Patterico's Pontifications

5/10/2020

The (Hypothetical) Transcript of the Next Court Hearing in the Michael Flynn Case

Filed under: General — Patterico @ 3:26 pm



Editor’s note: The following is not a prediction. It is merely one person’s vision of how Judge Emmet Sullivan, the judge in the Michael Flynn case, might hypothetically address the recent motion of the United States Government to drop charges. While nobody can say precisely how the judge will handle the situation, it is hoped that this hypothetical scenario will help highlight some of the salient issues in the case. Rather than raise those issues in a lengthy screed, I thought it might be more entertaining to raise them in the context of this hypothetical scenario. Anyone who criticizes this post by calling it a prediction or a fantasy is lying to you. Enjoy.

MORNING SESSION, MAY 19, 2020

(10:48 a.m.)

THE COURT: Good morning.

THE COURTROOM CLERK: Good morning, Your Honor. This is criminal case 17-232, United States of America vs. Michael Flynn. Will all parties please come forward to this lectern and identify yourselves for the record?

MR. SHEA: Good morning, Your Honor. Timothy Shea on behalf of the United States.

THE COURT: Good morning, counsel.

MS. POWELL: Good morning, Your Honor. Sidney Powell for the defendant, Michael Flynn.

THE COURT: Good morning, counsel. We are here today to consider the Government’s motion, filed on May 7, 2020, to dismiss the criminal information against the defendant. Before we get started, Mr. Shea, I know that you are rather new to this case, but this Court is not. This Court has had Mr. Flynn’s case for quite some time now, since December 7, 2017, in fact. So before we consider your motion, I’d like to go through some of the history of this case that brought us here.

[History of the case given]

THE COURT: Now, with that background, I’d like to turn to the Government’s motion. Mr. Shea, as I read your motion, the Government is moving to dismiss the defendant’s information for two reasons. First, you say that the FBI’s interview of the defendant was, quote, “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that therefore, quote, “the Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.” As a second ground, you say, quote: “We not believe” — I think you meant to say “We do not believe” — “that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.” You say you base this decision on, quote, “newly discovered and disclosed information appended to the defendant’s supplemental pleadings.”

Let me first address the threshold question of this Court’s role. Your motion is made pursuant to Rule 48. Rule 48, subdivision (a), states: “The government may, with leave of court, dismiss an indictment, information, or complaint.” I assume you agree with the Court that the Government does not have authority to dismiss this information on its own? In other words, you agree you need to obtain leave of this Court before this case can be dismissed?

MR. SHEA: Yes, the Government understands that Rule 48 requires leave of court, but as we emphasized in our brief, just as it is not this Court’s role to second-guess the charging decisions of the Government, it is also improper for this Court to second-guess the Government’s, quote, “conclusion that additional prosecution or punishment would not serve the public interest.” That’s a quote from the Fokker case we cited, from page 743 of the court’s decision, and that goes to the dismissal of charges even after a guilty plea. So while we do need to obtain leave of court as a technical matter, the requirement to obtain leave of court exists, as the Fokker case states, quote, “primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant,” end quote, through repeated prosecutions — and it’s our view that this is not a concern for this Court because we are asking the Court to dismiss Mr. Flynn’s case with prejudice, which would of course prevent repeated prosecutions of the sort the Fokker court was concerned with.

THE COURT: Yes, but that’s not the only function of this court, is it?

MR. SHEA: The Fokker court was quoting the United States Supreme Court in saying it was the primary concern.

THE COURT: I didn’t ask you if it was this Court’s primary concern. I asked if it was this Court’s only concern. And the reason I bring that up is because it very clearly is not the Court’s only concern. I think we can all agree that the governing case here is the Supreme Court case you cite in your brief of Rinaldi v. United States, 434 U.S. 22, and you don’t give the year but I will note for the record that the case was decided in 1977, for the proposition that it was an abuse of discretion in that case for the trial court to deny a request to dismiss a case after entry of a plea. And footnote 15 of that case does discuss the so-called “primary” concern you mentioned of protecting the defendant from harassment. But that same footnote also says, quote, “the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest,” unquote. And the Rinaldi court favorably cited United States v. Cowan, a 1975 case from the Fifth Circuit found at 524 F.2d 504, at page 513. And Cowan, while it overruled a district court decision to deny a motion to dismiss, nevertheless stated, quote, “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.” So with all due respect, Mr. Shea, it seems to this Court that the Supreme Court has spoken, and I have a role here.

MR. SHEA: We believe that role is very limited.

THE COURT: Well, the Rinaldi decision states what my role is: quote, “The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith, but rather whether the Government’s later efforts to terminate the prosecution were similarly tainted with impropriety.” So that is my function here today: to decide whether the current motion to terminate this defendant’s case is, quote, “tainted with impropriety.”

I wish I could say that the answer to that question is obvious, Mr. Shea. I wish I could say: “well of course I see no evidence here of bad faith or impropriety on the part of the Department of Justice.” But I have to say, Mr. Shea, I’m not in the position where I can say that. I’m not saying at this juncture that I have found impropriety, but I can’t make a finding at this point that there is no impropriety. And in that regard, I cannot blind myself to the fact that this prosecution was initiated by a Special Counsel who was appointed due to the desire to insulate the case from any hint of political interference by members of the Department of Justice who had a connection to the President’s campaign, because this defendant was not only the National Security Advisor but had been a member of the President’s campaign. Clearly, if part of my role as an Article III judge is to examine whether there is “impropriety” in the motion to dismiss this prosecution, I cannot blind myself to the fact that the member of the Special Counsel’s office who handled this prosecution has now filed a motion to withdraw from the case. That, and the relationship of this defendant to the President, raises questions in my mind about the potential, and I’m only talking about potential now, but the potential for “impropriety” — and that is the word that the United States Supreme Court used, “impropriety.” It’s my role, as I see it, to determine whether this dismissal results from some impropriety. That’s why we’re here, and that is my role, and I want you to know that I take that duty very seriously, as I take all my duties seriously.

And in that regard I have some questions for you, because I have to say, this motion you have filed is one of the most unusual motions I have encountered in 36 years on the bench, 26 of which have been as a federal district court judge. In all that time, I do not believe I have ever seen the Government move to terminate a prosecution as to the defendant has already entered a sworn guilty plea, admitting under oath that he committed the crimes with which he is charged, in which the Government is not saying either, number one, that the defendant’s constitutional rights were infringed, or number two, that some new evidence has emerged to show that the defendant is not guilty. Not only have I never handled such a motion, I have never heard of such a motion being filed in any other court. Have you ever heard of such a motion, Mr. Shea?

MR. SHEA: Well, with all due respect, Your Honor, I’m not sure I agree with the Court’s characterization of this case. It’s the Government’s position that new evidence has indeed emerged that undercuts the case against Mr. Flynn, such that the Government believes there is no longer a federal interest in maintaining the prosecution.

THE COURT: Well, let’s take these questions step by step. Do you contend that the defendant’s constitutional rights have been violated in this case?

MR. SHEA: The Government contends that there were all sorts of unusual circumstances and irregularities inherent in the interview of Mr. Flynn, yes.

THE COURT: Well, that wasn’t the question I asked, but let’s talk about that. Because you dwell at some length in your brief on the supposedly irregular circumstances of this interview. I’m having a hard time understanding how any of that shows any justification for granting the Government’s motion. For example, you note at page 16 of your brief that the FBI failed to give the defendant what you call, quote, “the common section 1001 admonitions about lying.” I have several questions about that. First of all, and again, Mr. Shea, I know you haven’t been on this case as long as this Court or, for that matter, as long as almost anyone else in this courtroom, but are you aware that I specifically asked the defendant about this at a court hearing held in December 2018? That’s a question, Mr. Shea. It’s not rhetorical. Are you aware of that?

MR. SHEA: I believe I saw that in the record, yes.

THE COURT: Let me read you that exchange, because I think it’s important.

THE COURT: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?

THE DEFENDANT: I was not — I was aware.

THE COURT: You were aware?

THE DEFENDANT: Yeah.

THE COURT: That’s the bottom of page 8. Also, Mr. Shea, I want to be clear about this. Is it now the position of the United States Department of Justice that the failure to advise the defendant of the potential penal consequences of dishonesty — consequences that, as I just read, he knew already — is fatal to a section 1001 prosecution?

MR. SHEA: We would make that determination on a case by case basis, taking all of the facts into consideration.

THE COURT: Can you cite me a single example of when the failure to give such a warning has ever before been the basis of a motion to dismiss a section 1001 prosecution? I’m talking about a motion from the Government. Of course the defense brings such motions all the time, and the Government opposes them, and they are denied. But can you cite an instance of this being the basis of a Government motion to dismiss?

MR. SHEA: Not as I stand here, no.

THE COURT: It would shock me if you could after days of research. You also complain that the agents did not simply show the defendant the transcript of the conversation with the Russian ambassador. Is the Department of Justice contending that a failure to show a defendant the incriminating evidence against him before asking him questions is a basis to terminate a section 1001 prosecution?

MR. SHEA: Well, it’s our contention that the conversation was not itself incriminating. And again, what the Government does in different cases based on different factors is a matter of executive branch authority. The Court might disagree with the decision we’ve made here, but with respect, under our system of separation of powers it is not this Court’s role to second-guess our judgments simply because it might disagree with them, or even because the Court thinks that they might be applied differently in different cases.

THE COURT: Well, that is a question in the Court’s mind, Mr. Shea, because if this defendant is being treated differently because of his relationship with the President of the United States, that would be an impropriety that may well justify my denying the Government’s motion. Again, I’m not saying I’m there yet, but this is why I am asking the questions. While I have great respect for the separation of powers, the Government needs to understand that in our system of separation of powers, the judiciary has a role to play here too. It’s not up to me to decide whether to file a case. That’s the Government’s decision, and I’ll point out as an aside that most of the things you’re bringing up today are matters as to which, as I understand it, the Government was fully aware of at the time the Government filed this case. But again, I have a role to play because the defendant entered a guilty plea. I don’t recall if you have appeared in front of me before, Mr. Shea, but you should know that I take the entry of a guilty plea very, very seriously, as indeed I take all my duties, but the taking of a plea of guilty is something that this Court treats with the utmost seriousness. So I am going to proceed with my questions, sir, and I would appreciate answers rather than a lecture on the Government’s opinion that it’s none of my business. As I have told you, the Supreme Court doesn’t see it that way.

MR: SHEA: Yes, Your Honor.

THE COURT: You said that new evidence tends to show that the lies the defendant told were not material. But the government previously certified that they were material. What has changed, Mr. Shea, other than the identity of the lawyer representing the United States in this courtroom?

MR. SHEA: We acknowledge that in footnote 7 on page 18, but we point out that the new disclosures, which as the Court knows were made as the result of the Attorney General ordering an independent review of the case, have crystallized the Government’s view as to the lack of predication.

THE COURT: Well, the Attorney General is not the only one who might be doing an independent review. I’ll address that later. But what, specifically, about these disclosures changes the calculus on whether there was an adequate predication for a counterintelligence investigation? It seems to me all of the arguments you make on that point are based on facts that we have all known since the beginning. Your footnote talks about new disclosures but you don’t explain how those new disclosures go to the predication for the investigation.

MR. SHEA: We believe the brief does that throughout, Your Honor.

THE COURT: Can you point me to one single example of a new disclosure that changes the calculus on predication?

MR. SHEA: We do so throughout the brief, but I would point to the texts from Mr. Strzok fairly exulting in the quote “serendipitous” and “amazing” fact that the investigation had not been closed, which obviated any need to establish a new predicate for the investigation. As this Court knows, the conduct of Mr. Strzok has been highly questionable —

THE COURT: I’m not particularly interested in that, Mr. Shea. We are not on Fox News. This is a court of law. Are you telling me that the FBI cannot simply reopen an investigation if new facts come to light? Facts like a captured phone call with a Russian ambassador, and a passel of lies told about that phone call?

That one was rhetorical, Mr. Shea. [Laughter.] Let me cut right to the chase here, because the central contention of your motion is something I found frankly astonishing. You say that because the Government had the transcripts of the calls, there was no need to ask the defendant about them, even if the FBI had information that he was lying about the content of those calls to numerous incoming high government officials. You say, quote, “With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation.” When I read that, I thought: “Even though he had lied to all of these officials?” And then I read this statement: quote, “Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power,” unquote.

I have to say, Mr. Shea, I find this position absolutely impossible to understand. You are telling this Court that a high-level official who was already suspected of having untoward ties to the Russian government — who had, and I did not see this in your motion, received money from a state-run Russia media entity and had dinner with the President of Russia — is caught on a wiretapped conversation asking the Russian ambassador to take a position regarding sanctions imposed by the current President of the United States as retaliation for alleged interference in election activity. He lies about this to all these officials, and you’re saying the FBI can’t even ask him about that?

And before you answer, understand that in this Court’s view we are not talking about the defendant not being, quote, “entirely candid.” He lied, Mr. Shea. I’ll remind you what I said on December 18, 2018. Addressing the defendant, I said, quote, “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people,” unquote. That is what I said then and it is true today. This is not a matter of being less than perfectly candid. The defendant lied. As I said then, quote, “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.”

And I don’t see how you can say the FBI had no business asking him: gee, Mr. Flynn, did you have this conversation or not? And why?

MR. SHEA: I believe we addressed this in our brief.

THE COURT: Wholly inadequately. I am going to take a recess and consider my ruling. In determining whether there was an impropriety here, I may need to talk to Mr. Van Grack. I may need to speak to people in your chain of command. I may need to speak to Mr. Barr. One thing I am considering, and I’ll just put this on the table now, is appointing a Special Master or some individual with the authority to conduct a factual investigation on the court’s behalf. That may involve an order that the Government not destroy any internal documentation of its deliberations on this subject. I understand the Government may object to any inquiry into its deliberative process, and I am mindful of the sensitivity of such questions, but if the Supreme Court of the United States mandates that I examine whether this motion was made for some reason not having to do with the interests of the United States in the fair administration of justice, I may have no other choice.

We’ll be in recess until 1:30.

UPDATE: This piece in the New York Times by Mary McCord, an acting assistant attorney general at the time of the events in question and someone whose views are cited (misleadingly) in Shea’s memo, is excellent and totally consistent with everything I say in the post above.

269 Responses to “The (Hypothetical) Transcript of the Next Court Hearing in the Michael Flynn Case”

  1. This one took a while but was fun. Happy Mother’s Day.

    Patterico (115b1f)

  2. Beeeeautiful…!!!

    Ragspierre (d9bec9)

  3. TL;DR: Not 100% positive the judge is going to just rubber-stamp this one.

    That’s a summary of about 3300 words.

    Patterico (115b1f)

  4. This was fun to read. If the Judge ultimately plans to let the government dismiss with prejudice, I could see him requiring that the government bring in higher-up attorneys to answer questions first.

    DRJ (15874d)

  5. Plus could he question Flynn? I could see the Judge asking Flynn about all sorts of things that were ignored because of the guilty plea.

    DRJ (15874d)

  6. And before you answer, understand that in this Court’s view we are not talking about the defendant not being, quote, “entirely candid.” He lied, Mr. Shea. I’ll remind you what I said on December 18, 2018. Addressing the defendant, I said, quote, “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people,” unquote. That is what I said then and it is true today. This is not a matter of being less than perfectly candid. The defendant lied. As I said then, quote, “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country.

    I see that conflating ‘made false statements’ with ‘lied’ is the hill you’re still going to die on.

    Donut Vehicle (a16b6c)

  7. “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people,” unquote.

    Seems the judge understood perfectly what a lie was. Bet he still does.

    Ragspierre (d9bec9)

  8. I see that conflating ‘made false statements’ with ‘lied’ is the hill you’re still going to die on.

    Can you un-conflate those two please?

    Colonel Klink (Ret) (305827)

  9. I see that conflating ‘made false statements’ with ‘lied’ is the hill you’re still going to die on.

    I’m quoting the judge.

    But Flynn admitted under oath that he had lied.

    Patterico (115b1f)

  10. The posts that take the most effort get the least feedback.

    Patterico (115b1f)

  11. leave it to some scummy howardtrash judge to pretend like the law is superior to our president mr donald

    Dave (1bb933)

  12. https://twitter.com/Techno_Fog/status/1258848115748155397?s=20

    (Thread with photos attached)

    Techno Fog
    @Techno_Fog
    Flynn prosecutor Brandon Van Grack should be in trouble.

