Patterico's Pontifications

5/13/2020

If Judge Sullivan Denied the Motion to Dismiss Flynn’s Case, Would an Appellate Court Uphold the Decision? Maybe There’s a Scenario Where the Answer Is Yes.

Filed under: General — Patterico @ 8:29 am



What would it take for an appellate court to uphold a ruling by Judge Sullivan denying the Government’s motion to dismiss the Michael Flynn case? I think it would take a lot. This post imagines a scenario where it’s possible.

The post was prompted by an email I received from a friend of mine this morning reacting to my post imagining the hypothetical court hearing on the Government’s motion to dismiss. My friend laid out what a well-prepared and articulate Government lawyer might say in Timothy Shea’s place, and opined that it’s hard to see an appellate court upholding a denial of the Government’s motion. (As of this writing I don’t have my friend’s permission to quote it, which is a shame because it’s good, but I have asked for it and I will publish it if I get permission.)

I agree with my friend that it is very difficult to see an appellate court, and ultimately the Supreme Court, upholding denial. I’m aware of no case in which a Rule 48 motion was denied and the denial was upheld — at least, no case where the court was not protecting the interests of the defendant. In my previous post, I really did try to mentally put myself in Judge Sullivan’s position, and you’ll notice that in my hypothetical not only does the judge not actually deny the motion, he doesn’t even say (yet) that he finds impropriety! He just articulates the standards, rejects the Government’s reasoning, and leans towards an impropriety finding. I ended the post with the judge calling for recess, in part because the post was already long, but also because I couldn’t really envision what the heck the judge would actually do. So I laid out the law and arguments and punted.

But let’s take some extreme examples to illustrate how far a rule disfavoring denial might go. I think most people reading this post would agree that if Judge Sullivan uncovered solid evidence of Barr being bribed to take this action, that would be an impropriety that would justify denial. So the real question is, if Judge Sullivan uncovered solid evidence of Trump leaning on Barr, would that be more like a bribe or more like a legitimate and defensible decision?

Even then I think it could depend on the specific circumstances, because given the fact that DoJ is technically under the President’s authority, it’s hard to say that Trump merely expressing his opinion is equivalent to impropriety. Whether that amounted to impropriety might depend on the evident reason he is expressing his opinion. Is it for outwardly legitimate reasons or for patently improper reasons?

Say Judge Sullivan appoints a special master who issues a subpoena for DoJ emails under Judge Sullivan’s authority, and finds a witness who describes witnessing Trump ordering Barr to drop the case. Even then, it would matter what Trump said. If the witness had merely overheard Trump telling Barr he had been reviewing the new evidence and was worried that the materiality was lacking (lol at Trump reading legal documents or caring about something other than himself) that does not sound like impropriety. But what if, instead, Trump said: “Make this go away. If Flynn doesn’t walk, he could end up revealing that I ordered him to talk to Kislyak about sanctions, and the Democrats will never let that go. Also Flynn has the pee tape!” At a certain point we do get to impropriety under Rinaldi v. United States (1977) 434 U.S. 22, the Supreme Court case cited in my previous post.

I have a more intriguing and realistic possibility.

First, let me set up the possibility by asking you to imagine three totally hypothetical scenarios.

SCENARIO ONE: The Government files a motion saying “drop the case, judge, because we say so.” The Government gives no reasoning and refuses to answer the judge’s questions at the hearing. Does this seem like compliance with a rule mandating that the Government seek leave of court? What would be the purpose of the leave requirement if the judge were forced to rubber stamp a decision made with no attempt at justification? This suggests to me that there has to be a justification.

SCENARIO TWO: The Government lawyer brings a document into court and says: “We are moving to dismiss because of the contents of the document I am now holding in my hand.” And the judge says: “Well, let me see the document.” And the Government lawyer says: “No.” This seems very similar to the naked “because we say so” scenario described in SCENARIO ONE.

SCENARIO THREE: The Government lawyer brings a document into court and says: “This is a transcript that shows the defendant is innocent.” And the judge says: “Well, let me see the transcript.” And the Government lawyer says: “No.” This once again seems fairly similar to the previous two scenarios. The judge has a right to inquire into the evidence supporting the Government’s request, or why have a requirement that the Government seek leave? If the Government prevents the Court from looking into that evidence, the judge arguably has authority to deny the motion.

Do you see where I am going with this?

If you have read the Government’s latest filing, you realize that the Government has now put at issue the content of the transcripts of Flynn’s call with the Russian ambassador. Recall that Judge Sullivan had once ordered those transcripts to be disclosed, and relented only after the Government told him that they were not relying on those transcripts to make out their case, presumably because they already had a guilty plea in hand. Had they not made that representation, had he not reversed his order, and had they defied his order, he could have dismissed the case without anyone raising an eyebrow.

Now, the Government is claiming that the transcript of the call reveals that the FBI had no basis to continue the counterintelligence investigation, and therefore the content of the transcript is once again central to the Government’s position. But this time, it’s central to their decision to abandon the prosecution, whereas before the judge might have thought the transcripts central to the pursuit of the prosecution.

Judge Sullivan could very well decide to order the Government to turn over the transcript now, since the Government is relying so heavily on the content of those transcript in its motion. What if the Government refuses to turn over the transcript? Could that refusal form part of a reasoned conclusion that impropriety is behind the Government’s decisionmaking? At the very least, Judge Sullivan could use the refusal as a basis to make an adverse factual finding against the Government on the issue of the meaning of the call and thus on the materiality of Flynn’s lies. Judge Sullivan would have as one factor the presence of the patent political context of the circumstances of the dismissal (keeping in mind Trump asking Comey to let Flynn go, the appointment of the Special Counsel, and the withdrawal of the Government lawyer who prosecuted the case). He would have the total refusal of the Government to provide central evidence supporting what is already an irrational argument for the Government’s new position.

I think that could get him much of the way towards a decision to deny leave.

What do you think?

UPDATE: I have received permission to quote my friend’s email, anonymously:

I enjoyed your imagined court transcript. It was a good post, and I’m with you on about 80%, and I understand why you were frustrated at not getting any more substantive response in your comments. Toward which end:

Here is what a better-prepared version of Mr. Shea perhaps might have said in your transcript — starting with “We believe that role is very limited,” immediately followed by:

—-

MR. SHEA (continuing without pause): Rule 48 clearly does not envision that the Court should simply become a rubber-stamp; if this were a mere ministerial decision in which the Court had no discretion, there’d be no need for the Court to be involved, and the Rule would instead have directed the clerk to enter an appropriate judgment upon receipt of the prosecution’s motion under Rule 48. So yes, of course Rule 48 gives this Court discretion.

But how much, and over what? Solely for purposes of argument, to illustrate how the Court’s discretion ought, or ought not, to be exercised, let us assume for a moment that in the making of the decision to file this motion to dismiss, there was indeed some sort of impropriety arising from the relationship of this defendant to the President.

I emphasize that this is a hypothetical. It must be only a hypothetical, because I assure you that at my level within the prosecution, the scope of my responsibilities does NOT include my second-guessing the political appointees within the DoJ, much less their boss, over the extent to which politics have been considered. My job description, and my authority in it, in other words, doesn’t include making judgments about every possible type of “impropriety,” especially political improprieties, within the DoJ.

But let’s assume that you indeed had evidence to establish, circumstantially, that very conclusion — that there was some sort of “impropriety arising from the relationship of this defendant to the President.” I must respectfully submit to the Court that even then, YOUR job no more includes engaging in that sort of second-guessing than mine does.

We frankly don’t know what sort of “improprieties” might have been envisioned by the Supreme Court when it promulgated Federal Rule of Criminal Procedure 48. Other than the successive re-indictment hypothetical that’s not at issue here (since this is a “with prejudice” dismissal), it’s hard to even postulate other kinds of abuses within the decision-making process on a Rule 48 motion to dismiss.

But for this Court to make itself the referee for whether there’s been any, some, or too much “politics” involved with a prosecutorial decision is surely not what was intended. Because for this court to second-guess those decisions — to re-weigh the merits of a specific prosecution, after that process has been concluded by the prosecutors (but before entry of final judgment) — would mark a spectacular shift in the respective powers of the judicial, executive, and even the legislative branches. It would be a re-balancing of powers so great as to re-write the constitutional scheme of separation of powers. Such a ruling would be magnifying the powers of the judicial branch, at the expense of the executive branch, with no input from the legislative branch!

And again with genuine and fully due respect to this Court, no article three judge should be doing that. For that judge would be interpreting his implied writ — under the very limited discretion conferred upon him by Rule 48, however far it might go in other contexts — to micro-manage, using hindsight, the dismissal decisions of the executive branch by subjecting them to, in essence, a “political purity” test.

In other words, even if, with respect to this dismissal decision, there has hypothetically been a POLITICAL impropriety — as opposed to every other type of hypothetical impropriety (e.g., evidence the defendant bribed the prosecutor on the brink of sentencing) — this Court’s discretion ought not, and for separation of powers reasons, CANNOT extend so far as to make that the basis for its denial of this motion to dismiss.

Although my job, and (respectfully) I would submit yours too, do not permit either of us to police the top levels of the DoJ for alleged political improprieties of the sort I’ve been hypothesizing, nevertheless, in the proper arena — the political arena! — voters may ultimately, if appropriate, blame the political appointees upstream in the DoJ by holding accountable, in both electoral and public opinion polls, their boss at the very top of the pyramid of the executive branch. That is the political check for such improprieties that was built by the founders into the Constitution. The public’s discretion is almost unlimited and almost un-checked, but this Court’s is certainly not.

Therefore, I encourage this Court to resist the temptation to make itself the referee who decides — in the context of a post-plea motion to dismiss, at a minimum — how much politics in the Justice Department is “too much.” To do otherwise would be un-wise here, Your Honor, and, indeed, would amount to an unprecedented abuse of discretion, injecting this Court into internal DoJ politics and, yes, presidential campaign season politics, to a degree that was surely never anticipated when Rule 48 was promulgated.

In a subsequent email, my friend dropped out of Shea’s character and added the following, which he also permitted me to quote anonymously:

FWIW, the argument [above] was an exercise in advocacy. But I have a very hard time imagining the D.C. Circuit affirming the upholding of a guilty plea over the prosecution’s motion to dismiss with prejudice, so I therefore have a very hard time imagining even a ballsy and grumpy federal judge doing that.

I therefore predict that Sullivan will try to hold some feet to the fire, and he’ll grandstand quite a bit, but he’s ultimately not going to deny the motion to dismiss. I wouldn’t if I were him.

