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Judge in Michael Flynn case may allow ‘amicus’ briefs on whether to drop case – is there reason for freak out?

Judge in Michael Flynn case may allow ‘amicus’ briefs on whether to drop case – is there reason for freak out?

This might just be a case of Judge Sullivan wanting to appoint someone to argue the government’s (former) position now that the proscution and defense are on the same side. Or Sullvan may feel there is political manipulation going on and prefer to force a Trump pardon rather than let Flynn off the hook himself.

https://www.youtube.com/watch?v=3i83wPkcB-k

The Department of Justice, after concluding that the prosecution of Michael Flynn was the product of misconduct by FBI and DOJ officials, moved to drop the case against Flynn.

But not so fast. Flynn pleaded guilty, a plea that the DOJ motion to drop the charges calls into question. A judge has discretion whether to allow a case to be dropped, but normally if the prosecution doesn’t want to prosecute, a judge will not force a prosecution. But where a guilty plea has been entered and accepted by the court, and a motion to withdraw the plea rejected by the court, the court has a lot more power because the prosecution, in a sense, is over already. Only sentencing remains.

The DOJ decision has infuriated the media and Democrats. They wanted Flynn in prison no matter what. Anti-Trump Protect Democracy rounded up 2000 former prosecutors — again, this has happened before — to write an Open Letter calling on AG William Barr to resign over the decision.

Then things got curious when Judge Emmet Sullivan made a docket entry suggesting that he may allow “amicus” briefs from non-parties. This is highly unusual in criminal cases.

The docket entry reads (emphasis added):

05/12/2020 MINUTE ORDER as to MICHAEL T. FLYNN. 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 pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘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.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)

Flynn counsel filed a motion and brief (pdf.) opposing allowing amicus briefs:

On May 11, 2020, a group referring to itself as “Watergate Prosecutors” submitted to the Court by email a Notice of Intent to File Motion for Leave to File Brief as Amicus Curiae.1 However, this Court has consistently—on twenty-four (24) previous occasions—
summarily refused to permit any third party to inject themselves or their views into this case. Exhibit A. The proposed amicus brief has no place in this Court. No rule allows the filing, and the self-proclaimed collection of “Watergate Prosecutors” has no cognizable special interest. Separation of powers forecloses their appearance here. Only the Department of Justice and the defense can be heard. Accordingly, the Watergate Prosecutors’ attempted filing itself should not be registered on the docket, and any attempt by the group or any individual to make a filing in this case must be denied—as all others have been.

[1 The Watergate Prosecutors’ Notice also referred to this Court’s Local Criminal Rules, LCrR 57.6, but, as will be seen, applied for no relief other than permission to file an amicus brief. They do not have “a dog in this hunt” any more than do the former “Whitewater” prosecutors or the “Clinton impeachment” prosecutors.]

* * *

As set out in Exhibit A, this Court, on twenty-four specific occasions has rejected all prior attempts of other parties who have claimed an interest to intervene in this case in any way—as it should have….

Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family. No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.

So what’s going on here? Obviously, I don’t know what’s in Judge Sullivan’s mind, but he has not yet said he will accept amicus briefs. He said he will consider it, and Techno Fog on Twitter suggests from missing docket entry 201 (see image above) that a request with proposed brief already has been filed. [See Update below]

What would be less unusual is if Judge Sullivan appointed counsel to represent the government’s (former) interest, now that the government has changed it litigation posture. That happens approximately once per term in the Supreme Court, particularly where no party any longer is defending lower court decisions. In SEC v. Lucia, the Supreme Court “invited” a specific amicus counsel after the SEC switched its position, and there no longer was anyone in the case defending the lower court decision.

Here, the decision to drop a case post-guilty plea is highly controversial, so perhaps Sullivan feels the need to have SOMEONE argue against it since both the prosecution and defendant are on the same side. Sullivan may, in a sense, be conducting a beauty contest to decide who to appoint to argue the government’s (former) position.

In a worst case scenario, Sullivan doesn’t want to drop the case and is creating as much of a record as he can. It would ultimately be an act of futility, since Trump almost certainly would pardon Flynn in this scenario, but that might be the preferred path for Sullivan given his expressed disdain for Flynn. Make Trump do it.

UPDATE:

The Court denied the secret motion to file an Amicus Brief pending a further scheduling Order:

05/13/2020 MINUTE ORDER as to MICHAEL T. FLYNN. On May 11, 2020, Chambers received proposed amici curiae’s “Notice of Intent to File Motion for Leave to File Brief as Amicus Curiae or Application Under Local Rule 57.6” and “Statement of Interest.” In light of the Court’s forthcoming Scheduling Order governing the submission of any amicus curiae briefs, leave to file the submission by proposed amici curiae is DENIED. The Clerk of Court is directed not to docket the filing submitted by proposed amici curiae. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

Also, a 5-13-2020 docket entry indicates that entry 201 was a motion by the defense:

05/13/2020 MINUTE ORDER as to MICHAEL T. FLYNN denying 201 Defendant’s Sealed Motion for Leave to File Document Under Seal; construing 203 Defendant’s Sealed Document as a motion and denying as moot the relief requested; denying as moot 204 Defendant’s Motion to Strike and Opposition to Notice of Intent to File Motion for Leave to File Amicus Brief. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

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Comments

thad_the_man | May 12, 2020 at 9:55 pm

Since the judge apparently was given a brief, I don’t think this is that unusual.

Something to keep in mind, judges will often giove “l;osing dies” a bit more leeway to reduce the number of issues thye have on appeal, Rhis could simply be Sullivan tellling the appeals court, I gave the prosecution as much as they wanted.

Well, I’m no legal scholar, and it’s tough for us citizens to understand the nuances here. He pled guilty. So what? If judges started to question the motivations behind pleas, then the plea-bargain business in every court in the land would immediately be cause for similar suspicion, wouldn’t it?

I guess it would be helpful if someone could game it out for us. Is Flynn still entitled to appeal (guess not)? What is the mechanism for bringing the miscarriage of justice on the part of the FBI to light for scrutiny then?

I contend there is still something unseen in the picture here, I guess primarily why the judge would have such animus for Flynn over lying to the FBI, especially when it’s not very clear cut (missing 302’s etc). What part of the case inspired Sullivan to tell Flynn he ‘sold his country out’??

    ghost dog in reply to Aggie. | May 12, 2020 at 10:43 pm

    The phony FARA charge.

      Aggie in reply to ghost dog. | May 12, 2020 at 11:13 pm

      But see, that’s kind of what I mean. Those charges were quickly shown to be falsehoods, and were withdrawn; and in any event, they would be a failure to ‘register as a foreign agent’. It would still remain, even after that, to demonstrate that the accused was ‘selling your country out’, correct?

      MattMusson in reply to ghost dog. | May 13, 2020 at 7:52 am

      Sooner or later it is going to come out that Flynn conversation with the Russian Ambassador was not an accidental intercept. Flynn was already under illegal investigation as a primary target by the intelligence services.

      It helps muddy the waters and covers a lot of asses if Flynn is guilty of something. Anything.

        Lemmie tamp down that conspiracy there with some reality. The Russian ambassador’s calls are all tapped. Same for China, and most probably anybody with ‘Ambassador’ in their title somewhere, even our allies. As the *incoming* National Security Advisor for Trump, who had just won the election but was not sworn in yet, Flynn had every right to contact foreign ambassadors of all stripes, and in fact had made dozens upon dozens of calls, post election. That was his *job*

        The FBI knew Flynn had not made any improper offers to Russia or vice versa in the call. They had the *transcript*

          Barry in reply to georgfelis. | May 13, 2020 at 12:49 pm

          Yes, it was always a corrupt farce.

          Bruce Hayden in reply to georgfelis. | May 13, 2020 at 12:55 pm

          I respectfully disagree as to the targeting of US Persons. The standards are very different for targeting non US Persons (like the Russian Ambassador) and US Persons (like incoming Administration officials like Flynn), esp when in the US. The base of the difference is that US Persons have full Bill of Rights (esp 4th Amdt) rights, and foreigners do not, esp if they are employees or agents of foreign countries like Russia. In the end, the 4th Amdt requires probable cause be shown for warrants.