    How Van Grack’s misrepresentations about the Flynn investigation and evidence led Judge Sullivan to issue an inaccurate opinion.

    Why a show-cause hearing is appropriate.

    Thread.
    _
    Recall –

    Van Grack told Judge Sullivan that the Flynn “lies” “impeded” and “had a material impact on” the Trump/Russia investigation.
    _

    Van Grack also told Judge Sullivan that he had provided all Brady evidence – and all “information that could reasonably be construed as favorable and material to sentencing.”
    _

    Van Grack to Judge Sullivan:

    The govt has provided all Brady Evidence.

    The government has not “suppressed evidence.”

    [All this turned out to be false.]
    _

    Based on these misrepresentations –

    Judge Sullivan concluded that the Flynn interview was based on Trump/Russia (it wasn’t) and thus his “lies” were material.

    New evidence shows Sullivan’s conclusion was incorrect.
    _

    Relying on Van Grack’s claims –

    Judge Sullivan wrongly held that FBI and DOJ communications “are not favorable and material to sentencing.”

    New evidence shows that the FBI/DOJ conspired to use the Logan Act against Flynn.

    The evidence is material and favorable.
    _

    Judge Sullivan also wrongly found – based on promises from Van Grack – that the govt had already provided Flynn with favorable/material info on “pre-interview discussions”

    This was not the case – as discovered when the govt provided the Strzok messages and Priestap notes.
    _

    Van Grack influences Sullivan into another faulty conclusion.

    Sullivan: Flynn’s argument that his statements “were not related to the investigation into Russia’s efforts to interfere in the election – is unavailing.”

    Compare to DOJ motion to dismiss.
    _

    Sullivan: “Mr. Flynn’s false statements to the FBI about his conversations with the Russian Ambassador were relevant to the FBI’s [Russian interference] inquiry.”

    Again, evidence now shows this to be false – it was a Logan Act inquiry led by FBI leadership
    _

    Sullivan: The evidence proves that this was not a perjury trap.

    New evidence: FBI discussions of a perjury trap.
    _

    AG Barr explains in greater detail:

    They kept the Flynn investigation open “for the express purpose of trying to catch, lay a perjury trap for General Flynn.”
    _

    Van Grack’s misrepresentations are serious and should be dealt with.

    Not only violate Sullivan’s Brady order and deny Flynn what was due…

    But he induced Judge Sullivan to reach conclusions now contradicted by the evidence.
    _

    In 2017, Judge Sullivan wrote in the WSJ that “Judges have a responsibility to take action against unethical prosecutors.”

    We hope this remains to be true.

    /end
    _

    harkin (8f4a6f)

  13. Haiku disappointed, but to be fair, bow ties can’t be trusted:
    http://www.theepochtimes.com/flynn-revelations-may-lead-to-disillusionment-with-deep-state-not-retribution_3345884.html

    urbanleftbehind (a02f8d)

  14. False statements don’t have to be lies – they can be errors – but here it is probably the terminology the law uses. (Some further elements are required to make a false statement into a crime, and into a lie, not the exact same thing for both.)

    Sammy Finkelman (375edc)

  15. I’ll bet the judge knows that, huh, Sammy?

    Ragspierre (d9bec9)

  16. False statements don’t have to be lies – they can be errors – but here it is probably the terminology the law uses.

    The statute, 18 USC 1001, requires that the false statement be made “knowingly and willfully.”

    So an error is not within the criminal statute.

    Interestingly, the statute punishes false statements made “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”

    So lying the VP would also seem to be within the statute. Separate and apart from lying to the FBI.

    Bored Lawyer (56c962)

  17. The judge, for real, said both:

    “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people,”

    AND

    “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.”

    Or at least I thiink Patterco is saying these are both quotes from the judge.

    Did he say: “As I stated?”

    Sammy Finkelman (375edc)

  18. Bored Lawyer (56c962) — 5/10/2020 @ 6:54 pm

    So lying the VP would also seem to be within the statute. Separate and apart from lying to the FBI.

    Wel, for ne thing, Mike Pence wasn;t the vice president at the time.

    This was said some time between when the Trump campaign /transition got a story from Mike Flynn about his conversations with the Russian Ambassador after David Ignatius had published a column in the January 12, 2017 issue of the Washington Post and when Mike Pencw went on Face the Nation early in the morning of Sunday, January 15, 2017.

    Before he went on, Mike Pence wanted to be sure nothing was being lost or changed in transmission by the people who debriefed Mike Flynn (who might not have been employees of the U.S. government) so he went to Mike Flynn (probably on January 14) and verified for himself that (according to Mike Flynn) the subject of the sanctions on Russia that Obama had just imposed had not come up in the conversations between Mike Flynn and the Russian Ambassador, Sergey Kisliak.

    Sammy Finkelman (375edc)

  19. There’s not much to say about a well-crafted post like this one except “Well done, Patterico!”

    In Illinois, we call this kind of dismissal a nolle prosequi. “With prejudice” is kind of an inconsistency since its purpose is to restore the status quo, to make the present complaint, information, or indictment “never happened”. The State will need to refile, but it can refile.

    A judge can deny it if he thinks its purpose is to evade the speedy trial statute. I would say, “Thank you, Your Honor, thank you counsel! Your Honor, may the record reflect that the defendant demands trial?” The judge would write NP/DDT on the half-sheet and the State would have 160 days (the speedy trial statute) to refile.

    nk (1d9030)

  20. The posts that take the most effort get the least feedback.

    This might be a little like the Louisiana story where it was too much to absorb, but I think this is what could happen. There is nothing to argue with so the correct response is to wait and see.

    DRJ (15874d)

  21. Or at least I thiink Patterco is saying these are both quotes from the judge.

    Did he say: “As I stated?”

    Yes. If it’s in quotes he said it. I provided links in case you want to check my work.

    Patterico (115b1f)

  22. This was a fun read. ‘Course in the hypothetical Parallel Universe, Reagan won an Oscar for Kings Row and never left Hollywood; Marina Oswald rolled over so Lee was late for work… and all is ‘right’ with the hypothetical world.

    Patriot Games- today’s score;

    Rule of Men – 2,024
    Rule of Law – 0

    DCSCA (797bc0)

  23. Rule of butt gerbils.

    nk (1d9030)

  24. UPDATE: This piece in the New York Times by Mary McCord, an acting assistant attorney general at the time of the events in question and someone whose views are cited (misleadingly) in Shea’s memo, is excellent and totally consistent with everything I say in the post above.

    Patterico (115b1f)

  25. Judge Sullivan wrongly held that FBI and DOJ communications “are not favorable and material to sentencing.”

    New evidence shows that the FBI/DOJ conspired to use the Logan Act against Flynn.

    The evidence is material and favorable.

    That’s not what the Government’s latest memo says and I don’t think the evidence supports it. They were moving forward chiefly on a counterintelligence basis.

    Patterico (115b1f)

  26. There’s a reason I put so many quotes and links in there, folks. They’re all real and they’re all educational if you want some actual background on the real facts or the actual standards the judge has to consider.

    I have not seen this analysis anywhere else, by the way. I’ve seen people say Sullivan can deny the motion, but this is the only piece I have seen that discusses the relevant standards under the case law.

    Patterico (115b1f)

  27. Well done, Patterico.
    After the 1:30 recess, perhaps Judge Sullivan could either ask Mr. Shea (or call AG Barr to the court) and query why AG Barr twisted the words of the Mary McCord, the Acting Assistant AG at the time.
    Judge Sullivan could also ask Mr. Shea (h/t Mr. Rosenberg, who probably won’t be Acting DEA Chief for long) why Trump, Pence, Yates, McCord, the Special Counsel prosecutors, Judge Contreras, Judge Sullivan and Flynn’s previous attorney all believed that the charges against Flynn were material but Barr and Shea do not.

    Paul Montagu (b3f51b)

  28. Great. Your update stole my thunder wrt McCord.

    Paul Montagu (b3f51b)

  29. It’s an excellent post, Patterico.

    The “with prejudice” really bothers me. It’s a prosecutorial pardon. In the first place, it is not in the dismissal statute, in the second place it is not in the common law of nolle prosequi, and in the third place it has never happened unless it was imposed by the court, after jeopardy had attached*, and prosecutorial misconduct caused a mistrial.

    Now, if I run a corrupt criminal traitor organization, all my friend the Attorney General would have to do is indict me and then move to dismiss the indictment with prejudice. Under the rules of res judicata, I could never be charged again by an honest Attorney General for any offense in the indictment or for any other offense arising out of the transactions which formed the basis for the offenses charged in the indictment. Prosecutorial pardon.

    Barr! Shea! Trump!

    *Jeopardy attaches when the jury is sworn in, or if a bench trial the first witness is sworn in.

    nk (1d9030)

  30. This is a good piece. Thanks for the technical discussion.

    I think the judge has an obligation to do a thorough inquiry. I expect things to get interesting from there.

    JRM (c80289)

  31. SF: Did he say: “As I stated?”

    Yes. If it’s in quotes he said it.

    I can’t know that fir sure until you say that a second time more clearly. The first time @9 you merely said you were quoting the judge.

    In this hypothetical, he quotes himself quoting himself, so I wondered if it was formatted right. The phrase “As I said then” four lines above, is not from the real words of the judge.

    But I would say, while quoting himself quoting himself probably wouldn’t be said in real life, here it is more natural because you want to incorporate real quotes and you need to overexplain, like in a movie or a play.

    I provided links in case you want to check my work.

    I don’t do that too often but the link is quite far away. The December 18, 2018 hearing is linked 3 Page Ups above. You mentioned it again, four lines above that quote, but without a link, and I wouldn’t have thought to even look for a link.

    Now that you mention there’s a link I found it. I probably, though wouldn’t have clicked on it because it takes too long.

    Sammy Finkelman (375edc)

  32. Now I have the question: When did he say it the first time? Do you know?

    In the Dec. 18, 218 hearing, the judge lists a number of lies Flynn perpetrated, some of which are clearly awful but not unlawful, like this one at page 22-23:

    Finally, Mr. Flynn made a false statement [in the piece?] that an op-ed he published in the Hill on November 8th, 2016 was written at his own initiative, when it was actually written for Turkey’s benefit at its direction and under its supervision.

    {the judge added] At the time the Turkish officials were directing and supervising this work, Mr. Flynn was also serving as a senior national security official on the Trump Campaign.

    Now there is something else interesting there:

    Mr. Flynn admitted that his false statements or omissions impeded and had a material impact on the investigation, and when
    I ask questions of the government, I need to know answers about how he impeded the investigation and what the material impact on the investigation was.

    He did not ask that question at that hearing.

    The judge says:

    .. I was not going to spend another hour and share those questions with you in open court today, had you decided to postpone sentencing, but I may do that. I’m not sure. These are questions that you would be prepared to answer anyway, such as, you know, how the
    government’s investigation was impeded? What was the material impact of the criminality? Things like that.

    MR. KELNER: Your Honor, I think we would find it very helpful, actually, and would welcome the opportunity.

    THE COURT: I thought you might say that. I’ll give it some thought, because my purpose is not to sandbag anyone. I want your best thoughts, your best answers about questions that are — that I believe are very relevant and important, but it’s not time to do that now, and it won’t be time to do it before March 13th, but I may do that.

    MR. KELNER: Thank you, Your Honor.

    THE COURT: All right. Sure. Would the government find that of any benefit? You probably know the questions I’m going to ask anyway, impeding the investigation, materiality impact.

    MR. VAN GRACK: We would not object to any clarification from the Court.

    THE COURT: Okay. All right. Thank you, all. And happy holidays, everyone. Thank you.

    MR. KELNER: Thank you, Your Honor

    So now the question is; What did the government eventually say, and are the answers true?

    Sammy Finkelman (375edc)

  33. @27: Maybe McCord’s memory got a whole lot better recently. Her words in the NYT:

    And perhaps more significant, it has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.

    Yes, well you’d think someone cognizant of a “clear counterintelligence threat” at the time would brief the Acting AG on it.

    Andrew McCarthy:
    Yates later said she was “so surprised by the information she was hearing that she was having a hard time processing it and listening to the conversation at the same time.”

    I’ll bet.

    That Yates was in the dark was not the FBI’s fault. Two days earlier, the bureau’s then–deputy director, Andrew McCabe, had briefed Assistant Attorney General Mary McCord, the head of DOJ’s National Security Division, about the Flynn–Kislyak discussions. Evidently not appreciating what the FBI regarded as the urgency of the matter, McCord did not pass the information along to the acting AG before her White House meeting.
    https://www.nationalreview.com/2020/05/flynn-and-the-anatomy-of-a-political-narrative/

    beer ‘n pretzels (b61153)

  34. I actually think it would have been a dereliction of duty *not* to have spoken to Flynn about this. Anyone who thinks they had no *right* to has been thoroughly blinded by partisanship.

    Patterico (115b1f)

  35. Sammy, if the judge says that Flynn spoke a falsehood knowingly and intentionally, that is by definition a lie.

    Paul Montagu (b3f51b)

  36. Excellent post. Further proof that this website has not sold its soul.

    Victor (4355e3)

  37. Excellent post. Further proof that this website has not sold its soul.

    I tried to sell mine but nobody was buying.

    JVW (54fd0b)

  38. Can you spell M E N T A L MA S T U R B A T I O N? Our host may be an excellent prosecutor, and his analysis may be entirely correct, but he’s p***ing in the wind if he thinks this is not only going to come out in Flynn’s favor, but in a worst case scenario Trump will pardon him.

    Now, once this is resolved, I hope Trump appoints Flynn as the FBI’s Director

    Horatio (a8d8b4)

  39. There’s already an FBI Director. Flynn would never get past the Senate, in any case.

    May the Orange Raccoon could appoint Flynn Truth Czar!

    Ragspierre (d9bec9)

  40. I actually think it would have been a dereliction of duty *not* to have spoken to Flynn about this. Anyone who thinks they had no *right* to has been thoroughly blinded by partisanship.

    The FBI probably should have interviewed Flynn before they found no derogatory information and before they issued a written recommendation to close the case.

    Hoi Polloi (dc4124)

  41. C. S. Robinson
    @ClassicIrons

    Former Justice Department official says AG Bill Barr ‘twisted’ her words https://triblive.com/news/politics-election/former-justice-department-official-says-ag-bill-barr-twisted-her-words/… Character assassination piece by
    @bpolitics
    neglects to mention that former official is the same Mary McCord who worked for Schiff.
    _

    Look, Fat
    @LookFat3
    ·
    Why didn’t the
    @nytimes
    also mention that Mary McCord currently works for Adam Schiff? That might be relevant to readers.

    _

    harkin (8f4a6f)

  42. 40. Is there a “one bite at the apple” law for investigations? Please cite a source.

    Ragspierre (d9bec9)

  43. 41. I think that’s called a genetic fallacy.

    Ragspierre (d9bec9)

  44. There’s already an FBI Director. Flynn would never get past the Senate, in any case.

    Fire Wray, appoint Flynn as acting Director…basically Trump saying “FU” to the senior management of the FBI, and let him clean house…Senate confirmation can wait…but I do think he would be confirmed

    Horatio (bf2b42)

  45. Talk about mental masturbation!

    Ragspierre (d9bec9)

  46. This is one of the best postings I have seen on this issue. Well done sir!

    Murvin Auzenne (08288d)

  47. This is outstanding, Patterico. I’m sure it took a long while, but it’s a bullseye. It would not surprise me if the actual argument tracks this in many salient ways.

    If you had gone on longer, I’m sure you would have hit these points too:

    1) I think the judge might ask about the Flynn’s FARA violation, which got washed away during the plea deal — does that magically disappear too, and why should it?

    2) Shea’s motion also claimed that the transcripts of the Flynn-Kislysak call showed “arms-length communications” and provided no suggestion that Flynn might be “directed and controlled” by Russia. What was the cite for the government’s statement? Not the transcript. In fact, the court ordered those transcripts to be produced by the government one year ago, but the DOJ has balked, arguing that they do not bear on Flynn’s guilt or innocence, and have no bearing on his sentencing. Fair enough, but now those transcripts are central to the government’s motion to dismiss argument. I am hoping the judge will address that as well.

    Kman (cdadac)

  48. Prediction (and I’m not the first to make this) —

    1) Sullivan will deny motion but allow Flynn to withdraw his plea

    or

    2) Sullivan will dismiss the case WITHOUT prejudice to a later prosecution by a different DOJ

    Either way — from a political perspective — it puts the ball in Trump’s court. If Trump wants Flynn to be free and clear from any prosecution, he’ll have to take the political risk of pardon.

