A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion. 

The order is interesting in its language:

“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”

Often judges are give the option of a response. This is stated in nondiscretionary term. Now consider the language directed at the Justice Department: “The government is invited to respond in its discretion within the same ten-day period.”

The judges reviewing the matter will be Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins.

I have previously written about my concerns over inviting third party briefings in a trial hearing on sentencing or dismissal. However, my greater concern is over writings from legal experts who suggest that Sullivan could and should deny the motion to dismiss. While I have said that there are good-faith arguments to be made over the content of the review under Rule 48, much of this analysis ignores the strong case law to the contrary and the implications of such action for criminal defendants in the future.

Rule 48 (a) states that “The government may, with leave of court, dismiss an indictment, information, or complaint.” Such motions however have been consistently left to prosecutorial discretion.  The notion that Sullivan would insist on the Justice Department prosecuting a case is bizarre, particularly when the Justice Department has determined that it can no longer do so ethically and that the prosecution was marred by misconduct.

US-CourtOfAppeals-DCCircuit-SealI have been highly critical of the legal commentary suggesting that Sullivan would be on good, if not commendable ground, in denying this motion and sentencing Flynn.  There are a myriad of cases that reaffirm the prosecutorial discretion underlying these motions as an Executive Branch function. Putting those cases aside, the D.C. Circuit handed down a strong precedent in favor of the Justice Department in U.S. v. Fokker Servs. B.V., a case where the appellate court granted the relatively rare relief of a mandamus order against a trial judge.  In that case, the trial court was also leery of a decision not to prosecute.  The Justice Department wanted to enter a Deferred Prosecution Agreement (DPA) with a Dutch company accused of violating U.S. sanctions and export control laws. The trial court felt the company was getting off too lightly. Sound familiar?

The D.C. Circuit swatted down the trial judge, ruling that

“The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.. . . Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.”

Notably, the decision was written by Sri Srinivasan, an Obama appointee who has been on the short list for liberal Democrats.  Judge Srinivasan stressed that “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.”  That decision was unanimous with judges from across the ideological spectrum (Judge David B. Sentelle, Judge Laurence H. Silberman and Judge Srinivasan).

That is the authority that Judge Sullivan actually cited for his orders.

225px-ruth_bader_ginsburg_scotus_photo_portraitThen there was the unanimous decision recently in U.S. v. Sineneng-Smith by Justice Ruth Bader Ginsburg on the issue of courts using outside or third-party arguments.  We recently discussed the decision. The Court slammed the United States Court of Appeals for the Ninth Circuit in a criminal immigration case.  Like Sullivan, the Court was not satisfied with the party arguments so it ordered a round of new amicus briefing and then relied on the arguments of the outside parties.  Notably, this was still better than what is happening in the Flynn case, which is a trial proceeding before sentencing.

Ginsburg wrote that the effort violated the “party presentation principle.” She declared “courts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”  The reliance on such third party arguments unified the Supreme Court as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion.”

Nevertheless, on site after site legal experts are assuring readers that Judge Sullivan has ample authority and reason to deny the Flynn motion as well as enlist third parties to make critical arguments in a trial criminal proceeding.  For example, Noah Feldman and Laurence Tribe, are widely cited for supporting Sullivan’s authority.  However, mainstream media and many sites have been declaring that Sullivan can and should refuse the dismissal.

Some of these sites have relied on the recent research of Professor Thomas Frampton who contested the common view that Rule 48 is meant to protect defendants like Flynn.  Frampton flipped the presumption and says that it was actually meant “to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants” and thus “drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.”   The research is quite interesting but in my view unpersuasive.  First and foremost, Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.”  Thus, he is contesting existence precedent, which is perfectly acceptable but telling.  Second, I do not see how this position could be upheld.  It would mean that courts could regularly refuse to allow defendants to go free because they disagreed with prosecutors.  Unpopular defendants could find themselves captives to judges who simply want to mete out their own vision for law enforcement.  In the Flynn case, such judicial overreach would be assisted with the help of third parties brought into the case by the court.

The Justice Department has long opposed such judicial interventions. Bill Clinton’s Attorney General Janet Reno warned Congress years ago not bar the court from overruling decisions of the Justice Department, stressing that “Our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.” When he was Deputy Attorney General, Eric Holder made the same objections that prosecutors must make such decisions and that he would resist courts wanting to “trammel upon the Executive’s core prosecution power.”

In other words, there is much for Judge Sullivan to address in ten days if he is going to defend a possible denial of the motion and his outsourcing of the argument in the case.

Here is the order: D.C. Circuit order

273 thoughts on “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

  1. OK, sooo Sir Laurence Tribe and some other eminent Legal Kleagles came out with an Amicus Brief, and what a Total Failure! Here is the link:

    https://www.justsecurity.org/wp-content/uploads/2020/05/Amicus-Barr-Flynn-Draft-5-22-20-final-final.pdf

    What a laugher of a Brief! Dang near half the 28 pages are blurbs describing what a bunch of high legal mucky-mucks the authors are. Like Laurence Tribe who has become a DNC whore-for-hire.

