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. The original FD-302 was written by Joe Pientka. In the case against Flynn the DOJ prosecutors never presented the original Pientka 302.

    On May 2, 2020, the DOJ, using new information gathered by U.S. Attorney Jeff Jensen, declassified and released a segment of James Comey testimony that was previously hidden. Within the transcript Comey says Pientka wrote the Flynn 302 on January 24th immediately following the interview.

    Laughing !


    page 22 on the document, pg 8 on the scroll

    Yes, we know for a fact, the original 302 is goners. Missing. Not produced.
    Then Strok and Page went madly editing – pretend that never happened and I’ll slap you again.

    1. So whatever I read about 2 links screwing up posts…
      Here’s Strok and Page doctoring 302 I’m sure info is available many places, as I’ve seen it a plenty.

      As I suspected and said below somewhere, Comey immediately demanded a hammered out 302.
      To dried up lacquer, “The information is already publicly available.”

  2. So I go look at the fraudulent Flynn interview 302 post dated beyond the law by far because of edits, and what’s the first lie I see.*
    “Strok and (redacted) interviewed Flynn at the WH. After being advised of the identities of the interviewing agents *and the nature of the interview*, Flynn provided the following information:

    It’s just laughable – in the 1st paragraph the big lie is already spoofed out. This is what you can expect from the Comey operation.
    “the nature of the interview” Laughing.

    One more thing. We know Comey got the hacks seat to go threaten Trump with the Dossier the day after the big Obama plotting Jan 5th 2017 unmaskers meeting with Comey and Biden and Rice and the rest…
    So Comey goes and threatens Trump, then hops out and scuttles down to his FBI vehicle, grabs his FBI laptop and starts frantically writing down his “impressions” so he could fire it off to his partner in crime at the university so he could leak it to the press which he did and hopefully get a Special Counsel appointed…

    So Comey’s SOP is get that stuff down fast. So the same Comey weasel’s his agents into Flynn to entrap him on the 24th Jan. – Comey himself tells us he sent them over – and what are we to expect then concerning the 302 that they have a maximum of 5 days to write up. What we expect is Comey was waiting when they got back and told them to hammer out that 302 immediately.
    What we find out is that 302 is missing. The earliest redrafted modified pile of bunk is dated the 15th of the next month. Some of the cabal has been caught admitting modification.
    Months after that, a finally settled version is “issued” – May 31st… with all the newer edits no doubt backdated to the earlier Feb 15th post doctored “draft”.

    When the liars and cheaters and corrupt filth cough up the 302 from on/prior to Jan 29th 2017, someone let me know. The whistle has already been blown on it’s existence, and it’s deafening.

    1. so he could fire it off to his partner in crime at the university so he could leak it to the press which he did and hopefully get a Special Counsel appointed…
      Comey is the guy who helped trump get elected by repeatedly reminding voters that crooked Hillary was the subject of FBI criminal investigations while keeping quiet about similar investigations of Trump campaign.
      Why would you be surprised that Comey helped Trump set up the Mueller investigation?

      And why are you so upset about the 302? The information in the 302 does not support a charge that Flynn lied in that interview. The FBI investigators have said they thought that Flynn was being truthful in his answers. It doesn’t make sense that you keep trying to impeach evidence that clears Flynn.

      1. We don’t know what the 302 supports. It’s absent, and except for the whistle blowing…
        Why do I care? Because of principles. The principles of rule of law. If you have as 1st score, from the criminals, corrupted “evidence”, the immediate answer is very clear. Get out, you scoundrels.
        That’s how things work. You know immediately whom is full of it. That’s the only or main or pertinent document on did Flynn lie – and it’s a pile of post dated altered crap.
        It points directly to the scam, not to mention the stupidity of it all.

        1. We don’t know what the 302 supports.
          We know that the doctored 302 does not support a case against Flynn and the FBI said they do not believe Flynn was lying. Why do you keep trying to impeach evidence that clears Flynn?

          The evidence used to prosecute Flynn was manufactured after the FBI was taken off the case and the Trump DOJ was put in control.

          The only evidence that actually is sufficient to prove Flynn lied is the Statement of Offense and the only reason that evidence works is because Flynn validated it by swearing it was true and correct. Without Flynn’s help there would not be sufficient evidence to make a case against Flynn.

  3. I just heard another bit of information on the case – apparently the “talk of sanctions” on the Kislyak phone call is being claimed by those for the persecution of Flynn, while it is said the actual gist was not to react to the expelling of 35 Russian diplomats, which is not sanctions, so some spinning needs unspun.
    That’s why we’ve heard Flynn didn’t know about sanctions being in a foreign country at the time of the call, and msm just plays it like he was lying – and the persecutors call it “sanctions” when they are said to have viewed the transcript.
    So we’ll hopefully see on the call release, soon.

    1. So we’ll hopefully see on the call release, soon.

      Maybe but the Trump DOJ is doing all it can to block the release of the call and of the FBI agents original notes. Both of which the DOJ has.

      There is no real evidence that Flynn lied to the FBI about the phone call with Kislyak. The FBI admitted they had nothing that could stand up in court.

      The only way Flynn ever got to charged in court was by Flynn swearing to the court that the Statement of Offense which contained this statement was true:

      “During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia.”

      Outside the Statement of Offense there is no evidence that the above sentence is true. And without that sentence the rest of the evidence is not sufficient to get a conviction.