All that said, do I think this is Trump’s doing and fairly attributable to him, and the most conspicuous example yet of Barr providing zero effective check but instead actively facilitating a shameful act? Oh, yes.

(It’s true, but no defense for Barr, that Holder and Lynch also frequently acted shamefully, at the direction of Obama, on the basis of politics over public interest. I thought no one could do shameful things more shamelessly than Team Obama, but then came Team Trump and their Trump Alternative Universe.)

On the merits:

I think Flynn’s misstatements were indeed material; the risk that a jury would so conclude was palpable, a risk which objectively was more than enough to justify a plea bargain from the perspective of a reasonable defendant in Flynn’s circumstances; having pleaded guilty, Flynn is therefore guilty; his plea was fully informed, voluntary, and properly taken and documented; and it doesn’t matter that it’s a process crime (cf Libby, when you & I were among the few who defended Fitzgerald), or that the dropped charges were weak, or whether they squeezed his kid.

Don’t ask me who it is. I will not answer. But they are good points one and all.

190 Responses to “If Judge Sullivan Denied the Motion to Dismiss Flynn’s Case, Would an Appellate Court Uphold the Decision? Maybe There’s a Scenario Where the Answer Is Yes.”

  1. I think i want to read that transcript.

    Time123 (653992)

  2. Also, good post that highlights the part about the governments lack consistent process in this regard.

    Time123 (653992)

  3. I predict Sullivan will grant the motion to dismiss, but only after demonstrating the idiocy behind it, and maybe raking Flynn over the coals for misleading the court by pleading guilty to what he now claims is a miscarriage of justice.

    Is there any possible grounds for Sullivan to rule that since a guilty plea has been entered, it’s too late to dismiss?

    Kishnevi (7289ba)

  4. Reposting from another thread…

    Soo… doing a weee bit of reading:
    https://casetext.com/case/united-states-v-fokker-servs-bv-4

    Looks like Judge Sullivan is bound by DC Circuit law with respect to prosecution’s request to dismiss cases.

    The key thing that jumped out is:

    So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.

    And here it’s explicit:

    For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct.

    Pretty unambiguous… no?

    See In re United States, 345 F.3d 450, 453 (7th Cir.2003). The authority to make such determinations remains with the Executive.

    I think the only thing he can do is to approve/deny the “with prejudice” part of the motion…right?

    Unless united states v fokker is superseded by another case?

    whembly (c30c83)

  5. whembly,

    “dismissing charges” is far different from “dismissing a guilty plea”

    maybesparrow (f41d50)

  6. @6

    whembly,

    “dismissing charges” is far different from “dismissing a guilty plea”

    maybesparrow (f41d50) — 5/13/2020 @ 9:31 am

    Indeed. I wasn’t referring to the “dismissing a guilty plea”.

    whembly (c30c83)

  7. Here’s a question. Can the defense team or DoJ – go directly the appeals court and ask for dismissal?

    rcocean (2e1c02)

  8. IOW, can the DoJ/defense team put a stop to Sullivan’s antics, or do we have to wait for the Judge to issue a decision? My suspicion is that Sullivan wants to run out the clock and have the BIden DoJ look at this, or force Trump to issue a pardon. He’s a Clinton judge.

    rcocean (2e1c02)

  9. 7
    Not before the district court makes its ruling. If Sullivan denies the motion, then they can appeal immediately (as with the Fokker case).

    Kishnevi (7289ba)

  10. 8
    They aren’t antics, and besides he can’t keep the case alive until Jan 21, 2021 all on his own.

    Kishnevi (7289ba)

  11. Fokker was decided under the Speedy Trial Act, not Rule 48(a), so its discussion of the latter isn’t technically binding precedent. Additionally, the Fokker court implicitly acknowledged that guarding against prosecutorial harassment is not the sole purpose of 48(a)’s leave provision. 818 F.3d at 742 (“A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant through repeated efforts to bring—and then dismiss—charges.”) (emphasis added).

    Rinaldi v. U.S., 434 U.S. 22 (1977) clearly contemplates that a prosecutor’s “bad faith” in seeking dismissal is grounds for denying the motion–and to the extent Fokker contradicts it, Rinaldi controls–but the unanswered question Patterico is exploring is what would constitute sufficient evidence of “bad faith” to actually justify denial?

    (Not That) Bill O'Reilly (6bb12a)

  12. Would it even be appealable? Both outright denial, and dismissal but without prejudice, are interlocutory orders. In Rinaldi, the defendant was tried and convicted, and Fokker was a special case involving the Speedy Trial Act.

    nk (1d9030)

  13. Patterico’s post makes a lot of sense but I’m curious: why wouldn’t the DOJ, faced with a demand by the judge for the transcript, offer the transcript to the court under seal? Filing privileged or sensitive documents under seal, or disclosing privileged information to the court only in chambers with opposing counsel not present, is relatively common in civil court. Maybe it’s different in criminal court, but you would think there must at least on rare occasions be circumstances where filing sensitive documents under seal would be permitted. If the DOJ were to offer to file the transcript under seal, would the judge have any legitimate ground not to allow that?

    But, to address Patterico’s hypothetical, if the DOJ categorically refused to turn over the transcript to the court, even under seal, that would strike me as a valid ground to deny the motion and for an appellate court to uphold the denial, assuming that the DOJ did not have other grounds beyond the transcript for its position. Litigants can’t put a document in issue and then refuse to let the court see it. For another analog from civil court, California’s CACI jury instructions say, in essence, if a party refuses to produce evidence, a jury can conclude the evidence would have been unfavorable to the party’s position. (CACI Nos. 203, 204.) If you won’t let the judge see your evidence, don’t expect the judge to grant your motion.

    Maybe it would be different if the government were able to make a really strong argument that disclosing the transcript to the court would endanger national security, but how they could say that, given everything that’s been leaked already, is beyond me.

    RL formerly in Glendale (40f5aa)

  14. I agree with 11, 12 and 13. The government may do that, RL, especially if Barr and the DOJ plan to blame Van Grack.

    DRJ (15874d)

  15. The prosecution cannot convict a defendant with evidence it refuses to reveal. In this case, it wants to exonerate a defendant who already plead guilty. If it wants to do that, it can’t hide the evidence why from the court.

    DRJ (15874d)

  16. I believe Sullivan has already permitted filings to be made under seal in the Flynn case, but has ultimately unsealed most of them after reviewing and determining there is nothing sensitive enough to overcome the presumption of public access.

    Once the transcript is in Sullivan’s court, there’s very little DOJ would be able to do to stop him from unsealing if he reached a similar conclusion.

    (Not That) Bill O'Reilly (6bb12a)

  17. It could be redacted if it reveals security information but it is hard to imagine that is the case, since Flynn was talking to Kislyak, a senior Russian diplomat. We don’t want to tell our secrets to the Russians. If Flynn said something secret to Kislyak, we should all know.

    DRJ (15874d)

  18. LIBERATE THE TRANSCRIPT!

    Dave (1bb933)

  19. Grenell released the names of 0bama admin peeps who requested Flynn unmasking.

    Colonel Haiku (2601c0)

  20. Some Bush folks, too.

    Colonel Haiku (2601c0)

  21. #ReleaseTheDocumentation

    Remember that one?

    Willing to guess that just as with the vindicated Nunes Memo, certain people are gonna have their a$$es handed to them.

    beer ‘n pretzels (ca0aeb)

  22. IIRC, the Nunes memo was derided bigly around these parts.

    Colonel Haiku (2601c0)

  23. Nunes was right about some things, such as FISA abuses. But his main claim; that the Russia investigation was politically motivated has not been proven. In fact, the IG report found no evidence of that and concluded Crossfire Hurricane was properly predicated.

    Regarding FISA abuses, has the GOP addressed those issues yet?

    Time123 (653992)

  24. whembly,

    You might want to re-read my post imagining the hypothetical court hearing on the Government’s motion to dismiss. I addressed Fokker there. The short answer is that the judge really can’t deny a motion to dismiss based on a different opinion about whether Flynn should be prosecuted — but what you are overlooking is that there are other issues for him to examine. That is what I have been talking about for days.

    Patterico (115b1f)

  25. Here’s a question. Can the defense team or DoJ – go directly the appeals court and ask for dismissal?

    No.

    Patterico (115b1f)

  26. UPDATE: I have received permission to quote my friend’s email, anonymously:

    I enjoyed your imagined court transcript. It was a good post, and I’m with you on about 80%, and I understand why you were frustrated at not getting any more substantive response in your comments. Toward which end:

    Here is what a better-prepared version of Mr. Shea perhaps might have said in your transcript — starting with “We believe that role is very limited,” immediately followed by:

    —-

    MR. SHEA (continuing without pause): Rule 48 clearly does not envision that the Court should simply become a rubber-stamp; if this were a mere ministerial decision in which the Court had no discretion, there’d be no need for the Court to be involved, and the Rule would instead have directed the clerk to enter an appropriate judgment upon receipt of the prosecution’s motion under Rule 48. So yes, of course Rule 48 gives this Court discretion.

    But how much, and over what? Solely for purposes of argument, to illustrate how the Court’s discretion ought, or ought not, to be exercised, let us assume for a moment that in the making of the decision to file this motion to dismiss, there was indeed some sort of impropriety arising from the relationship of this defendant to the President.

    I emphasize that this is a hypothetical. It must be only a hypothetical, because I assure you that at my level within the prosecution, the scope of my responsibilities does NOT include my second-guessing the political appointees within the DoJ, much less their boss, over the extent to which politics have been considered. My job description, and my authority in it, in other words, doesn’t include making judgments about every possible type of “impropriety,” especially political improprieties, within the DoJ.

    But let’s assume that you indeed had evidence to establish, circumstantially, that very conclusion — that there was some sort of “impropriety arising from the relationship of this defendant to the President.” I must respectfully submit to the Court that even then, YOUR job no more includes engaging in that sort of second-guessing than mine does.

    We frankly don’t know what sort of “improprieties” might have been envisioned by the Supreme Court when it promulgated Federal Rule of Criminal Procedure 48. Other than the successive re-indictment hypothetical that’s not at issue here (since this is a “with prejudice” dismissal), it’s hard to even postulate other kinds of abuses within the decision-making process on a Rule 48 motion to dismiss.

    But for this Court to make itself the referee for whether there’s been any, some, or too much “politics” involved with a prosecutorial decision is surely not what was intended. Because for this court to second-guess those decisions — to re-weigh the merits of a specific prosecution, after that process has been concluded by the prosecutors (but before entry of final judgment) — would mark a spectacular shift in the respective powers of the judicial, executive, and even the legislative branches. It would be a re-balancing of powers so great as to re-write the constitutional scheme of separation of powers. Such a ruling would be magnifying the powers of the judicial branch, at the expense of the executive branch, with no input from the legislative branch!

