where the goalposts need to be. It’s shameless hypocrisy.
I note Kurtz that you fail to address the history of Rule 48 laid in front of you and which undermines your statement above and position on this in general. If you are capable of responding on point, have at it. Your failure to do so will confirm your surrender on the facts.
Kurtz, all this legal wrangling reminds me of the George Brett pine tar controversy. Instead of just letting the players play, Billy Martin manipulated the umpire on a ridiculous rules technicality that was overturned on appeal. Ultimately the homerun was allowed and the Royals got the win. That is the difference between lawfare and justice. The former uses the law to force an injustice.
The prosecutors need to file a memorandum stating that they are not going to do anything in court to prosecutor. Separate citizens may file a request to their Congressman or woman to impeach the judge.