  4. It is being reported that Sullivan has hired a lawyer to respond to the writ of Mandamus

    1. ” Beth Wilkinson was retained by Summer Zervos in a suit in New York state court that accuses Trump of lying in his denials that he did not grope and kiss her without consent in 2007. The case is pending.
      In the D.C. Circuit now, Wilkinson is counsel to Cheryl Mills, a former aide to then-Secretary of State Hillary Clinton….”
      Laughing again.

      So Sullivan can’t handle his job. So sad.

  5. Re: “without apparently the audio or the transcript of the Kislyak phone call,” Powell is incorrect.

    From Mary McCord’s 302, which is one of the exhibits included in the DOJs Motion to Dismiss: “[McCabe] learned that Pence wanted to see the Flynn transcripts. McCabe did not have the transcripts on him, so he returned to the FBI to retrieve them and returned to the White House Situation Room. There, he met with Pence; Pence’s Chief of Staff; The President’s Chief of Staff, Reince Preibus; and possibly others, and they reviewed the transcripts.” And it’s clear that it’s a reference to the Flynn-Kislyak transcripts, as the paragraph later refers to Pence’s Face the Nation interview where he’d said that Flynn denied discussing sanctions with Kislyak.

    Read it for yourself: usatoday.com/documents/6884020-Dismiss-Case/

    Do you care what’s true?

    1. Your interpretation of the quote is not evidence and neither is an article from usa today unless it contains direct evidence. You are conflating testimony of an individual with your opinion and an opinion writer of USA today all in an attempt to convict an innocent man where you cannot quote in context what Flynn said that should lead to a criminal offense. Flynn forgot, didn’t remember, immateriality all are unimportant to you. All you want is to see your political enemies jailed. Is Joe Stalin a family member of yours?

    2. Powell said she’d want the audio since Kislyak has such a thick accent, and we know Mary McCord is raging the Flynn case(NYT OP she authored) was dropped so her 302 is as good as nothing second hand. She can always claim she got it wrong, so once again we have second hand, 3rd hand from another msm paper, and we have McCabe the liar delivering, after the fact – because how would McCabe have found out Pence wanted to see it if there had been no prior contact or decision or coercion of Pence?
      Then, you claim it’s the Kislyak call based on context…LOL
      I don’t know fella, can’t survive on that thin gruel.

      1. ROFL.

        If you’d bothered to click on the link, you’d know that it was to a pdf copy of the entire DOJ Motion to Dismiss, including all of the exhibits, not some “3rd hand [claim] from another msm paper.”

        Do you accept what the DOJ itself attached to its Motion to Dismiss, or don’t you? Because they’re not claiming that McCord’s 302 is unreliable. If you’d bothered to read the Motion to Dismiss, you’d know that they quoted her 302 as evidence.

        And perhaps you’re not aware, but USA Today has a Twitter bot — twitter.com/big_cases — that posts the “latest filings in major cases in U.S. district courts and the U.S. Supreme Court” and automatically tweets out copies whenever a new motion, order, etc. is filed in the specified cases it’s following. It’s very useful for anyone who wants to read the legal documents. USA Today posts some of those legal documents on their website, including the entire DOJ Motion to Dismiss, including all of the exhibits.

        You initially said “[Powell] says according to documents the government provided the FBI sat down with Pence and told him their story – without apparently the audio or the transcript of the Kislyak phone call,” and when I gave you evidence from an FBI interview that Pence did see the transcript of Flynn’s call with Kislyak, you (a) move the goalposts, insisting that Pence had to listen to the audio (as if it were your or Powell’s choice to make rather than Pence’s), and (b) you dismiss the evidence with an ad hominem fallacy directed at Mary McCord.

        Thanks for making it so clear that you don’t actually care that Powell’s claim is false. I won’t respond further.

        1. Powell’s claim isn’t false, you got that wrong.
          What do I care what the DOJ is claiming, they are obviously corrupt.
          Mary Mcord is one of them, so all her claims are especially garbage.
          The whole scenario is a joke, as you no doubt understand.
          I did click on your link prior, I’m not the one who said it’s a news article, so you’re confused there as well.
          If you’ve read, you know my position, nothing matters past post doctored 302.
          The government has nothing but a pile of crime to show. So out of the courtroom is goes (except it doesn’t, because of criminal idiots), they do not have evidence #1, the most important piece there is – besides the idiocy of interviewing a person whom you have the information you’re interviewing for already in your pocket.
          Of course Mary MCord is lying, she proved she considers it her job.

        2. Such bull from CTHD. He probably argued in a similar fashion that the Steele Dossier was legit, or that Trump was not spied on, or that the Russia hoax was real or that Rice, Powers, Clapper, Brennan etc. were telling the truth in the MSM. There is no end to this type of fraudulant behavior. CTHD has no limits. I would love to be able to read what he has written over the past 4 years and never apologized for.

          Who knows at the present whether or not CTHD is even a new individual on this list or if he is an old one that has been shamed too many times forcing him to give up a previous alias. I’m tired of people trying to put innocent people in jail to score political points. It’s a disgusting habit.

  6. So they finished their editing of the falsified 302 of the Flynn interview 4 months and some days after interviewing Flynn on Jan 24th 2017, dating their finally edit May 31st 2017.
    I am laughing at what frauds they are.

