Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration [Updated]

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.

220 thoughts on “Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration [Updated]”

  1. Ontario Law Society Code of Professional Conduct:

    1.1-1 “conduct unbecoming a barrister or solicitor” means conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession including, for example,

    (c) engaging in conduct involving dishonesty or conduct which undermines the administration of justice;

    Lawyers are under a duty only to bring law suits on behalf of clients in good faith. Basically this means a lawyer must genuinely believe that his client has at a minimum an arguable case. An example is that prosecutors are duty bound not to bring cases where they think there clearly exists reasonable doubt or where they know they can’t prove every material element of the offense.

    It follows, therefore, even more so that a judge is duty bound to follow the law, be it rules of procedure, statutory admonition or binding precedent from a higher court and is duty bound to act only within the bounds of his office as prescribed by law and not for any extra-judicial purpose.

    It may be, at least in Ontario terms, arguable, therefore, that for a lawyer to counsel or solicit a judge to ignore the law, sua sponte—on his own motion—to devise an illegal procedure due ultimately to fail for its illegality and knowingly and to overstep the separation of powers by trenching executive prerogative in order to achieve political ends is to bring discredit on the legal profession by counseling or soliciting conduct that tends to bring discredit on the legal profession.

    If the Bar of which Litman is a member has a similar provision to Ontario’s as to conduct unbecoming, then I wonder if it’s at least presumptively arguable that Litman has engaged the possibility of being made subject to disciplinary proceedings for unprofessional conduct.

  2. 199 comments. WOW. Mine will likely get lost. But here it goes anyway.

    This A**hole lawyer is just another example of why lawyers are regarded by the American public, in such low esteem. Ever wonder why most countries around the world don’t give lawyers the time of day? They see what has happened in the US and say NO THANKS.

    Some of you readers might remember the Twinkie Defense.
    Just to jog your memory, : “”Twinkie defense” is a derisive label for an improbable legal defense. It is not a recognized legal defense in jurisprudence, but a catch-all term coined by reporters during their coverage of the trial of defendant Dan White for the murders of San Francisco city Supervisor Harvey Milk and Mayor George Moscone.”

    This lawyer is rotten from the inside out!

    1. I won’t argue that the Litman is treading dangerous territory with stating openly that “Sullivan could cause trouble…” but I’ve noticed that the high emotional responses to the current Administration has shaken loose a lot of, formerly, secreted hypocrisy in our national government. It’s startling what the ‘legal’ folks will say publicly when they are too emotionally engaged in an issue and leave their objective ‘search for the truth’ behind.

      All of that said; it’s been my experience, by way of friends that are active in our state judicial system, that part of what attorneys do is look for ways around the laws. Not necessarily illegal ways but loopholes and unclear verbiage within our laws that would give them a legal leg to stand on. Some of them have admitted that they become too engaged in pressing the issue of the ‘loophole’ or ‘unclear verbiage’ and find themselves in danger of loosing sight of the actual facts of the case.

      Unfortunately, our history is rife with instances where government has bent/broken our ‘rule of law’ in order to put something to ‘rest’.

  3. Justice Roberts: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges…”

    Justice Sullivan: “Hold my beer…”

  4. Here is something to think about. IF General Flynn is guilty of perjury – then it means he is innocent about lying to the FBI!

    Do the shills here really want to punish an innocent man???

    🙂

    Squeeky Fromm
    Girl Reporter

    1. Squeeky– Very good logical point.

      But to answer your question, Yes, the shills hear would love to punish an innocent man

    2. Here is something to think about: he made *lots* of statements under penalty of perjury, not only about whether he lied to the FBI. And if he knowingly made a false statement about something else, that would be still be perjury.

      Have you ever bothered to read any of the transcripts/declarations that include statements from Flynn made under penalty of perjury (such as his 12/18/18 sentencing transcript and his 1/29/20 declaration) so that you could see the range of things that he made statements about?

    3. Here is something to think about. IF General Flynn is guilty of perjury – then it means he is innocent about lying to the FBI!
      ________________________________________________________________

      If Flynn is guilty of perjury then the DOJ also was engaged in misbehavior in Sullivan’s court.
      Flynn didn’t invent the story that he lied to the FBI and the FBI didn’t invent that story either.
      The DOJ invented the story and foisted the fraud onto the court.