    Kman (cdadac)

  49. Patterico, Really interesting take a very informative. Thank you for putting it up. I can tell it took a lot of time.

    Do you know if the judge can dismiss the charges in such a way that they could be brought later?
    Also, what impact if any would this have on other similar cases? Does this in general weaken charges around lying to the FBI?

    Time123 (53ef45)

  50. The Lawfare authors are catching up with you. They wrote this Atlantic article — published this morning, 24 hours after your post — that addresses the same issues but in a much less entertaining way. You are not getting the credit you deserve for this post from any of us. It combines and analyzes the complex legal issues and actual facts, including quotes, as a springboard to imagine what might happen. It’s credible, fact-based legal “scifi.” Well done. I am not creative that way but I can certainly appreciate it.

    The only minor point I can add is that if Judge Sullivan decides he has to dismiss this case, he might refuse to do it with prejudice. The law in that area gives the Court more flexibility.

    DRJ (15874d)

  51. Do you know if the judge can dismiss the charges in such a way that they could be brought later?

    Time123, the government has asked the court to dismiss the charges with prejudice which means the charges could not be re-filed in the future. That might be something Judge Sullivan would resist if he dismisses the charges.

    DRJ (15874d)

  52. This is some serious fan fiction.

    Are you seriously arguing that the judge can force the DOJ to prosecute a case that they have no desire to do so? Can he ask Van Grak (or someone from Muller Team) to continue the prosecution as a court-appointed lawyer with no relationship to the DOJ?

    Furthermore, if Judge Sullivan refuses to accept the DOJ’s dismissal and simply sentance Flynn based on the plea. I can see this case reversed in the upper court.

    Also, please address the Mary McCord is the current attorney for Adam Schiff… the most hyper-partisan, lying piece of excrement in Congress. Of all the clients that she had her choice… she went to work for him.

    whembly (c30c83)

  53. 50

    Do you know if the judge can dismiss the charges in such a way that they could be brought later?

    Time123, the government has asked the court to dismiss with prejudice which means the charges could not be re-filed in the future. That might be something Judge Sullivan would resist if he dismisses the charges.

    DRJ (15874d) — 5/11/2020 @ 7:29 am

    If I understand this correctly (with prejudice), that’s only for the false statement charge…right?

    There’s nothing stopping a DOJ to look at his alleged FARA violations and if there’s fire there, prosecute him on that?

    whembly (c30c83)

  54. I read somewhere that Flynn will have to withdraw his guilty plea for the dismissal to go forward, but he needs leave of court to do that. Anyone know if that is correct? If it is, the Judge could refuse to allow withdrawal since there is no government agreement that Flynn’s right were violated or that his admissions were untrue.

    DRJ (15874d)

  55. Flynn’s charges may be tied/related to his immunity agreement. If so, does that go away so everything is back on the table — even his son’s exposure to criminal charges? I guess Barr can protect them from that, too.

    DRJ (15874d)

  56. There’s nothing stopping a DOJ to look at his alleged FARA violations and if there’s fire there, prosecute him on that?

    Bill Barr is stopping it.

    DRJ (15874d)

  57. If I were the judge, I would grant the dismissal, since the defendant is not objecting, but expressly (just so it’s clear) without prejudice, for the reasons I gave in my comment 29. Dismissal with prejudice is not authorized by the dismissal statute or by precedent, and neither the judge nor the Trump gerbils have the right to bar an honest future prosecutor from refiling the charges.

    nk (1d9030)

  58. whembly / DRJ, I’m asking a law question. Can the just accept the motion to withdraw the please, but not do so with Prejudice? Or is it a straight up / down call?

    Time123 (53ef45)

  59. You did address that, nk. I am just catching up with you.

    DRJ (15874d)

  60. @51, I don’t think this is fan fiction. I think this is using fiction to try to provide commentary in a way that is more engaging to read then a typical news / opinion piece. I think the people calling it fan fiction are doing a disservice to the amount of research and time this took.

    Time123 (53ef45)

  61. Dismissing the charges is a separate legal question from doing it with prejudice, Time123. As a rule, courts dismiss charges without prejudice so they can be refiled. Dismissing charges with prejudice is not common and involves additional legal issues and decisions.

    DRJ (15874d)

  62. I don’t think the Court will or should dismiss with prejudice where there is no claim by the defendant that his rights were violated, and no evidence supporting that claim.

    DRJ (15874d)

  63. @54: does that go away so everything is back on the table — even his son’s exposure to criminal charges?

    You mean his son’s exposure was part of a plea deal? What!?? No way.

    beer ‘n pretzels (e7227f)

  64. I’ve been calling it the dismissal statute, but I think it’s Federal Rule of Criminal Procedure 48 that I’ve been talking about:

    Rule 48. Dismissal
    (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.

    (b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

    (1) presenting a charge to a grand jury;

    (2) filing an information against a defendant; or

    (3) bringing a defendant to trial.

    The notes at the link are interesting too.

    nk (1d9030)

  65. @54

    Flynn’s charges may be tied/related to his immunity agreement. If so, does that go away so everything is back on the table — even his son’s exposure to criminal charges? I guess Barr can protect them from that, too.

    DRJ (15874d) — 5/11/2020 @ 7:40 am

    I do know, that if you successfully withdraw from your plea, then EVERYTHING is back on the table for the prosecution. Which is why its almost never done, because prosecution generally don’t bring a case unless the case is solid.

    The difference here, is that the prosecution is moving to dismiss with predjudice. I believe that is only tied to the actual charges brought forth, meaning in Flynn’s case it’s just the false statement charge.

    whembly (c30c83)

  66. @55

    There’s nothing stopping a DOJ to look at his alleged FARA violations and if there’s fire there, prosecute him on that?

    Bill Barr is stopping it.

    DRJ (15874d) — 5/11/2020 @ 7:41 am

    Do believe that there’s merits to the alledged FARA violation?

    You do know, that his partner was tried for that same violation… which the judge threw out? Right?

    If so, what and why are you presuming Bill Barr “is stopping it”?

    Maybe, the FARA allegation is weak…. do you consider that as a possibility? Do you also consider the possibility that the Mueller team was ultra-aggressive that on a different John Doe, an alleged FARA violation may not have been on a regular DOJ’s radar?

    Remember, prior to the Mueller Special Counsel, FARA violation were rarely prosecuted. (something like 9 indictments in the last 50 years).

    whembly (c30c83)

  67. @60

    Dismissing the charges is a separate legal question from doing it with prejudice, Time123. As a rule, courts dismiss charges without prejudice so they can be refiled. Dismissing charges with prejudice is not common and involves additional legal issues and decisions.

    DRJ (15874d) — 5/11/2020 @ 7:45 am

    Yup.

    Wouldn’t surprise me if Judge Sullivan accepts the plea withdrawal, accepts the DOJ’s dismissal but denies the “with prejudice”.

    whembly (c30c83)

  68. Convictions are often vacated, even after the defendant has served his sentence, for violation of the defendant’s rights, and most often the remedy is retrial, at which point the government can choose whether to retry the case or not.

    Can the court appoint a special prosecutor if the government declines?

    We have a case, right now, in Cook County, in which a dipstick State’s Attorney nolle’d a case; a private party brought a petition for a special prosecutor; the court granted the petition; and the defendant is gazing at the pokey again; but I don’t think it’s doable in the federal system.

    nk (1d9030)

  69. Are you seriously arguing that the judge can force the DOJ to prosecute a case that they have no desire to do so?

    Out of my wheelhouse, but WHAT prosecution? There’s a guilty plea. End of story. Now on to the punishment phase. No?

    Ragspierre (d9bec9)

  70. @69

    Are you seriously arguing that the judge can force the DOJ to prosecute a case that they have no desire to do so?

    Out of my wheelhouse, but WHAT prosecution? There’s a guilty plea. End of story. Now on to the punishment phase. No?

    Ragspierre (d9bec9) — 5/11/2020 @ 8:18 am

    No.

    The defense moves to withdraw the guilty plea. End of Story.

    Now, what’s next?

    whembly (c30c83)

  71. The defense can move anything but its bowels. The judge denies. End of story as to everything but punishment.

    Ragspierre (d9bec9)

  72. This is some serious fan fiction.

    I don’t even know what that is supposed to mean. “Fan fiction”? I get that you’re trying to insult me but you could at least try to make sense.

    Are you seriously arguing that the judge can force the DOJ to prosecute a case that they have no desire to do so?

    Nope. If you read the post maybe you’d understand that.

    Can he ask Van Grak (or someone from Muller Team) to continue the prosecution as a court-appointed lawyer with no relationship to the DOJ?

    Furthermore, if Judge Sullivan refuses to accept the DOJ’s dismissal and simply sentance Flynn based on the plea. I can see this case reversed in the upper court.

    As Rags noted, no further prosecution is necessary. That is done. All that needs to happen is the sentencing, and the Government’s opinion, while noted, is often ignored.

    If he chooses to sentence Flynn, the case would be reviewed (if no pardon intervened) and DoJ would be on the side of Flynn as it is now. Nevertheless, whether such a ruling would be reversed would be based on the standards articulated here (you’re welcome for my effort in researching that for you) and would examine the court’s finding and the basis for it. This piece of — what did you call it again? “fan fiction”? — doesn’t even posit a denial of the Government’s motion. It shows the judge talking out loud about the standards and the weakness of the Government’s justification. He might have to develop a greater record than he has to make a finding of impropriety, but he has not been shy about scrutinizing the Governmnent before (recall the Ted Stevens case) and I fully expect him to ask some hard questions of Shea at a minimum.

    Again, you get very exercised about this case, but I’m not going to allow people to insult me on my own blog, whether they get self-righteously exercised or not. Express your opinions. Do so vigorously. Do not insult me. Do not belittle my writing. Take issue with the assertions therein — if you can.

    Patterico (115b1f)

  73. The trial judge’s decision to vacate the Kian guilty verdict could help Flynn, or it might not. We never saw the evidence about what Flynn did.

    DRJ (15874d)

  74. @71

    The defense can move anything but its bowels. The judge denies. End of story as to everything but punishment.

    Ragspierre (d9bec9) — 5/11/2020 @ 8:25 am

    The judge hasn’t denied that…hell, he hasn’t rendered any judgement over the DOJ’s dismissal motions.

    Until that’s resolved… we don’t know the next step.

    Right?

    Yes, it’s implied that if the judge denies all those motions, it’s onto punishment.

    whembly (c30c83)

  75. No.

    The defense moves to withdraw the guilty plea. End of Story.

    Now, what’s next?

    Wait, there’s a next after the end of the story?

    If Judge Sullivan denies the Government’s motion to dismiss, he will then have to address all pending defense motions that were temporarily withdrawn based on an expectation of dismissal. A motion to withdraw the plea would be among them, and I would expect it to be denied based on the applicable standards.

    And *now* you know … the *rest* of the story.

    Patterico (115b1f)

  76. Remember, this was a case that the FBI dropped, and did not result in an indictment until the special prosecutor needed leverage. The idea that it has become the litmus test of The Rule of Law seems forced.

    Kevin M (ab1c11)

  77. Well I was going to write a post this morning about Andy McCarthy and the Atlantic piece. Then the dog ran away and I had to go get him. Maybe tonight, maybe tomorrow, maybe never.

    Patterico (115b1f)

  78. Of course Bill Barr is involved in this case and stopping further prosecution, whembly. He did a press interview about it. He talked about winning and history because of it. You aren’t seriously suggesting that some lower level DOJ attorneys took it on themselves to undo Flynn’s conviction, are you?

    DRJ (15874d)

  79. At no point was this case prosecuted on its own merits.

    Kevin M (ab1c11)

  80. Remember, this was a case that the FBI dropped, and did not result in an indictment until the special prosecutor needed leverage. The idea that it has become the litmus test of The Rule of Law seems forced.

    It’s hardly the only litmus test, but when the Government drops a case against a presidential crony that the President tried to privately lean on the FBI director to drop, that had been handled by the Special Counsel but has been taken over by a political appointee, and the reasoning for the request to dismiss is this transparently bogus, people like you shrug and people like me call it out. That’s what we do here. You shrug at Trump’s abuses and I criticize them. You carry on and I’ll do the same.

    Patterico (115b1f)

  81. At no point was this case prosecuted on its own merits.

    I … don’t even know what that is supposed to mean. Anyway, I’m shifting to work mode now, have fun storming the castle.

    Patterico (115b1f)

  82. High-profile cases are often litmus tests because they are public. We don’t notice Joe Smith’s case but we notice Michael Flynn’s because he is a public figure linked to a President.

    DRJ (15874d)

  83. And the only person who has said this case is different than any other case is Bill Barr, because winning.

    DRJ (15874d)

  84. —-At no point was this case prosecuted on its own merits.

    I … don’t even know what that is supposed to mean.

    It means that no one brought these charges against Flynn BECAUSE they thought they needed bringing. The FBI passed on bringing them after he was fired. They were only brought at a later time when they were a handy club to use to get someone inside Trump’s clique to open up.

    I really don’t see why this needed explaining.

    Kevin M (ab1c11)

  85. This is some serious fan fiction.

    I don’t even know what that is supposed to mean. “Fan fiction”? I get that you’re trying to insult me but you could at least try to make sense.

    I don’t think it’s either in insult or praise and I apologize for conveying that it was an insult.

    My original intent is to sucinctly state the stated fictional narrative you built in the post.

    Are you seriously arguing that the judge can force the DOJ to prosecute a case that they have no desire to do so?

    Nope. If you read the post maybe you’d understand that.

    Can he ask Van Grak (or someone from Muller Team) to continue the prosecution as a court-appointed lawyer with no relationship to the DOJ?

    Furthermore, if Judge Sullivan refuses to accept the DOJ’s dismissal and simply sentance Flynn based on the plea. I can see this case reversed in the upper court.

    As Rags noted, no further prosecution is necessary. That is done. All that needs to happen is the sentencing, and the Government’s opinion, while noted, is often ignored.

    The Defense motioned to withdraw the plea.

    The Government motioned to drop the case.

    The judge must render some sort of judgement on those motions…yes?

    I get that the premise if your argument stipulates that the Judge will deny those motions by the stated reasons of your post, but it seems you’re unwilling to consider the merits of those motions by the simple fact that he plead guilty.

    If he chooses to sentence Flynn, the case would be reviewed (if no pardon intervened) and DoJ would be on the side of Flynn as it is now. Nevertheless, whether such a ruling would be reversed would be based on the standards articulated here (you’re welcome for my effort in researching that for you) and would examine the court’s finding and the basis for it. This piece of — what did you call it again? “fan fiction”? — doesn’t even posit a denial of the Government’s motion. It shows the judge talking out loud about the standards and the weakness of the Government’s justification. He might have to develop a greater record than he has to make a finding of impropriety, but he has not been shy about scrutinizing the Governmnent before (recall the Ted Stevens case) and I fully expect him to ask some hard questions of Shea at a minimum.

    I don’t doubt that this judge will ask some hard questions.
    Again, you get very exercised about this case, but I’m not going to allow people to insult me on my own blog, whether they get self-righteously exercised or not. Express your opinions. Do so vigorously. Do not insult me. Do not belittle my writing. Take issue with the assertions therein — if you can.

    Patterico (115b1f) — 5/11/2020 @ 8:29 am

    whembly (c30c83)

  86. So, DRJ, if the FBI’s original decision against prosecution had stood, the Rule of Law would have been doomed? I think this has a LOT more to do with the ability of prosecutors to use incidental matters as leverage than the rule of law.

    Kevin M (ab1c11)

  87. Do believe that there’s merits to the alledged FARA violation?

    There are merits. He was caught dead-to-rights in his failure to report that he was a dogsbody for a foreign government, but Flynn’s previous attorneys successfully negotiated his offenses down to the one charge in exchange for his cooperation with the Special Counsel.
    Sullivan should toss the DOJ motion and go straight to sentencing, which would leave it to Trump to choose whether and how pardon him.

    Paul Montagu (b3f51b)

  88. ugh… trying to do to many things at once and pressed send too soon.

    Again, you get very exercised about this case, but I’m not going to allow people to insult me on my own blog, whether they get self-righteously exercised or not. Express your opinions. Do so vigorously. Do not insult me. Do not belittle my writing. Take issue with the assertions therein — if you can.

    Patterico (115b1f) — 5/11/2020 @ 8:29 am

    My intent isn’t to insult or belittle… so, please accept my apology in that regard. I do tend to get snarky, but I assure you that there is no malicious intent towards you.