  7. I just discovered what I have suspected all along. Sidney Powell has answered how VP Pence and President Trump were bamboozled by the FBI to fire Flynn. She says according to documents the government provided the FBI sat down with Pence and told him their story – without apparently the audio or the transcript of the Kislyak phone call.
    I’m sure we’ll get a heavily redacated version that covers up for the government.
    Like the redacted modified manipulated way past 5 days posted fraudulent 302, that the government claims “wasn’t modified much past the 10th of February 2017”, though it was entered on 15 February, while the interview was way more than 5 days prior on January 24th 2017. Not that their stupid interview matters one whit, because it doesn’t, other than showing them to be criminals, as Comey publicly admitted, bragging while the audience laughed.

    1. The MSM is another extension of the super-rich’s influence over the political system. Not only do a handful of billionaires own the best members of Congress – that money can buy, they also own the major news outlets. (Only 17 people own almost all of the MSM in the United States.) Of course, the whole point of buying influence is to not only get laws passed that benefit them but also to control want people hear and believe.

      Concerning the issues at hand, it is far from coincidental that the major papers, such as the NYT, WaP, and even the WSJ, all had the same information at the same time. We now know the misinformation was purposely released through the heads of the intelligence agencies, such as Comey, Clapper, and Brennan. It could be that the same media owners knew the information would be forthcoming before even the agencies did.

      All of this fits into a larger process called conspiracy. It is that violation of law that can bring them all down. Our democracy depends on it.

      1. Except for now we have some limited outlets that give us the dots the MSM covers up and hides – the internet and it’s non mainstream sources, though that we have seen is under censorship attacks as well.
        The 1st amendment and the vapors not to mention those you pointed out are bought assures the MSM 17 conspiracy solid footing for many years to come.
        I’m not certain how you think that could be successfully brought under. I wager the vile forces in government want nothing of the sort to occur, after all, the MSM has a host of former government officials as their main characters. One to note in this controversy is Brennan of CNN.
        I’m laughing again, the whole thing is so pravda-ically ridiculous.

  8. Court gives court 10 days to explain it’s ignorant motives.

  9. Viva Frei conclusion:

    “There is either going to be a very sharp u-turn, a recusal, or there’s going to be a judicial spanking coming down from the court of appeals.”

    This seems obvious. No amount of gaslighting from ByTheBook, CommitmentToHonestDiscussion, Peter Shill, or any of the other pseudonyms being used will make one iota of difference. The only person in trouble is Judge Sullivan, not Michael Flynn.

    Viva Frei has an excellent legal vlog:

    1. Re: “No amount of gaslighting from … CommitmentToHonestDiscussion,” I dare you to quote what you’re referring to and provide evidence that I said something false.

      If I *did* say something false, I’d love to know, so I can correct it and note my error.

    2. Flynn drew a favorable 3 judge panel with 1 Trump appointee, 1 Bush appointee with a record of ruling for Trump stonewalling, and 1 Obama appointee.. All should hope for a fair ruling without partisan concerns, but these days who knows.

  10. Sidney Powell has done an amazing job to expose a shocking abuse of power at the highest levels of the FBI and the Obama administration and by Judge Sullivan. The entire nation owes her a debt of gratitude.

    1. Sidney Powell has done an amazing job to expose a shocking abuse of power at the highest levels of the FBI and the Obama administration and by Judge Sullivan

      The FBI and the Obama administration and Judge Sullivan were not the ones that created the phony story that Flynn lied to the FBI. The phony story came from the Trump DOJ and Flynn himself. Now the Trump DOJ and Flynn are trying to pin the blame for what they did on the FBI and the Obama administration and Judge Sullivan.

      The Flynn lied to the FBI story emerged after the Trump administration took the Russia investigation away from the independent FBI and gave complete control of that investigation to the Trump DOJ.

      Before the Trump administration took over the Russia investigation the FBI was saying that they could find no crime for which Flynn could be charged


      1. That’s a funny set of joke lines you have there. The January 5th unmasking and plots meeting Obama held (with the FBI titular head criminal present) declares otherwise.

        1. That’s a funny set of joke lines you have there.
          I stated facts. Which I notice you can’t refute.

          The January 5th unmasking and plots meeting Obama held (with the FBI titular head criminal present) declares otherwise.

          Even if all of that is true. It does not change the fact that the FBI and the Obama administration and Judge Sullivan were not the ones that filed the phony charges that falsely asserted that the Flynn lied to the FBI. The Trump DOJ was the ones that created that false story and filed charges based on the phony story.

          The only thing that the Trump DOJ had to back up their phony story was Flynn swearing before the court that the facts presented by the DOJ were true and correct.

          The same two parties that were in cahoots to create the phony story that Flynn lied to the FBI are the same two parties that are now trying to blame the FBI and the Obama administration and Judge Sullivan for what they did.

          1. I’ve read your theory before that it’s all a ruse by the “Trump people”. (don’t blame Obama and Sullivan – blame yourselves)
            Perhaps what you’re missing is there was at that time (and currently) no Trump DOJ or FBI.
            According to you: On the one hand it’s the Trump DOJ fault.
            In a transition it’s quite some time before the new administration replaces 8 year+ holdovers, especially with the way the former party obstructs at every turn, to keep their people in running things.
            I think you know that, and are just avoiding the obvious, no Trumpie charged Flynn.
            It’s even worse in the Trump administration, from the beginning we heard about 80% or 90% of the DC permanents were against him. (He threatened their gravy trains.)
            Flynn swearing before the court is a joke. Act like children. A corrupt system holds a knife to his throat and demands he swear he has free will. I am laughing. If he doesn’t swear they slice off fingers and toes then the extremities till they are satisfied his non compliance is paid for. That’s what a joke your childish notion is, and we all know it. That’s the difficult part, pretending the point is lost along with you or believing you don’t understand it.
            That’s why if Sullivan isn’t slapped down and hard, all that’s left is – nothing.