      1. DOJ invented the story = the raging democrat lawyers gang of 13 or 17 under Weissman another rabid criminal freak head of the Special Counsel, totally divorced from “influence outside of itself” and thus by inception, not the DOJ proper, but the witchhunt hit gang, whose criminal misconduct has been widely reported: Whittaker, Cavuto, Stone, Manafort(solitary demand), *Powell, KT McFarland, Corsi, and I’ve heard hundreds of others accosted and drained and coerced.

  5. The Court of Appeals cited Fokker in its Order. That together with the mere 10 days for Sullivan to respond could be read as an indication they want to act in Flynn’s favor fast.

    But I and others have also said you don’t know until you know. Hoping.

  6. So, a rabbi, a priest and a lawyer are on a boat which shipwrecks. They get on a liferaft which starts to leak and it starts sinking in shark-infested waters a few hundred feet from shore. The rabbi looks at the sharks, looks at the shore, says a prayer, and dives in. Da da da da (music from Jaws) the rabbi gets eaten. The Priest tries to wait it out but as the life raft sinks, he too says a prayer and jumps in. Snarf! The sharks eat him. The lawyer at this point says, “Oh well, I’m obviously screwed, might as well try.” He dives in and swims safely to shore. When the reporters ask, “Why do you think you were saved?” The lawyer responds: “Professional courtesy.” This is what this column reminds me of. An American patriot’s life has been ruined. He is millions of dollars in debt for a case that should never, ever have been brought. His family has been threatened. I’m a translator, not just from other languages into English, but from English into English. This case is quite simple. Side A (the prosecution) says: The defendant is innocent and we should never have brought the case. Oops. Our bad. Side B (the defense) says: Cool! The referee, who is not even supposed to represent a side, says: This innocent man is the only way to punish a completely unrelated third party so we’re going ahead with it. This is not the law. This is satanic. While Turley and Litman engage in their legal bromance, Mike Flynn continues to be scourged and crucified. You should all be ashamed of yourselves.

    1. “An American patriot’s life has been ruined.”

      I don’t consider him a patriot.

      He was an National Security Advisor who: lied to the Vice President and put the V.P. in the position of repeating those lies to the public, created a legit question of whether the Russians might blackmail him because he had lied to the V.P., served as a foreign agent for Turkey and lied on his FARA filing about it, …

      That’s not the behavior of a patriot.

      1. Such an ungrateful comment about an excellent general who spent his life serving this country. The worst part of it is you make your statement ignorant as to the exact details of what may or may not have happened.

        1. Such an ungrateful comment about an excellent general who spent his life serving this country.

          Correct-the-Record hasn’t been sending us their best.

          1. That is his opinion. Of course he made a whole bunch of factual mistakes. Then again he never was able to become a general. Though he had something of a basic career it seems that he was more suited as a smear artist. All one has to do is look at some of his previous articles. Then one knows to stay away. You probably know that as well since you refused to sign your reply with a name and used anonymous instead.

            1. Anonymous must be attracted to the Schindler photo. “photo of a penis and Schindler’s name atop it was circulated in June on Twitter.

              1,2,3… by now anonymous must have already found the Twitter photo. I guess that is the type anonymous is attracted to.

  7. https://twitter.com/MikeScarcella/status/1263543839706488832

    “DC Circuit directs Judge Emmet Sullivan to respond to Mike Flynn’s appeal challenging his refusal to immediately dismiss prosecution at Barr Justice Department’s request. New order from appeals court” [order is attached / viewable in the tweet]

    It will be decided by DC Circuit judges Henderson, Wilkins and Rao. Judge Sullivan’s response due within 10 days. DOJ also invited to respond.

    1. I suspect the Court of Appeals has been itching to grapple with this momster and kill it before it destroys more.

      But we will see.

      1. They could grant the writ of mandamus without asking Sullivan to respond. They didn’t do that.

        But this is a helpful request, as it let’s Sullivan present his legal justification for his choice to appoint Gleeson and allow other amicus briefs.

        1. Yes, they probably could have done, but the norm is to hear both sides of an issue and they know there will be a storm no matter what they decide.