    You are correct, I am very animated about this because to me, it shows the great length that Obama-era officials abused their powers for blatant political purposes that you and other continually ignore or willfully hand-wave.

    I get that you have a deep animus towards Trump and his supporters. Is it possible that you are holding unconscious bias (with Trump animus, or even the fact that you’re a prosecutor) that is impacting these analysis?

    If I was honest myself, during most of the Obama years I had a reflective opposition to anything Obama says or does. It took about the 7th year of his term for me to understand that and really re calibrate my own animus. (yes, there were some things I did like what Obama did)

    The evidence is growing by the day that the Obama-era officials literally conducted a political witch hunt, and it keeps getting worse as the day goes by.

    whembly (c30c83)

  89. Remember, this was a case that the FBI dropped…

    As I recall, Trump fired Comey in part because the FBI Director didn’t drop the Flynn case.

    Paul Montagu (b3f51b)

  90. Politics infests this case, left and right. The case was brought in order to get leverage against Trump. The plea was ballyhooed as much as possible by a prosecutor who was otherwise getting nowhere. Every last Trump-hater cheered the counting coup, knowing nothing about the case other than it damaged Trump, and that bias has not ended.

    To many others (and not just Trump “cultists”) a rather distasteful character has been elevated to martyrdom, done in by a runaway legal system. This is a case that attorneys see through the eyes of their profession and laymen see through the eyes of little-people.

    Kevin M (ab1c11)

  91. @75

    No.

    The defense moves to withdraw the guilty plea. End of Story.

    Now, what’s next?

    Wait, there’s a next after the end of the story?

    If Judge Sullivan denies the Government’s motion to dismiss, he will then have to address all pending defense motions that were temporarily withdrawn based on an expectation of dismissal. A motion to withdraw the plea would be among them, and I would expect it to be denied based on the applicable standards.

    And *now* you know … the *rest* of the story.

    Patterico (115b1f) — 5/11/2020 @ 8:31 am

    Ah… thanks, that’s the proper sequence as we see it today.
    Judge must rule on the DOJ’s motion to dismiss first: If denied, the defense will try to claw back the guilt plea, if Judge rules in favor of dismissal, then there’s no need for the defense to move to get the plea withdrawn as the case ends.

    whembly (c30c83)

  92. So, DRJ, if the FBI’s original decision against prosecution had stood, the Rule of Law would have been doomed? I think this has a LOT more to do with the ability of prosecutors to use incidental matters as leverage than the rule of law.

    First, the FBI’s decision against recommending prosecution was before it learned about Flynn’s calls with Kislyak, so there was no known legal issue then.

    Second, however, I agree in general with your concerns about how this played out, but my concern is with the FBI more than the original DOJ attorney or the trial prosecutors. (I admit, however, that I have concerns with the DOJ leadership under the AGs appointed by Obama and Trump.) I think this is a good time to bring the FBI into the electronic age and require that all interviews be recorded — at a minimum, audio, or video — instead of solely trusting agents to accurately and completely record conversations in the 302 forms. And those recorded interviews will be discoverable in criminal proceedings just like it is with other law enforcement.

    DRJ (15874d)

  93. @

    Of course Bill Barr is involved in this case and stopping further prosecution, whembly. He did a press interview about it. He talked about winning and history because of it. You aren’t seriously suggesting that some lower level DOJ attorneys took it on themselves to undo Flynn’s conviction, are you?

    DRJ (15874d) — 5/11/2020 @ 8:33 am

    No, not suggesting that.

    You have a 10yr FBI/10yr DOJ prosecutor (Jensen) independently reviewing the Flynn case to make a different recommendation than that of the Special Counsel. In which Shea and Barr agreed.

    I agree it’s politically motivated… ALL OF IT IS. That includes the Obama-era officials and the Sepcial Counsel.

    whembly (c30c83)

  94. “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” reads the note, written by the FBI’s then-director of counterintelligence, Bill Preistap.

    What is the appropriate sanction for a Brady violation by the prosecutor?

    AZ Bob (885937)

  95. I think this is a good time to bring the FBI into the electronic age and require that all interviews be recorded

    That’s being nice. How about: into the 20th century. I think they recorded things on Kojack.

    Kevin M (ab1c11)

  96. What is the appropriate sanction for a Brady violation by the prosecutor?

    First, find the Brady violation, because you haven’t found one yet.

    Colonel Klink (Ret) (305827)

  97. There is politics in DC and it impacts the legal system. That isn’t a reason to stop investigating wrongdoing unless you want things to get even worse. It is a reason to make systemic changes to promote transparency, which will protect everyone.

    What better way to make that happen than a high-profile case?

    DRJ (15874d)

  98. Again, I’m amused at all the strum und drang that is kicked up by people defending a self-confessed, and otherwise known in every way liar.

    Ragspierre (d9bec9)

  99. That’s being nice. How about: into the 20th century. I think they recorded things on Kojack.

    Audio or video is fine but it is easy to do audio recordings at a minimum.

    DRJ (15874d)

  100. The way to get the FBI to record is for juries to stop allowing them not to. To me, in the era of body-cams, the intentional lack of audio recording (let alone AV) would be a red flag as a juror, screaming “doubt.”

    Kevin M (ab1c11)

  101. Again, I am amused at the professional myopia of the members of the bar, who seem unwilling, uninterested or unable to see things outside their narrow focus. I think this is part of the historical disconnect between attorneys and everyone else, and worthy of some reflection.

    Kevin M (ab1c11)

  102. @87

    Do believe that there’s merits to the alledged FARA violation?

    There are merits. He was caught dead-to-rights in his failure to report that he was a dogsbody for a foreign government, but Flynn’s previous attorneys successfully negotiated his offenses down to the one charge in exchange for his cooperation with the Special Counsel.

    Doubtful. His partner over the same violation had his conviction vacated by the judge.

    Additionally, his previous counsel ALSO was the one who managed his firm’s FARA applications. *THIS* was the unwaivable conflict of interest the new defense alluded to.

    If the FARA violation had “meat on the bones” then the special counsel also deviated from DOJ regulation in only charging Flynn for false statement. If FARA was part of the indictment threat, then DOJ regulation requires that Flynn to plead out that due to its much more severe penalty, rather that the false statement indictment.

    Care to explain why the Special Council deviated from DOJ regulations, if there was a “there there” with regards to FARA violations?

    Sullivan should toss the DOJ motion and go straight to sentencing, which would leave it to Trump to choose whether and how pardon him.

    Paul Montagu (b3f51b) — 5/11/2020 @ 8:47 am

    Sullivan should consider these motions in good faith without any political pressure.

    whembly (c30c83)

  103. Again, I am amused at the professional myopia of the members of the bar, who seem unwilling, uninterested or unable to see things outside their narrow focus. I think this is part of the historical disconnect between attorneys and everyone else, and worthy of some reflection.

    Kevin M (ab1c11) — 5/11/2020 @ 9:13 am

    Then educate us.

    DRJ (15874d)

  104. Doubtful. His partner over the same violation had his conviction vacated by the judge.

    I have a feeling the new trial won’t be happening now.

    DRJ (15874d)

  105. The way to ensure justice is through establishing a fair, transparent process.

    DRJ (15874d)

  106. @94: What is the appropriate sanction for a Brady violation by the prosecutor?

    There is precedent in federal cases, which basically says there is little or no sanction.

    The (very likely FBI brass) source for the David Ignatius column about the Flynn Kislyak discussions leaked classified information, a felony which carries a potentially much higher prison term than Flynn was facing.

    All the sanctimony about Rule of Law has carefully steered clear of getting too worked up about this stuff.

    beer ‘n pretzels (7bc17b)

  107. Sullivan should consider these motions in good faith without any political pressure.

    Sure, the judge should. You see the irony, right?

    Colonel Klink (Ret) (305827)

  108. @92

    So, DRJ, if the FBI’s original decision against prosecution had stood, the Rule of Law would have been doomed? I think this has a LOT more to do with the ability of prosecutors to use incidental matters as leverage than the rule of law.

    First, the FBI’s decision against recommending prosecution was before it learned about Flynn’s calls with Kislyak, so there was no known legal issue then.

    That’s not true.
    https://twitter.com/Techno_Fog/status/1171510086839070728
    1) “Russian agent” exoneration memo dated 1/30/17

    2) Memo clearing Flynn of Logan Act on 2/8/17.

    The FBI cleared Flynn way before the Mueller Special Counsel Team was even formed.

    Second, however, I agree in general with your concerns about how this played out, but my concern is with the FBI more than the original DOJ attorney or the trial prosecutors. (I admit, however, that I have concerns with the DOJ leadership under the AGs appointed by Obama and Trump.) I think this is a good time to bring the FBI into the electronic age and require that all interviews be recorded — at a minimum, audio, or video — instead of solely trusting agents to accurately and completely record conversations in the 302 forms. And those recorded interviews will be discoverable in criminal proceedings just like it is with other law enforcement.

    DRJ (15874d) — 5/11/2020 @ 9:03 am

    Keep the 302s as it’s supposed to be a contemporaneous “understanding” of the investigator at the time of the interview. It was never meant to be a transcript. However, I agree with requiring electronic recording during the interview as well.

    whembly (c30c83)

  109. Doubtful. His partner over the same violation had his conviction vacated by the judge.

    Maybe, maybe not. Flynn already admitted to lying about his disclosures, and his piece in The Hill was intended to influence US government policy.

    Paul Montagu (b3f51b)

  110. There is politics everywhere. New York City, Chicago, LA, even small towns — maybe especially small towns. So what? Do we use that as an excuse to elect our own Boss Hogg and proclaim now we are WINNING! ? The answer in America is and always has been a transparent legal system that follows the Rule of Law.

    DRJ (15874d)

  111. @98

    Again, I’m amused at all the strum und drang that is kicked up by people defending a self-confessed, and otherwise known in every way liar.

    Ragspierre (d9bec9) — 5/11/2020 @ 9:10 am

    I’m amused by the willful hand-waving of a defense motion wanting to rescind guilty plea by alleged prosecutorial malfeasance.

    whembly (c30c83)

  112. @110

    Doubtful. His partner over the same violation had his conviction vacated by the judge.

    Maybe, maybe not. Flynn already admitted to lying about his disclosures, and his piece in The Hill was intended to influence US government policy.

    Paul Montagu (b3f51b) — 5/11/2020 @ 9:39 am

    He plead guilty under duress.

    whembly (c30c83)

  113. I’m amused by the willful hand-waving of a defense motion wanting to rescind guilty plea…

    Cool. Now describe what you call “hand-waving”, because I thought Patterico’s exposition was very detailed and careful.

    Just for the record, is Flynn a liar or not?

    Ragspierre (d9bec9)

  114. He plead guilty under duress.

    No. He did NOT. And he said so under oath.

    Ragspierre (d9bec9)

  115. But we don’t know when the FBI learned about the Flynn/Kislyak calls, whembly. The calls occurred in december but it appears the FBI did not learn about them until alerted by the FBI “7th Floor,” and that was the reason the investigation continued. Some see that as politically motivated interference and maybe it was, but it could also be a genuine counterintelligence concern.

    DRJ (15874d)

  116. @

    He plead guilty under duress.

    No. He did NOT. And he said so under oath.

    Ragspierre (d9bec9) — 5/11/2020 @ 9:47 am

    That’s my belief.

    There are more than enough evidence that the Special Counsel was looking at charging his son. And it’s believable because of how agressive the Special Counsel was as well as the fact that most of the team was obviously made up of hyper-partisan democrats. There’s also the fact that his original lawyers were conflicted was well with regards to managing his firm’s FARA applications.

    Here’s where the defense highlighted a demand from the prosecutor for Flynn to lie regarding his FARA application and motion to withdrawl:
    https://www.politico.com/f/?id=0000016f-a6d4-d209-a1ef-a6de35e20000

    whembly (c30c83)

  117. He plead guilty under duress.

    His own statement to the judge, under oath, was that he accepted responsibility for his crime. Are you claiming that Flynn lied under oath on 12/18/2018?

    Paul Montagu (b3f51b)

  118. DRJ (15874d) — 5/11/2020 @ 8:33 am

    Bill Barr…talked about winning and history because of it.

    Winston Churchill said the same thing, although that is more what theys say he said, than what he actually said.

    https://slate.com/culture/2019/11/history-is-written-by-the-victors-quote-origin.html

    As for Churchill, while he is strongly associated with the aphorism, as seen on inspiring Pinterest macros, at Brainy Quote, and in taunting tweets from WWE wrestlers, there’s actually no concretely documented instance in which he’s known to have uttered “History is written by the victors.” There’s a good chance part of the confusion here comes from a joke Churchill actually did say, in a speech before the House of Commons on Jan. 23, 1948: “For my part, I consider that it will be found much better by all parties to leave the past to history, especially as I propose to write that history myself.” Churchill was apparently fond of the line, as he had been trotting out versions of it since the 1930s. He even tried another version of the witticism on Josef Stalin.

    (the witticism is about him writing the history himself)

    And, no doubt, Bill Barr was echoing Winston Churchill, or what Churchill is supposed to have said…

    https://www.brainyquote.com/quotes/winston_churchill_380864

    https://i.pinimg.com/originals/dc/d4/89/dcd4897faa52135d72cf5d5a82ba5491.jpg

    … and he only meant it matter of factly, and that what he meant was that asking what history is going to say, if you mean to take the question seriously, is not a good question because, o matter what, it probably depends upon what political party is dominant.

    Sammy Finkelman (375edc)

  119. Again, I am amused at the professional myopia of the members of the bar, who seem unwilling, uninterested or unable to see things outside their narrow focus. I think this is part of the historical disconnect between attorneys and everyone else, and worthy of some reflection.

    I am amused by the thankfully small number of “everyone else” desperate to justify their continued support for the most worthless President ever. Sometimes. Other times I am annoyed.

    nk (1d9030)

  120. @118

    He plead guilty under duress.

    His own statement to the judge, under oath, was that he accepted responsibility for his crime. Are you claiming that Flynn lied under oath on 12/18/2018?

    Paul Montagu (b3f51b) — 5/11/2020 @ 10:11 am

    Yes, I’m claiming Flynn lied under oath because he was more afraid for his family.

    whembly (c30c83)

  121. @121, If true that’s a valid defense. I don’t think the brief from the DOJ asserted that. I don’t think Flynn would have been able to prove that. If there was a good chance that argument would prevail Barr wouldn’t have pulled the charges. Since he did I have to assume that argument wasn’t provable.

    If you have some evidence to support that assertion, beyond Flynn’s filing, what is it?

    Time123 (a7a01b)

  122. Well, this is interesting.

    https://www.msn.com/en-us/news/politics/more-than-1900-former-justice-dept-employees-again-call-for-barrs-resignation/ar-BB13UAwQ?ocid=spartandhp

    These are/were career civil servants, federal prosecutors, etc., not political appointees, and they do not like what they see coming out of the Trump/Barr DOJ.

    Of course, Trump is blaming it all on the Obama administration, conspiracy theorist that he is. But wait a minute, didn’t the outgoing Obama administration warn the incoming Trump administration about Flynn? Yes, they did, saying he might be compromised. Trump ignored them and appointed him anyway.

    Question: Wasn’t this all going down while Trump was still in negotiations to build Trump Tower Moscow? Yes, according to Cohen’s testimony.

    Question: What was Flynn doing discussing an easing of sanctions with the Russian ambassador? And wasn’t that the subject of the clandestine meeting at Trump Tower New York, between Junior, Kushner and a Russian red sparrow? Yeah, it was, not promised dirt on the Clinton campaign. And weren’t they trying to set up secretive secure lines of communication with Moscow? Yeah, they were.

    There’s more to this case than meets the eye.

    Gawain's Ghost (b25cd1)

  123. Duress, my aunt. Trump promised Flynn that if he kept his mouth shut, took the fall, and took the heat away from the rest of the gang, everything would come up roses for him in the end. And they are, the roses, with the help of heaps of horse manure supplied by Trump and his cult.

    nk (1d9030)

  124. Then educate us.

    Lying to the police is:

    A) A crime, perverting the course of the justice system

    B) A natural right of free people.

    Kevin M (ab1c11)

  125. That is nuts, Kevin.

    Ragspierre (d9bec9)

  126. There’s more to this case than meets the eye.

    The whole context of this case is that a perpetually bankrupt real estate speculator with known ties to the Putin regime and apparent ties to the Russian mob was on the verge of becoming POTUS, and if the intelligence community didn’t think it needed to look into how compromised or controlled that speculator was, it would have been composed of idiots.