    And again with genuine and fully due respect to this Court, no article three judge should be doing that. For that judge would be interpreting his implied writ — under the very limited discretion conferred upon him by Rule 48, however far it might go in other contexts — to micro-manage, using hindsight, the dismissal decisions of the executive branch by subjecting them to, in essence, a “political purity” test.

    In other words, even if, with respect to this dismissal decision, there has hypothetically been a POLITICAL impropriety — as opposed to every other type of hypothetical impropriety (e.g., evidence the defendant bribed the prosecutor on the brink of sentencing) — this Court’s discretion ought not, and for separation of powers reasons, CANNOT extend so far as to make that the basis for its denial of this motion to dismiss.

    Although my job, and (respectfully) I would submit yours too, do not permit either of us to police the top levels of the DoJ for alleged political improprieties of the sort I’ve been hypothesizing, nevertheless, in the proper arena — the political arena! — voters may ultimately, if appropriate, blame the political appointees upstream in the DoJ by holding accountable, in both electoral and public opinion polls, their boss at the very top of the pyramid of the executive branch. That is the political check for such improprieties that was built by the founders into the Constitution. The public’s discretion is almost unlimited and almost un-checked, but this Court’s is certainly not.

    Therefore, I encourage this Court to resist the temptation to make itself the referee who decides — in the context of a post-plea motion to dismiss, at a minimum — how much politics in the Justice Department is “too much.” To do otherwise would be un-wise here, Your Honor, and, indeed, would amount to an unprecedented abuse of discretion, injecting this Court into internal DoJ politics and, yes, presidential campaign season politics, to a degree that was surely never anticipated when Rule 48 was promulgated.

    In a subsequent email, my friend dropped out of Shea’s character and added the following, which he also permitted me to quote anonymously:

    FWIW, the argument [above] was an exercise in advocacy. But I have a very hard time imagining the D.C. Circuit affirming the upholding of a guilty plea over the prosecution’s motion to dismiss with prejudice, so I therefore have a very hard time imagining even a ballsy and grumpy federal judge doing that.

    I therefore predict that Sullivan will try to hold some feet to the fire, and he’ll grandstand quite a bit, but he’s ultimately not going to deny the motion to dismiss. I wouldn’t if I were him.

    All that said, do I think this is Trump’s doing and fairly attributable to him, and the most conspicuous example yet of Barr providing zero effective check but instead actively facilitating a shameful act? Oh, yes.

    (It’s true, but no defense for Barr, that Holder and Lynch also frequently acted shamefully, at the direction of Obama, on the basis of politics over public interest. I thought no one could do shameful things more shamelessly than Team Obama, but then came Team Trump and their Trump Alternative Universe.)

    On the merits:

    I think Flynn’s misstatements were indeed material; the risk that a jury would so conclude was palpable, a risk which objectively was more than enough to justify a plea bargain from the perspective of a reasonable defendant in Flynn’s circumstances; having pleaded guilty, Flynn is therefore guilty; his plea was fully informed, voluntary, and properly taken and documented; and it doesn’t matter that it’s a process crime (cf Libby, when you & I were among the few who defended Fitzgerald), or that the dropped charges were weak, or whether they squeezed his kid.

    Don’t ask me who it is. I will not answer. But they are good points one and all.

    Patterico (115b1f)

  27. When the unmasking culprits are named, be prepared for the misdirection that those who gave/sought approval ‘never saw’ what was unmasked.
    _

    harkin (d9f415)

  28. The unmasking seems entirely proper. I truly do not understand what the big deal is.

    I still think a lot of Nunes’s memo was horseshit too.

    Patterico (115b1f)

  29. The big deal about the unmasking inquiry is not whether the unmasking was proper. The big deal is to determine who would’ve illegally leaked classified information related to the Flynn story.

    Rule of Law, and all that….

    beer ‘n pretzels (73045a)

  30. And there is zero doubt that Devin Nunes is one of the biggest clowns ever to occupy a seat in Congress. Matt Gaetz and Nunes are neck and neck for the prize. Total and complete buffoons.

    Patterico (115b1f)

  31. The big deal about the unmasking inquiry is not whether the unmasking was proper. The big deal is to determine who would’ve illegally leaked classified information related to the Flynn story.

    Rule of Law, and all that….

    beer ‘n pretzels (73045a) — 5/13/2020 @ 12:45 pm

    That’s not what they’re doing. They released this for political purposes.

    Time123 (f5cf77)

  32. That’s not what they’re doing. They released this for political purposes.

    Exactly. They need to distract the groundlings from the virus.

    Kishnevi (ac9a89)

  33. Patterico, thanks for the update; your anonymous friend makes a lot of good points.

    But, re #28, is there any evidence, other than the usual presumption that the law has been obeyed, that the unmasking(s) were entirely proper? I’m not suggesting that any of the unmasking requests was improper, just wondering what the basis is for concluding that they were proper. It does seem like a lot of people were making these unmasking requests and/or receiving information from them about Flynn, but maybe that is entirely normal. On the other hand, if that many people in the Trump administration were making similar requests about any individual, it would be natural to suspect if they had some improper motive.

    Sorry if the answer to my question is in a previous post. Will do my homework before venturing any opinions.

    RL formerly in Glendale (40f5aa)

  34. That’s not what they’re doing. They released this for political purposes.

    It was done as a part of an ongoing investigation.

    I still think a lot of Nunes’s memo was horsesh*t too.

    Well, of course you do. And yet Adam Schiff.

    Colonel Haiku (2601c0)

  35. @24

    whembly,

    You might want to re-read my post imagining the hypothetical court hearing on the Government’s motion to dismiss. I addressed Fokker there. The short answer is that the judge really can’t deny a motion to dismiss based on a different opinion about whether Flynn should be prosecuted — but what you are overlooking is that there are other issues for him to examine. That is what I have been talking about for days.

    Patterico (115b1f) — 5/13/2020 @ 12:12 pm

    Sorry… forgot to respond.

    Yeah… I get what you’re trying to do. But, my point was that it seems that Fokker is pretty unambiguous about it and seems to leave the Judge no wriggle room. (I know a lot of case laws has certain ambiguity that lawyers love to interpret differently).

    whembly (fd57f6)

  36. Adam Schiff has been praised here. A malevolent, lying POS if there has ever been one.

    Colonel Haiku (2601c0)

  37. Oh crap… my post (#34) is in moderation because I quoted Pat’s cuss words.

    LOL.

    whembly (fd57f6)

  38. Well, of course you do. was more strident than intended, should’ve read: I would expect you would hold firm on that.

    Colonel Haiku (2601c0)

  39. I’m not suggesting that any of the unmasking requests was improper, just wondering what the basis is for concluding that they were proper. It does seem like a lot of people were making these unmasking requests and/or receiving information from them about Flynn, but maybe that is entirely normal.

    My understanding is that they have the communication and know what was said, but don’t know who said it. The unmasking is when they ask to know who said a given thing, or a given group of things.

    So, if I’m correct, they didn’t unmask Flynn. They unmasked specific communications and found out it was Flynn.

    That’s a different thing.

    Time123 (653992)

  40. A lot of Nunes memo was wrong/is as yet unproven. Some of it has been proven, but it’s odd they’ve taken no action on those parts.

    Time123 (f5cf77)

  41. “A malevolent, lying POS if there has ever been one.”

    A sentiment from a Trump supporter that’s always good for a laugh.

    Davethulhu (4187f4)

  42. Look at Exiibit 5 here.

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

    Page 85-86 at the end.

    James Comey in closed door testimony as to why they interviewed Flynn even though they knew what he said.

    He doesn;t say this, but the only way what he says would make sense is that they wanted an explanation from Flynn as to why he lied to Mike Pence. Or to hear from him that he didn’t.

    Sammy Finkelman (1b38fa)

  43. He’s not far wrong. Schiff’s honesty isn’t good.

    Time123 (f5cf77)

  44. “He’s not far wrong. Schiff’s honesty isn’t good.”

    If Trump supporters cared about honesty, they wouldn’t be a Trump supporters.

    Davethulhu (4187f4)

  45. Undercover Huber
    @JohnWHuber
    ·
    Just a reminder, the last time the Lawfare types filed an outraged amicus brief with a court…

    …it was with the FISA Court, trying to claim that @DevinNunes memo was false for claiming FISA abuse.
    __ _

    harkin (d9f415)

  46. 39. Time123 (653992) — 5/13/2020 @ 1:42 pm

    They unmasked specific communications and found out it was Flynn.

    That’s right, and that’s always been clear.

    Normally when a transcript is prepared and circulated, even to the recipients of that intelligence, of a conversation between a foreign national who was spied on and a U.S. person, the identity of the U.S. person is not
    It was in two stages, I think.

    First, what was said to Kislyak, and second, who was the American who said it?

    They originally asked for details about the Russian Ambassador because they wanted to know why Putin, to their surprise, did not impose retaliatory sanctions.

    The number 39 can’t be the number of people who asked who was the American on the other end of the conversation with Kislyak, but the number of people who were told.

    Rush Limbaugh and others have confused, (or somebody deliberately confused them) the unmasking of the identity of the American to those who received classified information, and the “unmasking” to the public through illegal leaks of the fact that Mike Flynn spoke to Kislyak.

    Sammy Finkelman (1b38fa)

  47. Russia trump was a distraction. The whole Mueller thing was a distraction. Flynn’s perjury conviction was a distraction. Two can play at that game. One either wants to engage on the issues, or distract by yelling “distraction”.

    rcocean (846d30)

  48. * …the identity of the U.S. person is not given.

    And it isn’t so routine to circulate a transcript in the first place. This was all because people high p in the Obama Administration asked.

    First, what conversations did Kislyak have? Second, the transcript of his conversation with a U.S. person. Third who was that person? Or maybe I have the order of the last two reversed.

    Sammy Finkelman (1b38fa)

  49. “Russia trump was a distraction. The whole Mueller thing was a distraction. Flynn’s perjury conviction was a distraction. Two can play at that game. One either wants to engage on the issues, or distract by yelling “distraction”.”

    WHERE’S THE BIRTH CERTIFICATE?

    Davethulhu (4187f4)

  50. Two can play at that game.

    But no one can hold a candle to the master:

    WASHINGTON – On a day when coronavirus deaths passed 80,000 and top government scientists warned of the perils of loosening public health restrictions too soon, President Donald Trump used his massive public platform to suggest a talk-show host he has clashed with committed murder.