          Sullivan has made quite a mess and it will take some sweeping to get it all under the rug.

          1. FWIW, Sidney Powell says it is not done to grant these writs w/o a reply from the trial judge.

            1. That certainly makes sense.

              And they expect the judge to explain his decisions in light of Fokker.

              That will be interesting reading.

            2. TIA:
              “FWIW, Sidney Powell says it is not done to grant these writs w/o a reply from the trial judge.”
              *******************
              She’s right but the interesting thing is the short timeline for the judge to respond. That means the appeals court wants this over now and the issue doesn’t need a lot of discussion. As I said before, they probably won’t grant it but they will certainly convey their sense of what justice should look like in this case. Precedent is against Sullivan and he knows it but more importantly the appeals court is signaling they know it too.

  8. Who cares about the law? We have to get rid of Trump no matter what precedent we set.

    Remember two edged swords cut both ways.

    1. Many of us care about the law.

      There are legal ways to get rid of Trump: by impeachment + removal (which could have occurred if the Senate GOP had done its duty and allowed witnesses) and by voting him out in November.

      I hope you were being sarcastic.

      1. Or the House could open another impeachment inquiry and this time around, do their job and build an actual case, with the witnesses they neglected to call the first time around.

        1. The House didn’t “neglect to call” those witnesses.
          Multiple witnesses — like Bolton — refused to testify.

          And the Senate has its own responsibility under their Senate oath AND their impeachment trial oath:

          “I do solemnly swear [or affirm] that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: so help me God.”
          “I solemnly swear [or affirm] that in all things appertaining to the trial of the impeachment of [name], now pending, I will do impartial justice according to the Constitution and laws: so help me God.”

          I wasn’t happy with the Articles of Impeachment. I wanted more articles included, such as:
          * obstruction of justice, outlined in the Mueller report
          * campaign finance law violations in the hush money payments to Stormy Daniels and knowingly making false statements on his financial disclosure forms while in office, when he chose not to include his debt to Michael Cohen
          * domestic and foreign emoluments clause violations

          But the House had an actual case.

          1. The House didn’t “neglect to call” those witnesses. Multiple witnesses — like Bolton — refused to testify.

            LOL! So they decided to abandon the effort to build their case, knowing it would be a constitutional loser in the Senate, all in the hopes of pinning their malfeasance on the Senate Republicans, with the hope it would be a political winner. Bwahahahaha!

            1. According to you, how long would it have taken the House to build their case?

              They’re still waiting for a final ruling in the McGahn subpoena case. They judged that it would take too long for the subpoena cases to work their way through the courts. Nobody knows how long it would have taken had they gone that route, and it was a legit judgment call.

              Had the Senators taken their oaths seriously, they would have called witnesses. It was entirely constitutional for them to do so.

              As Prof. Karlan said during the House hearings,
              “Our elections become less free when they are distorted by foreign interference. What happened in 2016 was bad enough: there is widespread agreement that Russian operatives intervened to manipulate our political process. But that distortion is magnified if a sitting president abuses the powers of his office actually to invite foreign intervention. To see why, imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding. What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the president responded: ‘I would like you to do us a favor. I’ll meet with you and send the disaster relief once you brand my opponent a criminal.’?”

              Trump hasn’t told governors “I’ll meet with you and send the disaster relief once you brand my opponent a criminal,” instead, he’s said “[Governors] have to treat us well,” “If they don’t treat you right, I don’t call,” and then played politics with the federal allocation of medical supplies.

              Adam Schiff was right when he said “Now, you may be asking, ‘How much damage can he really do in the next several months until the election?’ A lot. A lot of damage.”

              1. ““Our elections become less free when they are distorted by foreign interference. What happened in 2016 was bad…” and even worse than bad because one party (DNC) committed a fraud on the American public. We have heard the lies over and over again but when called to testify under oath where the testimony was kept secret by the same party (DNC) we hear a completely different story.

                ***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

              2. According to you, how long would it have taken the House to build their case?

                At the time, I thought it would take them until the 12th of Never. Today, and before Durham makes his big reveal, the 32nd of Forever.

                Had the Senators taken their oaths seriously, they would have called witnesses. It was entirely constitutional for them to do so.