            1. Perhaps what you’re missing is there was at that time (and currently) no Trump DOJ or FBI.
              Is the silly story that Obama is running everyuthing and Trump commands zero loyalty from anybody getting kinda old?

              I think you know that, and are just avoiding the obvious, no Trumpie charged Flynn.

              Neither I nor you know that because the evidence says otherwise.

              lets look at the facts:
              Due to the fact that Sessions had to recuse himself Trump had to wait a couple months until Rosenstein was confirmed by the Senate. After Rosenstein is sworn in the first thing Trump has him do is write the memo detailing why Comey has to go and then Comey is fired. A couple days after that, Rosenstein arranges with Mueller to be Special Counsel. A couple days later Rosenstein, Trump and Mueller have a secret meeting in the oval office. The next day Mueller’s appointment as SC is announced to the world. The next day Rosenstein orders McCabe (acting AG) to turn all Russia investigation material over to Mueller and to end all FBI investigations into Russia interference, Russia collusion and all other matters that have been assigned to Mueller.

              At that point the takeover of the Russia investigation by the White House is complete and the only thing left to do is to make the phony investigation appear to be real. To that end Trump immediately tweets that it is a witch hunt and a coup attempt and that sort of BS is pretty much all it takes to give Mueller the illusion of legitimacy as an adversary of Trump. After the FBI and the main DOJ has been booted off and excluded from the Russia investigation an all related matters the White House has complete control over who is prosecuted and for what.

              1. What a crazy theory. Obama’s corruption is still on display. What we know is true is Mueller never touched a thing and was window dressing, and the rabid democrats were the investigators, and Weissman the worst criminal they could find in all of DC, which is saying something.

                1. What a crazy theory. Obama’s corruption is still on display. What we know is true is Mueller never touched a thing and was window dressing,
                  Sure Mueller was window dressing that’s a fair statement. The entire Mueller investigation and Mueller Report was window dressing . But Obama did not create the window dressing or control it.

                  1. I don’t agree with that. I believe it’s obvious the Obama team, the press, the holdovers bureaucracy and we have seen even some of the the Watergater lawyers were in on it, and used the same playbook used against Nixon, and an outright continuing demand the DOJ not even be spoken to by the POTUS.
                    It’s been one sick corrupt rule for Obama’s wingman, and the exact opposite for Trump.
                    Schiff in Congress and many of the others in Obama’s ignore the book meeting on Jan 5th 2017 told the Russia lies publicly and in the secret testimony the exact opposite.
                    So “the Trump team” never had to lift a finger, in fact if it had, that would be an impeachable offense. As we’ve seen – dial one number and it’s off to the ungracious.
                    Maybe that would be great if it was all a Trump team plot to smear the democrats, this late in the game, or really immediately after the slow, drug addled, pill popping DC regular liars finally have to admit the Obama democrats corruption since it was just thoroughly exposed. Sounds way too convenient to me, though I’d like to see how long you specifically have had your take on it.

                    1. I don’t agree with that. I believe it’s obvious the Obama team, the press, the holdovers bureaucracy and we have seen even some of the the Watergater lawyers were in on it
                      That is like saying the fans in the stands are ” in on it” when a player on the playing field cheats. And it gets really bizarre when you carry that to the extreme point where you believe the fans in the stands are wholly responsible while the players on the field are entirely innocent. There may be sports fans that actually think like that but they are delusional.

                      There is no doubt that the fools that you are trying to blame were cheering for Mueller to defeat Trump and they now look like idiots because it all turned into a nothing-burger and they were cheering for the losing team. But it is completely delusional to think they made it happen simply because they showed their approval.

                2. Obama’s corruption is still on display.
                  That may well be true. I am perfectly willing to accept that Obama was corrupt. But that is evidence of absolutely nothing in regard to who was behind charging Flynn.
                  May I remind you that after the Trump DOJ took over the Russia investigation. All the same evidence that had led the FBI to conclude that there was no violation for which Flynn could be charged was somehow twisted into the tale that Flynn had committed a crime. And of course they did not have to produce any convincing evidence that would stand up in court to prove that brand new invented story because they had Flynn swearing that it was true and correct.

                  1. A special counsel is by it’s nature not a Trump instrument.
                    I find your take interesting but believe you have the wrong target chosen for inception.
                    We have plenty of information how the FBI Flynn interview was twisted, and we have direct information on who demanded it not be closed.
                    Perhaps the worst aspect of it all, the clowning insignificant idiocy of it, the glaring seditious cream on top – is the fact that they had the call before the illegal interview Comey bragged about concocting occurred.
                    I’m laughingly wondering what drugs they are all on in DC.
                    The missing 302, the absolute false creation of a lie said to somehow be a crime, no one knows how it could or should be except the crazed anything goes DC goofballs. It’s a silly, sick, insignificant, ridiculous game of stupidity – one that has been blown from a molecule into a mountain.
                    I ask again what kind of drugs are all those people on ?
                    Obama made a mess having his hissy fit attack on Russia on the way out the door, and that certainly was part of the plot as well – to pretend quite openly that some great unfathomable disaster beset the election. Another obviously criminal act of dangerous proportion.
                    I could try to side with your Trump (R) set em up theory if we didn’t have hundreds of points of evidence from Obama’s movements and actors.
                    Good luck with that, I’ll keep listening, I have enjoyed your angles and takes on things.