    His baseless charge capped a 48-hour stretch in which he accused scores of perceived opponents of criminal acts ranging from illegal espionage to election rigging.

    Since writing “HAPPY MOTHER’S DAY” at 8:10 a.m. on Sunday, Trump has used his Twitter account to make or elevate allegations of criminal conduct against no less than 20 individuals and organizations. Since Sunday, he has tweeted more often about alleged crimes by his perceived opponents than he has about the pandemic ravaging the country with mass death and unemployment.

    The list of purported culprits Trump has charged include two television news hosts, a comedian, at least five former officials from the FBI and Justice Department, the state of California, a broadcast television station and at least five top national security officials from President Barack Obama’s administration.

    FFS, enough is enough.
    Get this lunatic out of the Oval Office and into a straitjacket where he belongs.

    Dave (1bb933)

  51. FISA abuses should be addressed by not re-authoring FISA. The FBI and the Intelligence agencies cannot be trusted to follow proper procedure.

    DaveMac (4cc9b4)

  52. WHERE’S THE BIRTH CERTIFICATE?

    Ask the members of the Hillary Clinton 2008 campaign…

    Colonel Haiku (2601c0)

  53. #23 – from the Horowitz Senate testimony transcript
    Sen. Leahy: (18:29)
    You did 19 month interview, is it correct that you found no evidence that the investigation was motivated by anti-Trump or political bias? Is that correct?
    M. Horowitz: (18:46)
    We found no evidence that the initiation of the investigation was motivated by political bias. It gets murkier. The question gets more challenging, Senator, when you get to the FISA and when you get to the attorney’s actions, for example, in connection with that FISA.

    DaveMac (4cc9b4)

  54. The transcript continues:

    Sen. Leahy: (19:02)
    Why I raised that … did you conclude that there was a legitimate basis to investigate ties between Trump campaign advisors and Russia?

    M. Horowitz: (19:18)
    We concluded that the FBI had the predication to open it on July 31 and the subsequent sub files that they opened about 10 days later or so.

    Sen. Leahy: (19:29)
    And some of that came from naming the trust and foreign ally?

    M. Horowitz: (19:34)
    Correct. The information came from the friendly foreign government.

    Sen. Leahy: (19:37)
    Yeah. And did you find that, in that, the FBI complied with and even exceeded current department rules on who can authorize an investigation? Who has to be notified?

    M. Horowitz: (19:52)
    They followed all the rules with regard to that.

    Sen. Leahy: (19:57)
    Does it a refute the claims made by some that there’s a deep state involved?

    M. Horowitz: (20:05)
    It finds that it was a properly predicated investigation based on the rules at the FBI.

    Sen. Leahy: (20:11)
    And did you find anything where the FBI planted spies in Mr. Trump’s campaign?

    M. Horowitz: (20:21)
    We found no use of confidential human sources and placing them in the campaign or trying to put them in the campaign.

    Dave (1bb933)

  55. More Horowitz Transcript
    John Cornyn: (06:55)
    So instead of their mission being to provide candidate Trump and his campaign to arm them with information so that they could prevent the Russians from infiltrating their campaign, this briefing such as it was, had a dual purpose. The agent, it says on page 342 of your report, actually prepared himself going through mock briefings headed by Stroke, lisa Page, the Intel Section Chief and possibly the General Counsel Unit Chief, correct?
    M. Horowitz: (07:31)
    That’s correct.
    John Cornyn: (07:32)
    So this was not just an incidental sort of thing. Obviously there were plans made for the agent to go in as part of this defensive briefing and perhaps get General Flynn to inadvertently offer information that might be helpful to the FBI in their investigation.
    M. Horowitz: (07:54)
    And as explained to us, it was dual purpose, one to see if anything was said during the briefing in response to the briefing that would be useful for cross fire hurricane purposes immediately, but also as the agents told us for purposes of a future interview of Mr. Flynn, which did in fact occur later.
    John Cornyn: (08:11)
    And so Mr. Flynn was clearly the target.
    M. Horowitz: (08:15)
    He was certainly of the three people there for the Trump campaign, the only one of the three about who was a subject of an FBI investigation at the time.
    John Cornyn: (08:25)
    And he wasn’t told that he was under investigation or that the agent was there hoping to bait him into providing incriminatory information, and the agent didn’t provide him any declaration or admonishment of his Miranda Rights. Correct?
    M. Horowitz: (08:44)
    He certainly wasn’t told there was a dual purpose to the briefing.
    John Cornyn: (08:47)
    Well, it looks to me like Director Ray was so concerned about this that he’s, as you pointed out, said that this will never happen again.
    M. Horowitz: (08:57)
    That’s right.
    John Cornyn: (08:57)
    Is that what you said?
    M. Horowitz: (08:58)
    That’s correct.

    DaveMac (4cc9b4)

  56. #55 redundant. It just reiterates the fact that there was a proper predicate. It doesn’t say anything about subsequent actions with regard to the FISA warrant.

    DaveMac (4cc9b4)

  57. https://twitter.com/kyledcheney/status/1260701547891240967

    BREAKING: Judge SULLIVAN has appointed retired judge to argue against the government’s motion to dismiss the charge against Flynn.

    Now… that’s an interesting development.

    whembly (c30c83)

  58. It just reiterates the fact that there was a proper predicate.

    And you posted your quote as if it refuted this from Comment #23, when it does nothing of the sort.

    But his main claim; that the Russia investigation was politically motivated has not been proven. In fact, the IG report found no evidence of that and concluded Crossfire Hurricane was properly predicated.

    Dave (1bb933)

  59. BREAKING: Judge SULLIVAN has appointed retired judge to argue against the government’s motion to dismiss the charge against Flynn.

    I suppose that’s good, although I know a career prosecutor who could have knocked it out of the park…

    Dave (1bb933)

  60. Now… that’s an interesting development.

    It gets better. MUCH better:

    “[I]t is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.”

    Dave (1bb933)

  61. So… the retired judge appointed as amicus to argue against DOJ’s motion to dismiss the charges against Flynn co-wrote this op-ed about the Flynn prosecution on Monday:
    https://www.washingtonpost.com/opinions/2020/05/11/flynn-case-isnt-over-until-judge-says-its-over/

    lolwtf is going on here?

    whembly (c30c83)

  62. Suffice it to say, Judge Sullivan is NOT amused…

    Who could have predicted this dramatic turn of events???

    Dave (1bb933)

  63. lolwtf is going on here?

    The amicus is not supposed to be neutral. He is supposed to make arguments opposed to the government’s motion.

    Someone who has already made a learned and articulate argument against it is an appropriate choice.

    Dave (1bb933)

  64. whembly (c30c83) — 5/13/2020 @ 4:32 pm

    Makes sense. If you want a person to give the best arguments against dismissal, get someone who you know is against dismissal. Looks like at least some of my prediction in comment 3 will come to pass.

    Kishnevi (7976e0)

  65. A large number of unmasking requests were filed before Flynn’s call with the Russkie ambassador.

    Colonel Haiku (2601c0)

  66. Who could have predicted this dramatic turn of events???

    Who indeed? Wasn’t someone trying to tell me recently that the judge was all set to yell at the prosecutor who withdrew? Didn’t I reply that the judge was far more likely to be incensed at the new Government attorney?

    Always trust content from Patterico.

    Patterico (115b1f)

  67. So withdrawing a guilty plea is now equivalent to perjury?

    NJRob (4ffc49)

  68. What the heck is going on here?

    rcocean (846d30)

  69. A large number of unmasking requests were filed before Flynn’s call with the Russkie ambassador.

    Yup. What else did Flynn do to get himself in hot water? Here’s a thought!

    Patterico (115b1f)

  70. So withdrawing a guilty plea is now equivalent to perjury?

    Nope.

    Try again.

    Flynn admitted under oath that he had lied. Is he now saying he didn’t? He admitted under oath there were no side deals. Now his lawyer says there were.

    Patterico (115b1f)

  71. I’m trying to avoid popcorn because carbs, but man this is making it hard.

    Patterico (115b1f)

  72. Didn’t the Supreme rule against amicus abuse just last week? Gunna do some searching…

    whembly (c30c83)

  73. Oh, boy… another “whistleblower telling House Democrats”…

    The horseschiff never stops…

    Colonel Haiku (2601c0)

  74. @70: And…??

    The issue isn’t the unmaskings themselves, or how many.

    The issue is who illegally leaked classified info to WaPo, a felony carrying a 10 year sentence—more than what Flynn was facing.

    But, Rule of Law….

    beer ‘n pretzels (73045a)

  75. From what I gather from career federal prosecutors, this is nothing more than an invitation to a never-Trump therapy session.

    Lots of sturm and drang will be said in the hearing, but Judge Sullivan is going to grant the DOJ’s dismissal.

    whembly (c30c83)

  76. The issue isn’t the unmaskings themselves, or how many.

    The issue is who illegally leaked classified info to WaPo, a felony carrying a 10 year sentence—more than what Flynn was facing.

    But, Rule of Law….

    Tell that to the folks on Fox. They seem to think tje primary reason is that we should be demanding to know what Biden knew and when did he know it. The leak does get mentioned, but well done on the list.

    Kishnevi (7976e0)

  77. How do you know the disclosure wasn’t authorized?

    As we’ve been reminded countless times when Trump has shot his mouth off and revealed national security secrets to our enemies, the president can declassify anything he wants, whenever he wants.

    I believe he can also delegate that authority at will.

    Dave (1bb933)

  78. Gabriel Malor
    @gabrielmalor
    ·
    8m
    To return to this, don’t forget, Judge Sullivan has been put in this position before. In 2009, he ultimately agreed to AG Holder’s request to dismiss the case against Sen. Ted Stevens—after Stevens had been found guilty by a jury.

    But he put the DOJ through the ringer first.

    I think Gab is an appellate attorney, but he makes a good point here.

    whembly (c30c83)

  79. #59 no, I did not post the quote as if it refuted that the investigation had a proper predicate. I posted the quote to show that the IG was not as certain that there were improper motives with respect to subsequent actions, which is what the transcript posted clearly indicates.

    DaveMac (4cc9b4)

  80. So… per the Crowdstrike CEO when under oath, no evidence ever found that the Ruuskies hacked the DNC.

    Nada.

    Colonel Haiku (2601c0)

  81. Man… the news this week has been something else. And it’s only WEDNESDAY!

    whembly (c30c83)

  82. As we’ve been reminded countless times

    LOL!

    Colonel Haiku (2601c0)

  83. Tom Elliott
    @tomselliott

    Combined CNN & MSNBC mentions of today’s FISA unmasking story: 0
    __ _

    ‘Supposed biased media’
    _

    harkin (d9f415)

  84. Nada.

    So dishonest.