                Had the House Democrats taken their oaths seriously, there never would have articles of impeachment. It’s because Senate Republicans did take their oath seriously, that they voted not do the House’s job for them. And it was entirely constitutional for them to do so.

          2. Schiff lies and lies to the American people for years, and anyone is supposed to believe a word he says in the impeachment trial? Still waiting for promised evidence of collusion.

      2. The House used impeachment as a political weapon and had their chance to call witnesses. We already know how Democrats behave based on the me too movement. Attempted destruction of the character of a man without any corroboration of Ford. We then see the double standard with Biden.

        (my personal feelings are that neither are relevant due to the lapse in time even though the claim against Biden has some teeth.)

  9. I’ve said it before and I’ll say it again, Turley is almost as good as Barr in his summaries. Just ignore this and that, dash in opinion, and always, always throw in the BS.

    1. Fishwings: “I’ve said it before and I’ll say it again, Turley is almost as good as Barr in his summaries. Just ignore this and that, dash in opinion, and always, always throw in the BS.”

      I sometimes wonder what you hope to gain by posting vacuous insults that make you look like a juvenile idiot..

  10. United States District Judge Emmet Sullivan

    All Civil Officers of the United States – Manifest Crimes And Misdemeanors of High Office

    “Prosecuting From the Bench” – “Legislating From the Bench”

    Abuse of Power – Usurpation of Power – Malicious Adjudication
    _________________________________________________

    U.S. Constitution
    Article 2, Section 4

    The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

  11. “Grab The Bull By The Guillotines.”

    Enough hysteria and incoherence; America needs swift justice.

    Les Français grabbed the bull by the guillotines and swiftly disabused their nation of the notion of dictatorship (in America it’s democrat fascism), replacing it with their restricted-vote republic.

    “French legislative elections were held in September 1791 to elect the Legislative Assembly and was the first ever French election,” Wiki.

    The turnout of eligible voters in the French restricted-vote republic was about the same as that of the 1788 election in the nascent American restricted-vote republic, 11.6%.

    However, “…only citizens paying taxes were allowed to vote.”

    One man, one vote democrazy is bound to fail…look around you. The inmates have taken over the asylum. The inmates are now allowed to vote because communists know they can “buy” the votes and win every time. America’s debt is $25+ trillion with $50+ trillion in unfunded liabilities. Nancy Antoinette can’t afford to “let them eat $13-per-pint ice cream.”

    Someone is going to have to grab the bull by the guillotines or America is doomed.

  12. Color me “not impressed” by Litman’s response to Turley. He seems too think that simply reiterating his argument is a response to the criticism. For example, the part where he continues to avoid dealing with the argument advanced by the Good DOJ. I think there is a Latin term for that sort of hubris. Hmmm. At any rate, for not thinking enough, Litman has merited an Irish Poem!

    Cogito Ergo Some???
    An Irish Poem by Squeeky Fromm

    There once was a fellow named Litman!
    Whose silly op-ed was bullsh!t, Man!
    How did he fix it?
    He said “ipse dixit!”
    Cause he just don’t know when to quit, Man!

    Squeeky Fromm
    Girl Reporter

    1. Squeeky:

      Color me “impressed” that Litman spent a whole column (~900 wasted words) proving that he’s a fool. Here are the money shots:

      The DOJ might not have bargained for Sullivan’s resistance. More likely, it calculated that, even if Sullivan wasn’t happy about it, he would grant the dismissal. 𝐓𝐡𝐞 𝐥𝐚𝐰 𝐫𝐞𝐪𝐮𝐢𝐫𝐞𝐬 𝐭𝐡𝐞 𝐝𝐞𝐩𝐚𝐫𝐭𝐦𝐞𝐧𝐭 𝐭𝐨 𝐬𝐞𝐜𝐮𝐫𝐞 “𝐭𝐡𝐞 𝐥𝐞𝐚𝐯𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐜𝐨𝐮𝐫𝐭” 𝐟𝐨𝐫 𝐬𝐮𝐜𝐡 𝐚 𝐦𝐨𝐭𝐢𝐨𝐧. 𝐓𝐡𝐚𝐭 𝐬𝐨𝐮𝐧𝐝𝐬 𝐥𝐢𝐤𝐞 𝐚 𝐠𝐫𝐚𝐧𝐭 𝐨𝐟 𝐨𝐩𝐞𝐧-𝐞𝐧𝐝𝐞𝐝 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐥 𝐝𝐢𝐬𝐜𝐫𝐞𝐭𝐢𝐨𝐧, 𝐛𝐮𝐭 𝐜𝐨𝐮𝐫𝐭𝐬 𝐡𝐚𝐯𝐞 𝐢𝐧𝐭𝐞𝐫𝐩𝐫𝐞𝐭𝐞𝐝 𝐢𝐭 𝐚𝐬 𝐩𝐫𝐨𝐯𝐢𝐝𝐢𝐧𝐠 𝐣𝐮𝐝𝐠𝐞𝐬 𝐯𝐞𝐫𝐲 𝐥𝐢𝐭𝐭𝐥𝐞 𝐥𝐞𝐞𝐰𝐚𝐲 𝐭𝐨 𝐫𝐞𝐣𝐞𝐜𝐭 𝐭𝐡𝐞 𝐠𝐨𝐯𝐞𝐫𝐧𝐦𝐞𝐧𝐭’𝐬 𝐝𝐞𝐜𝐢𝐬𝐢𝐨𝐧𝐬 𝐭𝐨 𝐝𝐢𝐬𝐦𝐢𝐬𝐬 𝐜𝐡𝐚𝐫𝐠𝐞𝐬 𝐢𝐧 𝐚 𝐜𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐜𝐚𝐬𝐞.

      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.

      Sullivan has far more potent options, though if he deploys them, he can expect the Justice Department to fight him tooth and nail.

      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. 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.”

      Read those highlighted passages and a statement of Litman’s pining away intent sandwiched in between and you can measure Litman up for the colorful tri- pointed cap with lively jingle bells attached.

        1. Thanks Young and Mespo! IIRC, Litman said something about the Bad DOJ’s case being unassailable. Or maybe it was one of the shills. Anyway I think the Good DOJ assailed it pretty good in their brief, although I have not read the whole thing yet, and Powell too.

          I mean, if Litman is being honest and not just whoring himself out for the DNC I would NOT want him for my lawyer. Can you imagine:

          Flynn: Oh Hai Mr. Litman! I am sooo glad to have a new lawyer! And oh, do I have some great news for you! We discovered the original FBI agents did not think I lied, and then Strzok got involved. And, there was never even probable cause for them to investigate me, and they losted the original 302, and a whole bunch of other good stuff! And, they dint turn over no Brady stuff neither!

          Litman: How is any of that relevant to your case???

          Squeeky Fromm
          Girl Reporter

  13. I think the core division is between those who believe an ancient legal system matured through centuries to strive for objectivity and fairness must be protected on the one hand, and those who are prepared to abandon, or even destroy it, to achieve their political goals on the other.

  14. Absurd– “I’m afraid the only thing that fixes this is that a large fraction of the legal profession are rounded up, handed Nansen passports, and deported to parts abroad. That won’t be orderly or pretty.”

    Yes, and if they keep this up there won’t be any laws left to protect them.

  15. Damn right. Then a preacher came along & shot them full of sass. It might be. He recognized the name.

    1. Wow! Remember when they used to make real, great American movies the old fashioned way? That was long before the communists began “…fundamentally transforming…” the United States.

  16. Wow, using the html for a blockquote has a strange result here. It shouldn’t be center-justified or made so narrow! Had I known, I wouldn’t have used it. I wish this site would let us delete our own posts.

    Here’s Litman’s text again in an easier to read form:

    Hi @JonathanTurley, your post is built on a series of obtuse misreadings of the oped. Your main claim is that I suggest Sullivan should ignore the merits of the motion and make trouble gratuitously. On the contrary, it’s precisely the merits that are so assailable and that I suggest he focus on. The DOJ has advanced a series of factual and legal arguments that don’t withstand scrutiny, as so many people have pointed out. Sullivan needn’t attack the concept of prosecutorial discretion in order to reject those claims. Nothing about the discretion supplied in Rule 48 insulates the DOJ from advancing factually and legally flawed arguments. 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.”