                    1. “What is the cost of lies? It’s not that we’ll mistake them for the truth. The real danger is that if we hear enough lies, then we no longer recognize the truth at all”

                      – HBO miniseries “Chernobyl” went viral on the Chinese messaging app WeChat

                    2. We have plenty of information how the FBI Flynn interview was twisted,
                      It was twisted by the DOJ creating a false statement of offense which Flynn swears under oath is true. Without that one piece of evidence there is no viable case with enough evidence to convict.

                      The FBI agents said they had no evidence Flynn lied or committed any crime that they could pursue charges against Flynn. The Trump DOJ after they took the case away from the FBI and had the same evidence said there was a crime. But the evidence for a crime is still not there. The only way that the case has any legs is if Flynn swears the phony facts that the DOJ presented in the statement of Offense are true. Without those phony facts the case is a bust.
                      The missing 302, the absolute false creation of a lie said to somehow be a crime
                      I suppose you believe Obama is hiding the missing evidence in his basement or maybe the judge hid it in his attic. Or maybe the fired FBI agents took it with them as a souvenir.

                      Why don’t you ask AG Barr about any and all missing evidence? If there is any relevant missing evidence Barr has it and is keeping it hidden.

  11. Fox News Poll:

    DOJ Lacks Support On Flynn Case

    Biden Leading Trump In Most Categories

    In the 2020 ballot test, Biden leads Trump by 48-40 percent. Biden’s 8-point advantage is outside the poll’s margin of error. However, given that 11 percent are undecided or plan to vote for someone else, neither candidate hits 50 percent support. The race could go either way.

    Among voters who are extremely motivated about voting this fall, Biden has a 12-point advantage (53-41 percent). More Biden supporters (69 percent) than Trump supporters (63 percent) feel extremely motivated to vote.

    Trump leads by 7 points among men and by 30 among rural whites. He won both groups by larger margins in 2016 (11 and 37 points respectively).

    Biden leads by 20 points among women and 64 points among blacks. Compared to Hillary Clinton in 2016, he bests her performance among women (Clinton was +13) but lags among blacks (Clinton +81).

    The 27-point gender gap is even larger than the record 24-point gap in 2016.

    Biden makes inroads with two key groups: independents prefer him by 13 points and voters ages 65+ by 17 points. In 2016, Trump won independents by 4 and seniors by 7.
    Even small differences in party loyalty and defections matter in tight races. Biden receives the support of 88 percent of Democrats and 8 percent of Republicans. For Trump, 84 percent of Republicans back him and 3 percent of Democrats.

    Sixty-nine percent are following Tara Reade’s allegation against Biden. Fifty-two percent of say the allegation will factor in their vote, including 24 percent who say it will be a major factor. It will not be a factor for 44 percent. More men (56 percent) than women (47 percent), and more Republicans (62 percent) than Democrats (46 percent) or independents (40 percent) say it will factor in their vote .

    At the same time, voters trust Biden to do a better job than Trump handling women’s rights by a 23-point margin, with one-in-ten (13 percent) saying they trust “neither.”

    Trump’s personal favorable rating is net negative by 12 points: 43 percent view him positively, while 55 percent have an unfavorable opinion (including 45 percent “strongly” unfavorable). Biden has a net positive rating by 2 points: 48 percent favorable, 46 percent unfavorable (31 percent “strongly” unfavorable). Those who view both negatively prefer Biden over Trump by 40-11 percent.

    As states work on ways for people to vote safely in the middle of a pandemic, voters favor allowing mail ballots this year by a 63-30 percent margin.

    About one in five, 19 percent, report they usually vote by mail/absentee. When asked about this year, nearly twice as many, 35 percent, say they want to vote by mail.
    Democrats are much more likely than Republicans to favor allowing mail-in voting because of coronavirus (83 vs. 42 percent), and Democrats are twice as likely to want to vote by mail this year (46 vs. 23 percent). In addition, groups that prefer Biden are among those most inclined to vote by mail in the fall, including women, seniors, and liberals.

    Former President Barack Obama remains popular. Sixty-three percent have a favorable opinion of him. That skyrockets to 93 percent among Democrats. Biden’s favorability among Democrats sits at 81 percent and Trump gets 85 percent among Republicans.

    Views split over the Department of Justice dropping charges against former national security adviser Michael Flynn: 31 percent approve, 37 percent disapprove, and 32 percent are unsure. In 2017, Flynn pleaded guilty to lying to the FBI during the Russia investigation. When asked whether the FBI acted appropriately during that investigation, 36 percent of voters say yes, while 31 percent say no.

    Conducted May 17-20, 2020 under joint direction of Beacon Research (D) and Shaw & Company (R).

    Edited from: “Fox News Poll: Biden Mre Trusted On Coronavirus, Trump On Economy”

    Fox News, 5/21/20


      The Most Notable Findings Are:

      * Trump is slipping among seniors and independents.