    “MR. HENRY” is Shawn Henry, the CEO of Crowdstrike.

    MR. STEWART oF UTAH: And would you just conclude with what you discovered and how you discovered it and what you did with that information?

    MR. HENRY: So we did – we did some forensic analysis in the environment. We deployed technology into the environment’ into the network software called Falcon that essentially looks at the processes that are running on different computers in the environment’ we also looked historically at the environment, using a different piece of software to look backwards at what was happening in the environment’ And we saw activity that we believed was consistent with activity we’d seen previously and had associated with the Russian Government.

    MR. STEWART OF UTAH: And can you identify that as being — with a fair degree of confidence that it’s associated with the Russian Government?

    MR. HENRY: We said that we had a high degree of confidence it was the Russian Government. And our analysts that looked at it that had looked at these types of attacks before, many different types of attacks similar to this in different environments, certain tools that were used, certain methods by which they were moving in the environment, and looking at the types of data that was being targeted, that it was consistent with a nation-state adversary and associated with Russian intelligence.

    MR. STEWART OF UTAH: Okay. Are there other nation-states that could have — based on this evidence, that could have been the perpetrator?

    MR. HENRY: There are other nation-states that collect this type of intelligence for sure, but the — what we would call the tactics and techniques were consistent with what we’d seen associated with the Russian state.

    MR. STEWART OF UTAH: And so, because I’m not familiar with this, I’m trying to give it a little more context. You said high confidence or high degree of confidence. we use that phrase in the lc, as you know, and it means, you know, something, but it’s not, you know, absolute in its meaning. And so an analogy might be a fingerprint. you know, if you have a fingerprint and I know that that fingerprint’s a match — and I understand kind of because of my life and just being alive and knowing — that’s fairly accurate, a high degree of confidence. ls that the same level of confidence as a fingerprint, or is it something less than that, in your ability to define it as the Russian Government?

    MR. HENRY: There wasn’t a videotape.

    OMG, THERE WASN’T A VIDEOTAPE IT WAS ALL A HOAX

    The full transcript is here.

    Dave (1bb933)

  85. Official Stenographers of Teh DNC!

    Colonel Haiku (2601c0)

  86. So you won’t apologize for posting a lie about what the CEO of Crowdstrike said under oath?

    Dave (1bb933)

  87. CH, is that your way of admitting you lied about the crowdstrike testimony?

    Time123 (9f42ee)

  88. @77: Biden’s Flynn unmasking was on Jan12 2017. The WaPo article was the same day.

    I wonder which outlet will ask him:
    1) Why did you feel the need to unmask Flynn eight days before leaving the WH?
    2) Did you leak classified information to WaPo?

    Not saying he did it. Just wondering who will act the part of a real journalist?

    https://www.grassley.senate.gov/sites/default/files/2020-05-13%20ODNI%20to%20CEG%20RHJ%20%28Unmasking%29.pdf

    beer ‘n pretzels (6674aa)

  89. Please define the action you mean when you say “unmask”, be specific, because that word does not mean what you think it means.

    Colonel Klink (Ret) (305827)

  90. CrowdStrike, the private cyber-security firm that first accused Russia of hacking Democratic Party emails and served as a critical source for U.S. intelligence officials in the years-long Trump-Russia probe, acknowledged to Congress more than two years ago that it had no concrete evidence that Russian hackers stole emails from the Democratic National Committee’s server.

    CrowdStrike President Shawn Henry’s admission under oath, in a recently declassified December 2017 interview before the House Intelligence Committee, raises new questions about whether Special Counsel Robert Mueller, intelligence officials and Democrats misled the public. The allegation that Russia stole Democratic Party emails from Hillary Clinton, John Podesta and others and then passed them to WikiLeaks helped trigger the FBI’s probe into now debunked claims of a conspiracy between the Trump campaign and Russia to steal the 2016 election. The CrowdStrike admissions were released just two months after the Justice Department retreated from its its other central claim that Russia meddled in the 2016 election when it dropped charges against Russian troll farms it said had been trying to get Trump elected.

    Henry personally led the remediation and forensics analysis of the DNC server after being warned of a breach in late April 2016; his work was paid for by the DNC, which refused to turn over its server to the FBI. Asked for the date when alleged Russian hackers stole data from the DNC server, Henry testified that CrowdStrike did not in fact know if such a theft occurred at all: “We did not have concrete evidence that the data was exfiltrated [moved electronically] from the DNC, but we have indicators that it was exfiltrated,” Henry said.

    Henry reiterated his claim on multiple occasions:

    “There are times when we can see data exfiltrated, and we can say conclusively. But in this case it appears it was set up to be exfiltrated, but we just don’t have the evidence that says it actually left.”

    “There’s not evidence that they were actually exfiltrated. There’s circumstantial evidence but no evidence that they were actually exfiltrated.”

    “There is circumstantial evidence that that data was exfiltrated off the network. … We didn’t have a sensor in place that saw data leave. We said that the data left based on the circumstantial evidence. That was the conclusion that we made.”

    “Sir, I was just trying to be factually accurate, that we didn’t see the data leave, but we believe it left, based on what we saw.”
    Asked directly if he could “unequivocally say” whether “it was or was not exfiltrated out of DNC,” Henry told the committee: “I can’t say based on that.”

    https://www.realclearinvestigations.com/articles/2020/05/13/hidden_over_2_years_dem_cyber-firms_sworn_testimony_it_had_no_proof_of_russian_hack_of_dnc_123596.html

    Colonel Haiku (2601c0)

  91. Can someone explain to me how you try a person for perjury if the government has not charged you with that crime? How does a judge “pursue” a perjury charge if the government is not willing to charge for it? Is the judge going to sentence Flynn for the Crime of perjury rather than sentencing for the crime of lying to the FBI?

    DaveMac (4cc9b4)

  92. Ch, saying there was “no” evidence was a lie.
    If you want to say it was circumstantial that’s a different claim.

    Time123 (9f42ee)

  93. Can someone explain to me how you try a person for perjury if the government has not charged you with that crime? How does a judge “pursue” a perjury charge if the government is not willing to charge for it? Is the judge going to sentence Flynn for the Crime of perjury rather than sentencing for the crime of lying to the FBI?

    Hold in contempt does not mean “try a person for perjury”. Notice that the words are different?

    Colonel Klink (Ret) (305827)

  94. I think Gab is an appellate attorney, but he makes a good point here.

    I’ve made that point here already in recent days.

    Patterico (115b1f)

  95. #94 so is the sentence for perjury different than the sentence for criminal contempt for perjury? Is the defendant allowed a trial for this criminal contempt charge. Is the same judge going to preside over this trial? Seems like the judge would be biased against the person in that case. How could it be a fair trial?

    DaveMac (4cc9b4)

  96. I think Gab is an appellate attorney, but he makes a good point here.

    I’ve made that point here already in recent days.

    Patterico (115b1f) — 5/13/2020 @ 6:52 pm

    Yes you did.

    Run outta popcorn yet? 😉

    whembly (c30c83)

  97. A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
    (1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
    (2)Misbehavior of any of its officers in their official transactions;
    (3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

    rcocean (846d30)

  98. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

    (1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

    (A) state the time and place of the trial;

    (B) allow the defendant a reasonable time to prepare a defense; and

    (C) state the essential facts constituting the charged criminal contempt and describe it as such.

    (2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

    (3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

    (b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

    rcocean (846d30)

  99. 94… so Dave’s pull off a transcript where he conveniently avoided the info cited in the RealClearInvestigations was a lie of omission?

    Colonel Haiku (2601c0)

  100. “Buckets” more of this declassified info forthcoming…

    Colonel Haiku (2601c0)

  101. So… per the Crowdstrike CEO when under oath, no evidence ever found that the Ruuskies hacked the DNC.

    Um, no. This is the latest bit of idiot Trump-sniffing propaganda that’s been going around. Mr. Henry of Crowdstrike was questioned about the exfiltration of data from DNC servers, and it was there that he had no definitive evidence. He had high confidence (a term that has meaning in the IC) that Putin was involved in the hacking. Here’s the rest of Henry’s testimony on exfiltration.

    MR. STEWART OF UTAH: Okay. What about the emails that everyone is so, you know, knowledgeable of? Were there also indicators that they were prepared but not evidence that they actually were exfiltrated?
    MR HENRY: There’s not evidence that they were actually exfiltrated. There’s circumstantial evidence —
    MR. STEWART OF UTAH: Okay.
    MR. HENRY: — but no evidence that they were actually exfiltrated. But let me also state that if somebody was monitoring an email server, they could read all the email.
    MR. STEWART OF UTAH: Right.
    MR. HENRY: And there might not be evidence of it being exfiltrated, but they would have knowledge of what was in the email.
    MR. STEWART OF UTAH: But they wouldn’t be able to copy that email; they could only watch it in realtime.
    MR. HENRY: There would be ways to copy it. You could take screenshots. You could copy it.
    MR. STEWART OF UTAH: All right. So I think that’s one of the more interesting things that we’ve learned from you today, again, that there is no evidence it was actually exfiltrated. ls it — it seems unlikely to me that in the realtime that they’re watching these emails that they’d be able to collect the hundreds or thousands that they had but with screenshots or whatever.
    MR. HENRY: So there is circumstantial evidence that it was taken.
    MR. STEWART OF UTAH: l understand, but not conclusive.
    MR. HENRY: We didn’t watch it happen. There’s not a network sensor that actually saw traffic actually leaving, but there’s circumstantial evidence that it happened.

    This does not contradict his earlier statement about “high confidence” that Russia hacked the DNC, where he said this:

    We said that we had a high degree of confidence it was the Russian Government. And our analysts that looked at it that had looked at these types of attacks before, many different types of attacks similar to this in different environments, certain tools that were used, certain methods by which they were moving in the environment, and looking at the types of data that was being targeted, that it was consistent with a nation-state adversary and associated with Russian intelligence.

    Paul Montagu (b3f51b)

  102. I think Judge Sullivan is attempting to make his upcoming opinion denial-proof when it moves up to the Court of Appeals and beyond. It’s why he offered amicus briefs yesterday and appointed Judge Gleeson today. Per Ms. Wheeler, I think Judge Sullivan is going to skewer Ms. Powell and AG Barr for what they’ve done to this process.

    Paul Montagu (b3f51b)

  103. I didn’t pull anything off real clear politics

    DaveMac (4cc9b4)

  104. Henry’s 2017 testimony that there was no “concrete evidence” that the emails were stolen electronically suggests that Mueller was at best misleading in his 2019 final report, in which he stated that Russian intelligence “appears to have compressed and exfiltrated over 70 gigabytes of data from the file server.” It is unlikely that Mueller had another source to make his more confident claim about Russian hacking.