    2. You 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.” on the contrary, it would be precisely to test the merits of the DOJ’s arguments that Flynn’s admitted lies weren’t material or that the interview with the FBI wasn’t predicated, a point that I haven’t heard anyone but you adopt. Your position is especially poorly taken since in the same breath you argue that the oped fails to take account of the DOJ’s (extremely tenuous) evidentiary claims of possible false statements. These are among the claims that Sullivan is more than justified given the DOJ’s reversal in examining.

    3. 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. there are many instances, inc Rule 42, where the courts use amici in a criminal case. But the bigger point here is the Department’s position means there is no one available to argue the other side. In that setting, courts from the Supreme Court down will appoint somebody to do it.

    4. Finally, you assail the oped for taking the impropriety of the DOJ as “established and beyond question.” It does; but that is only because I, along with so many other scholars — you are a very lonely voice in the wilderness here — have previously written about that and this oped served a separate purpose. Sorry to say but your posting is built on a scaffolding of mischaracterizations. Best, Harry

    1. I read Litman’s editorial. Professor Turley honestly interpreted the editorial and responded to it. There is no mischaracterization. Professor Litman humbly refers to himself as a legal scholar. Perhaps he is. He is also a hack.

  17. Harry Litman has tweeted a response to Turley’s column (https://twitter.com/harrylitman/status/1263489974709583872 ):

    Hi @JonathanTurley, your post is built on a series of obtuse misreadings of the oped. Your main claim is that I suggest Sullivan should ignore the merits of the motion and make trouble gratuitously. On the contrary, it’s precisely the merits that are so assailable and that I suggest he focus on. The DOJ has advanced a series of factual and legal arguments that don’t withstand scrutiny, as so many people have pointed out. Sullivan needn’t attack the concept of prosecutorial discretion in order to reject those claims. Nothing about the discretion supplied in Rule 48 insulates the DOJ from advancing factually and legally flawed arguments. 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.”
    2. You 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.” on the contrary, it would be precisely to test the merits of the DOJ’s arguments that Flynn’s admitted lies weren’t material or that the interview with the FBI wasn’t predicated, a point that I haven’t heard anyone but you adopt. Your position is especially poorly taken since in the same breath you argue that the oped fails to take account of the DOJ’s (extremely tenuous) evidentiary claims of possible false statements. These are among the claims that Sullivan is more than justified given the DOJ’s reversal in examining.
    3. 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. there are many instances, inc Rule 42, where the courts use amici in a criminal case. But the bigger point here is the Department’s position means there is no one available to argue the other side. In that setting, courts from the Supreme Court down will appoint somebody to do it.
    4. Finally, you assail the oped for taking the impropriety of the DOJ as “established and beyond question.” It does; but that is only because I, along with so many other scholars — you are a very lonely voice in the wilderness here — have previously written about that and this oped served a separate purpose. Sorry to say but your posting is built on a scaffolding of mischaracterizations. Best, Harry

    I wonder whether Turley will respond on Twitter or if other lawyers will weigh in there.

    1. I think Professor Turley’s quote from the original article is sufficient to support his point.

      Litman can rant, but his original admission betrays him.

      Meanwhile, Sullivan is like a termite chewing away the foundations of public respect for the judiciary.

    2. Litman is full of garbage. To reply to him is stooping to conquer.

      We don’t need more disputations and dissertations with cretins like Litman. We need heroic labors on the scale of Herakles to clean out the Augean stables. with cunning and irresistible effect.

        1. Book– Not being a lawyer you may not have recognized that this is not a courtroom. But, yes, you probably should be charged for this.

        2. I don’t make rebuttals when the point being made is so patently wrong. That wastes the judge’s time and I do not succeed by repeating black letter law to judges. Decent judges know the black letter law. There is no point to restating the obvious. Not in court. but on the internet, propagandists like you think you can just repeat a lie often enough that it becomes truth.

          Sullivan knows it too. He has just thrown it out the window.

    3. FWIW, I think I was mistaken, and it’s not at all clear that Litman read Turley’s columns. I think Litman only read/responded to Turley’s tweets.

        1. No, he says “post,” not “op/ed.” But he quotes “highly controversial,” which wasn’t in Turley’s tweets, so I was still wrong. My mistake.