      * Biden has a huge lead with women and Blacks.

      * Only 31% Approve of DOJ’s handling of Flynn case.

      * Obama is far more popular than Trump.

  12. That’s the stupidous comment. Don’t just Make Stuff Up.


  13. Twinkle Toes, you are back from your nail parlor. Polls aren’t used to decide legal issues. They aren’t very good at predicting elections either. Hillary was going to win by a massive landslide.

    Wht do you even bother with this crap. Go flirt on Muscle Beach.

  14. No one cares what the babbling jabberers claim is some sacred authority of the Sullivan court to sentence or whip up another crime because treason fell off the table for the raging judge.
    The USA’s ideas if nothing else have been based on fairness, and after the AG appointed investigation determined the government in no way shape or form met that standard and decided to pull the case, that’s the end of it, unless you have mental problems.
    Instead of sanity, we are to believe a corrupt government, courtroom, and lied to public are to stand by while that last bit of injustice is perpetrated on the defendant, by another out of control unfair and idiotic servant paid for by the people.
    One truly has to be unhinged to take that stance.
    It’s over with.
    Our criminal government was put in check by Sidney Powell and whomever she had/has as assistants.
    This American thanks Sidney Powell and her helpers, this American knows we need a lot more like Sidney Powell to stand against the corrupt, disgusting and flagrant sicknesses perpetrated on fellow Americans with the power of an out of control government machine.
    Now I await the recompense, though I thoroughly doubt that will be sufficient.
    Our sickening twisted out of control fools on their perches of power would much prefer to continue to pretend nothing is due.
    It’s just disgusting. All of it.

  15. “Biden Leads Trump’s In Most Categories”

    Out of the 50 individual aliases on this blog Biden leads by about 32 votes. There are 9 votes for and against Biden in the normal group but 32 votes coming from the nail salon all went to Biden. Paint Chips brought in all those absentee ballots to the polls saying the vote count is accurate, He provides names of all the others that voted such as William Elder, Pike Bishop, Seth Warner etc. Buttercup refused to comment.

  16. This blackrobe Sullivan has turned his court into a circus. This is the most preposterous exercise I have ever seen in federal court. I know dead lawyers who have sandpapered the insides of their coffins turning in their graves over it. We the living just puke. While the Democrat mob screams its loudest over the dumbest stuff.

    I can hardly believe the energy you fools are putting into this. it’s a foregone conclusion the charges will be dismissed.

    Have fun tiring yourselves out for free. Democrat rah rah volunteer cheerleaders. For a party which is controlled by billionaires, like Mike Bloomberga and the geeks in Silicon valley. wow.

    1. “I can hardly believe the energy you fools are putting into this.”

      Kurtz, have you noted the amount of energy expended on the finest details of the case by CTHD in his attempt to put Flynn behind bars yet he hasn’t bothered to quote in context the lies made by Flynn that should lead to such a decision. It’s awful how easily some will pervert the law to put an innocent political enemy in jail.

    2. Whitmer extends Michigan’s state of emergency to June 19

      Have a nice June.

      1. I think the witch governor is going to have a terrible June.

        Did you see the dams broke because her people wouldn’t let the dam operator release pressure because they were afraid some mussels would die?

      2. She’s already facing non-compliance because the stay-at-home orders were not directed at people who were actually vulnerable and people are now able to obtain protective equipment. Eventually, local police are going to start telling her to bloody enforce it herself.

  17. In the context of the recent SCOTUS decision in United States v. Sineneng-Smith and the unanimous embrace of the party presentation principle and denunciation of courts that embark on radical transformation of cases, Judge Sullivan rationalizes that the court has a sudden and compelling interest in appointing an amicus curiae (after previously and repeatedly denying amicus curiae for the defense) because “that can help the court beyond the help that the lawyers for the parties are able to provide”.

    The operative word here is “beyond” and the implicit operative notion is that lawyers (representing the parties) simply provide “help” to the court (apparently in its role as the omniscient and supreme adjudicator dedicated to the noble quest of righting wrongs) as opposed to the parties being the primary determinants of the the issues and matters under consideration.

    Contrast that particular brand of reasoning from Judge Sullivan with this from Greenlaw v. United States, 554 U. S. 237 (2008), where the Supreme Court stated, “we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”

    Those two judicial world viewpoints simply can not coexist either comfortably or amicably. The precedent implied here is as ominous as it is foreboding–judges simply introducing and/or denying amicus curiae at will in order to reshape cases into their own image of what issues should be in play and what matters are at stake.

    In more prosaic terms–judicial activism on high dose steroids.

    1. I disagree with your interpretation, specifically, your claim that “the implicit operative notion is that lawyers (representing the parties) simply provide “help” to the court … as opposed to the parties being the primary determinants of the the issues and matters under consideration.”

      The quote “help the court beyond the help that the lawyers for the parties are able to provide” comes from Ryan v. Commodity Future Trading Commission, and earlier in the same paragraph from which Sullivan quotes, Judge Posner writes “The term “amicus curiae” means friend of the court, not friend of a party.” The goal of allowing amici is to help the court come to a just decision. It doesn’t imply that the parties’ lawyers “simply provide “help” to the court” (emphasis added), only that the court draws on their arguments in reasoning about what ruling is just, and there are times when additional help is valuable. This is why amicus briefs are so common in SCOTUS cases: those briefs help the justices reason through what ruling is just. In fact, in Greenlaw v. United States, there’s an amicus brief from the National Association of Criminal Defense Lawyers in Support of the Petitioner.