          The interesting thing to me is that there have been recent claims that Interception of Flynn’s conversation with the Russian Ambassador was a result of targeting Flynn, and not the Russian Ambassador. That would have required a Title I FISA warrant or a court ordered warrant (unlikely since they require probable cause be shown of criminality). Much tougher than merely unmasking Flynn from a call intercepted through a standing FISA warrant on the Russian Ambassador’s phone. (Remember, FISA was initially designed to do just that – to provide a legal framework for wiretapping Soviet and ChiCom officials in this country). It is plausible though, in view of the discovery that most of a random sampling of FISA warrants procured by the FBI were faulty, and a surprising number completely lacked legal predicament support (missing Woods files). Still, I think the unmasking of the call intercepted pursuant to the standing FISA warrant on the Russian Ambassador was much ore likely.

    Connivin Caniff in reply to Aggie. | May 13, 2020 at 3:53 am

    Here’s how you “game it out”: Judge Sullivan has already proven he is biased in this case. Now he is trying to prove he is corrupt.

Close The Fed | May 12, 2020 at 10:04 pm

I don’t get this. Last week, in a 9-0 decision authored by RBG, SCOTUS specifically wrote in United States v. Sineneng-Smith the Ninth Circuit Court of Appeals indulged in an “abuse of discretion.” Granted, this was an appeal, and not the initial decision concerning innocence or guilt, nonetheless, the reasoning applies!

From:
https://lawandcrime.com/supreme-court/justices-ginsburg-and-thomas-bash-9th-circuit-for-abuse-of-discretion-in-immigration-consultant-case/

The Supreme Court unanimously held that the Ninth Circuit “panel’s drastic departure from the principle of party presentation.”

“The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. ‘In both civil and criminal cases, . . . 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,’” the Supreme Court’s holding said. “That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. … Electing not to address the party-presented controversy, the panel projected that [8 U.S.C.] §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court.”

The Court called the Ninth Circuit‘s hijacking of the case a “radical transformation” that went “well beyond the pale.”

‘[W]hether the statute of conviction is overbroad . . . under the First Amendment,’” Ginsburg wrote [citations removed for ease of reading]. “In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal statute. We granted the petition.”

The high court consequently vacated the Ninth Circuit’s judgment and remanded the Sineneng-Smith case so that it could be decided—not as “designed by the appeals panel” but as argued by the parties.

    Milhouse in reply to Close The Fed. | May 12, 2020 at 11:43 pm

    I don’t see the comparison between the two cases. The ninth circuit only had the authority to consider the case that was before it; instead it considered new questions that had not been raised at trial, and were therefore not part of the case.

    Here, this is the case. The guilty plea is on the record, and now the question is whether the judge should allow it to be withdrawn; it’s his decision, but neither party is going to make any arguments against it, so if he wants to hear some arguments he’ll have to hear them from someone else. That’s what amici curiae are for — to bring up points that it’s not in either party’s interest to raise.

    He still can’t consider any new questions, that have nothing to do with the case as presented. For instance, to bring it back to the ninth circuit case, supposing there were an argument to be made that the statute that Flynn was convicted of breaking is unconstitutional, he couldn’t consider it, because nobody raised that question. (If there were in fact such an issue, and the defense didn’t want to raise it, an amicus could have done so during the trial.)

      Liberty Bell in reply to Milhouse. | May 13, 2020 at 5:56 am

      To continue the prosecution, the Flynn Court would have to be vested with the power to appoint a Special Counsel. Absent legislation, that power is vested in the Executive not the Judiciary. Third Parties cannot be invited to serve as Special Counsels in Fact by a Court when no controversy exists between the Prosecution and Defense.

      Sineeng-Smith does control. Here is the holding in Sineeng-Smith

      The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.
      The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to framethe issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.
      That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal.

        Milhouse in reply to Liberty Bell. | May 13, 2020 at 11:20 am

        No, Liberty Bell, you’re barking up completely the wrong tree. Sheering-Smith is only about an appeals court raising new questions that were not raised at trial and are not in the record of the case. The statute in question there probably is unconstitutional, just as the ninth circuit said it is, but it had no authority to say so in this case, because nobody at trial raised it.

        That has no resemblance at all to what is going on here. If Sullivan decides not to accept the prosecution’s withdrawal, he doesn’t need to appoint a special counsel. He can simply proceed with sentencing and that would be that. It is entirely up to him. So he’s entitled to see arguments for whether he should do so or not. That is all.

          Concise in reply to Milhouse. | May 13, 2020 at 11:38 am

          Yeah, I suppose he could try that garbage, although I suspect that decision wouldn’t stand for long. But inviting 3rd party political hacks to make argument to support his hack decision? Give me a precedent for that.

          Milhouse in reply to Milhouse. | May 13, 2020 at 1:33 pm

          What do you think amicus briefs are for?

          Concise in reply to Milhouse. | May 13, 2020 at 2:05 pm

          In general, they might serve as toilet paper substitutes. In a criminal trial court decision in this context, I can see no other purpose other than to make the whole process a political clown show. Name a precedent for this use of amici briefs.

        Milhouse in reply to Liberty Bell. | May 13, 2020 at 11:20 am

        s/Sheering/Sineeng

      Terence G. Gain in reply to Milhouse. | May 13, 2020 at 6:54 am

      Millhouse

      What’s also on the record is that Obama’s DOJ targeted an innocent man for political purposes and coerced a guilty plea because the innocent man was trying to protect his family and was being bankrupted. This judge should recuse himself because he is biased and incompetent. The Flynn prosecution is a travesty of justice and to allow it to continue for one nanosecond longer is outrageous.

    sequester in reply to Close The Fed. | May 13, 2020 at 5:45 am

    What differentiates this case from Sineeng-Smith is politics. The reasoning in United States v Sineneng-Smith applies and should govern Flynn Courts action. Criminal cases are controversies between the United States and the Defendant. Not between the Defendant and 3rd Parties. Since there is no longer a Controversy the Court does not have jurisdiction.

    IF the Flynn Court continues down this path, the Government should join with the Defense and seek a Writ of Mandamus from the United States Supreme Court.

      Milhouse in reply to sequester. | May 13, 2020 at 11:23 am

      Sorry, sequester, you are simply wrong. There is no resemblance whatsoever between the two cases. Sullivan is not raising any new issues. Whether to allow the charges to be withdrawn at this stage is entirely up to him. He doesn’t have to allow it. So the question of whether he should allow it is very much relevant, and he’s entitled to have someone make a case (if any) for why he shouldn’t.

        Concise in reply to Milhouse. | May 13, 2020 at 11:35 am

        To charge or not to charge is something entirely within the discretion of the prosecutor. Since when are 3rd parties invited to opine on that? Give me an example of a federal criminal trial court judge inviting 3rd party amicus briefs in an analogous circumstance.

          Barry in reply to Concise. | May 13, 2020 at 12:52 pm

          “Give me an example of a federal criminal trial court judge inviting 3rd party amicus briefs in an analogous circumstance.”

          He can’t, he wont. He makes up the law to support the progs.

          Milhouse in reply to Concise. | May 13, 2020 at 1:36 pm

          To charge or not to charge is within the prosecutor’s discretion. But that decision was made long ago. He’s already been charged, tried, and convicted. It is not within the prosecutor’s discretion to withdraw the charges now; the prosecutor can ask the judge to do so, but it’s within the judge’s discretion.

          And Barry’s a vile, vicious liar as usual. To accuse me of supporting progs is utterly without foundation, and the only possible explanation is that he has no concept of the existence of truth.

          Concise in reply to Concise. | May 13, 2020 at 2:10 pm

          Are you really this dense? My point was that since the decision to charge, or to prosecute in the first place, is entirely within the discretion of the prosecutor what sense does it make to invite 3rd party political hacks to opine now. In the future I spell it out clearly so you can understand. Still waiting for an analogous example. Would you like me to define analogous.

          Concise in reply to Concise. | May 13, 2020 at 3:12 pm

          Let me clarify further since you seem particularly confused here. In our system, the executive prosecutes, sentencing is a phase in that process. The executive has declined to proceed. That hack might be looking for an excuse to convict, he probably likes the attention. He is a disgrace.

          Barry in reply to Concise. | May 13, 2020 at 5:12 pm

          Just like I said: He can’t, he wont. He makes up the law to support the progs.