    Here’s a huge whopper from that brief! Footnote 7: “The D.C. Circuit’s decision in Fokker Services supplies no authority for the government’s motion to dismiss; it involved a deferred prosecution agreement rather than a guilty plea (let alone two).

    Wow, talk about some conclusory argumentation! Believe it or not, that is all the Legal Brainiacs thought necessary to dismiss Fokker! What a hoot! They lay out a bunch of wordage about “separation of powers”, and then when it comes to the case that overrules a district judge for exactly that reason – separation of powers – what do these Einsteins of the Bar write??? Pretty much, “It don’t apply!” and off they go!

    What a kewl trick to dispose of a case that straddles the straits of your argument like the Colossus of Roads,( Who was actually next to a harbor, not a road. 🙂 ).

    Criminy, when a mere slip-of–a-girl part time legal assistant can spot something like that, it looks me like these goobers are being overpaid. But I guess we aren’t supposed to see that once we know what a high-powered of shysters they are! Perhaps we are supposed to be sooo impressed by WHO they are, that we forget WHAT their argument is, or more precisely, WHAT their argument wasn’t.

    But not to worry! These Judicial Jerkoffs have a good case to back them up! The 1872 SCOTUS case of U.S. v. Klein! Which seemed confusing since it dealt with ex-Confederates, so I went to tat quick legal website, wikipedia, and found this:
    ————–

    “In 1871, the Supreme Court ruled that the 1870 statute was unconstitutional and that Congress had exceeded its power by invading the province of the judicial branch by prescribing the rule of decision in a particular cause. The Court also ruled that Congress had impermissibly infringed the power of the executive branch by limiting the effect of a Presidential pardon.

    Broadly speaking, Klein stands for the proposition that the legislative branch cannot impair the exclusive powers of another branch. Put another way, Klein recognizes and supports the fundamental value of separation of powers defined by the Constitution. Specifically, Klein means that Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon. Read more broadly, Klein suggests, but does not state, that Congress may not use the Exceptions Clause to cripple the Court’s ability to be the final arbiter of what the Constitution means; this conclusion is strengthened by the Court’s holdings in City of Boerne v. Flores, 521 U.S. 507, and especially Dickerson v. United States, 530 U.S. 428.”

    https://en.wikipedia.org/wiki/United_States_v._Klein
    ————–
    Hmmm. So to support a “separation of powers” argument against the Good DOJ dismissing a case, they find an 1872 SCOTUS case involving the legislative branch usurping judicial power. Okay, so that is interesting, but how come that is one of the cases they use, when they got a perfectly good case from a Federal Appeals Court called Fokker, that is a whole bunch more recent and which deals exactly precisely the issue at bar??? Oh, that’s right! Because Fokker don’t apply because, well, it don’t apply!

    And what else does this Kiddy Klub forget to talk about??? Here’s a hint! It is the same number as there are states in the continental U.S. And it is a rule. Of criminal procedure. In Federal court. Give up??? They must have because they forgot to bring it up in any meaningful way. Sooo, I will:
    ———–

    Rule 48. Dismissal

    (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
    ————
    Now they make a big effing deal about it being too late for the case to be dismissed, arguing that it is now like a game of Sorry or Parchesi where once a man makes it “Home”, he can’t be brought back onto the board.

    But Rule 48 don’t say that. It don’t make no time schedules. Oh Contraire! It recognizes the right of the Prosecution to dismiss the whole dang complaint. Sooo, I wonder how come this high-powered bunch didn’t bother to get into that???

    They sort of make a line of demarcation and say once the case has entered the sentencing phase, the Prosecutors are SOL. But they present no real legal basis for imposing this time restraint. They have imagined it up in the same conclusory manner in which they dismissed. They sort of scoot away from anything like having a final, signed order, or an actual sentence, and all that sort of inconvenient truth.

    In short, this brief is probably proof that committees should not write briefs. I mean this is the kind of legal argumententation taht one might expect from One L’s. Who, I bet actually wrote this bunch of drivel. The authors ought to be hiding their faces in shame. But they won’t!

    Squeeky Fromm
    Girl Reporter

    1. I added this to the above in my word processor:
      —–
      They sort of make a line of demarcation and say that once the case has entered the sentencing phase, the Prosecutors are SOL. But they present no real legal basis for imposing this time restraint. They have imagined it up in the same conclusory manner in which they dismissed Fokker. They sort of scoot away from anything like having a final, signed order, or an actual sentence, and all that sort of inconvenient truth. Because there is Rule of Federal Criminal Procedure that addresses the whole sentencing thing, Rule 32. Specifically, Rule 32(I) to wit;
      ——–
      i) Sentencing.

      (1) In General. At sentencing, the court:

      (A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report;

      (B) must give to the defendant and an attorney for the government a written summary of—or summarize in camera—any information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to comment on that information;

      (C) must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence; and

      (D) may, for good cause, allow a party to make a new objection at any time before sentence is imposed.</b)

      (2) Introducing Evidence; Producing a Statement. The court may permit the parties to introduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)–(d) and (f) applies. If a party fails to comply with a Rule 26.2 order to produce a witness's statement, the court must not consider that witness's testimony.