    Kishnevi (8c41bd)

  127. @125, under current law it’s A. Under current application of the law it’s A. Unless you’re a friend of the president, than it’s B. But for the rest of us it’s A.

    Time123 (a7a01b)

  128. Sure, the judge should. You see the irony, right?

    What irony? The judge is not a political appointee, as such, and should be expected to ignore political pressure from either Party. The AG is a political appointee and should be expected to act like one. They all do. This “I’m shocked, SHOCKED, to discover that politics is going on here!” lament isn’t really very meaningful.

    The last president’s AG met with the politically powerful husband of the accused, ostensibly in secret, to discuss her reward how the case should proceed. Some of Barr’s detractors neglected to protest that,

    Kevin M (ab1c11)

  129. I’m pretty familiar with the writing of the natural rights thinkers, and I damn sure missed the one about lying to the authorities.

    Ragspierre (d9bec9)

  130. Gawain’s Ghost (b25cd1) — 5/11/2020 @ 10:36 am

    But wait a minute, didn’t the outgoing Obama administration warn the incoming Trump administration about Flynn? Yes, they did, saying he might be compromised.

    I don;t think Obama said that to Trump. He toned it down.

    Question: Wasn’t this all going down while Trump was still in negotiations to build Trump Tower Moscow? Yes, according to Cohen’s testimony.

    The Trump Tower proposal, while dormant, was never quite abandoned until sometime around June. Cohen was negotitating on his own.

    Of course Putin would never agree to it, because he didn’t want Trump to be in a position to know what rooms were bugged and if he operated the hotel, he would be. Or because he wanted someone to be offered a kickback, but Trump wasn’t buying.

    Question: What was Flynn doing discussing an easing of sanctions with the Russian ambassador?

    The Russian ambassador asked him

    Flynn also asked the Russian Ambassador if Russia could veto a United Nations resolution about Israel that the Obama Administration wasn’t going to veto. That actually is more clearly a violation of the Logan Act.

    The nature of the conversation was, as the FBI described it “arms length” , i.e., Flynn wasn’t taking orders from Kislyak. Before they got the transcript, they didn’t know that. They though he cold be an out-and-out Russian mole.

    d wasn’t that the subject of the clandestine meeting at Trump Tower New York, between Junior, Kushner and a Russian red sparrow? Yeah, it was, not promised dirt on the Clinton campaign.

    The e-mail record is that it was exactly that: promised dirt on Hillary Clinton in the possession of thw Prosecutor General of Russia.

    Sammy Finkelman (375edc)

  131. Some of Barr’s detractors neglected to protest that,

    Name some. But that’s a red herring.

    Ragspierre (d9bec9)

  132. Lying to the FBI is a crime, but not usually to state and local police. (making a false report of crime could be)

    Sammy Finkelman (375edc)

  133. That is nuts, Kevin

    And, again, you miss my point. “A” is the answer every lawyer will give. “B” is what many laymen believe. They might not act on it, given no sufficient motive, and they recognize that the State also says “A”, but unless they are under an oath freely given most people will feel no moral obligation to help the State if they don’t want to.

    And I’m sure this infuriates every police officer and every prosecutor to no end, with good reason, but it is what it is.

    Kevin M (ab1c11)

  134. Lying to the FBI is a crime

    So is suicide, also a natural right. That a law is passed does not mean that a preexisting right evaporates. Again, I am illustrating the divergence between officers of the court and those wanting nothing to do with the courts.

    Kevin M (ab1c11)

  135. Imagine this was an organized crime case. FBI interviews a guy who knows where a body is buried. Rather than asserting his Fifth Amendment rights, the guy lies and tells the FBI that he doesn’t know where the body is buried?

    Is this a crime, or a “process crime”?

    Should this be considered a crime?

    Should this crime be prosecuted?

    Leviticus (69df94)

  136. Shouldn’t be a question mark in that first paragraph, and let’s add that the guy later admits that he knew where the body was buried all along.

    Leviticus (69df94)

  137. https://www.dopplr.com/lying-to-the-police/

    You said “could be”? It is.

    Ragspierre (d9bec9)

  138. I’m pretty familiar with the writing of the natural rights thinkers, and I damn sure missed the one about lying to the authorities.

    Well, in medieval times, they used to put serfs on the rack to question them. They certainly expected lies.

    Kevin M (ab1c11)

  139. Is this a crime, or a “process crime”?

    Should this be considered a crime?

    Should this crime be prosecuted?

    How would you prosecute it, as you must prove he does know? And if you can prove that, you have far mores serious charges to pursue. Accessory at least.

    Kevin M (ab1c11)

  140. “B” is what many laymen believe.

    Never met one. Never even HEARD of one that would make such a loopy claim!

    Ragspierre (d9bec9)

  141. Well, in medieval times, they used to put serfs on the rack to question them. They certainly expected lies.

    You have a school of red herrings!

    Ragspierre (d9bec9)

  142. How would you prosecute it, as you must prove he does know? And if you can prove that, you have far mores serious charges to pursue. Accessory at least.

    You mean like with a wiretap and recording of him discussing it?

    Colonel Klink (Ret) (305827)

  143. Try this one:

    A man is killed with a car bomb, and the police want to know what time the bomb went off. They ask everyone in the neighborhood, and no one will admit to hearing anything. Most, if not all, are lying. Do you prosecute everyone? Should you prosecute anyone?

    Kevin M (ab1c11)

  144. Is this a crime, or a “process crime”?

    Yes.

    Should this be considered a crime?

    Yes. And it is.

    Should this crime be prosecuted?

    Yes.

    Ragspierre (d9bec9)

  145. A man is killed with a car bomb, and the police want to know what time the bomb went off. They ask everyone in the neighborhood, and no one will admit to hearing anything. Most, if not all, are lying. Do you prosecute everyone? Should you prosecute anyone?

    Another red herring.

    Ragspierre (d9bec9)

  146. You mean like with a wiretap and recording of him discussing it?

    Ah, then you don’t need to ask him, the answer gives you little, and again you have much more serious charges to bring.

    The point of the law is to get people to give information to further an investigation. To use the law, when there is no probative value to the questions asked, when there is no investigation or the investigation already has the answers from a more reliable source, is an abuse. That it is commonly done does not change that.

    Kevin M (ab1c11)

  147. A man is killed with a car bomb, and the police want to know what time the bomb went off. They ask everyone in the neighborhood, and no one will admit to hearing anything. Most, if not all, are lying. Do you prosecute everyone? Should you prosecute anyone?

    Do they have a recording of all those people discussing the bombing, who did it, why, and asking the bombed party not to retaliate against the bomber?

    Colonel Klink (Ret) (305827)

  148. And here is the disconnect. Lawyers say “It is the law. I see it written right here. Courts have upheld it. That makes it justice and morality combined.” To everyone else you might as well be pointing at Leviticus (the OT book, not the commenter).

    Kevin M (ab1c11)

  149. Do they have a recording of all those people discussing the bombing,

    First you move the goalposts then you insist I follow them myself. Never mind.

    Kevin M (ab1c11)

  150. To use the law, when there is no probative value to the questions asked, when there is no investigation or the investigation already has the answers from a more reliable source, is an abuse.

    An abuse of what?

    Ragspierre (d9bec9)

  151. Lawyers say “It is the law. I see it written right here. Courts have upheld it. That makes it justice and morality combined.”

    Bullspit! Lawyers are often the vanguard of getting laws changed that they know most about and find objectionable.

    But this is just a moby red herring!

    Ragspierre (d9bec9)

  152. First you move the goalposts then you insist I follow them myself. Never mind.

    The goalpost was Flynn was recorded conspiring with Kislyak on a wiretap, then lied about it.

    You building a fantasy scenario that is unrelated, to somehow argue about the Flynn case, is the textbook example of “moving the goalpost”, strawman building, gaslighting, all rolled up into one.

    Colonel Klink (Ret) (305827)

  153. First you move the goalposts then you insist I follow them myself. Never mind.

    Klink didn’t move the goalpost. You proposed a hypo and he sharpened it.

    Ragspierre (d9bec9)

  154. Kevin, I’ll try to address what I perceive to be your point seriously.

    There is agreement as a society that we have a natural right against self incrimination. This would imply it’s OK to lie to the police.

    There is agreement that in order to best protect all of our rights in some cases my individual rights some of my rights will be curtailed. eg. my right to swing my fist ends where you nose begins. We have a long history that lying to the FBI in the course of an investigation is such a case. This may be wrong, but it’s what we’ve been doing.

    There is agreement as a society that we have a right to equal protection under the law. This would imply that the decisions on who to charge should be made with a consistent set if rules.

    My conclusion is that addressing 1 and 2 in a way that violates the last point is completely unacceptable. This is especially true when the person who get’s the lucky break is a close friend of the people who could make systemic change if they wanted to.

    Time123 (53ef45)

  155. “How would you prosecute it, as you must prove he does know?”

    – Kevin M

    He later admits that he knew. I said that.

    You can answer these questions, I know you can.

    Leviticus (efada1)

  156. Here’s a National Review column on the subject. I basically agree with this, and some of his observations about people in general vs members of the bar are spot on, His comment about lying to cops being STUPID is also well-taken, and few would without reason.

    I’ll go further and say that Americans may be forgiven for believing that lying during interactions with the police is almost a time honored national tradition. The police can and do deceive suspects in order to elicit incriminating admissions. And most of us grew up watching criminal-justice shows on TV, where otherwise innocent people routinely deceive the police without being arrested for it. (I will date myself and admit that I am a fan of the old Perry Mason show, where everybody lied, all the time; one of Mason’s constant complaints was that his own clients wouldn’t even tell him the truth.) And in fact you can lie to local and state police without committing a crime; as far as I know, it’s only the federal government that punishes lying to its agents.

    I am not of course defending lying — it’s prohibited by a power Who outranks me considerably — but the point is that average people believe, and quite reasonably, that outside the courtroom they can try to deceive the police without thereby subjecting themselves to prosecution. In fact, I would wager that even most lawyers, if they do not practice federal criminal law, believe that lying to federal agents in the course of an interview, without more, is not a criminal offense.

    It might be, and usually is, stupid to lie to the police. It encourages them to believe that you may be hiding a crime, and it can be used to impeach the liar if and when he gets on the witness stand. But by itself it should not be a crime.

    https://www.nationalreview.com/corner/lying-police-should-crime/

    Kevin M (ab1c11)

  157. R.I.P. Jerry Stiller

    Icy (6abb50)

  158. I tend to agree with Kevin M. and disagree with Patterico (and many others!) about whether Flynn should have been prosecuted, but hopefully for all concerned the DOJ does not send attorney Shea by himself to appear at any hearing on the government’s motion. Since the statute requires “leave of court” for the government to dismiss the case, for that requirement not to be illusory the judge obviously has the right to deny the motion if he concludes it’s improper.

    If I were the judge I would want, at a minimum, Jensen to appear at the hearing as it was his review that supposedly prompted the dismissal motion. Sending Shea, who as Mr. P noted would probably know the least about the case of anyone in the courtroom, by himself would not be a good look by the DOJ, even if he is the one who signed the motion. I don’t know how things go in criminal court, but having the newest attorney with the least experience handle the appearance seems like a BS move, like a senior partner in a law firm in a civil case sending a junior associate to handle a contentious motion before a likely riled-up judge.

    And the judge should be riled up. Even if the government’s position now is 100% correct, whenever a party or counsel in any case does a 180 like this the court is entitled to a complete explanation, as a matter of practice even without a statute or court rule requiring one. Judges like straight talk about what’s going on in the cases on their docket — sit through a busy calendar in any LA Superior Court civil courtroom (when normal operations resume) and that fact will become abundantly clear.

    RL formerly in Glendale (40f5aa)

  159. If you don’t want to talk to law enforcement, assert your right not to do so. If you talk to law enforcement – especially the FBI – don’t lie to them.

    Flynn didn’t want to do the former because he was neck-deep in shady sh*t and didn’t want to draw attention to himself. He was a major counterintelligence risk, and *that* was what he was trying to obscure from the FBI by lying about his prior conversations. Crime on paper? Yes. Should it be prosecuted? Career federal prosecutors obviously thought so.

    Leviticus (efada1)

  160. This is like an MSNBC panel! Go Kevin!

    Colonel Haiku (2601c0)

  161. Note this: “But by itself it should not be a crime.”

    Elsewhere in the article he describes an interview conducted solely to see if the subject will lie as entrapment — a government-generated crime.

    Kevin M (ab1c11)

  162. Career federal prosecutors obviously thought so.

    Did they? IIRC they didn’t. Mueller did, opportunistically.

    Kevin M (ab1c11)

  163. You can answer these questions, I know you can.

    Ask me one where there is no alleged crime attached to it. The FBI hauls you in and starts asking you questions about baseball. You answer most question truthfully, but when they ask you whether Pete Rose should be in the Hall of Fame, you lie and say “No.” But they have a tape recording of you strongly asserting that he should be in the Hall.

    Have you committed a crime?

    Kevin M (ab1c11)

  164. @164, How about if it’s in furtherance of a CI investigation?

    Look, you’re arguing for a better definition of ‘material’. That’s actually a good idea. Barr should direct his team to use their prosecutorial discretion to be in line with that definition. Can you give me a good reason that they haven’t ?

    Time123 (53ef45)

  165. Can you give me a good reason that they haven’t ?

    Because anything he does will be attacked (or supported) for political reasons. He could predict sunrise and someone would say it’s about Trump (besides Trump).

    Kevin M (ab1c11)

  166. Part of my displeasure is the pervasiveness of “felony” in our legal system. Too many things are (or can optionally be charged as) felonies, and those decisions are not made equitably.

    One national security advisor is charged with felonies for what might only have been a different memory of a long conversation, in an investigation that was so vague that people give different reasons for it.

    Yet a former national security advisor sneaks a Top Secret document out of the National Archives in his pants — one that had great bearing on an important national investigation (the 9/11 commission) — and is allowed to plead to a misdemeanor.

    Kevin M (ab1c11)

  167. Sandy Berger should have done hard time. He didn’t. Now people are talking about the Rule of Law? A little late and quite a bit short.

    Kevin M (ab1c11)

  168. 160. Leviticus (efada1) — 5/11/2020 @ 11:43 am

    If you don’t want to talk to law enforcement, assert your right not to do so. If you talk to law enforcement – especially the FBI – don’t lie to them.

    Flynn didn’t want to do the former because he was neck-deep in shady sh*t and didn’t want to draw attention to himself.

    Flynn wanted to look like he had nothing to hide, so he didn’t even ask the White House counsel’s office if he should see some FBI agents.

    He was a major counterintelligence risk, and *that* was what he was trying to obscure from the FBI by lying about his prior conversations.

    He was accused of violating the Logan Act, and also had already told this lie to people in the Trump transition and to Mike Pence. He had done that partially because he ws afraid they’d think he had exceeded his authority in what he’d said to the Russian Ambassador and partially because of this Logan Act thing.

    Crime on paper? Yes. Should it be prosecuted? Career federal prosecutors obviously thought so.

    They didn’t,

    Peter Strzok had re-written the 302s to say Flynn was truthful after Trump asked FBI Director Comey on Feb 14 if he could see his way toward letting him go.

    They leaked the new version of reality to CNN.

    https://mobile.twitter.com/jimsciutto/status/832013379124486148?p=v

    Jim Sciutto
    @jimsciutto

    Breaking: FBI NOT expected to pursue charges against #MichaelFlynn regarding phone calls w/Russian Ambassador, reports @evanperez

    3:45 PM – 15 Feb 2017

    ———–

    Jim Sciutto
    @jimsciutto

    Replying to @jimsciutto

    More: FBI says Flynn was cooperative and provided truthful answers

    3:47 PM – 15 Feb 2017

    Things had turned on a dime:

    At 6:25 am February 15, Zero Hedge had this: (that’s Feb 15 in spite of the URL saying Feb 14)

    http://www.zerohedge.com/news/2017-02-14/mike-flynn-may-face-felony-charges-lying-fbi

    But by 10 pm Zero Hedge reported:

    http://www.zerohedge.com/news/2017-02-15/fbi-reportedly-will-not-pursue-charges-against-cooperative-and-truthful-mike-flynn

    The case was revived as part of a plea bargain.