          And when called out for his failure he uses the same old hotkey buzzwords…

        Edward in reply to Milhouse. | May 13, 2020 at 1:01 pm

        It would appear sequester was looking at the SCOTUS decision from the point of view of the Notorious RBG and 3d Party inclusion:

        “The unanimous opinion of the Court, written by Justice Ruth Bader Ginsburg, held that the Circuit Court had committed an abuse of discretion by overstepping its bounds by “drastic departure from the principle of party presentation constituted an abuse of discretion”, instead of “adjudicating the case presented”, as established in Greenlaw v. United States (554 U.S. 237 (2008)).

        She went on to write:

        “In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role . . . 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 . . . No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others . . . a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”[

          Milhouse in reply to Edward. | May 13, 2020 at 1:41 pm

          Exactly. And there is no comparison between that case and this. Sullivan is not “sallying forth looking for wrongs to right”. He is not looking to decide anything beyond the questions presented by the parties. The government has made an application to him, and he has to decide whether to grant it or not. How can you possibly claim that that question is not squarely before him? How can he avoid considering it?

Obama Holder and Jarrett are running this with their shadow government

    obama isn’t running anything. He’s soros’ organ grinder monkey, at best.

    But soros sure seems to be running things.

    At this point, we can only wonder how loyal the military is to the Constitution.

My $.02 is judge trying to help his fav potus Obama…..

past tense of plead = pleaded or pled, not plead

Will an americus brief including documents/transcripts/evidence detailing government wrongdoing/lawbreaking be submitted to judge sullivan? If so, will he consider it? Will judge sullivan hold any government prosecutors in criminal contempt? Will any covington and burlin attorneys be held in criminal contempt?

    Will Joe Biden correctly remember what day is today?

    The answer to all of these questions is “No”.

    Milhouse in reply to CKYoung. | May 13, 2020 at 11:26 am

    There’s no need for an amicus brief discussing that; the defense will be submitting all of that evidence, and the prosecution will support it. If Sullivan decides to allow amici, they will be there to present an argument (if they can come up with one) against dismissing the case despite all of that.

Can’t say I am surprised by this. Sullivan’s behavior during this trial has been reprehensible, so why stop now?

Paul Mirengoff at Powerline suggests that one possible outcome we might see is Powell cross-examining James Comey and Peter Strzok. But Sullivan, who wants to go down in history as the judge who sent the “traitor” Flynn to the slammer (and helped bring down Trumphitler), will never let that happen. Whatever happens, Sullivan will protect the Deep State.

    Except that he didn’t accuse Flynn of treason. See Ghostrider’s comment and follow the link for the actual transcript, and you will see that the news reports, as usual, lied to us.

      Concise in reply to Milhouse. | May 13, 2020 at 12:19 pm

      What? The hack inserts a question about treason and you see no animus? There was no reason to bring up treason. Why even raise that issue?

        Milhouse in reply to Concise. | May 13, 2020 at 1:44 pm

        To force the prosecutor to clearly state, on the record, whether Flynn was ever suspected of such a crime. Did you read the piece Ghostrider linked?

          Concise in reply to Milhouse. | May 13, 2020 at 2:11 pm

          No, I’m pointing out that the judge is a biased hack all on my own. Try thinking for yourself. It’s fun.

an Interesting take on Sullivan’s actions – Possibly by allowing partisan rebuttals to the motion to dismiss/drop charges is to solidify the DOJ motion to drop the charges – ie eliminating the appearance of that the trump administration didn’t force DOJ to drop the charges.

There are four possible reasons for not simply granting the motion to dismiss.

1. The judge doesn’t understand the issues (Seems unlikely in this case).
2. The judge doesn’t completely believe the allegation of prosecutorial (not to mention FBI) misconduct (Also seems unlikely. The evidence for misconduct is extremely strong, since there was, in fact, misconduct).
3. Doesn’t want to let it go for some twisted personal or political reason. (possible)
4. Wants lots of documentation for protection against the viscous blowback of an insane and vindictive left. (Almost certain!)

    Terence G. Gain in reply to irv. | May 13, 2020 at 7:07 am

    irv

    5. Judge Sullivan is seeking support for his insane accusation that Flynn is a traitor.
    6. Judge Sullivan has descended into the arena.
    7. Judge Sullivan is a member of The Resistance.
    8. Judge Sullivan has no sense of decency and takes delight in seeing an innocent man suffer because Sullivan thinks he is on the wrong side of the political divide.
    9. Judge Sullivan is a member of Obama’s Justice Cabal.
    10. Judge Sullivan is padding his resume for consideration by President Biden.

      Milhouse in reply to Terence G. Gain. | May 13, 2020 at 11:28 am

      Except that he made no such accusation. See Ghostrider’s comment and follow the link for the actual transcript, and you will see that the news reports, as usual, lied to us.

        Concise in reply to Milhouse. | May 13, 2020 at 12:21 pm

        yeah that’s cute. He didn’t exactly accuse treason, he just asked “gee, couldn’t he be accused of treason”? Why the bloody heck would one even raise the question. What friggn’ value did such a stupid inflammatory question have. None whatsoever.

          Milhouse in reply to Concise. | May 13, 2020 at 1:47 pm

          He didn’t ask “gee, couldn’t he be accused of treason?”. He asked the prosecutor: “Did the government ever consider charging him with treason? Yes or no.” And thus he forced the prosecutor to admit, contrary to all the official insinuations in the case, that the government had never even entertained such a possibility.

        Barry in reply to Milhouse. | May 13, 2020 at 1:03 pm

        Of course he made the accusation.

        “Arguably, you sold your country out…”

        It doesn’t get any plainer than that. Only a deep prog can find anything other than an accusation of treason.

          Milhouse in reply to Barry. | May 13, 2020 at 1:49 pm

          Only a liar could possibly see an accusation of treason there, considering that the foreign government in question is not an enemy of the USA, and is still technically an ally.

          Barry in reply to Barry. | May 13, 2020 at 5:17 pm

          Only a prog supporting fool doesn’t understand the meaning of “Arguably, you sold your country out…”.

          Nice try though. Might work on idiots, doesn’t work on this blog.

      11. Judge is a racist. Sticking it to the white man just like his homie in Dallas.

      See how they like it.

I have a little bit different take on the Judge’s actions.

I see two scenarios. In the first, the Judge (having already received one request to file an amici brief), is simply doing what’s necessary to handle the expected onslaught of such briefs in an orderly manner. So, he is allowing those interested to move to file such briefs, setting up a reasonable time period for them to do so, will then separately consider each request pursuant to the standards he has already articulated, and will deny them all. So the process will be orderly and the record will be transparent when the frustrated amici seek to appeal, as some almost certainly will.

If that’s all the Judge is intending, I can’t say I have a problem with it.

On the other hand, the judge may in fact be soliciting amici briefs in an effort to come up with some legally plausible way for denying the DOJ’s motion.

If that’s the case, then that’s a big problem.

There are two separate issues (in addition to the fact that no amici will have actual standing to participate in this case). Has Flynn at this point shown that he has grounds to retract his guilty plea? And if so, does the DOJ have the discretion to drop further pursuit of the criminal proceeding against him?

The answer to the first issue seems to be an inarguable yes. In order for a guilty plea to be constitutionally effective, the government must have first provided the defendant, under Brady v. Maryland, with all exculpatory material in its possession.

The DOJ’s motion meticulously documents, and provides evidentiary support, showing that the prosecutors in fact failed to provide plenty of exculpatory information in the government’s possession to Flynn prior to his plea. Amici are not entitled to introduce evidence to the contrary. And, the DOJ’s factual showing is not something that amici can overcome simply by making legal arguments in an amicus brief.

At this point, Flynn is absolutely entitled to have the Court strike his guilty plea, and it would be clear and reversible error for the Court to refuse to do so.

The second issue is whether the Court can compel the government to continue to prosecute its case against Flynn. I think the law is clear. The DoJ has the discretion to decide to drop a prosecution, and their is no factual basis presently in the record that would permit the Judge to conclude that the DoJ, in moving to drop the case, has abused that discretion.

Frankly, if I were the DoJ, and the judge ruled against them on this issue, I would tell the Judge to his face that “we don’t recognize your authority to compel us to proceed with the prosecution, and we have no intent of prosecuting this matter further,” and just see what he does.