      (3) Court Determinations. At sentencing, the court:

      (A) may accept any undisputed portion of the presentence report as a finding of fact;

      (B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and

      (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons.

      (4) Opportunity to Speak.

      (A) By a Party. Before imposing sentence, the court must:

      (i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf;

      (ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and

      (iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney.

      (B) By a Victim. Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.

      (C) In Camera Proceedings. Upon a party’s motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4). –
      ——
      So does all this sound to you like the whole Court process has come to a screeching halt PRIOR TO SENTENCING like the Amici argue? To such a screeching halt and bright line that the Prosecution can no longer dismiss the complaint?

      Nope, in fact Rule 32 provides all manner of chance for further input, and I have bolded some of it for you. So for Flynn, we are still at a point PRIOR to the sentencing hearing. And yet, the Amici brief argues that NOPE, the process is dead now for the Defendant and the Prosecution. Based on what??? Nothing. They pretty much just holler “separation of powers” and never connect it all up, and try to ignore Fokker, and the Rules of Criminal Procedure.

      In short, this brief is probably proof that committees should not write briefs. I mean this is the kind of legal argumententation thatt one might expect from One L’s. Who, I bet actually wrote this bunch of drivel. The authors ought to be hiding their faces in shame. But they probably won’t! They are too busy eating cake in an Ivory Tower.

      Squeeky Fromm
      Girl Reporter

      1. I don’t know, but Fate must have been against him. Because he picked a Legal Maroon to crib from. All that legal fire power, and this is the best they could come up with??? Criminy, I ain’t even got a law degree and I picked it apart. And I am not bragging, but I think I did a pretty darn good job. If I studied it more, I could probably find more wrong with it.

        Squeeky Fromm
        Girl Reporter

      2. Squeeky– I haven’t read their brief and I am not going to but, with that limitation, it seems to me you have made pretty good points. As an aside, I do wish Tribe would remember to include ‘Plagiarist’ when listing his credentials to impress us. Should be on his CV too.

        1. I am serious about the brief having a whole slew of blurbs. It is knee deep in Brilliant Legal Minds. But the whole schmear looks like it was just dialed in. I guess it will have enough crap in it for the shills like bythebunk, committed, and Peter Shill to whoop it up about it. Most people will never read it, not even them. Some of the authors will go on MSNBC and CNN and answer softball questions about it.

          Squeeky Fromm
          Girl Reporter

  2. One problem: that narrative originates with the Washington Post, through an anonymous “source”.

    It’s yet another “sources say” story, with no information on who said what. We also know the WaPo prints what FBI and Obama-Clinton aligned sources say without skepiticism. So knowing the source is more important in this case, before accepting the tale as gospel.

    I have doubts about whether or not Flynn was masked, because we know that requests were made for unmasking. Did all those unmasking requests come from people who didn’t know whether Flynn was unmasked? Why would Flynn have not been masked if the call was intercepted through standard collection? As the theory goes, he was a subject of FBI surveillance outside of normal collection for Kislyak… but it’s not necessarily an either or.

    The FBI could have been spying on Flynn, outside normal collection, then leaked info from that method to circumvent the felony of leaking an unmasked collection product. Or it could be another phase in the game to construct deniability/scapegoat Comey for what Obama “tasked” him with (re: his congressional testimony).

    Keep an open mind about the veracity of these recent articles claiming he was never masked to begin with. It’s the perfect time for them to lie to us.

    1. See Andrew McCarthy: he wasn’t masked because they were actually spying on him without a warrant.

    2. As I quoted earlier, Comey testified that Flynn’s name wasn’t masked, and the DOJ included that testimony as an exhibit in their Motion to Dismiss. McCabe has testified elsewhere that Flynn’s name wasn’t masked. AFAIK, the rules for masking are different for the FBI than for the NSA, and this was an FBI product. Also not sure why anyone would assume that the call transcript came from surveillance of Flynn rather than Kislyak. The Motion to Dismiss says “Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the
      ambassador, stating: ‘you listen to everything they say.’”

      1. I listen to CTHD trying to pick apart arcane arguments using quotes and references on the most picayunne things but the one thing he can’t do is copy in context what Flynn said that was a lie. That is the basis behind this entire endless discussion and demonstates how unserious he is in determining guilt or innocence or even honest discussion..

  3. Anyone seen Sullivan’s planned itinerary for his proceedings? He’s got it out.

    the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020

    non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020

    the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020

    the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020

    the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020

    the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020

    the Court schedules oral argument for July 16, 2020 at 11:00 AM

  4. That’s been known for a while (though I guess it’s news that Fox is finally getting around to reporting it). In fact, in its Motion to Dismiss, the DOJ included a bunch of exhibits, including one with testimony from Comey saying “We did not disseminate this [redacted] in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.”

