So, Flynn Was Never “Masked” to Begin With
A Republican effort to determine who may have leaked the name of Michael Flynn in connection to his 2016 contact with the Russian ambassador has centered on the question of which Obama administration officials requested his identity be “unmasked” in intelligence documents.
But in the FBI report about the communications between the two men, Flynn’s name was never redacted, former U.S. officials said.
. . . .
It was the FBI, not the NSA, that wiretapped Kislyak’s calls and created the summary and transcript, the former officials said.
“When the FBI circulated [the report], they included Flynn’s name from the beginning” because it was essential to understanding its significance, said a former senior U.S. official, who spoke on the condition of anonymity to describe sensitive intelligence. “There were therefore no requests for the unmasking of that information.”
On to the next contrived scandal!
Meanwhile, the new State Department IG has already started, which is entirely illegal:
It is ILLEGAL for Trump's acting IG to have started working at the State Dept this week. The law FORBIDS removal of an IG during the 30-day notice period. If even FOUR Senate Republicans cared about laws, they would stop this by blocking Trump's nominees.https://t.co/f03T9MRs6u
— Walter Shaub (@waltshaub) May 21, 2020
You can TrusTed to come out swinging on this, on account of how much he loves him the Rule of Law, you know.
So much for #ObamaGate.
Paul Montagu (b3f51b) — 5/21/2020 @ 8:43 amMaybe Morning Joe is right. Most of Trump’s comments are either confession or projection, and “Obamagate” is a hoax made up by Trump and backfilled by his loyalists.
Speaking of illegal, Trump’s claims that Michigan and Nevada broke the law wrt mail-in ballots were chock full of lies.
#ObamaGate isn’t whether Flynn was masked or not.
#ObamaGate is about an outgoing administration of opposition party monitoring the incoming administration for overt political reasons.
whembly (fd57f6) — 5/21/2020 @ 8:48 amYeah, Washington Post. They’ve gotten everything right about trump-Russia for the last 3 years, so I’ll just take their word for it. Yep. Not like they’re biased or nothin’
rcocean (2e1c02) — 5/21/2020 @ 8:49 am2… no big deal around here, Whembly. All by the book.
Colonel Haiku (2601c0) — 5/21/2020 @ 8:58 amKen Thomas
@KThomasDC
Andrew Weissmann, former lead prosecutor on Mueller’s special counsel team, is headlining a June 2nd virtual fundraiser for Biden.
https://twitter.com/KThomasDC/status/1263484423510638597?s=20
harkin (8f4a6f) — 5/21/2020 @ 8:59 am_
Obamagate is about whatever mr trump, peace be upon him, says is bad about Obama.
Appalled (1a17de) — 5/21/2020 @ 9:00 amT-rump: “Laws…? I dun neeeeed no steeeenkin’ laws…!!!”
Ragspierre (d9bec9) — 5/21/2020 @ 9:04 am“Obamagate” is simply the latest example of Mr. Trump’s ability to play the press like Segovia pllayed the guitar. He really is extremely talented in this regard. “Make America Great Again” is a masterpiece in the world of electoral slogans.
He recognizes that in every reported conflict between him and his opponents, the press has a dog in the fight. What many of us forget is that the press’s dog is the fight itself.
In the words of the immortal Walt Kelly, “We have met the enemy and not only may he be ours, he may be us.”
John B Boddie (f44786) — 5/21/2020 @ 9:28 am@3: WaPo is protecting the leaker who committed the felony, as it was their 2017 story that sourced the leak.
Because, Rule of Law!!!!!!!!!!
beer ‘n pretzels (73045a) — 5/21/2020 @ 9:28 amThe best evidence we have is from the IG report. It stated explicitly that they found no evidence Crossfire Hurricane was done for political reasons. It also faulted the FBI leadership for not keeping the white house more aware of what was being done.
Time123 (80b471) — 5/21/2020 @ 9:31 amthe recipient was david Ignatius, the leaker was probably James baker, currently with lawfare,
narciso (7404b5) — 5/21/2020 @ 9:32 amYou’re complaining about Bias? That’s sad.
Time123 (80b471) — 5/21/2020 @ 9:32 amObamagate is because half the people in the country have an IQ below 100 and the bottom half of that still have the right to vote and they vote for Donald because they see it on golden arches every day.
nk (1d9030) — 5/21/2020 @ 9:37 amRight, because pulling an Obama and targeting Ignatius as a “co-conspirator” and searching his phone records and emails was such a winning strategy. But it would officially confirm Ignatius as an Enemy of the People for saying mean things about Trump.
Paul Montagu (b3f51b) — 5/21/2020 @ 9:45 amWe should have figured that out, or known enough to.
Or at least members of Congress should have. Or, if they realized that eavesdropping within the boundaries of the United States is done by the FBI, at least known that an FBI transcript is different from an NSA one (if it is)
It takes a while for the truth to put on its boots, as Mark Twain said.
Maybe this could account for why Mike Flynn wasn’t worried that the FBI knew what he said – he knew
Sammy Finkelman (4591c3) — 5/21/2020 @ 10:07 amforeign ambassadors were sometimes eavesdropped on, particularly ones semi-hostile at least, but thought the NSA did that. They do try to break codes.