We will know which of these paths the judge is going to take when he rules on the motions for leave to file amici briefs.

    jb4 in reply to Wisewerds. | May 12, 2020 at 11:18 pm

    Very interesting post. Given that Flynn is entitled to withdraw his guilty plea and Sullivan would lose on appeal, might Sullivan be planning to “take one for the team” to keep the evident corruption of the prior administration from becoming even more obvious and permitting Democrats with TDS to believe Barr is the corrupt one – “because even Judge Sullivan would not go along with DOJ”; and this drags out past the election without anything definitive (the goal).
    If Judge Sullivan’s loyalty is not to the Constitution, what do you think?

    stevewhitemd in reply to Wisewerds. | May 13, 2020 at 12:08 am

    I’m with you until near the end:

    Frankly, if I were the DoJ, and the judge ruled against them on this issue, I would tell the Judge to his face that “we don’t recognize your authority to compel us to proceed with the prosecution, and we have no intent of prosecuting this matter further,” and just see what he does.

    The problem here is that the judge can say that there is nothing left to prosecute: the defendant pleaded guilty, the judge finds that the prosecutorial malfeasance fails to meet the standard to withdraw the guilty plea, and WHAMMO! — now it’s time for sentencing. There’s nothing for the prosecutor to refuse to do, since it’s all on the judge.

    Now of course, in that scenario the Circuit Court might well have a different opinion as to whether the judge properly considered the prosecution’s misconduct, etc. If they reversed and the judge then was required to rescind the guilty plea, yes it all ends as DOJ says that they won’t prosecute.

    Unless President Trump loses in November and this comes back after January, in which case a NEW DOJ team might well be chomping at the bit to go at General Flynn.

      Bruce Hayden in reply to stevewhitemd. | May 13, 2020 at 1:14 pm

      The problem there is that Flynn was in no position to agree to materiality of his supposedly false statement. It is a required element of the charge. And Flynn had no knowledge either way. Materiality was only known to the government, and Judge Sullivan never got around to requiring that Van Glick prove that element of the case. Now, the government has asserted that the statements, even if false, were not material, and introduced evidence to support their argument.

      The burden of proof of each of the required elements of a crime is on the prosecution to prove beyond a reasonable doubt. That also means that they have the burden of going forward with each element. Van Glick and associates failed to address this issue and now it is too late. My guess is that they were trying to pull a fast one, which seemed to be standard practice for the rabidly partisan Mueller prosecutors, and just pretended that Flynn’s guilty plea covered materiality, as well as lying, even though he was never in a position to know whether his statement was legally material or not.

      Bruce Hayden in reply to stevewhitemd. | May 13, 2020 at 1:14 pm

      The problem there is that Flynn was in no position to agree to materiality of his supposedly false statement. It is a required element of the charge. And Flynn had no knowledge either way. Materiality was only known to the government, and Judge Sullivan never got around to requiring that Van Glick prove that element of the case. Now, the government has asserted that the statements, even if false, were not material, and introduced evidence to support their argument.

      The burden of proof of each of the required elements of a crime is on the prosecution to prove beyond a reasonable doubt. That also means that they have the burden of going forward with each element. Van Glick and associates failed to address this issue and now it is too late. My guess is that they were trying to pull a fast one, which seemed to be standard practice for the rabidly partisan Mueller prosecutors, and just pretended that Flynn’s guilty plea covered materiality, as well as lying, even though he was never in a position to know whether his statement was legally material or not.

    Ghostrider in reply to Wisewerds. | May 13, 2020 at 5:02 am

    I really enjoyed reading your post.

    GWB in reply to Wisewerds. | May 13, 2020 at 11:17 am

    A set of reasonable arguments. Nice.

    I only have one “objection”:
    setting up a reasonable time period for them to do so
    Sorry, but the Constitutional right to a speedy trial has already been exceeded because of the prosecutorial misconduct. Any further action should have a suspense date of “tomorrow by the close of business.”

“#FLYNN defense cites AG Holder, and Judge Sullivan track record “..proposed amicus brief has no place in this Court.. It is no accident that amicus briefs are excluded in criminal cases.. this Court, on 24 specific occasions has rejected all prior attempts..to intervene”

https://mobile.twitter.com/CBS_Herridge/status/1260382012084572162

Of course this won’t make a particle of difference to Sullivan. But if the ghost of Lavrentiy Beria is becoming the Federal judiciary system’s guardian angel, I am glad SOMEONE is trying to fight back.

    She recites the law and judicial rule correctly. Sullivan knows what he asks for is strictly prohibited by the rules. He is disguising this as sentencing recommendations which anyone can make….ironically an area where he is notoriously tone deaf.

I’m not a lawyer, but what the heck. Let’s figure out how we can submit 2000 amicus curiae briefs!

Each brief could address a differ aspect of how he was denied his rights and was entrapped and under duress when he made his plea.

Also, anyone making a plea against him could possible be charged with SLANDER, DEFAMATION and MALICIOUS FALSEHOODS!

Flynn could ride that one to the bank. This could be a huge take down.

Sundance has discussion too.

https://theconservativetreehouse.com/2020/05/12/flynn-defense-files-motion-in-opposition-to-amicus-briefs/

It sure does make a person wonder what changed between December 2017 when Judge Sullivan said no amicus briefs would be allowed, to May 2020 when Judge Sullivan is requesting amicus briefs to be entertained?

The evil Politico sum up why they were going after Flynn. It wasn’t about Trump, it was about Flynn and Rogers.

https://www.politico.com/magazine/story/2016/10/how-mike-flynn-became-americas-angriest-general-214362

In Flynn’s speech, Obama has been a “weak and spineless” leader who “coddles” terrorists and has brought mayhem to our streets with his “fumbling indecisiveness,” “willful ignorance” and “total incompetence.” Clinton should not only be locked up for her careless handling of classified emails, he has repeatedly said, but she is also “somebody who will leave Americans behind on the battlefield.”

You’ve made your ruling, Judge Schumck.

Now try and prosecute it.

    If sentenced, would this not be the most epic appeal EVER? How in the world could a appeals court rule to uphold this hot mess… with the further dimes dropping and the redactions becoming known.. I can’t see how this isn’t a fight that leaves the Federal judiciary undamaged. But we’ll see… eh?

Give me a break. Judges can’t elicit briefs for their apparent political beliefs.
https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf

After what Sullivan said to Flynn…
That was a Public Beat-down. Insulting and Humiliating to a General of the highest order.
I am not surprised the Judge is trying to avoid being seen for what he is.

Alrighty then. You lawyers… IF Sullivan decides to proceed with amicus and installs a attorney to fight the case that the DOJ has dropped ( since Powell and the DOJ are both on the same side now ), would it not then be just great if the DOJ says they are in fact entering the case.. on behalf of Flynn to fight WITH Powell; that the former DOJ prosecution was so tainted that the DOJ demands Sullivan pursue damages.

Heh. That would fix it. That would bind Sullivan up good, and he’d stop with the gamesmanship… ( if that’s what he’s doing… playing too cute by half ).

“the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs ”

The court has been contacted outside the hearing of both parties.

If I were the judge, I just might be wondering how many other lies have been told in his court. In another lifetime, I would have been disinclined to believe that a prior administration would set out to cripple a subsequent administration by spying on it, and setting a perjury trap, then lying about it, and getting a big-time Washington firm to screw over their own client.

But that was before the Trayvon Martin case, and the Michael Brown case, and the US Secretary of State publicly taking credit for the murder of a foreign head of State, and the US government illegally shipping untracked guns to Mexican cartels to kill about 200 Mexicans and a couple of Americans, and shutting down a foreign prosecutor at the behest of a United States VP …. and I haven’t even gotten to the big financial transfers to friends and family of the politicians.

    Milhouse in reply to Valerie. | May 13, 2020 at 8:57 am

    Slight quibble: Gadaffi’s killing wasn’t murder. He got what was coming to him. The 0bama administration had no business being complicit in it, not because it was morally wrong, but because it was contrary to the USA’s interests, which both 0bama and Clinton had sworn to uphold. They failed in their duty, not to Gadaffi, but to us.