  5. Judge Sullivan: “Could he(Flynn) have been charged with treason?”

    Later, after realizing he said something stupid…

    Judge Sullivan: “”Don’t read too much into the questions I asked. I’m not suggesting he committed treason.”

    Then why ask the question? This judge needs to be slapped hard by the superior court.

    1. He was corrected on the dates of Flynn’s acting as an unregistered agent of Turkey which he stepped down from in Nov 2016.

    2. “Then why ask the question?”

      If you bothered to read the immediately preceding paragraph from Sullivan, he explains why: “I also asked questions about the Special Counsel and the — and other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged, and I gave a few examples. And, you know, there are a lot of conspiracy theorists out there. I’m not taking the elements of any of the uncharged offenses into consideration at the time of sentencing. I was just trying to determine the benefit of and the generosity of the government in bestowing a benefit on Mr.Flynn. That was the reason why.”

      1. “I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged”

        Asking whether or not Flynn could have been charged with treason is absolutely a suggestion that he could have been charged with treason. To say otherwise is to say that the question you asked had no purpose. This is obvious to anyone actually committed to honesty…which you are clearly not.

        1. SMH that you quote those sentences and ignore the rest of the quote.

          “To say otherwise is to say that the question you asked had no purpose.”

          Nonsense. He says the purpose: “I also asked questions about … other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. … I was just trying to determine the benefit of and the generosity of the government in bestowing a benefit on Mr. Flynn [in the plea]. That was the reason why [I asked about other potential offenses].”

          Your conclusion that “Asking whether or not Flynn could have been charged with treason is absolutely a suggestion that he could have been charged with treason” is false, as there exists another reason why one would ask, and Sullivan states it: to determine the scale of benefit to Flynn in arriving at a plea rather than being tried on charged. Do you assume that he couldn’t have been charged with anything else? We know he could have been — for his FARA filing and additional false statements (which the government considered), hypothetically under the Logan Act (which the government wasn’t considering).

          LOL that you’re accusing me of not being committed to honesty when you’re the one ignoring the key parts of the quote and also ignoring other parts of the transcript that are relevant (and if you think that I’m going to read it for you, pulling out every relevant quote, you’re mistaken).

          1. Coercion can be used to force an individual to plead guilty. The coercive fellow and his companions can add all sorts of charges they also can’t prove. (This is how Stalin ran the Soviet legal system.) The charge of treason is like the paper dressing one puts on the cooked pig before cuting itt up for eating. The dressing is entirely meaningless only making the cook with the knife look better than he is.

            CTHD isn’t being very honest. Instead he is piling more meaningless charges on top of a charge that is only accepted because like the pig the one pleading guilty has little choice.

            I await the proof in context that anything Michael Flynn said or did demonstrates the guilty plea was real. Lots of words, mostly containing meaningless minutia is coming from your pen but you never address the fact that you still haven’t moved the line one iota in your proof that Flynn is guilty.

            That speaks very poorly for you because it demonstrates that you place politics in front of the law. You have no humility and are willing to incarcerate anyone who doesn’t think like you.

            1. CTHD isn’t being very honest.

              His contact at Correct-the-Record might have suggested he not overpromise and underdeliver, but they don’t do that.

              1. Absurd, don’t you ever get tired of this lame repost? You post as much as anyone, and except for the quality, which precludes anyone paying you, how are you different? If I was being paid, what difference would that make? You can refute a point or not.

  6. Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah, and West Virginia have just filed an amicus brief in support of
    @GenFlynn’s Petition for Writ of Mandamus. @MolMccann

  7. FBI Director Wray has ordered an investigation into possible FBI misconduct in the Flynn case.

    Why does this look like another coverup?

    NOW Wray finally notices something was wrong?

    1. Does anybody know if Wray has been spelunking for the last several months and totally out of touch?

      1. If I understand correctly, Wray was appointed on Rosenstein’s recommendation. He’s useless by design.

    2. Young, I will add Turley’s Twitter comment just to aggravate the whiners and complainers that hate the fact that a center-left prominent lawyer and academician doesn’t agree with the twits they prey with.

      “We have new insights into the Flynn investigation including the report that Flynn’s name was not masked in prior FBI reports and that as many as 9 sources then leaked that classified information. If true, the leaks now appear from the FBI investigation…https://www.foxnews.com/politics/flynn-not-masked-report-on-key-calls-with-russian-ambassador …”

    3. Wray’s internal investigation is into whether any *current* FBI employees engaged in misconduct in Michael Flynn probe. Nearly all of the FBI officials and agents who took part in the probe have either retired or been fired.

      1. Anon– But not jailed. The ‘current’ limitation’ you pointed out sure does indicate another whitewash. ” We have investigated all the new hires for crimes committed two years ago.” Yeah, thanks. I feel much safer now.