    Sammy Finkelman (375edc)

  169. 168. Sandy Berger got rid of copies of something destined for the 9/11 commission that contradicted is and Bill Clinton’s claim that a decision by them (and not a alert customs agent acting alone) had stopped the bomb plot scheduled for December 31, 1999. Al Qaeda gave up after the first smuggler was caught.

    That was caught but who knows what he might have successfully removed from the National Archives o other matters before they got suspicious of him?

    Sammy Finkelman (375edc)

  170. Sandy Berger should have done hard time. He didn’t. Now people are talking about the Rule of Law? A little late and quite a bit short.

    Well, if that one guy who had the same job got away with a thing, everyone that has that job has to get away with everything else, or something. That’s just illogical.

    Colonel Klink (Ret) (305827)

  171. Appears to me that Kevin has managed another thread jack by strewing the path with red herrings of varying degrees of stink.

    I’m betting that if our host wanted to have a thread about the virtues of lying to LEOs, he’d know how to prompt that discussion. He didn’t.

    Ragspierre (d9bec9)

  172. The judge laid out one of Flynn’s known real legal problems:

    Four: Finally, Mr. Flynn made false statements or omissions regarding his contacts with foreign governments, specifically, the Republic of Turkey, when filing documents with the Department of Justice pursuant to the Foreign Agents Registration Act, commonly referred to as FARA.

    On March 7th, 2017, Mr. Flynn filed multiple documents pursuant to the Foreign Agents Registration Act. In the filings, he made false statements or omissions by stating that his company, the Flynn Intel Group, Incorporated did not know whether or the extent to which Turkey was involved in a project he and his company performed, quote, for the principle benefit of Turkey, end quote, when, in fact, Turkish officials had supervised, approved, and directed the work his company performed.

    Mr. Flynn also made false statements by stating that his company’s Turkey project was, quote, focused on improving U.S. business organizations’ confidence regarding doing business with Turkey, end quote, when that was not the primary purpose.

    Sammy Finkelman (375edc)

  173. Can you give me a good reason that they haven’t ?

    Because anything he does will be attacked (or supported) for political reasons. He could predict sunrise and someone would say it’s about Trump (besides Trump).

    Kevin M (ab1c11) — 5/11/2020 @ 12:14 pm

    That’s just a roundabout way to complain that ppl are mean to trump. It doesn’t remotely answer the question.

    Time123 (53ef45)

  174. There is agreement as a society that we have a natural right against self incrimination. This would imply it’s OK to lie to the police.

    Time, THAT’s a leap of logic you cannot justify.

    Provide some support for the notion you sponsor here, ‘cuz just damn…!!!

    There is NO natural right to self-incrimination. There is a legal fiction that provides that right HERE in the USA. Even other nations with a natural rights historical background don’t carry the notion as far as we do, and NOOOOOOooooobody EVER suggested a “natural right to lie” before Kevin.

    Ragspierre (d9bec9)

  175. There is NO natural right against self-incrimination.

    Ragspierre (d9bec9)

  176. Hmm, watch Trump on the TeeVee lying about testing, or binge 19-2? 19-2 it is.

    Colonel Klink (Ret) (305827)

  177. Rags, I’m being concise here. But do you agree that I have a natural right against self incrimination and that I’ve taken it too far or are you rejecting my premise?

    Time123 (a7a01b)

  178. Sandy Berger should have done hard time. He didn’t. Now people are talking about the Rule of Law? A little late and quite a bit short.

    You might want to check my archives before you try tarring me with that particular brush.

    Yes, you can find people — people other than me and a lot of other fair-minded people right here in this comment section who actually care about the Rule of Law — who are partisan in their approach to the application of the Rule of Law. So [expletive deleted] what? You are talking to us now. Can those whatabout arguments and stick to why Flynn, a National Security Adviser, should be able to lie to federal agents about his interactions with an ambassador of an often hostile country.

    Patterico (115b1f)

  179. Getting my chips and quac ready for season 3…saw this.

    Trump said the United States is testing more people per-capita than South Korea, the United Kingdom, France, Japan, Sweden, Finland “and many other countries.” Then he added, somewhat confusingly: “and in some cases, combined.” Uhh…well…mathmatically, if the PCofX>A, and B…jeez, it’s like Trump doesn’t understand basic concepts like what “more” or “numbers” are.

    Colonel Klink (Ret) (305827)

  180. Retailers are making plans to open up hundreds and hundreds more [testing] locations within the next 30 days

    So, you mean they aren’t open today…the testing will be opening weeks after the fact to make sure we have a good solid number of sick people to test, I guess.

    OK, off to French Canadia prestige TeeVee.

    Colonel Klink (Ret) (305827)

  181. But do you agree that I have a natural right against self incrimination and that I’ve taken it too far or are you rejecting my premise?

    I’m rejecting the premise that there is a nature right against self-incrimination. There simply isn’t one. If you shoot someone and go to the police station and blurt out, “I shot John Brown”, that’s coming against you at trial. Hell, you walk into the coffee shop and tell your buddy, THAT will come in against you.

    ALLL the Fifth Amendment legal fiction says is that you cannot be COMPELLED to testify against yourself in a CRIMINAL matter, or more precisely the information thus obtained cannot be held against you. You sure as hell can be in a civil matter unless your testimony incriminates you.

    Ragspierre (d9bec9)

  182. Wait, before play…

    “Transition into greatness.” is the new slogan, replacing “Keep America Great Again”, I guess this means that Trump recognizes that he failed before, so now we have to make it do the thing that he said we’d already done, again, or something.

    Also, “We have met the moment, and we have prevailed”. OK, or is that “The moment happened, then it passed”? Did we beat the moment, was Rust right, is time a flat circle? Trump is a philosopher I guess.

    Barron and Chartier are getting into some stuff over his Barron’s cousins murder. 19-2 is awesome.

    Colonel Klink (Ret) (305827)

  183. Again, I’m amused at all the strum und drang that is kicked up by people defending a self-confessed, and otherwise known in every way liar.

    You make it sound as if Flynn is a rarity in Washington.

    PS – He’s not.

    Hoi Polloi (dc4124)

  184. You make it sound as if Flynn is a rarity in Washington.

    So you’re saying Flynn is a liar.

    Colonel Klink (Ret) (305827)

  185. You make it sound as if Flynn is a rarity in Washington.

    And THAT is the deflection known as the straw man fallacy.

    Ragspierre (d9bec9)

  186. And THAT is the deflection known as the straw man fallacy.

    What’s “straw man” pointing out that pretty much every politician lies? The difference between one getting prosecuted over another is just politics. If you don’t care that the FBI handled this Flynn investigation in a much different manner than it should have, that’s on you.

    For me, I think it is high time for federal and state law enforcement to change. I’m tired of politics and racism in law enforcement. If you don’t have a lot of money or political connections or light skin, then your justice is different.

    Kinda sad, don’t you think?

    Why did the FBI wait three weeks to write the Flynn 302 when FBI policy is five days? How could they remember all those details from just the notes after all that time passed? Why did Sztrok have his lover review it? Was she there? Was she even an agent?

    Why did they interview him AFTER the investigation found no hint of wrongdoing?

    Hoi Polloi (dc4124)

  187. Now you’ve followed along with a whole platoon of straw men!

    Short course in logical fallacy: A straw man fallacy refuses to meet an argument head-on, and deflects to another idea. You erect a straw man and slay it! Often the victor over the straw man claims victory in the argument. Regardless, it is a deflection.

    We all know people lie. That’s a true observation that 1) nobody was arguing, and 2) nobody refutes.

    There’s nobody asserting that Flynn is a rarity.

    Ragspierre (d9bec9)

  188. Last Thursday, the same day the US filed its Motion to Dismiss, Flynn filed a Motion to Withdraw all his pending motions including his Motion to Withdraw his Guilty Plea.

    DRJ (15874d)

  189. I am confused by your points, Kevin M. What do you mean by “natural rights”? Is that God-given or inborn vs man-made? Laws are man-made concepts designed to protect society and/or individuals. Morality is, IMO, what I think of as a God-given or natural concept. If that is correct, lying is immoral and there is no natural right to lie. It only is in the man-made “Rule of Law” world, where lying is sometimes allowed. (The Supreme Court addressed it in the Alvarez case.) Lying is not allowed when the FBI interviews people.

    DRJ (15874d)

  190. James Clapper lied under oath to Congress and was never charged. What is the standard? Why do we not have a uniform standard? Lying to Congress under Oath is not a crime but Lying to the FBI is? It seems the rule of law is a fairy tail lawyers tell the public so they can use discretion to act however they please. I do not believe there has been any tribe or country that has actually had the “rule of law” in the history of humanity. The legal profession has made a joke of the rule of law.

    DaveMac (4cc9b4)

  191. Why are there no sanctions for the prosecution acting in bad faith. There is plenty of evidence that the FBI and the Justice De-artment acted in bad faith against Flynn. What happened to the original 302? Why was it altered?

    DaveMac (4cc9b4)

  192. Interestingly, the statute punishes false statements made “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”—Bored Lawyer

    Lying in any federal proceeding appears to be a crime. (See the period?)

    Ragspierre (d9bec9)

  193. I do not believe there has been any tribe or country that has actually had the “rule of law” in the history of humanity. The legal profession has made a joke of the rule of law.

    This is the old, old complaint that we don’t have “justice”.

    No, indeed! And you’re right!, there’s never been any culture anywhere that had “justice”.

    What we DO have is a system of laws and rules to enforce them, administered by a bunch of humans.

    Many of them are the finest human beings you’ll ever meet. But they all are hewn from the same crooked timber as all of humanity.

    So, you’ll never have “justice”. You’ll never have a perfect rule of law, just a system that strives toward that as an ideal. It’s the best humans can do.

    Any time you can do better, you just jump right in!

    Ragspierre (d9bec9)

  194. Why are there no sanctions for the prosecution acting in bad faith. There is plenty of evidence that the FBI and the Justice De-artment acted in bad faith against Flynn. What happened to the original 302? Why was it altered?

    I said this nine days ago:

    I want anyone who is still skeptical of the Flynn prosecution to read two documents before asking me any questions about it. Those documents are 1) a memorandum opinion written by Hon. Emmet G. Sullivan, United States District Judge and the judge in Flynn’s case, denying numerous motions brought by Flynn; and 2) a transcript of proceedings before Judge Sullivan held on December 18, 2018.

    In the latter document, Flynn says he knew lying to the feds was a crime when he did it. He says he does not want to challenge the circumstances of his interview. He says he has no concerns about potential Brady material, and he reaffirms that he is indeed guilty. His lawyer denies that Flynn was entrapped and affirms that Flynn’s rights were not violated by his not having had an attorney present for the FBI interview. In the former document the judge addresses and rejects all kinds of claims that are still being made by Flynn’s lawyers.

    If you want to yammer about the “original 302″ or how the 302 was edited or how the interviewing agents thought Flynn was telling the truth or how there is missing exculpatory evidence or how the interview was pretextual or how Flynn had to reason to lie or how they didn’t read him his Miranda rights or warn him that lying would be a crime or anything along those lines, I am going to want you to certify to me that you have first read and digested the contents of those documents and that the answer to your question is not contained therein. If the answer to your question is actually contained therein, I will simply respond to your question by reminding you to read those documents. If you think the answer to your question is not contained therein, the burden will then be on you to cite the relevant passage, quote it, and explain how it does not address your concerns. In other words, if you’re going to ask a question of me, after I have done all this work and given you both of these links, you’re going to have to do some work of your own to justify why I should do any more. My default is going to be that I have given you over 4,300 words on the topic today, without pay, and I don’t feel like expending any more energy — especially if the answer is out there and you are just too lazy to look it up even though I gave you the links.

    Why Flynn Is Not Vindicated, Part Two: The Evidence Does Not Suggest a Plot to Get Flynn Fired

    Patterico (115b1f)

  195. By the way, I wanted them to go after Clapper too.

    Patterico (115b1f)

  196. The transcript is dated Dec 18, 2018. 302’s are mentioned on page 6, 13, 14, and 15. Judge orders DOJ to produce both versions of 302. There appears to be no discussion of why there are two versions, or any discussion of the normal procedure for 302s and whether the procedure was followed, and, if not, why not.

    The opinion is dated Dec 16, 2019. It says the 302s were provided to the defense. Again, I did not see a discussion of the reason for 2 versions of the 302s, if there were differences, what they were, or whether normal FBI procedure was followed, and if not, why not..

    The answers to these questions would shed some light on whether or not the FBI was acting in bad faith.

    DaveMac (4cc9b4)

  197. Why did they interview him AFTER the investigation found no hint of wrongdoing?

    If you can’t venture a guess, you have no business talking about this in public.

    Patterico (115b1f)

  198. If court decisions are just too difficult to read, there’s always my tweets.

    Patterico (115b1f)

  199. The police are always acting in bad faith as far as criminals are concerned. They’re not like their mommies at all, the meanies.

    nk (1d9030)

  200. Yes, he made false statements. But if the government was acting in bad faith, that should be relevant. Why did the FBI not put him under oath? Why did they not warn him that false statements could be prosecuted. This goes directly to Comey’s desire to send people over to the White House before they could put procedures in place to guard against that. This indicates Comeys desire to catch Flynn making a false statement so it could be used as leverage. Note that Secretary Clinton was not put under oath and her Staff given blanket Immunity. Why was Flynn not offered the same? Yes Flynn said he was not pressured into pleading guilty, but all these indications of bad faith seem worth exploring now that Flynn has new representation and has changed his mind about the plea.

    DaveMac (4cc9b4)

  201. Used by the FBI as leverage for what and against who?

    DaveMac (4cc9b4)

  202. From a comment to your post on May 2 – Patterico, I’ll be honest. I only read almost every word. I skimmed the quote from Popehat. But I’ve heard him explain what material means on AtPL before so I think it get it well enough for this conversation.

    I have a question for you. I hope I worded it clearly, it’s genuine and not intended as any sort of gotcha. Assuming that what we know already is factual and accurate can you describe what you feel would be the minimum level of evidence to reasonably support an assertion that the FBI acted with enough impropriety to justify retracting the guilty plea and or dismissing the charges?

    I think that unless they can show evidence (testimony or documentary) his son was threatened with an unjustified prosecution or that the FBI didn’t reasonably believe there was a valid reason to question Flynn the plea deal should stand. But I’m an amateur at this and I’m genuinely curious what you think.

    Time123 (235fc4) — 5/2/2020 @ 4:16 pm

    You never did answer the question? I thought it was a good one and goes to the issue I am trying to get you to consider.

    DaveMac (4cc9b4)

  203. https://thehill.com/opinion/white-house/497064-why-dismiss-the-flynn-case-because-the-fbi-cant-prove-it

    In conclusion:
    In Flynn’s case, the government could not conceivably have met its burden of proof. In dismissing the case on a legal rationale, the Justice Department avoided the potential of an ugly trial that would have damaged the FBI and DOJ.

    whembly (c30c83)

  204. Why did the FBI not put him under oath? Why did they not warn him that false statements could be prosecuted.

    Oh, my God. I direct you to the same two links.

    Patterico (115b1f)

  205. In Flynn’s case, the government could not conceivably have met its burden of proof. In dismissing the case on a legal rationale, the Justice Department avoided the potential of an ugly trial that would have damaged the FBI and DOJ.

    Are you kidding me? The defendant plead guilty. The case was over.

    DRJ (15874d)

  206. @206

    Are you kidding me? The defendant plead guilty. The case was over.

    DRJ (15874d) — 5/11/2020 @ 6:22 pm

    Who since have motioned to withdraw his plea (due to the DOJ’s motion to dismiss).

    There’s more than enough evidence that Flynn was pressured to plead out based on prosecutial mis/malfeasance.

    whembly (c30c83)

  207. Please list the evidence.

    DRJ (15874d)

  208. *(since rescinded due to DOJ’s motion to dismiss).

    whembly (c30c83)

  209. I understand that the judge said they were not required to. I am saying that is a failing of “the rule of law” and that they should have, even though they weren’t required to. This would prevent law enforcement from taking advantage of an individuals foolishness or naïveté if they were not under criminal investigation. Given Comey’s statement of his intent, If I were an FBI agent under those circumstances, I would have considered it to be an ethical obligation to warn him.That is why prosecutors should have a stronger code of ethics, but it is no accident that the legal profession is unwilling to institute one.

    DaveMac (4cc9b4)

  210. Another option, was to go back later, tell him that he had made a false statement, and then put him under oath and ask him the set of questions again.