    4. I am a lawyer. I weighed in. Litman is a hack. I’ll add one more point. Knowing the political leanings of legal academia, they tilt between left and far left. They are very open about their partisan views. It is not surprising to me that “legal scholars” espouse the same hackery as Litman. In terms of the broader question, i don’t expect the DC Court of Appeals to grant relief at this time. They will likely wait until after Sullivan issues his final ruling on the government’s motion and they will say for now that it is not yet ripe for appeal. Predictions are cheap. We’ll see.

      1. A court of appeals panel has this day given judge Sullivan 10 days to reply to Sidney Powell’s motion.

        1. Let’s see where they land. I suspect that they will punt for another day. I may be pleasantly surprised, but it seems like the judiciary has joined the resistance. As i said, predictions are cheap.

  18. A Man For All Seasons —

    William Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

    William Roper: “Yes, I’d cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

    ― Robert Bolt, A Man for All Seasons

    The Democrats seem willing to cut down many laws to achive their goals. It is despicable and dangerous.

    1. They’re quite persuaded these scams will never be used against them, and, given previous experience, they’re probably right. And you can see here our resident partisan Democrats and the lies they tell themselves and others.

      I’m afraid the only thing that fixes this is that a large fraction of the legal profession are rounded up, handed Nansen passports, and deported to parts abroad. That won’t be orderly or pretty.

      1. Kurtz–Saints will not win this but I am not willing to see the legal system corrupted to win. What we have is sufficient if we have the will to use it. Weimar could have finished with Hitler after the Beer Hall revolt without corrupting the law, but they stayed their hand when it should have laid on the stroke. Kerensky probably could have done better as well.

        Barr and Durham have the tools. Will they use them, or are they Weimar prosecutors willing to let the devil try again?

        1. Hitler was convicted and imprisoned. He served a term. In prison he wrote a book about his struggle that resonated with a lot of Germans. But that was their situation not ours.

          But Weimar was corrupt and weak and America in some ways going the way of Weimar. Weimar was also under a huge amount of debt service. Lucky for us, we don’t have to pay the vig in gold, just more FRNs.

          Anyhow, read Carl Schmitt, Crisis of Parliamentary Democracy, it reads well for today’s situation.

          Heidegger and Carl Schmitt, yes, both German NS of that era, they’re the ones we need to understand and apply to our situation. Certainly not AAH. Heavy reading in philosophy and political theory, but, lucky for us, there’s tons of scholarly work on them, and some new English language commentary building up that’s come online in the past decade.

          https://www.goodreads.com/book/show/26878575-martin-heidegger

          Martin Heidegger: The Philosophy of Another Beginning
          by Alexander Dugin, Paul Edward Gottfried (Preface), Nina Kouprianova (Translator)
          3.46 · Rating details · 26 ratings · 2 reviews
          There are few philosophers more influential, more misunderstood, more admired, and more feared than Martin Heidegger. He is simply unavoidable for an understanding of modern thought, modern culture, and the modern world. As Alexander Dugin explores in *Martin Heidegger: The Philosophy of Another Beginning*, Heidegger traces a particular conception of being and truth-begun with the pre-Socratics and cemented with Plato and Aristotle-that has, over millennia, led the West to embrace materialism, egalitarianism, and nihilism. It is Heidegger, argues Dugin, who understood this most deeply; it is thus Heidegger who opens up space for “Another Beginning”-a new grounding for human experience. Drawing on the history of philosophy, political ideologies, and Heidegger’s relationship to Germany and Europe-and including a useful bibliography and glossary of terms-Dugin’s analysis will be of great interest to scholars as well as those encountering Heidegger for the first time.

          1. Kurtz– Yes, Hitler did get a prison term which he served in comfort with his pals regularly visiting and helping while he wrote Mein Kampf. People were killed in the Beer Hall Putsch and Hitler could have gotten a much longer term in prison and then been deported to Austria. He wasn’t a German citizen. If held to account fully for the deaths he caused, he could have gotten the guillotine–it was used regularly for capital crimes in Germany at that time.

            But thanks for the interesting references. I appreciate it.

            1. Could Hitler have been executed under Weimar law? The only Weimar cases of capital punishment that I can think of were of serial murderers.

Leave a Reply