      2. Nearly all of the FBI officials and agents who took part in the probe have either retired or been fired.
        _____________________________________________________________________
        They also did not believe that Flynn had lied in his FBI interview

        the Flynn-lied-to-the-FBI story was invented after the Trump administration hired Mueller and took the the Russia investigation away from the FBI and gave complete control to the Trump DOJ. The FBI agents had no part in the decision to charge Flynn. That decision to charge Flynn with lying to the FBI was made by the Trump DOJ.

        https://www.cnn.com/videos/politics/2017/02/16/fbi-michael-flynn-fbi-no-charges-lemon-sot.cnn

    1. Karen, that is alleged and part of what the judge should review. BTW, “dishonorable” is no more a legal term than collusion. You probably meant something else.

      1. Book– she was being polite [look up unfamiliar words] and likely meant they behaved illegally toward General Flynn and should go to prison.

          1. Is it any wonder why this hypocrite has never made a rational argument for justice? This is the same hack on both comments. I call him 0’fer.

            best way there is a full hearing where these allegations can be examined.

            Provide a shred of evidence moze and then we can talk.

          2. You’ve played your part in making a circus, a farce, out of a simple lame case being dropped by the prosecution. Good for you; pat yourself on the back

            In a month you will find some other farce to amuse yourself

            The tenor of public debate is wretched these days. The COVID has brought people to the brink of insanity

            1. Kurtz, how many “simple cases” involve the AG stepping in and taking over and without any line prosecutors being part of dropping it? Did I mention that the defendant is a political hot potato who has the interest of the President – who is the AG’s boss – and that the only other “simple case” the AG involved himself in also was about another defendant of personal interest to the President? No line prosecutors would join that effort either.

              Too much for the Trump fans to have this case publicly vetted I guess. If Flynn and Barr’s accusation are valid,they should be broadcast. If Barr is acting corruptly, that should be broadcast as well. Bring it.

        1. likely meant they behaved illegally toward General Flynn and should go to prison.
          ______________________________________________________________________
          The FBI said Flynn had committed no crime for which he could be charged,

          Then the Trump administration hired Mueller in May 2017 and took the investigation out of the hands of the FBI. After Mueller was selected as the man who would be running the Russia investigation, that is when the phony story that Flynn lied to the FBI was fabricated and promoted.

      2. Hey Fool, FBI/DOJ leadership Lied to the FISA Court & yet the FISA Court judges could still to this day Revoke their Warrants & Haven’t & that Compromised PO Crap CJ John Roberts is to this day a willing participant to their on going Coup against the people the USA’s govt.

    2. The FBI behaved dishonorably to General Flynn. This needs to be made right.
      ____________________________________________________________________
      The FBI said Flynn did not lie when the interviewed him what is dishonorable about that?

      The Trump DOJ invented the story that Flynn lied to the FBI. The FBI said Flynn didn’t lie.

      1. Jinn: “The Trump DOJ invented the story that Flynn lied to the FBI.”

        Actually, it was still the Obama CIA and DOJ and that was the problem. Their loyalties were to the wrong president and, maybe, to no country at all.

        1. Young, that’s just jinn being a jinn. He’s been pushing that false narrative of it being under the control of 45 when it has always been 44.

        2. Actually, it was still the Obama CIA and DOJ and that was the problem.
          _______________________________________________________________
          It is the same DOJ that is still hiding the evidence and protecting those who were responsible for the Flynn flam prosecution. They are trying to sweep the whole thing under the rug and make it go away.

  8. Prof. Turley quoted the following, but seems not to have thought about what was omitted:
    “it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”

    Specifically, Flynn’s lawyer wrote “Petitioner respectfully requests a Writ of Mandamus ordering the district court to (1) grant the Government’s Motion to Dismiss with prejudice,( 2) vacate its order appointing an amicus curiae, and (3) assign the case to another judge for any additional proceedings,” but the DC Circuit only asked Judge Sullivan to address issue #1.

    1. Turley was pointing out something he found interesting. I don’t think he gives two sh1ts about what you find interesting or your poor interpretation of the law.

      Take note of Turley’s interest: “The order is interesting in its language:” Then stop whining and complaining.

    2. addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020
      _______________________________________________________________________
      You have a good eye for detail. The judge in his response can disregard the the other two requests made by petitioner

  9. This column is an open pit of logical fallacies, legal or not. JT writes:

    “…in U.S. v. Fokker Servs. B.V., a case where the appellate court granted the relatively rare relief of a mandamus order against a trial judge. In that case, the trial court was also leery of a decision not to prosecute. The Justice Department wanted to enter a Deferred Prosecution Agreement (DPA) with a Dutch company accused of violating U.S. sanctions and export control laws. The trial court felt the company was getting off too lightly. Sound familiar?…”

    No, doesn’t sound familiar. Not only had Fokker not even been charged yet, but Sullivan has expressed no opinion about the Barr motion AT ALL. He’s called for a hearing and presentation of facts. Given the highly unusual natire o this case and the possible corrupt basis for this latest motion from the Barr – it stinks like Trump’s bath water – it’s the least he can do. If the charges Flynn’s team alleges are close to true, they should have nothing to fret about and Sullivan would be hard pressed to ignore them and then rule against prosecutors.