    Gadaffi was a vicious dictator, but at that point he was our vicious dictator. Thanks to the GWB administration’s efforts he had completely surrendered to us, had given us his nuclear weapons program — which turned out to be much further advanced than the incompetent CIA had any idea about — and was cooperating with us in every way. That we turned on him as we did created a giant disincentive for the next vicious dictator who’s thinking of surrendering. They all know now that they can’t trust us.

      Close The Fed in reply to Milhouse. | May 13, 2020 at 9:34 am

      It was GWB. I dislike feeding Mr. M, but in this case it bears refuting.

      Ronald Reagan bombed him and his child died.

      After that, Khaddafy was more or less quiescent.

        Milhouse in reply to Close The Fed. | May 13, 2020 at 11:33 am

        No, he wasn’t. Lockerbie was 2 years after Reagan bombed him. And as we found out when he finally surrendered, he had an active and very advanced nuclear weapons program. It was GWB who induced him to give it all up and start cooperating with us. Do you think it was a mere coincidence that his decision to surrender came the day after Saddam Hussein was captured?!

          TheOldZombie in reply to Milhouse. | May 13, 2020 at 1:02 pm

          Yes. The Obama administration really screwed the ability of the US to convince other dictators to stop what they are doing when we turned on Gadaffi.

          I wonder how much of Kim Jong-un current behavior is based on what he saw happen in Libya?

Considerably off topic: Republicans may have flipped Katie Hill’s seat in CA.

https://www.breitbart.com/2020-election/2020/05/12/live-updates-ca-25-wi-07-nebraska-election-results/

We’ll see if this holds up with days and perhaps weeks of “harvested” ballots still trickling in from Chicago, NYC, Beijing, Tehran, etc.

I;ll make the DOJ Brief, brief
We got nothin
Signed
Wm. Barr

Paul In Sweden | May 13, 2020 at 2:19 am

All briefs detailing the dirty tricks and crimes of the Obama Administration against Gen. Flynn and the Trump Campaign and Administration can be filled and will automatically become public record. I hope Judge the judge will require a storage facility to contain all material.

Roscoe B Davis posted his opinion in which he states why he thinks Sullivan’s judicial strategy is a good thing:

https://threadreaderapp.com/thread/1260338618025066498.html

Closing statements: “They can file a stack of amicus briefs that is higher than the Capitol Dome, it doesn’t change the facts of the case. There are more moving parts to this than just a simple dismissal.”

In the end Davis believes Sullivan has no choice but to dismiss the case.

    stevewhitemd in reply to Ghostrider. | May 13, 2020 at 7:59 am

    Wow. THERE is a good find. Perhaps Prof. Jacobson would want to comment on this?

    No wonder Flynn fired his legal team at Covington.

    Milhouse in reply to Ghostrider. | May 13, 2020 at 11:04 am

    Wow. I confess I just accepted the news reports that Sullivan had accused Flynn of treason, and then apologized for it, without checking the original. It sounded plausible to me, because there are so many judges around who would do something like that. I’m glad to learn that the news reports were, as usual, wrong.

      Upon re-reading, it did seem like a masterful stroke by the judge. The Defense was not defending against the Prosecution’s outrageous claims, so Sullivan took their arguments to the logical conclusion and confronted the Prosecution, and they promptly backpedaled so fast they could have been crabs.

      Perhaps there’s hope he’s going to be fair about this after all.

        Ken in Camarillo in reply to georgfelis. | May 13, 2020 at 8:18 pm

        I thought I read that Sullivan was very angry about what happened to Senator Ted Stevens. I wonder if Sullivan is angry about this case too, and (being cynical like so many) thinks nothing will ultimately be done about the scoundrels who did this to Flynn. Thus Sullivan may be setting up a hearing which causes all the corrupt behavior to come out publicly in all its gory detail.

2smartforlibs | May 13, 2020 at 6:30 am

There is no case. it was dropped.

    Milhouse in reply to 2smartforlibs. | May 13, 2020 at 11:04 am

    Not yet. It’s up to the judge.

      This is one of those “yeah-buts” from what I (in my non-lawyer experience) understand.

      The Judge can take the guilty plea and pronounce sentencing, BUT the Defense will appeal, and that appeal will land right smack into the exact appellate court that (from what I understand) has set the precedent for You Can’t Do That, i.e. when the Prosecution withdraws the charges before sentencing, they ruled that judges can’t go ahead and sentence anyway.

      So the sentencing (if it happens) will wind up getting smacked right back at the judge in a matter of (insert short time adjusted for Legal) and he’ll have to dismiss at that point with egg on his face. Judges don’t like egg.

Why can’t a defendant who was coerced by a corrupt prosecutor be allowed to revoke his guilty plea? He has been proven to be the victim a crime committed by the government prosecution.

Terence G. Gain | May 13, 2020 at 7:29 am

I am a Canadian lawyer who has a question for my American colleagues. Would it now be a good time for President Trump to issue a pardon? What are the arguments against issuing a pardon?

And now a question for the hoi polloi, as well. Would it be a good idea for President Trump to invite Flynn to the White House and conduct a Rose Garden ceremony in which he issues a Pardon and awards the Medal Of Freedom to Michael Flynn?

I am not at this point suggesting that the ceremony should include incense and holy water, however I recognize and admire that President Trump is a master showman. I would be delighted to see him rub the noses of Obama’s Justice Cabal and the Media and Entertainment Industry is in the cesspool of Obama‘s unprecedented corruption.

    Accepting a pardon is accepting guilt. It’s a very important point worth fighting for.

      Terence G. Gain in reply to Pasadena Phil. | May 13, 2020 at 8:05 am

      Pasadena Phil

      Is there legal authority for your statement.? In any event, I do not see it as an impediment. Flynn has pleaded guilty and his motion to withdraw his guilty plea has been dismissed. He is therefore, under the law, guilty. In truth and in fact, Michael Flynn is an innocent man who was targeted for political purposes by a corrupt do you DOJ.

      Wouldn’t a well publicized pardon ceremony in the Rose Garden help to overcome this gross miscarriage of justice? Wouldn’t it place the facts of this controversy squarely before the public
      notwithstanding the attempt of the Resistance Media to control a false narrative? And isn’t the granting of a pardon the exercise of a presidential prerogative which is not subject to judicial review?

        <i."Wouldn’t a well publicized pardon ceremony in the Rose Garden help to overcome this gross miscarriage of justice? Wouldn’t it place the facts of this controversy squarely before the public notwithstanding the attempt of the Resistance Media to control a false narrative?

        I think you are missing the big point. We still have the opportunity to clear Flynn outright. Yes, it may be expedient for Trump to pardon Flynn but the inconvenience of dotting the “i”s and crossing the “t”s before the case is closed is essential. We don’t get many opportunities to completely crush corruption on this high level and here we have one but the only thing standing in the way is another corrupt judge. Isn’t it worth crushing this cockroach as the final act?

        Why can’t “our” side EVER do things right? Why do we always go all “jazz hands: and “jimmy legs” at the most climactic moment? Let’s steamroll right over this corrupt judge. Anything less is yet another example of snatching defeat from the jaws of victory. Nail it down!

          Terence G. Gain in reply to Pasadena Phil. | May 13, 2020 at 9:38 am

          With respect, you have missed 3 points. Firstly, Judge Sullivan can easily prolong this case past November’s election and if President Trump is defeated Michael Flynn will not only not be pardoned, he will be sentenced to prison. Secondly, to allow this travesty of justice to continue for one second longer is to give it legitimacy. This is a political prosecution. It has no place in any court created in accordance with the principles of the English Common Law, a heritage Americans share with Canadians. Thirdly, this is an opportunity for President Trump to make enough political hay to feed the cows for generations.

          I approach this matter as someone who was initially opposed to Trump’s candidacy. I favoured the candidacy of Ted Cruz. I have subsequently come to understand that Donald Trump Is the only GOP candidate who could have defeated the corrupt harridan. My initial concern regarding Donald Trump was that he would coarsen public discourse. This concern has come to pass although it is also now clear that Donald Trump is much more sinned against than sinning.

          Donald Trump is hated in Canada even by conservatives because of his manner. This is of course ridiculous, but it is nevertheless a fact. I knew Obama was corrupt before he was elected and I am not surprised that he used the instruments of the State to spy on a political opponent and then to attempt a soft coup to have that political opponent removed from office.