    The disclosure that CrowdStrike found no evidence that alleged Russian hackers exfiltrated any data from the DNC server raises a critical question: On what basis, then, did it accuse them of stealing the emails? Further, on what basis did Obama administration officials make far more forceful claims about Russian hacking?

    The January 2017 Intelligence Community Assessment (ICA), which formally accused Russia of a sweeping influence campaign involving the theft of Democratic emails, claimed the Russian intelligence service GRU “exfiltrated large volumes of data from the DNC.” A July 2018 indictment claimed that GRU officers “stole thousands of emails from the work accounts of DNC employees.”

    According to everyone concerned, the cyber-firm played a critical role in the FBI’s investigation of the DNC data theft. Henry told the panel that CrowdStrike “shared intelligence with the FBI” on a regular basis, making “contact with them over a hundred times in the course of many months.” In congressional testimony that same year, former FBI Director James Comey acknowledged that the FBI “never got direct access to the machines themselves,” and instead relied on CrowdStrike, which “shared with us their forensics from their review of the system.” According to Comey, the FBI would have preferred direct access to the server, and made “multiple requests at different levels,” to obtain it. But after being rebuffed, “ultimately it was agreed to… [CrowdStrike] would share with us what they saw.”

    Henry’s testimony seems at variance with Comey’s suggestion of complete information sharing. He told Congress that CrowdStrike provided “a couple of actual digital images” of DNC hard drives, out of a total number of “in excess of 10, I think.” In other cases, Henry said, CrowdStrike provided its own assessment of them. The firm, he said, provided “the results of our analysis based on what our technology went out and collected.” This disclosure follows revelations from the case of Trump operative Roger Stone that CrowdStrike provided three reports to the FBI in redacted and draft form. According to federal prosecutors, the government never obtained CrowdStrike’s unredacted reports.

    There are no indications that the Mueller team accessed any additional information beyond what CrowdStrike provided. According to the Mueller report, “the FBI later received images of DNC servers and copies of relevant traffic logs.” But if the FBI obtained only “copies” of data traffic – and not any new evidence — those copies would have shown the same absence of “concrete evidence” that Henry admitted to.

    Adding to the tenuous evidence is CrowdStrike’s own lack of certainty that the hackers it identified inside the DNC server were indeed Russian government actors. Henry’s explanation for his firm’s attribution of the DNC hack to Russia is replete with inferences and assumptions that lead to “beliefs,” not unequivocal conclusions. “There are other nation-states that collect this type of intelligence for sure,” Henry said, “but what we would call the tactics and techniques were consistent with what we’d seen associated with the Russian state.” In its investigation, Henry said, CrowdStrike “saw activity that we believed was consistent with activity we’d seen previously and had associated with the Russian Government. … We said that we had a high degree of confidence it was the Russian Government.”

    But CrowdStrike was forced to retract a similar accusation months after it accused Russia in December 2016 of hacking the Ukrainian military, with the same software that the firm had claimed to identify inside the DNC server.

    The firm’s work with the DNC and FBI is also colored by partisan affiliations. Before joining CrowdStrike, Henry served as executive assistant director at the FBI under Mueller. Co-founder Dmitri Alperovitch is a vocal critic of Vladimir Putin and a senior fellow at the Atlantic Council, the pro-NATO think tank that has consistently promoted an aggressive policy toward Russia. And the newly released testimony confirms that CrowdStrike was hired to investigate the DNC breach by Michael Sussmann of Perkins Coie – the same Democratic-tied law firm that hired Fusion GPS to produce the discredited Steele dossier, which was also treated as central evidence in the investigation. Sussmann played a critical role in generating the Trump-Russia collusion allegation. Ex-British spy and dossier compiler Christopher Steele has testified in British court that Sussmann shared with him the now-debunked Alfa Bank server theory, alleging a clandestine communication channel between the bank and the Trump Organization.

    Colonel Haiku (2601c0)

  105. The Democrats – and NeverTrumpGumps – should steel themselves for more bad news.

    Colonel Haiku (2601c0)

  106. I was asking for clarity as to how this could happen and wanted an honest answer. #98 and #99 are what I was looking for. I have no reason to lie about anything. Why you think I did is a mystery. Given #98, then I assume he is being charged with item (1) obstruct the administration of justice via perjury. And then given 99) there would be a trial. And also based on #99 that Judge Sullivan would preside.

    Is that a correct summary of what could happen?

    DaveMac (4cc9b4)

  107. Sullivan should’ve recused himself, as his animus toward defendant Flynn stinks.

    Colonel Haiku (2601c0)

  108. DaveMac, that’s not what will happen. Flynn has been ordered to explain why the sworn statements he made at the time he pled guilty are not perjury. Sullivan may accept his explanation, may not accept it and give him a tongue lashing and impose some sort of fine or sanction on him or his lawyers, may decide it’s serious enough to throw him in jail for a short period, may decide to refer it for prosecution to the federal prosecutors for that district [given that Barr could intervene immediately to block such a prosecution, that’s not likely].

    My own guess is a tongue lashing and sanctions on Flynn’s lawyers for allowing him to make those statements under oath if they knew the statements are false.

    Kishnevi (a722fb)

  109. If the prosecutors even admit the public interest is an issue in a 48(a) motion to dismiss, which I doubt, I think they will argue it is irrelevant. I see this DOJ saying the prosecution represents the public interest and the court applies the law, and there is no overlap.

    DRJ (15874d)

  110. Judge Sullivan could also call Bill Priestap to the stand, ask him to explain his thoughts about AG Barr putting his thumb on the scale of justice.

    Paul Montagu (b3f51b)

  111. I didn’t pull anything off real clear politics

    He was referring to Dave who has no Mac.

    There’s three Daves here now, so I can understand if wires get crossed.

    Kishnevi (a722fb)

  112. Smoke and smears. Par for the course for the orange buffoon and his handmaidens.

    nk (1d9030)

  113. Former Judge John Gleeson – the amicus appointed by Judge Sullivan – has already judged the case.

    “The [Flynn] record reeks of improper political influence.”

    Seems to say a lot about Judge Sullivan’s motives.

    Even his amicus is biased.

    https://twitter.com/Techno_Fog/status/1260713315426340864

    Colonel Haiku (2601c0)

  114. First the trial, then the hanging. This is just more political theater and it is sad to see a district court judge engage in it. After he refuses to accept the dismissal and sentences Flynn, Trump will issue a pardon. Forcing that is the whole game.

    Kevin M (ab1c11)

  115. Judge Sullivan could call Loretta Lynch to the stand and ask her about how Trump’s political interference threatens Western Civilization.

    Kevin M (ab1c11)

  116. This started off as a tar baby and it hasn’t got any cleaner. Every hand from every direction has just added more tar.

    Kevin M (ab1c11)

  117. Former Judge John Gleeson – the amicus appointed by Judge Sullivan – has already judged the case.

    “The [Flynn] record reeks of improper political influence.”

    Seems to say a lot about Judge Sullivan’s motives.

    Even his amicus is biased.

    https://twitter.com/Techno_Fog/status/1260713315426340864

    Dumbest thing I have seen in ages.

    He’s not appointed to be impartial. He’s appointed to argue against the Government’s position. It’s like complaining that an appointed defense attorney is biased. Duh, as the kids used to say.

    Patterico (115b1f)

  118. Judge Sullivan could also call Bill Priestap to the stand, ask him to explain his thoughts about AG Barr putting his thumb on the scale of justice.

    Holy shit. That is incredibly corrupt.

    Patterico (115b1f)

  119. They actually cited his notes in a footnote without telling the judge he denied the implication that was being floated about what they meant. Wow.

    Patterico (115b1f)

  120. “There are times when we can see data exfiltrated, and we can say conclusively. But in this case it appears it was set up to be exfiltrated, but we just don’t have the evidence that says it actually left.”

    LOL. Except you falsely claimed:

    So… per the Crowdstrike CEO when under oath, no evidence ever found that the Ruuskies hacked the DNC.

    Nada.

    Dave (1bb933)

  121. I’ll have to wait until the morning to talk about the Priestap interview, but that is utterly shocking dishonesty from the Government. My God, the Department has sunk low.

    Patterico (115b1f)

  122. Seems like everyday typical govt. b.s.

    mg (8cbc69)

  123. I think the Judge specifically mentioned criminal contempt which can be a felony or a misdemeanor. There is also civil contempt, and sometimes it is possible to charge both at the same time. The reason it might matter is I think a criminal contempt conviction can be pardoned but a civil contempt can’t.

    DRJ (15874d)

  124. Maybe Barr and Flynn can share a cell.

    Dave (1bb933)

  125. I don’t know for sure that it’s still double jeopardy to get summary contempt from the judge and also be formally charged in a separate proceeding, the Supremes change double jeopardy law more often than they change their robes, but it used to be, and the court was doing the contemnor a favor. Limited penalties, no criminal conviction on his record, right to interlocutory appeal. In fact, it was occasionally used to get an interlocutory appeal (not otherwise available) on the underlying issue that gave rise to the contempt.

    nk (1d9030)

  126. @35 whembly

    Yeah… I get what you’re trying to do. But, my point was that it seems that Fokker is pretty unambiguous about it and seems to leave the Judge no wriggle room. (I know a lot of case laws has certain ambiguity that lawyers love to interpret differently).

    You are mistaken.

    First, the discussion of Rule 48 in Fokker is dicta; it is not binding. (Fokker is not a Rule 48 case.)

    Second, it is not unambiguous. It (as Patterico said in a previous thread) says that the primary — not sole — reason for requiring judicial approval is to prevent harassment. That means there are other reasons. It says that the judge can’t refuse to grant the motion just because the judge disagrees. But that’s not what we’re discussing; we’re discussing corruption, not a difference in strategy.

    Third, if Fokker did say what you thought, it would not be good law, since there’s binding circuit precedent (Ammidown, in case you were wondering) that says that the judge can deny the motion if he determines that the prosecutor was acting in bad faith in a way clearly contrary to the public interest.

    It’s a high burden, but other than outright bribery, it’s hard to think of a situation that better fits that description than one where the defendant is a political crony of the president and the president puts pressure to dismiss the case with transparently bad faith factual/legal arguments.

    David Nieporent (9c8c00)

  127. “Seems like everyday typical govt. b.s.”

    Drain the swamp!

    Davethulhu (22e7d5)

  128. Hacked is a word that covers a lot of activity.

    but we just don’t have the evidence that says it actually left.