  10. Seems like you are reading a lot into an order that really is just asking for a response to a motion. I think in the end the appeals court is going to say they need to give district court time to rule and then they can take this issue up on appeal.

    1. I think in the end the appeals court is going to say they need to give district court time to rule and then they can take this issue up on appeal.
      ______________________________________________________________________

      yeah the judges response would have to be pretty stupid for the appeals court to not give the judge the opportunity to dismiss the case on his own.

  11. New Study Of 96,000 Patients Casts Further Doubt On Antimalarial Drug

    A new study of 96,000 hospitalized coronavirus patients on six continents found that those who received an antimalarial drug promoted by President Trump as a “game changer” in the fight against the virus had a significantly higher risk of death compared with those who did not.

    People treated with hydroxychloroquine, or the closely related drug chloroquine, were also more likely to develop a type of irregular heart rhythm, or arrhythmia, that can lead to sudden cardiac death, it concluded.

    The study, published Friday in the medical journal the Lancet, is the largest analysis to date of the risks and benefits of treating covid-19 patients with antimalarial drugs. Like earlier smaller studies, it delivered disappointing news to a world eager for promising treatments for the novel coronavirus as the global death toll grows to more than 300,000 and cases pass five million. While doctors have refined how they treat the disease, they have yet to discover a magic bullet against a virus for which humans have no known immunity.

    Edited From: “Antimalarial Drug Touted By Trump Is Linked To Increased Risk Of Death In Coronavirus Patients, Study Says”

    Today’s Washington Post
    ………………………………………………………………

    One has to seriously wonder if Professor Turley’s focus on the Flynn case is a distraction from more urgent stories.

      1. There is no solid proof for hydroxychloroquines use either way or when it should be used. The drug is being personally used by many physicians on the front line and many that are not on the front line have have filled prescriptions of the drug should they need it. I don’t doubt the author’s sincerity though he doesn’t conclude much of anything with this observational study that doesn’t adequately detail when the drug was started.

        One often wonder why a study is undertaken and who pays for it. People that write studies often do so because the third party wants them too. I am not sure what precipitated this particular study. In the case of Hydroxychloroquine there are no big profits to be made so one doesn’t expect too many sponsors spurring a study forward to prove it works. With that in mind one looks at the disclaimers (unless the study is solid at which time one looks at the character of the people doing the study).

        “Declaration of interests
        MRM reports personal fees from Abbott, Medtronic, Janssen, Mesoblast, Portola, Bayer, Baim Institute for Clinical Research, NupulseCV, FineHeart, Leviticus, Roivant, and Triple Gene. SSD is the founder of Surgisphere Corporation. FR has been paid for time spent as a committee member for clinical trials, advisory boards, other forms of consulting, and lectures or presentations; these payments were made directly to the University of Zurich and no personal payments were received in relation to these trials or other activities. ANP declares no competing interests.”

      1. Olly– Yes, I was just wondering what happened to him. Must be slow in his nail salon.

        That study has limited value due to the elected parameters.

        Meanwhile, Amy Klobacher admiited that the drug played a role in her husband’s recovery.

        Funny how they will attack it in the media and take it when they are sick.

        1. It would be funny if it weren’t so damned dangerous. We really need an objective press. Unfortunately it’s all a political calculation, until it’s not.

          1. OIly, 96,000 patients on six continents. And you think the British medical journal is merely out to ’embarrass Trump’..?

            Your logic would be funny if you weren’t serious.

            1. Yes, I recommend you don’t take it. Well unless you’re traveling in a malaria zone and then you should. Because HCQ only causes severe side effects in patients with Covid-19…sometimes. So yeah, logically, it must be the medication and not anything else. Also, you should certainly trust the reported Covid-19 death counts, similar to how enemy VC were reportedly killed during Vietnam. Just good, honest reporting.

          1. Young said: Meanwhile, Amy Klobacher admitted that the drug played a role in her husband’s recovery.
            Paint Chips said: Young, a Google search fails to confirm your claim about Klobucher.

            Klobucher said: “Well, I think that I listened to the science there. I believe he did briefly take that drug … or some drug like it, but I think that we have to listen to the science and you have to listen to your doctors with what is going to work in each individual situation,”
            https://www.washingtonexaminer.com/news/klobuchar-trolls-trump-on-taking-drug-that-husband-used-to-treat-coronavirus

            Now unless her husband has not recovered, it is apparent HCQ or some drug like it, did play a role in his recovery.

            1. So what? A hurricaine will hit Alabama some day too, but not when and how Trump says it will.

              There are mixed messages on this drug and the president has no business spouting off on something he knows nothing about. The point is, do what your doctors say to do and the president should stick to organizing test production.

                1. He’s a narcissist. By definition that makes him an expert (in his own mind) on anything and everything he chooses to opine about. 0’fer will tell you that only one time in his life has he been wrong. It was when he thought he was wrong and he was actually right.