          No one is perfect, and one of Donald Trump’s failings is that his rude and coarse language may well prevent him from being reelected notwithstanding that his policies and decision-making are largely very good.

          In his pardoning memorandum President Trump should apologize to John McCain and Ted Cruz and say that although politics is not beanbag, it does not justify these personal attacks, which he very much regrets. He should then say that politics of course does not justify political prosecutions and police state tactics against political opponents and that the people who participated in or defend such tactics are on the wrong side of history.

          I of course believe that such a speech would guarantee President Trump’s reelection, which is well-deserved. Even though I am a Canadian, I take great interest in American politics as I believe that the election of a Democrat president, with his party’s support for open borders, globalism, Islam and fascism is an existential threat not only to America but to Canada.

          (I would like to thank Edward DeBono for contributing to my education);

        Think of it this way. Dodgers and Red Sox. Final game of the World Series tied at 3 games each. Dodgers down 3 runs in the bottom of the ninth inning. Walk-off grand slam except that the tying run is ruled as the 3rd out for failing to touch 3rd base. Red Sox win. With your logic, it’s okay because everyone knows the Dodgers actually won although the record will also show that they lost. Those minor details matter.

        Flynn is INNOCENT! For him to be pardoned is unacceptable. The final entry on this case MUST be that his record was cleared, not forgiven.

          Terence G. Gain in reply to Pasadena Phil. | May 13, 2020 at 9:08 am

          Yes, Flynn is innocent and the judge is guilty of a bias so wretched he can’t do his job. You want to continue the game before an umpire who has no strike zone. This game is fixed and it should not be countenanced a second longer. You are fighting with one arm tied behind your back.

          Barry in reply to Pasadena Phil. | May 13, 2020 at 9:20 am

          “You are fighting with one arm tied behind your back.”

          No, not at all. We have the winning hand. It just takes time for it all to play out. Nothing this corrupt judge can do will change this.

          @Terrence: That is EXACTLY what I am complaining about. In the end, no fight is worth seeing through to the end. That is why we lose. We ACCEPT losing.

        Milhouse in reply to Terence G. Gain. | May 13, 2020 at 11:35 am

        Phil is right. As a matter of law, accepting a pardon means acknowledging guilt. Therefore it is far preferable for the charge to be withdrawn, which means he comes out of it a completely innocent man, which of course he is. A pardon should only be a last resort, if this fails, which it won’t.

        Even if defeated in November, President Trump has until the swearing at Poor Joe Biden (will he be capable of sufficient accuracy in repeating the Oath?) to sign a Pardon for anyone to whom he wishes to grant a Pardon. He could sign such documents while seated in the limo on the way to the Inauguration on 20 January 2021.

        It is reported, and worth noting, that the DoJ motion includes mention of the fact that Sullivan failed to establish the materiality of the False Statement (18 USC 1001), as required by statute and precedent, before accepting the Plea and issuing a finding of Guilt. Such establishment may not be established by referring to investigative documents or statements, but by actual evidence of the material effect of the false statement.

        If Sullivan accepts the DoJ motion to dismiss (with prejudice), the previous determination of Guilt is null and void, it goes away. If we get to a Pardon, the determination of Guilt stands and only the legal actions resulting from that guilt are eliminated.

    Petrushka in reply to Terence G. Gain. | May 13, 2020 at 7:44 am

    In case you haven’t noticed, all of this theater is designed to goad Trump into pardoning Flynn.

    Just as Mueller spent 45 million dollars trying to goad Trump into firing him.

    This is so transparent.

      Terence G. Gain in reply to Petrushka. | May 13, 2020 at 8:07 am

      Petrushka

      Goaded into reversing a gross miscarriage of justice. Why is that a problem? Isn’t it in fact more than three years overdue.

        stevewhitemd in reply to Terence G. Gain. | May 13, 2020 at 9:25 am

        Terence: the issue is here (in part) optics.

        If President Trump pardons General Flynn, the Dems will use that into the fall campaign. “HE PLEADED GUILTY AND TRUMP PARDONED HIM!!!” I’m not sure how that plays, but apparently Trump has a sense of that.

        Further, a pardon (as Phil points out) under American law counts as an admission of guilt. You don’t pardon innocent people. General Flynn clearly does not want to be found guilty.

        Finally, a pardon ends the case and thus complicates any follow-up into the players involved. Such a follow-up then might (almost certainly would) be characterized by the media as a “witch-hunt”. The former administration officials involved in this would very much like to see Flynn pardoned as a way to get the courts and DOJ to put an end to all of it.

          Translation of the phrase “follow-up” – A justly deserved and massive lawsuit directed at the low-life scum who put Flynn through this shredder that hopefully ends up with criminal prosecutions for the malicious creeps and a large check for Flynn.

    stevewhitemd in reply to Terence G. Gain. | May 13, 2020 at 7:54 am

    Terence, welcome. Good question.

    In general, presidents have used the power of pardon/clemency on people who are at the end of the line in their legal process. That’s not always the case (Scooter Libby still had an appeal pending when he was granted clemency), but usually, the person has exhausted all their legal avenues prior to a pardon review.

    Pardons also have been used way later to correct historical wrong-doings by the courts.

    I’m not aware of a pardon being used to end an active legal process in which the defendant hasn’t yet been sentenced, but I’m sure someone out there can cite a case.

    Bruce Hayden in reply to Terence G. Gain. | May 13, 2020 at 1:37 pm

    Determining when to grant a pardon is a tactical decision. The optimal solution for the Republicans is for the charges to be dropped by the judge. The worse outcome would be for Trump to lose in November and the incoming Administration insisting on sentencing Flynn. Thus, I would expect any pardon would only be after Trump lost re-election, and control of the DOJ was about to flip parties.

I’m a little confused as to why this is such a difficult legal issue. To be valid, every guilty plea must be knowing and voluntary. Flynn’s guilty plea was neither, because the government withheld exculpatory information from the defense and even forged the investigator’s interview notes to make him appear to have lied. These are facts, which, had they been known to the defense prior to the guilty plea, would have had a material effect on the defendants decision whether to plead guilty, and probably would have caused the defendant not to plead guilty. I’d therefore think that Flynn has a very good argument that his plea was neither knowing nor voluntary, and should therefore withdrawal of the plea should be granted.

The only argument I see on the other side is that during Judge Sullivan’s *taking* of Flynn’s guilty plea (the so-called guilty plea “colloquy”), he would have asked Flynn questions to determine if Flynn’s plea was in fact knowing and voluntary, and, based on Flynn’s answers, would have made a finding that it was knowing and voluntary.

So my question to any knowledgeable federal court prosecutors and/or criminal defense lawyers out there is this: Is Flynn forever bound by Judge Sullivan’s earlier finding that the plea was knowing and voluntary, even though facts have emerged since then showing that it was neither?

Because if the answer to that question is, “Yes” (i.e., that Flynn *is* forever bound by Sullivan’s earlier finding), then that gives every prosecutor an irresistible incentive to hide exculpatory evidence — and to keep it hid — at least until the guilty plea has been accepted by the court.

Any experts out there who can shed some light on this question?

    Barry in reply to JPL17. | May 13, 2020 at 9:24 am

    “I’m a little confused as to why this is such a difficult legal issue.”

    Simple – it would not be difficult were we dealing with an honest and moral court / judge.

    The judge is corrupt to the core as are all those surrounding him. For this reason the process will take longer.

    In the end the right thing will win, Flynn will be exonerated and the judge will be shown corrupt, but it takes time.

      JPL17 in reply to Barry. | May 13, 2020 at 9:43 am

      Thanks, but, although speculation on the judge’s motives is interesting, I’m looking for an answer on the legal issues.

        Barry in reply to JPL17. | May 13, 2020 at 1:09 pm

        The legal answer is – no judge has ever done such a thing in a criminal case. It will not stand here either.

        So, the only you are left with is the corrupt judges motive. Did I mention the judge is corrupt to the core?

    Milhouse in reply to JPL17. | May 13, 2020 at 11:40 am

    The answer is that it’s up to the judge. If he rules the wrong way, that can then be appealed, but for now it’s in his court.

    And it turns out that the news reports that he accused Flynn of treason were, as usual, false. So I see no reason to suppose in advance that he will not do the right thing. Let’s wait and see.