    In this case hacked meant they got the information. If crowd strike has no evidence the information actually left they’ve got no evidence to support the claims we’ve been hearing since this started.

    The claims haven’t been about a strong belief or circumstantial evidence. They haven’t been that the DNC systems contained some suspect processes. The claims have been that evidence was provided by Crowdstrike that the Russians hacked the DNC servers and got information. No evidence was provided and Crowdstrike has given testimony that they don’t have any evidence of that.

    frosty (f27e97)

  129. That interpretation was wrong, Priestap told the prosecutors reviewing the case. He said that FBI officials were trying to do the right thing in questioning Flynn and that he knew of no effort to set him up.

    Well, certainly. Because if you’re trying to do the right thing and not set Flynn up, you bum rush WH protocol, discourage counsel from being present, and blow off your superiors at DOJ who you already knew had misgivings.

    https://www.bostonglobe.com/news/nation/2020/05/13/acting-intelligence-gave-justice-department-list-obama-officials-who-unmasked-michael-flynn/XQJBps1iXlJoEaxxoDmhYI/story.html

    beer ‘n pretzels (d474b1)

  130. Contempt is an exclusively judicial action and remedy, even though it seems like a prosecution which would be an executive (DOJ) function. As such, IMO the Judge is acknowledging that he can’t easily refuse to dismiss Flynn’s case, but he is showing he has power over Flynn and that he plans to use it.

    The Joe Arpaio case shows that even a Presidential pardon won’t undo all the complications that come from/with being found in contempt of court. And because contempt of court is a recognized judicial function, it will be hard for Flynn to successfully appeal it and I doubt the DOJ can complain since it will be getting the relief it asked for if the charges are dismissed.

    DRJ (15874d)

  131. Colonel Haihu,
    You said this:

    So… per the Crowdstrike CEO when under oath, no evidence ever found that the Ruuskies hacked the DNC.
    Nada.
    Colonel Haiku (2601c0) — 5/13/2020 @ 5:16 pm

    It’s been point out that what was actually said is:

    MR. HENRY: So there is circumstantial evidence that it was taken.
    MR. STEWART OF UTAH: l understand, but not conclusive.
    MR. HENRY: We didn’t watch it happen. There’s not a network sensor that actually saw traffic actually leaving, but there’s circumstantial evidence that it happened.

    CH, are you going to admit your initial claim isn’t what he said or will you continue to lie?

    Time123 (f5cf77)

  132. Have you folks stopped embarassing yourselves yet, apparently not.

    Narciso (7404b5)

  133. As for judge gleeson, does he have any conflicts himself?

    Narciso (7404b5)

  134. I find it darkly hilarious that, in twisting their minds to find ways to defend a sworn…and in every other way known to man…lying POS.

    The idea that a judge has to be “impartial” to a defendant who’s been before them for years is so stupid it defies description. Like in the Stone case, Judge Sullivan has shown saintly restraint. But his forbearance never has to be superhuman. Judges are allowed…in many cases required…to weigh the stuff in a case, and form their opinions about the people before them.

    An amicus, as the Latin root suggests, is the friend of the court. No more requirement that they be “impartial” than the judge has to be deaf, dumb, and blind to the conduct of people appearing before him. As friend, the amicus can do a LOT of things for the court, including legal expertise the judge feel would usefully supplement his or her knowledge.

    I have never appeared in a Federal criminal matter, so I don’t know much about contempt in that setting. I do know that in Texas, many District Judges hear all matters in their jurisdiction, and if you’re contemptuous it can mean JRT (jailed right then). If a judge hands you thirty days for contempt, it is thirty days; no good behavior, no nothing. There is no trial (but you usually do get a show cause hearing before the same judge). You might get out on a writ, which usually means another judge reviews the contempt finding. And “contempt” is a pretty expansive concept in trial law.

    Ragspierre (d9bec9)

  135. First, a District judge can do almost anything. Whether it will be sustained on appeal, is another matter. Second, it appears that Sullivan is going on:

    (b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

    Sullivan is a liberal democrat, a Clinton appointee and biased against Flynn. He should have been thrown off the case when he accused Flynn of “Treason” in open court. This is just more clownish behavior. Like the Judge in the Sheriff Joe Case in Arizona, Sullivan thinks of himself as a Little King who can do anything. I’m assuming, Trump will stay out and not pardon till after its all done. And will allow Flynn to go through the appeals process.

    rcocean (846d30)

  136. @137, apparently he has a bias against former generals being paid agents of Russia and Turkey who then lie to the FBI, and VP.

    We know he lied because he said so under oath.
    And publicly.
    And Trump said he lied to the VP, and fired him for it.

    Time123 (f5cf77)

  137. Sullivan is a liberal democrat, a Clinton appointee and biased against Flynn.

    Sullivan was first appointed by Reagan, then Bush, then Clinton. You don’t know his political party or how “liberal” he is, ocean, and you don’t know his bias. He only rendered judgment against Flynn after pleading guilty, which is the appropriate time to do so in a case.

    Paul Montagu (b3f51b)

  138. @137, apparently he has a bias against former generals being paid agents of Russia and Turkey who then lie to the FBI, and VP

    You realize you give license for the Trump administration to engage in the same activities right?

    nkinnick (e3b7e7)

  139. mr. president donald trump, who loves men in uniform almost as much as he loves mr. president vladimir putin with his shirt off, is not going to take this sitting down

    he is going to send a tweet that interpol should open a cold case on judge sullivan

    a tweet on twitter

    just you wait and see

    nk (1d9030)

  140. @137, apparently he has a bias against former generals being paid agents of Russia and Turkey who then lie to the FBI, and VP

    You realize you give license for the Trump administration to engage in the same activities right?

    nkinnick (e3b7e7) — 5/14/2020 @ 6:46 am

    I’ve been consistent that what happened to Flynn is part of SOP for the FBI and that the definition of “Material” is overly broad. That should be fixed, but it hasn’t. Instead we get 1 rule for the Trumps friends and a different rule for the rest of us.

    Time123 (653992)

  141. Say what you want about Roger Stone (seriously, go ahead and say what you want), he took his fall like a man. No plea deals, no cooperation, no crocodile tears, no self-pity. Okay, a man who took one hit of acid too many in his youth, but still a man.

    nk (1d9030)

  142. Time123 (f5cf77) — 5/14/2020 @ 3:50 am

    You’re applying a definition of hacked that doesn’t support the allegations being made. The Crowdstrike statements claim that evidence of software known to be part of Russian hacking efforts was found on DNC systems. The charges we’ve been hearing from the start are that Russians successfully hacked those systems and copied data out.

    The recent transcript release undermines a fundamental claim of the Russian interference narrative. I don’t see any value in picking different versions of what hacked means to claim someone is lying other than to avoid that larger problem of what this does to the interference narrative.

    frosty (f27e97)

  143. @143, CH, will you retract your lie?

    Time123 (f5cf77)

  144. @128

    @35 whembly
    Yeah… I get what you’re trying to do. But, my point was that it seems that Fokker is pretty unambiguous about it and seems to leave the Judge no wriggle room. (I know a lot of case laws has certain ambiguity that lawyers love to interpret differently).

    You are mistaken.

    First, the discussion of Rule 48 in Fokker is dicta; it is not binding. (Fokker is not a Rule 48 case.)

    Second, it is not unambiguous. It (as Patterico said in a previous thread) says that the primary — not sole — reason for requiring judicial approval is to prevent harassment. That means there are other reasons. It says that the judge can’t refuse to grant the motion just because the judge disagrees. But that’s not what we’re discussing; we’re discussing corruption, not a difference in strategy.

    Third, if Fokker did say what you thought, it would not be good law, since there’s binding circuit precedent (Ammidown, in case you were wondering) that says that the judge can deny the motion if he determines that the prosecutor was acting in bad faith in a way clearly contrary to the public interest.

    It’s a high burden, but other than outright bribery, it’s hard to think of a situation that better fits that description than one where the defendant is a political crony of the president and the president puts pressure to dismiss the case with transparently bad faith factual/legal arguments.

    David Nieporent (9c8c00) — 5/13/2020 @ 10:09 pm

    I appreciate you taking the time here. I do believe I was mistaken. Thank you.

    whembly (51f28e)

  145. @145, Frosty, A fair summation of the testimony would be “There was not direct evidence that the files were sent to the Russians. But there was direct evidence that the system was infiltrated. The infiltrators had access to the emails and could have copied and / or sent them. Based on the circumstantial evidence, which was detailed, CS is highly confident this was done by Russian state actors.”

    Time123 (653992)

  146. Eli Lake had an interesting take on yesterday’s action…

    The best way to view Sullivan’s unprecedented actions today in the Flynn case is as a last gasp of the “resistance.” In the last year the collusion conspiracy theory has collapsed. It’s discredited. Sullivan’s actions are deeply unfair to Flynn, but the truth is coming out.

    Could be an opportunity for personal growth for those continuing to cling to this horseschiff.

    Colonel Haiku (2601c0)

  147. Frosty, to keep CH’s lie front and center, here’s what he said:

    So… per the Crowdstrike CEO when under oath, no evidence ever found that the Ruuskies hacked the DNC.
    Nada.

    Time123 (653992)

  148. Haiku, is Flynn a liar?

    Ragspierre (d9bec9)

  149. https://www.forbes.com/sites/markchenoweth/2020/05/14/judge-sullivan-disregards-two-controlling-precedents-by-appointing-amicus-in-flynn-case/#6bf957a26f0a
    Makes the case that Sullivan is out of bounds..


    One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

    whembly (51f28e)

  150. Can you see why the rule cited by Ginsburg has no application here?

    Ragspierre (d9bec9)

  151. Hes breaking his own rules

    No, he’s not. What on earth does that even mean?

    1) That’s not a “rule.”
    2) Gleeson isn’t doing anything at all other than arguing, so he couldn’t be breaking that rule even if it were a rule.
    3) Even if Gleeson were doing something and even if that case were a rule, that case isn’t about the current situation — it’s about withdrawing a plea, whereas the current situation is about the government dismissing charges.

    David Nieporent (9c8c00)

  152. In a country where the military still had a sense of honor, Flynn would have asked to be left alone in his office with his sidearm.

    nk (1d9030)

  153. Most cuck Presidential administration ever.

    nk (1d9030)

  154. Gleesons firm has represented yates and he worked with weissman, thats clear conflict of interest.

    Narciso (7404b5)

  155. It would be a conflict of interest if he had represented Flynn and worked with Sidney Powell. Learn what you’re talking about. For the sake of your new keyboard, if nothing else.

    nk (1d9030)

  156. So in other words, it’s a given that it would be abused by petty Communists who made it to the bench, especially when the last President and his political cronies put public pressure on him to do so.