            2. Olly, NOTHING in that story indicates Klobucher’s husband was treated with the drug.

              What’s more, the story includes this disclaimer:

              “The Washington Examiner reached out to Klobuchar’s office for comment but did not hear back”.

          2. Try a less political search engine. In any case, as I told you before I don’t do searches for you.

            1. This list of signs and symptoms explains on the last line how Paint Chips got his name. In adults the pertinent signs are:

              Difficulties with memory or concentration
              Mood disorders
              Reduced sperm count and abnormal sperm

              Lead poisoning symptoms in children

              Signs and symptoms of lead poisoning in children include: (pertinent ones only)

              Developmental delay
              Learning difficulties
              Irritability

              Eating things, such as paint chips, that aren’t food (pica)

    1. “Casts Further Doubt On Antimalarial Drug”

      Paint Chips, no need for you to worry about Covid. With all the lead in the paint chips you have eaten Covid cannot survive.

      1. Alan is a cowardly old weasel who knows he can abuse anyone on these threads because the Moderator will always protect him from anyone who hits back.

        1. This poster is most probably Paint Chips. He is afraid to use any of his many aliases. Take note you demented loon that I use my one and only alias.

          1. Allan– Yes, I have noticed the poster who boasts of his manliness is the first to cry for teacher when he is bumped on the playground. Pathetic.

  12. Well, at least they were honest on Paragraph 4 of their MOTION OF WATERGATE PROSECUTORS FOR LEAVE TO FILE BRIEF AS AMICI CURIAE, to wit:

    4. Petitioners miss, on a personal level, the attention, the chicks, and the money they scored while prosecuting the Watergate affair, and because of their advanced age, may not get another shot at being in the public spotlight before heading off to that Great Tribunal in the Sky.

    Squeeky Fromm
    Girl Reporter

    1. Thanks Squeeky– Such candor from a bunch of old farts trying to sneak into the front of the line.

  13. Oh, no, Anonymous, there is no “Obamagate”. There was no unmasking, which your favorite fake news channel has been trumpeting, AND Trump did cheat his way into the White House. Weissmann couldn’t make the dozens of witnesses tell lies, nor did he create thousands of documents that prove the Mueller Report was correct. Trump was NOT exonerated. Mueller would have nailed Trump, too, if Trump hadn’t refused to be deposed and hadn’t refused to turn over documents. Sorry, that crap won’t fly.

    1. You watching Rachel Russia Russia Russia Madcow still? Yep. ‘splains why you so uninformed. And sorry, but you about to see that crap fly right into a fan. Soon.

  14. The issue is not I whether it is unusual to have preliminary meet and greet sessions, but the discussion about lifting sanctions, coming directly on the heels of Russians helping Trump cheat, along with Trump’s campaign providing sensitive insider information used by Russian hackers to direct lies about Hillary Clinton to certain vulnerable voters, creates a stench. In any event, Flynn lied about this, and he didn’t register as a foreign agent, both of which are felonies. Flynn is no victim.

    1. Why do you keep repeating the lie that the Russians helped Trump to cheat? Take that lie out of your statement and the rest of the house of cards falls down.

    1. I will be astonished if they permit it, but with this trial anything is possible. You can never be sure of what is coming next.

      1. PD– Of course you are right. These are Schrodinger Cat decisions. Anything can be in the box.

        However, it might be significant that they ordered the judge to respond and only allowed the DOJ to file a brief, suggesting they already have quite enough.

        Probably the record suffices and they don’t really need the judge’s response.

        But politeness and traditional respect for the robes, if not the man, dictate that they allow him to blubber for mercy before they chop his head off.

    2. Why do 16 political hacks, who happened to work for the justice department get standing to intervene? What particular knowledge of the facts, i.e., the Brady violations by the prosecution. None more than i do. This case has to do with factual malfeasance by the prosecution, not abstract theories of law.

      1. “This case has to do with factual malfeasance by the prosecution”

        The argument/ question presented (Will Henderson, Rao and Wilkins agree to it?) has more to do with some that continuously try to obfuscate the innocense of Michael Flynn while conveniently forgetting the ” factual malfeasance by the prosecution”. While obfuscation is not an outright lie it is a way for some to cover up a lie and then say ‘tell me if I lied and if you have proof I will correct myself’. In that way some believe they can continue the lie on and on and on without people taking notice.

  15. Flynn was a highly-compensated consultant for Turkey while he was acting as incoming National Security Advisor, meeting with Russian ambassadors to discuss lifting sanctions against Russia. He failed to disclose this relationship or register as an agent for a foreign government, which also is a felony.

    Is it just a coincidence that Russia helped Trump cheat to “win the victory” and even before he took office, Flynn is meeting with Russian ambassadors to discuss lifting sanctions? Hummmm.

    Meanwhile, JT forgot to update his post about unmasking by pointing out that Flynn was not unmasked because as it turns out, he wasn’t “masked” (i.e., name redacted in a report) in the first place. So, no “Obamagate”.