    DaveMac (4cc9b4)

  211. @208

    Please list the evidence.

    DRJ (15874d) — 5/11/2020 @ 6:32 pm

    https://www.scribd.com/document/458160278/US-v-Flynn
    See Exhibit 1:
    “We have a lawyer’s unofficial understanding that they are unlikely to charge Junior in light of the Cooperation Agreement”

    See Exhibit 2:
    “The only exception is the reference to Michael Jr. The government took pains not to give a promise to MTF regarding Michael Jr., so as to limit how much of a “benefit” it would have to disclose as part of its Giglio disclosure to any defendant against whom MTF may one day testify.”

    As a prosecution attorney, how do you convince a jury that there wasn’t an iota of pressure here?

    whembly (c30c83)

  212. whembly, I know you read my post dismantling that BS

    http://patterico.com/2020/05/01/why-flynn-is-not-vindicated-part-one-there-is-no-evidence-of-a-side-deal-not-to-prosecute-his-son/

    because you commented on it

    and you would not comment on a post you had not read

    would you

    Patterico (115b1f)

  213. By the way, Flynn had previously filed a Motion to Withdraw his guilty plea on January 14, 2020, and supplemented it twice after that date. On May 7, 2020, the same day the DOJ filed its motion to dismiss the charges, Flynn moved to withdrawn his pending Motion to withdraw guilty plea so he is no longer seeking to withdraw his guilty plea.

    DRJ (15874d)

  214. 180. Colonel Klink (Ret) (305827) — 5/11/2020 @ 1:32 pm

    Trump said the United States is testing more people per-capita than South Korea, the United Kingdom, France, Japan, Sweden, Finland “and many other countries.” Then he added, somewhat confusingly: “and in some cases, combined.”

    Oh, that’s simple.

    He means more per capita than each of those countries taken individually, and in some cases, you could add the per capita figures for two countries together and still have less </b? than the per capita figure for the United States.

    And I explained that without a secret Trump decoder ring.

    Of course I don't have any idea whether any of that is true, but I suspect in any case he's using a misleading statistic.

    Now some countries have gotten down to very few cases and maybe they are now testing just contacts that are traced.

    Sammy Finkelman (375edc)

  215. The possibility of prosecution of other family members, or the impact on the family that comes froma the prosecution of one member, are real issues that almost every defendant faces. That can cause people to plead guilty but it is not duress if there is evidence of guilt, as there is here.

    DRJ (15874d)

  216. By the way, Flynn had previously filed a Motion to Withdraw his guilty plea on January 14, 2020, and supplemented it twice after that date. On May 7, 2020, the same day the DOJ filed its motion to dismiss the charges, Flynn moved to withdrawn his pending Motion to withdraw guilty plea so he is no longer seeking to withdraw his guilty plea.

    Yes, but the withdrawal of all pending defense motions was done with the understanding that the Government’s motion would be filed, based on the assumption that it will end the case. In the unlikely event that Sullivan denies the Government’s motion, all defense motions will be back on the table.

    Patterico (115b1f)

  217. I don’t see how “we made no promises to Flynn about his son” is considered proof that they made promises to Flynn about his son. Especially when Flynn swore under oath that there were no undisclosed promises.

    Patterico (115b1f)

  218. Ok, I realize they can be refiled and it was clearly coordinated, but why was it necessary to withdraw the pending defense motions?

    PS: my comment was in response to 207, but I posted my comment before seeing his clarification at 209.

    DRJ (15874d)

  219. The answers to these questions would shed some light on whether or not the FBI was acting in bad faith.

    The answers are in Sullivan’s December 2019 decision on the motion to dismiss, where he rejected defense assertions of bad faith, Brady violations and other improprieties.

    Paul Montagu (b3f51b)

  220. Nice piece in WaPo about how it’s not over until the judge says it’s over. Again, some overlap with this post.

    Patterico (115b1f)

  221. @213

    whembly, I know you read my post dismantling that BS

    http://patterico.com/2020/05/01/why-flynn-is-not-vindicated-part-one-there-is-no-evidence-of-a-side-deal-not-to-prosecute-his-son/

    because you commented on it

    and you would not comment on a post you had not read

    would you

    Patterico (115b1f) — 5/11/2020 @ 6:45 pm

    I disagree that you dismantled that BS. You simply made an educated guess as to what *you* transpired.

    Another thing I’d like to point out, is that there were NUMEROUS stories about how Jr. was in legal jeopardy at the time:
    https://www.forbes.com/sites/jacobfrenkel/2017/11/27/will-michael-flynn-plead-guilty-and-cooperate-to-protect-his-son/#161705a814fe

    https://www.nbcnews.com/news/us-news/mike-flynn-s-son-subject-federal-russia-probe-n800741

    https://www.cnn.com/2017/11/08/politics/michael-flynn-son-special-counsel-russia-investigation/index.html

    https://www.chicagotribune.com/nation-world/ct-michael-flynn-mueller-deal-20171201-story.html

    https://www.wsj.com/articles/the-flynn-information-1512172863

    Those were on the first google page.

    To me, I don’t think Flynn takes the plea deal if his son wasn’t targeted in some fashion. If he wanted to fight the false statement charge, all he (and his attorney) had to do was to demand the evidence from the Mueller team. And yet, neither the defense nor the public has that transcript.

    whembly (c30c83)

  222. @216

    The possibility of prosecution of other family members, or the impact on the family that comes froma the prosecution of one member, are real issues that almost every defendant faces. That can cause people to plead guilty but it is not duress if there is evidence of guilt, as there is here.

    DRJ (15874d) — 5/11/2020 @ 6:51 pm

    I’m not sure I follow.

    That is by definition to taking the plea “under duress”.

    Furthermore, we don’t know the evidence of guilt. There are transcripts of the Flynn call that has not been made public. Multiple FBI/DOJ folks reviewed the transcript and found them kosher.

    It only took the Mueller team to extract a plea deal from Flynn.

    You have to wonder *why* he took the plea.

    whembly (c30c83)

  223. 187. Hoi Polloi (dc4124) — 5/11/2020 @ 2:15 pm

    Why did the FBI wait three weeks to write the Flynn 302 when FBI policy is five days?

    They didn’t, but Peter Strzok revised both his and his colleague’s FD-302s on February 15 to exonerate Mike Flynn

    And got rid of the first drafts.

    Or at least I think that’s what this is saying:

    https://www.theepochtimes.com/strzok-made-major-edits-to-lost-flynn-questioning-report-draft-texts-indicate_3335311.html

    Strzok Made Major Edits to Lost Draft of Flynn-Questioning Report, Texts Indicate

    BY PETR SVAB May 1, 2020 Updated: May 6, 2020

    Peter Strzok, former FBI head of counterintelligence operations, significantly changed an early draft of the official FBI report from its questioning of Lt. Gen. Michael Flynn, newly released text messages indicate.

    The FBI hasn’t yet shown the early draft to Flynn. An eye witness said the draft included exculpatory information, which was removed in the final version, Flynn’s lawyer, Sidney Powell, previously said.

    Flynn’s lawyer maybe has to say that. I suspect that version had nothing exonerating.

    Sammy Finkelman (375edc)

  224. @219

    Ok, I realize they can be refiled and it was clearly coordinated, but why was it necessary to withdraw the pending defense motions?

    PS: my comment was in response to 207, but I posted my comment before seeing his clarification at 209.

    DRJ (15874d) — 5/11/2020 @ 6:56 pm

    I suspect it was done that way to moot the motion since the DOJ’s dismissal motion is still outstanding.

    If the judge accept the dismissal motions, then there’s no need for the judge to answer the plea withdrawal motion. However, if the judge denies the dismissal motions, the defense can refile the withdrawal motion that way.

    whembly (c30c83)

  225. And yet, neither the defense nor the public has that transcript.

    We may get it now, because guess what? The Government put it at issue in their latest filing. Oops!

    I’m not sure Mike Flynn wants America reading that transcript. But the judge may have other ideas. I for one am eager for its release. Reportedly reading it it was enough to cause some DOJ leadership to become convinced he was guilty,

    Patterico (115b1f)

  226. It is not duress if his son was implicated, too.

    DRJ (15874d)

  227. To me, I don’t think Flynn takes the plea deal if his son wasn’t targeted in some fashion. If he wanted to fight the false statement charge, all he (and his attorney) had to do was to demand the evidence from the Mueller team. And yet, neither the defense nor the public has that transcript.

    Well, since Flynn was a participant in that call, why would he need a transcript to find out what he said to Kislyak and what Kislyak said to him?

    Kishnevi (2c05aa)

  228. Or maybe Flynn, Barr et al., feel the Judge might dismiss the case but would balk at allowing Flynn to withdraw his plea, given the statements Flynn made when he entered his plea.

    DRJ (15874d)

  229. @226

    And yet, neither the defense nor the public has that transcript.

    We may get it now, because guess what? The Government put it at issue in their latest filing. Oops!

    I’m not sure Mike Flynn wants America reading that transcript. But the judge may have other ideas. I for one am eager for its release. Reportedly reading it it was enough to cause some DOJ leadership to become convinced he was guilty,

    Patterico (115b1f) — 5/11/2020 @ 7:10 pm

    Right. And who were the DOJ leadership at that time?

    They’re all on the up and up… right?!?

    (inserts a “yeah sure” gify)

    But, yes, I’m eager for the transcript too. I’m willing to bet that there were nothing untowards (as the current DOJ stated) in that call, as Flynn was doing his job as the incoming National Security Advisor.

    The simplest answer as to why Flynn plead guilty, was that his son was in legal jeopardy as well as the incurring defense cost that is or nearly bankrupting him. He simply wanted to stop the pain.

    I’ve never seen you address this and this is important: Before the special counsel, FARA indictments were RARE. Most are simply identified and asked to rectify by refiling and/or paying fines. (ie, The Podesta Group) However, the Special Counsel went uber aggressive here in order to tally up scalps and to squeeze them. This unsightly one-side application of the law stinks to high heavens.

    whembly (c30c83)

  230. Why did Sztrok have his lover review it? Was she there? Was she even an agent?

    He was writing fiction, so he needed to consult her.

    I thought this happened on Feb 15, but this was going n on February 10, so there was some other reason Strzok changed them.

    He might have revised it a few times and what we have now might be the third or fourth draft. I do;t even know what’s in the now official version.

    “Lisa you didn’t see it before my edits that went into what I sent you,” Strzok texted after 10 p.m. on Feb. 10, 2017, to Lisa Page, his mistress and then-special counsel to FBI’s then-Deputy Director Andrew McCabe.

    Strzok said he was “trying to not completely rewrite” the document “so as to save [redacted] voice.”

    Redacted is the name of the other agent who interviewed Flynn, and he wanted to leave it sounding like the other person, not like himself. Lisa had apparently criticized Strzok’s writing and he explained that he had to leave it looking a little awkward because he wanted to keep a lot of what the other FBI agent wrote.

    More:

    In an Oct. 24, 2019, court filing (pdf), Powell rejected the suggestion that the 302 draft was “missing,” saying neither the bureau nor its digital document system “loses the most important of its reports that is supposed to support the federal felony of the President’s National Security Adviser.”

    More

    “I’ve now found a witness who says the original 302 did in fact say that Flynn was honest with the agents and did not lie,” she told Larry O’Connor on his WMAL radio show. “So for somebody to delete that from the 302 is just beyond outrageous.”

    Hey! That Flynn was honest was in the Feb 15 leak to CNN.

    That reversed the position of the day before:

    http://www.zerohedge.com/news/2017-02-14/mike-flynn-may-face-felony-charges-lying-fbi

    But by 10 pm Zero Hedge reports:

    http://www.zerohedge.com/news/2017-02-15/fbi-reportedly-will-not-pursue-charges-against-cooperative-and-truthful-mike-flynn

    Sammy Finkelman (375edc)

  231. Threatening to target family members just because they are family is duress and that is (not surprisingly) against FBI regulations. But family members can be targets:

    In order for the Special Counsel to threaten and actually bring criminal charges against Flynn’s son, the prosecutors must believe, as set forth in the United States Attorney’ Manual (USAM), that Flynn’s son’s “conduct constitutes a criminal offense, the admissible evidence will probably be sufficient to obtain and sustain a conviction and that a substantial federal interest would be served by the prosecution.” Normally, DOJ policy would disfavor leveraging one close family member against another. The Flynn scenario, however, falls expressly within an exception. That is “specific justification exists, among other circumstances, where (i) the witness and the relative participated in a common business enterprise and the testimony to be elicited relates to that enterprise or its activities; (ii) the testimony to be elicited relates to illegal conduct in which there is reason to believe that both the witness and the relative were active participants; or (iii) testimony to be elicited relates to a crime involving overriding prosecutorial concerns.” Mueller’s team need not look beyond the three alternative justifications – any one is sufficient for the exception to apply; meanwhile, all three expressly apply to the father-son Flynns.

    DRJ (15874d)

  232. @228

    To me, I don’t think Flynn takes the plea deal if his son wasn’t targeted in some fashion. If he wanted to fight the false statement charge, all he (and his attorney) had to do was to demand the evidence from the Mueller team. And yet, neither the defense nor the public has that transcript.

    Well, since Flynn was a participant in that call, why would he need a transcript to find out what he said to Kislyak and what Kislyak said to him?

    Kishnevi (2c05aa) — 5/11/2020 @ 7:14 pm

    Because according to Strzok/Pientka’s (even edited) 302, Flynn was unsure if it came up.

    Read the DOJ’s motion to dismiss… it’s all there.

    Flynn was never given the opportunity with being provided with the transcript to be reminded of that conversation. Keep in mind that he’s in “transition” mode, so he had to be dealing with phone calls from numerous dignitaries every day. Hell, I don’t remember exactly what I said in my conference call yesterday.

    whembly (c30c83)

  233. 230. whembly (c30c83) — 5/11/2020 @ 7:30 pm

    I’m willing to bet that there were nothing untowards (as the current DOJ stated) in that call, as Flynn was doing his job as the incoming National Security Advisor.

    I’m not sure it was part of his job to ask Russia to veto a anti-Israel United Nations Security Council resolution that Obama wouldn’t, and, in fact, was quietly rounding up votes for so it would get 9 YES votes even with a United States abstention.

    The simplest answer as to why Flynn plead guilty, was that his son was in legal jeopardy

    That’s a nice explanation but it isn’t truw. It had to be his own legal jeopardy o other matters.

    as well as the incurring defense cost that is or nearly bankrupting him. He simply wanted to stop the pain.

    The problem with that is that he’d already spent a lot of money. And he spent money later. I mean he’s still got lawyers.

    Sammy Finkelman (375edc)

  234. 129. The AG is a political appointee and should be expected to act like one.

    This is from much earlier today but I can’t let it stand without a response because it is wrong. His duty and allegiance as a federal official is not to the President but to the Constitution. In addition, as an attorney, the Attorney General has a separate duty to uphold the law. The fact that past officials may not appear to do that does not change what their duties and responsibilities are.

    DRJ (15874d)

  235. Kishnevi (2c05aa) — 5/11/2020 @ 7:14 pm

    Well, since Flynn was a participant in that call, why would he need a transcript to find out what he said to Kislyak and what Kislyak said to him?

    Because , in order to do that, it would need to be declassified, and rather than declassify it, the government would drop the case.

    Sammy Finkelman (375edc)

  236. @232 Threatening to target family members just because they are family is duress and that is (not surprisingly) against FBI regulations. But family members can be targets:

    In order for the Special Counsel to threaten and actually bring criminal charges against Flynn’s son, the prosecutors must believe, as set forth in the United States Attorney’ Manual (USAM), that Flynn’s son’s “conduct constitutes a criminal offense, the admissible evidence will probably be sufficient to obtain and sustain a conviction and that a substantial federal interest would be served by the prosecution.” Normally, DOJ policy would disfavor leveraging one close family member against another. The Flynn scenario, however, falls expressly within an exception. That is “specific justification exists, among other circumstances, where (i) the witness and the relative participated in a common business enterprise and the testimony to be elicited relates to that enterprise or its activities; (ii) the testimony to be elicited relates to illegal conduct in which there is reason to believe that both the witness and the relative were active participants; or (iii) testimony to be elicited relates to a crime involving overriding prosecutorial concerns.” Mueller’s team need not look beyond the three alternative justifications – any one is sufficient for the exception to apply; meanwhile, all three expressly apply to the father-son Flynns.
    DRJ (15874d) — 5/11/2020 @ 7:33 pm

    DRJ, thank you for conceding that.