    Perhaps on planet Gonzo. In the world of reality, we have appellate courts to assure against such a cray-cray concern.

    Ragspierre (d9bec9)

  157. The world where stevens mcdonnell and delay are out of office tell me another one

    Narciso (7404b5)

  158. The chickens are continuing to return home… to roost.

    Colonel Haiku (2601c0)

  159. Where arthur andersen is still a rotting shell,

    Narciso (7404b5)

  160. So tell us of justice usul,

    Narciso (7404b5)

  161. Gleesons firm has represented yates and he worked with weissman, thats clear conflict of interest.

    LOL. Do you people still not understand what his role is? His actual role is to argue that the Government’s position is wrong. That is explicitly his job. Please try to remember that as you cite the TechnoFogs of the world for ridiculous positions about the judge’s alleged conflicts.

    Patterico (115b1f)

  162. https://www.forbes.com/sites/markchenoweth/2020/05/14/judge-sullivan-disregards-two-controlling-precedents-by-appointing-amicus-in-flynn-case/#6bf957a26f0a
    Makes the case that Sullivan is out of bounds..


    One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

    Yeah, with all due respect, that is horseshit. If that were the rule, then the leave requirement in Rule 48 would not exist — or at a minimum, courts would have said that if the parties agree on dismissal, the courts have no further role. They have said the exact opposite. Mark my words: there is no way to apply the precedents in a way that conforms to this ridiculous argument. You’d have to rewrite the law entirely.

    Patterico (115b1f)

  163. I don’t think it’s a conflict of Interest if his job will be to argue against dismissal. You can make a better case for conflict of interest against Sullivan given his previous behaviors during this case.

    1DaveMac (4cc9b4)

  164. #161

    Gleesons firm has represented yates and he worked with weissman, thats clear conflict of interest.

    LOL. Do you know what “conflict of interest” means? By your reasoning Johnnie Cochran should have been conflicted out of representing O.J. because he had a history of alleging abusive prosecutorial tactics against African Americans.

    lurker (d8c5bc)

  165. (Note to self: Before posting, refresh the thread in case Pat already said what you’re about to.)

    lurker (d8c5bc)

  166. Gleesons firm has represented yates and he worked with weissman, thats clear conflict of interest.

    Neither of those would be a conflict of interest. (By the way, he “worked with Weissman” refers to the fact that more than 25 years ago, he and Weissmann were among more than 100 attorneys who worked at the US Attorneys Office for the EDNY.)

    David Nieporent (9c8c00)

  167. Orwell, in Politics and the English Language, wrote about well-worn metaphors that people use incorrectly because they don’t even understand the metaphor (“tow the line,” for example). “Conflict of interest” is a phrase that people say unthinkingly to be a criticism, without understanding what they’re actually saying. They often use it to mean “bias,” and while they can often both be present, bias and conflict of interest mean different things.

    A conflict of interest requires that someone have two (or more) different interests, and that those interests are incompatible.

    Does Gleeson have two different interests here? No, he does not. As an appointed amicus curiae, he has an interest in making the strongest arguments against Flynn/Barr. Does he have any countervailing interest? No. Would him knowing Weissmann be incompatible with that? No; it is entirely compatible with that role.

    May Gleeson be biased? Maybe. But so what? He’s being appointed as an advocate. Him being biased in favor of the position he’s advocating is not a problem. It would be like saying that Sidney Powell being biased against the DOJ (she wrote a whole book called “Licensed to Lie” attacking the DOJ!) is a problem. That’s nonsensical; it’s bias in the appropriate direction for her role as a defense attorney.

    David Nieporent (9c8c00)

  168. An impartial judge with a strong view of the public interest might at least bother to find someone who wasn’t directly connected to the political and organizational counterparties, especially those currently under suspicion of collusion with the DNC, but I guess recusal doesn’t apply to you when your people control the department.

    Gleeson’s job is to give the best possible arguments against the motion to dismiss. He is supposed to be the reverse of impartial.

    Kishnevi (a2d7ac)

  169. The chickens are continuing to return home… to roost.

    They certainly are, Ollie:

    FBI serves warrant on senator in investigation of stock sales linked to coronavirus
    Federal agents seized a cellphone belonging to a prominent Republican senator on Wednesday night as part of the Justice Department’s investigation into controversial stock trades he made as the novel coronavirus first struck the U.S., a law enforcement official said.

    From the head down the fish rots. (h/t RipMurdock)

    nk (1d9030)

  170. Yes warners pet poodle serves him right, now do feinstein.

    Narciso (7404b5)

  171. Let the chicken-pluckers do Feinstein. Why aren’t they? This is a Republican chicken getting plucked.

    nk (1d9030)

  172. Burr deserves all that he has coming to him.

    Colonel Haiku (2601c0)

  173. little rocket man aka the romantic interest of our president wears a uniform and when he gets all sweaty and gross mr donald loves him at least as much as president vladimir because he said so

    you should try to be more sensitive in matters of the heart mr nk

    Dave (1bb933)

  174. I’m going to download a Barbara Cartland book right now, Mr. Dave.

    nk (1d9030)

  175. ‘those words you are using’

    narciso (7404b5)

  176. Although Burr is a Republican, he’s viewed as insufficiently loyal to the Dear Leader because he hasn’t bought into all the cuckoo “spygate” / “Obamagate” conspiracy theories, and has worked bipartisanly on the Intelligence Committee. So Trumpkins aren’t really upset about this at all.

    David Nieporent (9c8c00)

  177. These people citing Fokker like I never heard of it are hilarious. Go back and read my hypothetical hearing.

    Patterico (115b1f)

  178. These people citing Fokker like I never heard of it are hilarious. Go back and read my hypothetical hearing.

    “These Fokkers were flying Messerschmitts…”

    Dave (1bb933)

  179. Time123 (653992) — 5/14/2020 @ 7:37 am

    A fair summation of the testimony would be “There was no direct evidence that the files were sent to the Russians.

    Agreed. This means there is no direct evidence that Russians got any information via this alleged hack. The summation should stop here because everything after this is speculation or immaterial.

    But there was direct evidence that the system was infiltrated.

    Infiltrated is an important word and in this context, it means there was an exchange of information. We aren’t dealing with a destructive attack or one of the definitions of hacked/infiltrated that would be satisfied by injecting code that denies access. Having suspicious processes running within a system is a problem. But within the context of this issue it doesn’t matter that code was running on these systems. It only matters whether that code was used to extract information. Again, the allegation is that the Russian hacked the DNC system and got information.

    The infiltrators had access to the emails and could have copied and/or sent them.

    Access is also an important word and in this context, it’s not enough that access could have been exercised. This isn’t the allegation we’ve been working with. If there is no evidence of any information leaving the DNC system/networks there is nothing to support access. It’s possible this code couldn’t be exploited for reasons we don’t know. The operative word here is could. Again, the allegation is that the Russians actually did obtain information.

    Based on the circumstantial evidence, which was detailed, CS is highly confident this was done by Russian state actors.”

    I’m not sure how detailed this circumstantial evidence is and I don’t trust CS. They are a paid agent of the DNC. They aren’t an unbiased independent actor. I’ll admit to ignorance on this but all I’ve seen are statements by Crowdstrike that they have evidence they consider strong but I don’t know that any of that evidence has been released.

    This is a long a brittle chain and each link makes the allegation weaker, not stronger. This hacking theory is sounding like Ancient Aliens logic.

    frosty (f27e97)

  180. Frosty, Thank you for the detailed reply. First things first, if you’re going to discount everything CrowdStrike says because they’re a vendor for the DNC there’s not much point in responding.

    I could point out that their work has been reviewed by the FBI who came to the same conclusion. I could also point out that they’re a vendor for the RNC as well. But I expect you know that before you decided they were lying.

    Time123 (6e0727)

  181. For Trump, taking over the Senate Intelligence Comity is the KEY in order to beat the Deep State. They have all the power, they know all the secrets. The stocks trades is just to squeeze Burr to make him cooperate. And he will.

    Burr is not leaving right away, it will take him a couple days to leave the chairmanship, enough time to take the key info and give it to Bar, so he runs free.

    157-D chess in real time: DS makes a move thru Sullivan, Barr make his move thru Burr…and so on…many more moves to come until one side is destroyed. No draw is possible any more, its too deep for a draw now.

    No Name (f49cd5)

  182. Just a question, I’m confused. In 166 you say:
    “Yeah, with all due respect, that is horseshit. If that were the rule, then the leave requirement in Rule 48 would not exist — or at a minimum, courts would have said that if the parties agree on dismissal, the courts have no further role. They have said the exact opposite. Mark my words: there is no way to apply the precedents in a way that conforms to this ridiculous argument. You’d have to rewrite the law entirely.”
    What is the “that” you’re referring to? I read it as referring to the quote from Ginsburg’s 9-0 opinion in the case. Surely you don’t think a 9-0 opinion is totally, obviously wrong?

    TW2020 (4585fe)

  183. 77. Kishnevi (7976e0) — 5/13/2020 @ 5:11 pm

    The leak does get mentioned, but well done on the list.

    Fox News doesn’t want to come out against leaks.

    Sammy Finkelman (20d02d)

  184. Just a question, I’m confused. In 166 you say:
    “Yeah, with all due respect, that is horseshit. If that were the rule, then the leave requirement in Rule 48 would not exist — or at a minimum, courts would have said that if the parties agree on dismissal, the courts have no further role. They have said the exact opposite. Mark my words: there is no way to apply the precedents in a way that conforms to this ridiculous argument. You’d have to rewrite the law entirely.”
    What is the “that” you’re referring to? I read it as referring to the quote from Ginsburg’s 9-0 opinion in the case. Surely you don’t think a 9-0 opinion is totally, obviously wrong?

    I’m amazed that you are confused. Unless you are just pretending to be. Did you actually think I was referring to the 9-0 opinion? Or was that just a cheap shot, when you are fully aware of the incredibly obvious point that I was objecting to the moronic opinion piece that purports to apply that rule to Rule 48?

    Patterico (115b1f)

  185. I’m not sure how detailed this circumstantial evidence is and I don’t trust CS. They are a paid agent of the DNC. They aren’t an unbiased independent actor. I’ll admit to ignorance on this but all I’ve seen are statements by Crowdstrike that they have evidence they consider strong but I don’t know that any of that evidence has been released.

    Crowdstrike is a paid vendor of the RNC. It’s almost like Crowdstrike is a leading vendor in it’s field and is hired by everyone.

    Colonel Klink (Ret) (305827)


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