There’s an opinion making the rounds that Sullivan never established materiality.

At some point in the proceedings, stated he would address materiality at a future hearing, but he never followed up.

The argument is that Sullivan has not yet accepted the guilty plea. Or, if he has, he has committed a reversible error.

    Terence G. Gain in reply to Petrushka. | May 13, 2020 at 8:35 am

    Petrushka

    The opinion that needs to go around is that the prosecution of Michael Flynn was a political prosecution that needs to end yesterday. This is an excellent opportunity for President Trump to place before the public the argument that Michael Flynn was targeted by Obama’s DOJ because:
    1. Michael Flynn would have exposed Crossfire Hurricane.
    2. But for the resignation of Michael Flynn, the Mueller (in fact Wasserman) coup attempt would never have been initiated.
    3. Michael Flynn would have exposed Obama’s foreign policy to be so overwhelmed by Islamophilia as to be treasonous.

    Of all the lawyers who represented President Trump during his wholly unwarranted impeachment. trial I was most impressed by Patrick Philbin and I would love to see a Pardon Memorandum written by him.

      Your continuous push for a pardon makes me suspect your interests are not in justice for Flynn.

        Terence G. Gain in reply to Barry. | May 13, 2020 at 9:42 am

        Barry

        You assume facts not in evidence. Your comment is not only wrong, it is not even fair minded. Why can’t you just disagree without making wild accusations?

          Petrushka in reply to Terence G. Gain. | May 13, 2020 at 10:03 am

          Trump has already weighed in on pardon. The judge will dismiss or be overturned on appeal.

          The amicus brief is just a delaying tactic and eventually be dropped.

          Milhouse in reply to Terence G. Gain. | May 13, 2020 at 11:42 am

          Barry is never fair-minded. He doesn’t even have any concept of fair-mindedness. Just look at his constant attacks on me, whenever I raise facts that are not to his liking.

          I disagree with you when you are wrong, which is at least 50% of the time, and when you are wrong it is 99% of the time in support of the progs.

          As for Terrance, it is certainly in evidence. Go count your comment total and the total with a suggestion for Trump to pardon and get back to me.

          My accusation has merit. Is it true? I can’t read your mind. But over and over it is explained that pardoning Flynn leaves him as “guilty”. And still you persist. Why?

    Barry in reply to Petrushka. | May 13, 2020 at 9:26 am

    The opinion is correct.

    The judge is corrupt, this is not an innocent mistake.

      Terence G. Gain in reply to Barry. | May 13, 2020 at 10:16 am

      Barry

      Given the fact that the judge is corrupt why are you proposing that this charade before him continue? And why is it that you and the others who disagreed with me don’t understand that Sullivan can easily prolong this charade past November selection and in the interim he is providing a forum for Obama’s justice cabal to puff up their resistance with legal opinion.

      The President has the bully pulpit. He should use it. My proposal enables Donald Trump to admit his sins and condemn Obama for his attack on the rule of law. This debate needs to change from whether Michael Flynn is guilty to why did Barack Obama spy on the Trump campaign and use the instruments of the state to attempt a coup against President Trump.

      Sullivan can easily prolong this trial until after November’s election and if President Trump is defeated he can then sentence Michael Flynn to prison. That possibility should be put to rest.

        Terence, are you able to read? The answer has been given over and over.

        1. Trump can pardon Flynn, or anyone he damn well please, without review, anytime up until the last second of his presidency. So should the unthinkable happen and both Flynn is sentenced and Trump loses the election there is time to rectify the situation.

        2. “My proposal enables Donald Trump to admit his sins…” I have no flucking idea what sins you are talking about.

        3. A pardon leaves Flynn looking guilty. Sometimes a little pain must be endured. Guaranteed, General Flynn can handle it.

        4. As far as noses, look in you mirror.

It’s worth pointing out that the DOJ motion to dismiss explicitly addresses the question of materiality, and answers the question the judge forgot to ask.

So the guilty plea was never really accepted. It’s just a matter of time before this sinks in.

Bitterlyclinging | May 13, 2020 at 8:32 am

A very Hitleresque move on former president “Nice place ya got here. Be a shame if anything happens to it” You go along in order to be able to get along the Chicago way.
Through his lawfareblog surrogates president Obama has Judge Sullivan blocking any chance for General Mike Flynn to clear his name and regain his position in society.
When it became evident that WWII was lost Adolf Hitler ordered the German Army to destroy totally any industrial facilities, roads, bridges, tunnels, electrical and telephone wiring before withdrawing, because if the German people werent willing to fight hard enough to grant Hitler victory the German people were not to have anything left to rebuild with afterwards.

Another BIG reason why this matters.

https://www.breitbart.com/politics/2020/05/12/charles-hurt-barack-obamas-obsession-with-gen-michael-flynn/

I have a feeling there will be more to come about Obama once Flynn is cleared.

I do not believe Trump will pardon Flynn. Eventually Flynn will be exonerated and Trump knows it. In the meantime the DOJ, FBI, and now the court are on display for the entire world to see. Voters will not fail to notice. Whatever happened to: I pleaded guilty, now I don’t. Let’s go to trial.

    Terence G. Gain in reply to kjon. | May 13, 2020 at 8:57 am

    If Judge Sullivan is successful in prolonging this case until after the election this coming November, and objective which would be as easy as pie, and President Trump is defeated then Michael Flynn will be sentenced to prison. Why do you think that’s such a possible injustice should not be eliminated. Now.

The judge’s decision seems grossly inappropriate. The government doesn’t want to prosecute, for obvious reasons of unethical conduct and lack of candor before the court and in the proceedings, and, unfairness to the defendant and his counsel, practiced by the prosecutors.

So, what the hell is the purpose of allowing amicus briefs on the matter, which briefs will predictably be partisan rants by Dhimmi-crats and their associated adjuncts, unconcerned with the pursuit of justice, and, only concerned with wreaking vengeance on Trump and anyone associated with him?

    Terence G. Gain in reply to guyjones. | May 13, 2020 at 9:03 am

    Sullivan has an animus against Flynn which is so strong that he insanely accused Flynn of treason. I assume that he wants to prolong this trial until after November’s election in the hope that Trump is defeated and can’t pardon Michael Flynn. If that happens, I assume he will sentence Flynn to prison for the unpardonable crime of criticizing Obama.

      Milhouse in reply to Terence G. Gain. | May 13, 2020 at 11:45 am

      No, he didn’t accuse Flynn of treason. And if Trump loses in November he will still have plenty of time to pardon Flynn, so that can’t be what Sullivan is thinking.

        Rabel in reply to Milhouse. | May 13, 2020 at 12:52 pm

        Earlier in that same sentencing hearing on Dec. 18, 2018 Sullivan said:

        “All along, you were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. I mean, arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.”

        Later, in the section of the transcript you referenced he asked if Flynn could have been charged with treason.

        Arguably, he didn’t specifically accuse Flynn of treason if you parse his statements carefully enough.

          Milhouse in reply to Rabel. | May 13, 2020 at 2:02 pm

          You forget or deliberately ignore that the foreign government Flynn was working for is technically still a US ally, and is certainly not officially an enemy, so nothing he did for it could be treason. And that Sullivan was simply reciting the facts that Flynn had admitted to. Based on those facts, how is it not arguable that he sold his country out? It can be true or false, but it’s certainly arguable.

          Even now Flynn admits that he was in fact working for the Turkish government, he just claims he relied on Covington’s faulty legal advice that he didn’t have to register it because it was done through a transparent intermediary.

          The treason question was to the prosecution, in order to force the government to admit that it had never even suspected Flynn of that.

Why does Judge Sullivan seem more concerned with what Dhimmi-crat partisans think of the situation, rather than the fact that government prosecutors lied before him, and, in his court? He presided over a fraud and a miscarriage of justice, thanks to the prosecutors’ collective unethical conduct and mendacity. If I were in his shoes, I would be more concerned with the latter situation, and, with sanctioning the attorneys involved.

    Barry in reply to guyjones. | May 13, 2020 at 9:30 am

    “Why does…”

    I realize it’s a rhetorical question, but the answer is the judge is a “Dhimmi-crat partisan” and corrupt to the core.