      “In more prosaic terms–judicial activism on high dose steroids.”

      If you’re correct (though your argument doesn’t convince me), then no doubt the DC Circuit will rule against allowing amici in this case. Note, however, that the DC Circuit didn’t order Judge Sullivan to address that issue, only the “petitioner’s request that this court order the district judge to grant the government’s motion to dismiss.”

      1. You disagree with me without flaming or trashing me? I respect you already.

        The point is that it’s hard to reconcile Judge Sullivan’s statements with a neutral arbiter adjudicating the facts and matters as advocated by the parties.

        Amicus(i) curiae is unusual in criminal cases excepting pro se litigants where the party may be “unable” to effectively advocate and advance the relevant issues and matters at hand. Judge Sullivan’s statement “that the lawyers for the parties are able to provide” is interesting. There’s a pathway there.

        As far as Judge Posner’s take, it’s spot on only in this case when amici curiae is consistently denied one party and amicus curiae is initiated/granted by the court for the other party at first blush, it’s slightly difficult to view this as not friend of a party unless, of course, the friend of the court is also the friend of the party which given Gleeson’s oped in WaPo is precisely the case; however, no worries, there’s nothing to see here and it happens all the time.

        Re your point on the DC circuit, the mandamus bar is high but ultimately the court will almost certainly have to grant the DOJ’s motion to dismiss. Legally, it’s just a matter of time.

        However, if you follow a certain Harry Litman’s line of reasoning, then that may not be what this is all about.

        And that, is far, far more concerning than anything discussed above.

        1. The point is that it’s hard to reconcile Judge Sullivan’s statements with a neutral arbiter adjudicating the facts and matters as advocated by the parties.

          The problem in this case is that it now appears to the judge that the parties had been lying to the court about the facts and matters for 2 years. Both parties are now contradicting the previously agreed upon facts which were the sole basis of the case and both parties want the whole thing now to just disappear and be swept under the rug.

          It should be obvious that it is very likely something shady or fraudulent has been going on in this court. Don’t you think the judge has a right to examine what happened? Or do you think the judge should just roll over and say ‘sure anytime you guys want to bring your phony cases into my court you are always welcome’?

          1. The judge knows full well the prosecution was phony from the start. The 302 is missing. The perfect and legal phone call is missing. The entrapment interview has been public knowledge for years. Comey’s antics and crimes have been on the news admitted from his own lips.
            The problem is we have a raging left wing freak judge who screams treason, and now wants to scream up his own prosecution. The judge is the lying criminal from the first, just like the prosecution.
            Where’s the 302 ?
            The judge never demanded the proper evidence and failed to throw out the joking lie the government brought. Once entrapped, a defendant is playing by the corrupt rules of a sick judge and just as sick prosecutor. Now both those fools have been caught out, for some time.
            They give themselves amicus while having denied and declared it illegal to the defendant – in the same case.
            Only a partisan criminal pretends to not understand.
            Pretending justice has ever been afoot in all of this case a joke.
            A crime from the beginning, and the cover up is still accepted by the criminal Sullivan.
            Where’s the 302 ? Where are the government’s conclusions before the lying charade activists decided rewriting history and holding a gun to Flynn’s head would be the way forward ? I’ll tell you where, still missing.
            A person who isn’t a clown, and we have many corrupt clowns nowadays, would have tossed the government out on it’s butt at the beginning. Instead, our idiot judge said “Sure prosecution, go right into the evidence locker and alter and destroy and remake whatever you want !”
            I don’t know why everyone is so thick.
            I guess national slime rolls off by the coasts and infects everyone’s corrupt brains.

            1. A person who isn’t a clown, and we have many corrupt clowns nowadays, would have tossed the government out on it’s butt at the beginning.
              If you read the transcripts of the hearings before Sullivan there is a lot to indicate that Sullivan is very skeptical. For instance he advises Flynn that the judge can get him another competent attorney to give him a second opinion. Flynn refused. He also asked Flynn if he had in any way been tricked or coerced and Flynn under oath said no. There is not a lot a judge can do if the defendant is swearing under oath that the facts that show he is guilty are true and correct.

              1. That’s not the original. It’s your lie, cahoots with Strok and Page.

                1. I’d be happy to be convinced **with evidence** that “That’s not the original.”

                  What are you taking as evidence for your claim?

                    1. So link to it.

                      Just because it’s public doesn’t mean I’ve seen it, and it’s not my job to look up evidence for your claim. You’re the one who’s claiming that what I linked to is “not the original,” and you’re the one with the burden of proof for demonstrating that what I linked to is “not the original.”

                      Instead of assuming — without any evidence — that I “wouldn’t” be happy to be convinced with evidence, test your assumption by presenting the evidence and seeing how I respond.

                    2. You’re the one who’s claiming that what I linked to is “not the original,”
                      Whether it is original or not is beside the point since it does not show that Flynn lied to the FBI. There is evidence that this is a rewrite of the original and there are also the raw notes the FBI agents took during the interview that are being withheld by the Trump DOJ. It is the Trump DOJ that is not allowing the complete evidence to be seen.