    I know it’s not illegal, I was trying to make the point as to the rationale *why* Flynn would accept the plea.

    The other thing I’d like to point out, is that the Special Counsel chose not to charge Flynn with that alleged FARA violation instead of the false statement charge.

    If there were legit FARA violation, then the SCO broke DOJ regulation…during plea bargain, you’re supposed to charge the defendant with the most serious crime and with the cooperating agreement at sentance beseech the court to reduce the sentence due to complied cooperation. FARA violations has the more serious penalty than the false statement.

    At best.. it could be that the SCO didn’t feel that the FARA violation is strong enough, beyond a reasonable doubt to charge Flynn. At worst, the SCO wanted an indictment with a “Russian Collusion” hook to perpetuate the collusion narrative.

    I honestly don’t know which is which.

    whembly (c30c83)

  237. Because , in order to do that, it would need to be declassified, and rather than declassify it, the government would drop the case.

    Now, they may have to declassify it or risk losing their motion. Mark my words: that is a very real possibility.

    Patterico (115b1f)

  238. @234

    230. whembly (c30c83) — 5/11/2020 @ 7:30 pm
    I’m willing to bet that there were nothing untowards (as the current DOJ stated) in that call, as Flynn was doing his job as the incoming National Security Advisor.

    I’m not sure it was part of his job to ask Russia to veto a anti-Israel United Nations Security Council resolution that Obama wouldn’t, and, in fact, was quietly rounding up votes for so it would get 9 YES votes even with a United States abstention.

    As an incoming offical (mere weeks away), I’m pretty sure that’s okay.

    The simplest answer as to why Flynn plead guilty, was that his son was in legal jeopardy

    That’s a nice explanation but it isn’t truw. It had to be his own legal jeopardy o other matters.

    I’m not tracking you here… can you elaborate?

    as well as the incurring defense cost that is or nearly bankrupting him. He simply wanted to stop the pain.

    The problem with that is that he’d already spent a lot of money. And he spent money later. I mean he’s still got lawyers.

    Sammy Finkelman (375edc) — 5/11/2020 @ 7:40 pm

    Yes, and mounting a multi-year defense against the might of the DOJ isn’t cheap.

    whembly (c30c83)

  239. @238

    Because , in order to do that, it would need to be declassified, and rather than declassify it, the government would drop the case.

    Now, they may have to declassify it or risk losing their motion. Mark my words: that is a very real possibility.

    Patterico (115b1f) — 5/11/2020 @ 7:49 pm

    I can certainly see Judge Sullivan demanding to see the transcript under seal.

    whembly (c30c83)

  240. And yet mere days before his FBI interview, Sean Spicer said Flynn told him exactly what Flynn and Kislyak discussed, and it was not sanctions:

    First one on Russia. The administration was asked about multiple interactions between National Security Adviser Mike Flynn and a Russian ambassador. I believe you at the time — the administration at that time said it’s — the calls were related to setting up a discussion later between President Trump and Vladimir Putin.

    SPICER: That’s right.

    QUESTION: Were those conversations about anything else other than setting up that discussion? And why has that discussion not yet happened between the president and President Putin?

    SPICER: So there’s been one call. I talked to General Flynn about this again last night. One call, talked about four subjects. One was the loss of life that occurred in the plane crash that took their military choir, two was Christmas and holiday greetings, three was to — to talk about a conference in Syria on ISIS and four was to set up a — to talk about after the inauguration setting up a call between President Putin and President Trump.

    That — I don’t believe that that has been set up yet because the call was to say — they did follow up, I’m sorry, two days ago about how to facilitate that call once again. So there have been a total of two calls with the ambassador and General Flynn. And the second call came — I think it’s now three days ago — that was to say once he gets into office, can we set up that call? It hasn’t — to my knowledge, has not occurred yet.

    QUESTION: Any other conversations between General Flynn and Russian members of the government?

    SPICER: Not that I’m aware of. And when I say that, what I’m saying is during the transition, I asked General Flynn that — whether or not there were any other conversations beyond the ambassador and he said no.

    so this story was in the news and Flynn, Spicer, etc., were being asked about it. On January 20 Flynn was sure what had been discussed but by January 24 he had forgotten?

    DRJ (15874d)

  241. My only concession was that baselessly threatening family members is duress. Will you concede this wasn’t duress because there was a basis for looking at his son?

    DRJ (15874d)

  242. What don’t I understand?

    I understand not making a classified transcript of a telephone call public.

    I don’t understand a defense attorney letting his client plead guilty without seeing the evidence against him. The transcript is the proof that Flynn lied, right? Right? Without it, we have the FBI agents’ impression that Flynn was candid with them. Right?

    nk (1d9030)

  243. @241 Hmmm… I thought the two calls were in December, one early and the 2nd later while he was in DR vacationing. (I need to re-read the prosecution’s indictement)

    Regardless, yes I’m saying it’s possible that he’s forgotten the extent of those conversation. He even noted that while in DR, his calls constantly dropped.

    I’m not convinced that Flynn intended to mislead anyone and I don’t buy that there was any blackmail material here.

    whembly (c30c83)

  244. My only concession was that baselessly threatening family members is duress. Will you concede this wasn’t duress because there was a basis for looking at his son?

    DRJ (15874d) — 5/11/2020 @ 8:00 pm

    No, will not concede that.

    FARA violations were rarely prosecuted pre-Special Counsel Office. By far, most only incurred a slap of the wrist with refile request and/or paying fines.

    With the two exhibit I mentioned earlier:
    https://www.scribd.com/document/458160278/US-v-Flynn

    There’s more than enough here to surmise that Flynn was pressured to take the plea in order to protect his son.

    whembly (c30c83)

  245. The calls with Kislyak were in December but Spicer and Flynn discussed them the night before Spicer’s first press conference because they were of interest so Spicer needed to be briefed. Flynn briefed him so it was fresh on his mind, either because Flynn remembered the call or had refreshed his memory. The first press conference was a sufficiently important matter that he may have reviewed his records, yes?

    DRJ (15874d)

  246. In any event, Flynn had just discussed the calls with Spicer.

    DRJ (15874d)

  247. @243

    What don’t I understand?

    I understand not making a classified transcript of a telephone call public.

    I don’t understand a defense attorney letting his client plead guilty without seeing the evidence against him.

    Yes, that right there is very strange.

    The transcript is the proof that Flynn lied, right? Right?

    Alleged by the Special Counsel. Other FBI/DOJ reviewed the transcript and deemed it kosher.

    Without it, we have the FBI agents’ impression that Flynn was candid with them. Right?

    Seems so.

    nk (1d9030) — 5/11/2020 @ 8:08 pm

    His original attorneys were also conflicted as it’s their name on Flynn’s FARA application as well. So, it is also in their interest to make the FARA violation go away and Flynn’s plea was a means to that end.

    whembly (c30c83)

  248. @246

    The calls with Kislyak were in December but Spicer and Flynn discussed them the night before Spicer’s first press conference because they were of interest so Spicer needed to be briefed. Flynn briefed him so it was fresh on his mind, either because Flynn remembered the call or had refreshed his memory. The first press conference was a sufficiently important matter that he may have reviewed his records, yes?

    DRJ (15874d) — 5/11/2020 @ 8:17 pm

    I mean I guess. He *still* didn’t remember the sanctions bit.

    Wait… are you saying that he had access to the transcript of his calls???

    whembly (c30c83)

  249. I am saying he had access to his notes which, as a former military officer and past/present federal official, he should keep for official calls and meetings.

    DRJ (15874d)

  250. So, it is also in their interest to make the FARA violation go away and Flynn’s plea was a means to that end.

    I have always suspected that he was the designated fall guy, the low-hanging fruit to keep Mueller from climbing up the tree.

    nk (1d9030)

  251. FARA may be rarely enforced but Flynn was apparently working for Turkey and Trump at the same time. Flynn found a way to look worse than Manafort on FARA.

    DRJ (15874d)

  252. Great news for all the Rule of Law devotees.

    Richard Grenell, the acting director of national intelligence, visited the Justice Department last week seeking to declassify documents related to Obama administration officials’ unmasking of Michael Flynn in transcripts of phone calls he had with Russia’s ambassador, ABC News is reporting.
    ..,
    It is not illegal for U.S. officials to make unmasking requests. But the information on Flynn was leaked to The Washington Post, opening up the possibility that someone in the Obama administration illegally disclosed classified information.

    https://dailycaller.com/2020/05/11/richard-grenell-michael-flynn-unmasked-obama-officials/

    beer ‘n pretzels (7bc17b)

  253. The leakers should be found and prosecuted by the DOJ and AG Bill Barr, but so far he hasn’t done that. I hope he will. If not, maybe the problem isn’t the Rule of Law but the people Trump put in charge of it.

    DRJ (15874d)

  254. Lawfare has a pretty slipshod analysis of the standards the judge has to look at here. They totally overlook Cowan, cited favorably in Rinaldi, which says: “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.” That’s a pretty big miss and it colors and distorts their whole analysis.

    Harvard Law students. What are you gonna do?

    Patterico (115b1f)

  255. “Richard Grenell, the acting director of national intelligence, visited the Justice Department last week seeking to declassify documents related to Obama administration officials’ unmasking of Michael Flynn in transcripts of phone calls he had with Russia’s ambassador, ABC News is reporting.”

    If these documents exist, the Trump administration has had 3 1/2 years to declassify them on it’s own. Why do you think that hasn’t happened?

    Davethulhu (244ed8)

  256. In addition to any leakers, I hope Barr has the DOJ investigate the role Obama and his appointees played in this. I imagine Obama et al were upset Flynn interfered with the Russia sanctions and I don’t blame them, but the issue is whether they followed the rules in responding. I can’t tell. Maybe the Durham investigation is addressing that.

    DRJ (15874d)

  257. If these documents exist, the Trump administration has had 3 1/2 years to declassify them on it’s own. Why do you think that hasn’t happened?

    Well, they are in “in case of emergency break glass” level of diversionary needs now, so anything to muddy the waters.

    Colonel Klink (Ret) (305827)

  258. 243. nk (1d9030) — 5/11/2020 @ 8:08 pm

    I don’t understand a defense attorney letting his client plead guilty without seeing the evidence against him.

    He wanted to plead guilty to something.

    His lawyer wasn’t looking to defend Flynn against this charge – he was looking to find a not to serious charge that Flynn could plead guilty to. His lawyer*s( were negotiating the sentence, and they had to find a crime that carried penalties in the range the prosecutors would accept.

    This was also a good charge to pick, because it was legally problematical, and because it would be hard for prosecutors to win if tried – as the judge knew when he took the plea, therefore had Flynn swear he knew what he was doing again and again, so that he couldn’t back out of it.

    The transcript is the proof that Flynn lied, right? Right?

    That, or an admission by Flynn.

    Without it, we have the FBI agents’ impression that Flynn was candid with them. Right?

    Without a confession we have that.

    Sammy Finkelman (375edc)

  259. DRJ (15874d) — 5/11/2020 @ 7:58 pm

    On January 20 Flynn was sure what had been discussed but by January 24 he had forgotten?

    He claimed that his memory was bad when he understood, from the FBI agents’ asking him if he wanted to stick with that answer, or something like that, and their tone, that they knew what he had actually said.

    Now he couldn’t just reverse himself and say he discussed sanctions. So he said his memory wasn’t so good.

    That’s my understanding of the way it went and the context of his claim about his memory.

    Sammy Finkelman (375edc)

  260. SF: He claimed that his memory was bad when he understood, from the FBI agents’ asking him if he wanted to stick with that answer, or something like that, and their tone, that they knew what he had actually said.

    I had heard he got some kind of a second chance, but now I read testimony that he was asked questions that used the actual words that were on the transcript

    https://int.nyt.com/data/documenthelper/6936-michael-flynn-motion-to-dismiss/fa06f5e13a0ec71843b6/optimized/full.pdf (from Exhibit 5)

    And then the agents, obviously being experienced agents, start interviewing him, and not – – they didn’t show him the transcripts, but they started using in their questions words that were taken directly from the transcripts: Did you say this , and did you say that, and did you say this?

    And he obviously began to pick up that they had something else that was underlying their questions , and he said: Look, it is possible. I am guessing you guys [about 16 letters or spaces redacted] the Russians, but — he said I don’t remember talking about that I was in the Dominican Republic. I didn’t get his text because I had bad coverage there. I called him back . And I don’t remember
    talking to him about this . And I am sorry, but I didn’t — he said : My recollection is I did not talk to him about that.

    And the agents – – and the reason I mention their experience is because I talked to them about this – – they discerned no physical indications of deception . They didn’t see any change in posture, in tone, in inflection , in eye contact . They saw nothing that indicated to them that he knew he was lying to them.

    Sammy Finkelman (375edc)

  261. ’bout time that the National Review (other than McCarthy) really got on board with this:https://www.nationalreview.com/2020/05/dont-shrug-at-obamas-michael-flynn-scandal/

    whembly (c30c83)

  262. Mr. Kyle Smith should use that column as an outline for a paperback novel. And send it to Hollywood as a treatment for a movie with Matt Damon. Or maybe it would be better as a comedy, like that old Eddie Murphy movie, in which a black teen becomes a three-star general and Director of the Defense Intelligence Agency?

    nk (1d9030)

  263. Most commenters seem to be missing the reality that the highly regarded Judge Emmett is making his rulings in an alternate universe with “facts” not in evidence in our shared universe. So, in his universe, Judge Emmett Sullivan is entirely consistent with “his” facts. You simply need to accept the context of his alternate universe.

    Tom (6c38e7)

  264. 29. nk (1d9030) — 5/10/2020 @ 9:47 pm

    Now, if I run a corrupt criminal traitor organization, all my friend the Attorney General would have to do is indict me and then move to dismiss the indictment with prejudice. Under the rules of res judicata, I could never be charged again by an honest Attorney General for any offense in the indictment or for any other offense arising out of the transactions which formed the basis for the offenses charged in the indictment. Prosecutorial pardon.

    Somwthing different, but along the same lines, happened in New York City durin Prohibition.

    Some possible speakeasies places were repeatedly raided ad nothing found..

    Lawyers got a court ruling that any place could only be raided a limited number of times.

    So corrupt people bribed the police to raid their places at a time of their own choosing, and made sure there were no alcoholic beverages there.

    After X number of raids they were immune from being raided no matter how notorious the place was.

    Sammy Finkelman (1b38fa)

  265. Patterico:
    “It’s hardly the only litmus test, but when the Government drops a case against a presidential crony that the President tried to privately lean on the FBI director to drop, that had been handled by the Special Counsel but has been taken over by a political appointee, and the reasoning for the request to dismiss is this transparently bogus, people like you shrug and people like me call it out. That’s what we do here. You shrug at Trump’s abuses and I criticize them. You carry on and I’ll do the same.”

    Patterico is got an IQ of 400! He is pretending he is an even handed in his legal fiction, but actually he is a political hack fishing for the legal ideas how to screw Flynn/Trump.

    I am sure you have heard of the “Poisonous tree” theory, but have you ever considered that appointment of Special Counsel was illegal/unlawful?

    “…taken over by a political appointee,” Political appointees are there in order to stop runaway trains like Mueller, Van den Grakk, dr Faucy…when they go crazy.

    I hope this is not personal.

    No Name (f49cd5)

  266. Here you go, Tom. I repaired your comment:
    Most commenters seem to be missing the reality that the highly regarded Judge Emmett is making his rulings in an alternate universe his expertise with against “facts” not in evidence in our shared universe herd mentality. So, in his universe reality, Judge Emmett Sullivan is entirely consistent with “his” the facts. You simply need to accept the context of his alternate universe position as judge.
    Tom (6c38e7) — 5/13/2020 @ 5:11 am

    You are welcome.

    felipe (023cc9)

  267. 77. Kevin M (ab1c11) — 5/11/2020 @ 8:33 am

    Remember, this was a case that the FBI dropped, and did not result in an indictment until the special prosecutor needed leverage. The idea that it has become the litmus test of The Rule of Law seems forced.

    Patterico @ 81:

    when the Government drops a case against a presidential crony that the President tried to privately lean on the FBI director to drop,

    He didn’t just try, he succeeded.

    See the second half of #170.

    I am not sure this was leverage. Other things were probably leverage. Pleading guilty to this was what Flynn and his lawyers settled for.

    Now his then-lawyers are threatening to break lawyer-client confidentiality if accused of misconduct..

    Sammy Finkelman (20d02d)


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