    1. I don’t think you really understand how the process works with regard to an incoming Administration’s personnel. If you check, you’ll discover it’s not unusual for the latter to have preliminary meetings with their counterparts, from whatever country, about issues currently under discussion between/among their respective governments. The compensation issue is different, but the question there is whether the advice being offered was contrary to US interests.

    2. Is it just a coincidence that Obama and company were having a Russia hissy fit and decided their hissy fit could be used as a political weapon, and they did so ?

    3. Evidence that Russia helped Trump cheat to “win the victory” is exactly what? There are now news reports that the intelligence showed that Russia preferred that Hillary win and that Brennan changed that to suit his narrative. Trumps policies, e.g., encouraging fracking, keystone pipleline et al have been much worse for Russia than what Hillary would have done. Keep repeating the big lie. Maybe you will convince yourself. Obama and his minions tried to undermine an incoming administration by propagating this Russia hoax, whether this was to preserve his legacy of permitting Iran to obtain nuclear weapons (read Lee Smith’s excellent reporting), his legacy of funding Iran by sending them pallets of cash or all of the other wonderful things that he did.

      The spying on Trump’s campaign and the campaign to hamstring his administration through the Russian hoax is what Obamagate is. Probably no crimes committed by him or Biden. Biden is sufficiently senile that he inherently lacks scienter, but this is an extraordinary scandal, which the complicit press chooses to ignore.

      1. “Evidence that Russia helped Trump cheat to “win the victory” is exactly what?”

        You can start with the conclusions of the Office of the DNI: dni.gov/files/documents/ICA_2017_01.pdf

        And add the conclusions of the Senate Intelligence Committee: intelligence.senate.gov/publications/report-select-committee-intelligence-united-states-senate-russian-active-measures

        Is that enough evidence for you?

        1. Omission or commission of details doesn’t matter. Both are part and parcel with a lie. We now know that the entire background of the investigations were tainted by political operatives. The reports that have come to light recently are devastating to our DOJ that existed under Obama. The lies of Obama officials have been exposed in the hearings.

          Not much else needs to be said. Who the Russians were actually hoping to help will remain uncertain though there is a lot of evidence that they may have preferred Hillary over Trump. One might ask why. I think a cartoon of Hillary pressing a plastic reset botton is enough to tell us how superficial and self serving Hillary is. Anyone can debate that point but I think all will agree the Russians wanted to create some level of political havoc. The Russians succeeded far more than anyone could have expected because the Democrats went ahead and finished the job the Russians started.

        2. Said like one of the faithful. But retrospectively the writer remains silent as the onion is peeled away and it is revealed that the Obama Administration officials did things from the very start that were impermissible.

          It appears some adopt the attitude that the state determines innocence and guilt.

  16. JT’s argument with the actual meaning of Rule 48 as intended by the commission which wrote it – with SC input – is faulty. He says:

    “Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.” Thus, he is contesting existence precedent, which is perfectly acceptable but telling. Second, I do not see how this position could be upheld. It would mean that courts could regularly refuse to allow defendants to go free because they disagreed with prosecutors. .”

    No, Rule 48 does not say that it nor was that the intent. It intends that when charges are dropped after indictment the court has an interest in the prosecution’s motive not being corrupt because the defendant is connected – you know, like in the Flynn/Barr motion case. That is a very limited number of cases and even more so if this BS is not allowed to stand, or at least thoroughly vetted. Whatever it means, it’s not JT’s place to throw out the intent of Rule 48 anymore than it is to throw out the Logan Act. He’s an officer of the court, not a bar room brawler.That’s our job!

    By the way, JT has that article because I sent it to him. It is not yet widely quoted elsewhere – Google it – though hopefully it will be soon. I respect him for addressing it , though don;t agree with his response.

    Anyone else want to read it:

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

    1. The only way that byb could know that DOJ motives are corrupt is if he is a mind reader. There is compelling, existing evidence of malpractice by the FBI and DOJ in crafting this case against Flynn and unless “bythebook” has a tape or other documentation of official misconduct that demonstrates another, corrupt motive we have to assume that the book btb is using is a nursery primer by Rudyard Kipling where the law of the monkeys is “We know it’s so, because we say it’s so.”

      1. Christine must not have had access to news while on the watermelon truck she fell off of.

        AG Barr intervened for the 2nd time – see Stone – in a case involving a Trump crony – Barr is one himself – and no one in the DOJ other than his stooge, who was made the temp DC USA after the previous one – Liu? – was removed for not rolling over for Flynn. – would sign the motion. It was a coup of line prosecutors by the political hacks and is a DOJ motion like a $3 bill is a US Treasury note.

        1. It is sad that Barr seems to be the only person of integrity in the senior ranks of justice department.

      2. Ouch! You caught bythebunk right in the privates! He does not get the difference between “making an argument” and “making a good argument.” Lawyers make arguments all the time and half the time they lose.

        Squeeky Fromm
        Girl Reporter

  17. Heard that Judge Sullivan asked his good pal Eric Holder for some advice. Holder said, “wear a cup, cuz you about to get kicked in the b*lls brotha.”

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