      Ken in Camarillo in reply to Barry. | May 13, 2020 at 8:40 pm

      Maybe Sullivan sees the narrative of Flynn “the liar” as a glass house that needs to be destroyed, so he’s inviting everyone to have a rock fight next to the glass house.

General Michael Flynn guilty until proven innocent, then still guilty.

Close The Fed | May 13, 2020 at 9:42 am

Damn! Can’t believe I didn’t write it:

Dershowitz: If Judge won’t throw it out, then he ought to be Impeached!!!!

Amen, brother!

Most of what I know about this comes from a Twitter post by Cernovich, which is both incredibly informative for my non-lawyer background, and incredibly cute because of the kid. I think I fractured a rib laughing. Both funny and informative, whoda thunk a legal explanation could be both?

https://twitter.com/Cernovich/status/1260372746921340929

Sullivan must have run out of material for his daily movement, soon he will have enough to last years.
Easy way to kick to process past election day.

I am disappointed for Gen Flynn but this may be a good way for DOJ and Ms. Powell to get more Obama Admin BS into the record? I still highly doubt that the recording fully matches the paraphrased content the Miller goons provided Flynn. More shoes to drop!

    Terence G. Gain in reply to sidwhite. | May 13, 2020 at 1:36 pm

    We already know that this is a political prosecution and that the FBI and DOJ used police state tactics to coerce a guilty plea from an innocent man. Allowing this travesty to continue undermines the DOJ motion to dismiss. What this delay will do is give Obama’s 2000 lawyers a respected public platform to attack AG Barr.

    There is no way of knowing whether Sullivan will in fact reverse his decision not to allow Flynn to withdraw his guilty plea. Given his unprecedented willingness to accept Amicus Curia briefs
    I would anticipate that he will rule that he has no choice but to sentence Flynn. There is no logical reason to take that chance.

    This prosecution is political and it calls for a political solution. President Trump should deny Obama’s lawyers the use of a court to smear AG Barr, Flynn and himself.

LOL, Covington Holder is making negative remarks about the Flynn case. Will this help impact the coming malpractice case against Covington? If I was part of Covington I would be having a good talk with Holder to shut the f up.

It is a nice trick by our Department of Injustice. Bill Barr and the DOJ get to pretend they are trying to right what is now impossible to hide, their flagrant gestapo tactics against a innocent man.

But in reality, they are just using a legal loophole and a compliant judge to prevent Flynn from being cleared. Then they throw up their hands and act as if they clean as the driven snow. “Look, we TRIED to clear him. We just happened to do it in a way we knew Judge Sullivan would be able to work around!

Why? Probably because Flynn will be free to join Trump’s admin and is dangerous to them. If I were Trump, I’d give these evil criminals just another week or two and then I would just invite Flynn back into the admin. F em. Call their bluff. Let them make the case why their illegal tactics justify Flynn’s disqualification from serving.

……….THIS IS A MUST READ !…………
Judge Emmet Sullivan Likely Committed Reversible Error In Taking The Guilty Plea of General Michael Flynn

https://www.redstate.com/shipwreckedcrew/2020/05/12/very-likely-judge-emmet-sullivan-committed-error-in-connection-with-flynn-sentencing/

    tiger66 in reply to JBIsmay. | May 13, 2020 at 2:12 pm

    OUTSTANDING link.

    I’m just a deplorable layman, so I’d be interested in the views of some of the attorneys here on LI regarding the Red State article.

    puhiawa in reply to JBIsmay. | May 13, 2020 at 2:15 pm

    This is arising throughout the legal blogs right now. For reasons unclear, perhaps because the attorneys and the court talked so much, the court lost the narrative. Even the attorney at Red State you link missed this at first. In a normal setting, there would still be time to rectify this, but of course Powell will not let that happen, so the plea is apparently fatally defective.
    I think most practicing attorneys here are civil practitioners and hence would miss this detail. However once pointed out, it is pretty obvious that the government failed to detail and and elicit materiality.

    elle in reply to JBIsmay. | May 13, 2020 at 2:33 pm

    Thank you for that link. After it appeared that the DOJ had allowed a pathway for the Flynn persecution to continue, I lost all hope in Barr and his ability to clean house. Very hopeful article! Thanks! Curious to see how it will be received here.

I have no sympathy for any man who pleads guilty. I have contempt for a man who pleads guilty for something he didn’t do. He’s guilty of doing that! Flynn is at best an achy vagina. He turned in his man card.

    Barry in reply to SteChatte. | May 13, 2020 at 5:27 pm

    Should you find yourself standing before your creator, remember what you said here.

    Do you have children?

      Barry in reply to Barry. | May 14, 2020 at 12:42 pm

      No answer. I’m not surprised. I have no sympathy for a man that can’t answer a basic question.

    Photoman42 in reply to SteChatte. | May 13, 2020 at 6:01 pm

    He did it to protect his son. Do you not comprehend that? I suppose you would throw your son under the bus!

Trump should just pardon Flynn and tell the Judge to pound sand.

BierceAmbrose | May 13, 2020 at 7:01 pm

There’s this thing called reversable error. Also creating a record.

Remarkably, the politically activist judges seem to have been so innoculated n protected for so long that they don’t understant they will be reviewed, on the record as it stands, and getting reversed for cause really doesn’t look good.

I kinda got is with the prior Presidential Administration. They were activists, thought it’s right if you can get away with it, and really were so set on being exceptional, they didn’t make the distinction between exceptionally good vs. bad.

Aaaand we’re losing in the Supreme Court again 9-0; We’re the mostest. (People you blew through that record a while ago.)

Just like many of the commentators I am puzzled about what Judge Sullivan’s intent is. My
own suggestion is that he wants a full-fledged exposure of Department of Justice and FBI
misbehavior. I make this suggestion on two grounds. First, Sullivan had been the judge in the case where DOJ misconduct resulted in the defeat of the Alaska Republican Senator which made possible the passage of Obama care and made public his disgust with the DOJ’s role.
Second, he made clear his own doubts about Flynn’s guilt by urging him to withdraw his guilty plea. What I hope is that the fullest possible exploration of the Flynn case will expose the role of that slimiest of slime Obama

    Barry in reply to JAB. | May 14, 2020 at 12:45 pm

    Wishful thinking. The judge is a corrupt deep stater taking orders from his boss.

    Look at the Alaska case closely. Too little, way too late.

    All judges should push hard on guilty plea’s to provide cover at the appeal. Nothing unusual here.

    Sullivan is corrupt.

Terence G. Gain | May 15, 2020 at 7:26 am

Sidney Powell told Lou Dobbs yesterday that she is moving for a writ of prohibition. And soon.

    I hope I’m wrong, but since the superior court in this case are majority communists I don’t hold much hope for a good result. They really don’t rule by the law, but by their quest for the power of the state. On the occasions they rule within the law it is their judgement they can’t get away with more at this time.

    It’s worth trying, and I hope it works, but I wouldn’t hold my breath.

    OTOH, with a very recent SCOTUS ruling that outright states that the type thing the corrupt judge Sullivan is doing is unconstitutional, perhaps the superior court will rule properly.

Terence G. Gain | May 15, 2020 at 10:06 am

Barry

Correct me if I am wrong but as I understand it the appeal is to the District of Columbia Court of Appeals. That court has 8 Judges. The chief judge was appointed by Clinton to the bench and then made chief Judge by GWB . One other judge was appointed by Clinton, 2 were appointed by GWB, 3 by Obama and one by President Trump. So the composition would appear to be either 5D to 3R or 4.5D to 3.5R.

From the discussions I have read about the appellate case law it seems quite clear that Judge Sullivan has no choice but to dismiss the case against Michael Flynn. I think it is a lot harder for a panel of judges to go off the rails than it is for one judge alone. I am therefore more optimistic than you are. I have modified my initial opinion and believe that all appeals should be exhausted before President Trump issues a pardon.

    I think your count is correct and it’s possible they will rule according to the law, which is quite clear and recently made crystal by the SC.

    However, when you have a collection of majority Obama/Clinton appointments the law is no longer the constitution.

    Perhaps the high profile will keep them honest. I hope so. I’d like to see this farce end and soon. I’m just not going to hold my breath and depend upon a corrupt cabal of judicial appointments to do the right thing.

    I think your modification is good and honest.

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