                      But all that is just another phony distraction because there has never been solid convincing evidence that Flynn lied to the FBI beyond that phony Statement of Offense that Flynn swore was true and correct. Without the phony statement of Offense and Flynn swearing that it is true the evidence for a conviction is clearly insufficient.

            2. The judge knows full well the prosecution was phony from the start. The 302 is missing. The perfect and legal phone call is missing.

              The exculpatory evidence was never presented to the court so there is no means for the judge to know about the true facts of the case. The prosecution and defense had all the exculpatory evidence but it was not presented to the court. The court was presented a phony set of facts by the prosecution and Flynn and his lawyers attested to the court that the prosecution’s version of the facts was true and correct.

              They all were lying to the judge.
              Now the prosecution and Flynn and his lawyers are asking the judge to just sweep it all under the rug and pretend it didn’t happen. The judge responds wait a minute what about all the BS you fed to the court for 2 years?

        2. Well, I posted a long response earlier this morning, but it isn’t showing up. I’ll wait a while longer, in case it went to moderation for some reason I’m unaware of (I now know that you can’t post more than 2 links here, but I don’t think I did that; but I did copy and paste text from elsewhere, and it’s possible that it had some hidden characters that created problems). If it doesn’t show up later, I’ll try to rewrite it;.

          1. Commit, in my experience, if you mistakenly post more than 2 links, your post will show up on your page with a highlighted noted saying it is being held for review, or something like that. That gives you a chance to copy it, drop a link, and re-post.. Other times I have had posts not show up for who knows what reason and I try to remember (not usually) to copy it before posting so I can resubmit it. Helpful on especially long ones.

            1. By “on your page,” I don’t know what page you’re referring to. I have a page here somewhere?

              1. No, I meant on your screen – the normal screen you see after posting. It will have your post with the note about “awaiting review” or whatever it says, but no one else will see that post.

                1. I’ve never seen an “awaiting review” note. After I hit “post comment,” I get a “submitting comment” message, and then that goes away, but I almost always have to reload the page before seeing that my comment has been added to the page, and sometimes my comment doesn’t show up for a few minutes. Unless I happen to copy the comment before hitting “post comment” (which I almost never do), if it doesn’t post, it’s lost. I don’t think I included any links in that comment, but I’m not certain. I did copy and paste quotes from elsewhere (e.g., the Motion to Dismiss, a CBS News page with a Pence interview), so it’s possible that those pastes created some tech glitch. I’ll try to reconstruct the comment later; I don’t have the energy right now. I appreciate your trying to problem-solve with me.

                  1. Again, what I described only occurs when I try to post with more than 2 links. If you haven’t seen it, that probably means you did not post with more than 2 links.

                    1. I did try to do that once, and as I think about that further, I may well have seen something like “awaiting review,” but I didn’t really think about it since my comments often take a few minutes to post. I later got a message from Darren Smith about that comment, letting me know that there was a 2-link limit, and he slightly edited my comment (removing one of the “https://” prefaces) in order to make it possible for the comment to post. I’ve tried to be careful about that since then, and I’m almost certain that I didn’t include links in this one, and I don’t recall an “awaiting review” notice. At any rate, either something went wrong and it’s pending review and Darren will eventually see it and presumably OK it, or I’ll reconstruct it later. Thanks again.

        3. OK, my earlier response still isn’t showing up, so I’ll try again.

          Re: my not flaming you, I try not to insult people, though I sometimes fail. I think society is better off if we try to be civil and that it’s especially important if I’m trying to have a substantive discussion with someone I don’t know and whose views are different than mine, as those kinds of discussions can easily shut down / devolve.

          Re: “only in this case when amici curiae is consistently denied one party and amicus curiae is initiated/granted by the court for the other party at first blush,” I think it’s important to distinguish between the parties (the DOJ and Flynn) and the issues about which amici may file (in favor of or against a Motion to Dismiss). Both the DOJ and Flynn are on the same side re: the Motion to Dismiss, and presumably Sullivan doesn’t think it’s a straightforward issue, so Sullivan is inviting amici on that to help him make an informed decision. He isn’t granting amici here for one of the parties but not the other. The parties are on the same side (in favor of the Motion), and Gleeson is appointed on the other side, and additional amici can argue either way re: the Motion to Dismiss.

          On 5/12, he wrote “Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs… ‘An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.’ [ellipsis in the original] … ‘An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.’”

          Amici on both sides of the whether the Motion to Dismiss should be granted have already posted drafts and stated their intention to file, and they’ve stated what their interest is.

          On 5/13, Sullivan appointed Gleeson as “amicus curiae to present arguments in opposition to the government’s Motion to Dismiss … [and] address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury …”

          I think Sullivan is warranted in this, as there are serious errors/misrepresentations in the Motion to Dismiss and serious questions about whether Flynn’s January declaration, filed under penalty of perjury, contradicts multiple other statements he’s made under penalty of perjury. Re: the former, as just one example, the Motion refers to “newly discovered and disclosed information,” but I didn’t see any specification of what information was newly discovered by the DOJ. Sullivan had already addressed the issue of the limited newly disclosed info. If you want me to quote more errors in the Motion, let me know. Ditto re: the perjury issue.

          Re: “ultimately the court will almost certainly have to grant the DOJ’s motion to dismiss,” I’m not as convinced as you. But either way, if we simply wait, we’ll find out.

Comments are closed.