So it was the FBI leaking FISA material outside channels and to the press. Yup, no scandal there. I believe, although I am no lawyer, that the FISA court is pretty pissed at the FBI right now. This is just another feather in the FBI cap. Glad to know the nation’s premier law enforcement agency is in no way politicized. I’m sure they will finally provide evidence that the FusionGPS document was totally true and in no way a Russian disinformation piece sold as an opposition research document.
Hoi Polloi (dc4124) — 5/21/2020 @ 10:21 amRight, because pulling an Obama and
It’s OK when Obama does it, like assassinating US citizens without due process.
Hoi Polloi (dc4124) — 5/21/2020 @ 10:27 am@14: Nice deflection.
But, thankfully we reserve wiretaps and surveillance and genuine outrage for real enemies of the people. Like Carter Page.
beer ‘n pretzels (73045a) — 5/21/2020 @ 10:39 amThis is an admittedly ignorant question, but under what authority was the FBI monitoring Flynn? Or was the FBI instead monitoring Kislyak’s calls in the US and from there got Flynn’s name?
From a complete outsider’s perspective, it seems weird that the law has protections against revealing the identity of a “US person” who is part of a call that is monitored under FISA, which involves international calls, and it’s apparently scandalous if that person’s name is revealed or leaked. But when it’s merely a domestic call where an American speaks to a foreigner the FBI is monitoring, revealing the American’s name is OK, no problem. Is that a fair characterization of what the law says, or am I missing something? If it’s the former, what is the rationale for the different treatment of the identities of Americans in domestic and foreign calls?
RL formerly in Glendale (40f5aa) — 5/21/2020 @ 10:45 amHere’s a deflection for all you all: If Flynn was so goshdurn innocent, and was pleading guilty under duress, not to mention torture, anguish, penury and obloquy, why didn’t he plead nolo contendere instead of guilty?
nk (1d9030) — 5/21/2020 @ 10:57 am@20
Because, obviously, they wanted Flynn available as a witness for other prosecution.
whembly (c30c83) — 5/21/2020 @ 11:04 amSince I never said or alluded that (and have expressly opposed Obama on Rosen and Awlaki), I’ll take your comment as a strawman. One standard, applied to all.
Paul Montagu (b3f51b) — 5/21/2020 @ 11:05 amwhy didn’t he plead nolo contendere instead of guilty?
Indeed, why didn’t spend the past three years earning a JD so he could understand the difference?
He had representation that wasn’t particularly interested in the missing 302 or relevant material like Priestap’s notes. Maybe that could tell you something. Think about it.
beer ‘n pretzels (73045a) — 5/21/2020 @ 11:07 am@19
FISA is one tool provided that there’s belief the target is an agent of foreign power AND working towards breaking US laws.
Another is regular criminal investigation with judge issue warrants.
That’s a possibility. Also, and this is noteworthy, the Flynn was in the Dominican on vacation when he was fielding the Kislyak call.
whembly (c30c83) — 5/21/2020 @ 11:09 am…why didn’t he plead nolo contendere instead of guilty?
Because Khan was not going to call off his ear-worm until Flynn gave them ALLLLL he demanded! (Classic Star Trek reference.)
Ragspierre (d9bec9) — 5/21/2020 @ 11:09 amBecause, obviously, they wanted Flynn available as a witness for other prosecution.
Sorry, that isn’t obvious to me.
What’s also no obvious is how a nolo plea destroys his usefulness as a witness?
AND how good a witness was Flynn EVER going to be after affirming in open court and under oath that he’s a lying liar who lies? Not someone I’d want as a witness UNLESS I could prove my case six other ways from Sunday.
Ragspierre (d9bec9) — 5/21/2020 @ 11:15 am@26 Isn’t nolo pleas accepting the charge without admitting guilt?
If so, if he was used as a witness in another case, couldn’t the defense impeach the witness’ credibility?
whembly (c30c83) — 5/21/2020 @ 11:24 amThis is an admittedly ignorant question, but under what authority was the FBI monitoring Flynn? Or was the FBI instead monitoring Kislyak’s calls in the US and from there got Flynn’s name?
The FBI was more likely monitoring Kislyak’s calls.
Hoi Polloi (dc4124) — 5/21/2020 @ 11:29 amBarack Obama warned his successor against hiring Michael Flynn. It was Nov. 10, 2016, just two days after Donald Trump upset Hillary Clinton to become the 45th president of the United States. Trump told aide Hope Hicks that he was bewildered by the president’s warning. Of all the important things Obama could have discussed with him, the outgoing commander in chief wanted to talk about Michael Flynn.
The question of why Obama was so focused on Flynn is especially revealing now. The Department of Justice recently filed to withdraw charges against the retired three-star general for making false statements to the FBI in a Jan. 24, 2017, interview regarding a phone call with a Russian diplomat. The circumstances surrounding the call and subsequent FBI interview have given rise to a vast conspiracy theory that was weaponized to imprison a decorated war hero and a strategic thinker whose battlefield innovations saved countless American lives. There is no evidence that Flynn “colluded” with Russia, and the evidence that Flynn did not make false statements to the FBI has been buried by the bureau, including current Director Christopher Wray.
So if the Obama administration wasn’t alarmed by Flynn’s nonexistent ties to Russia, why was he Obama’s No. 1 target? Why were officials from the previous administration intercepting his phone calls with the Russian ambassador?
The answer is that Obama saw Flynn as a signal threat to his legacy, which was rooted in his July 2015 nuclear agreement with Iran—the Joint Comprehensive Plan of Action (JCPOA). Flynn had said long before he signed on with the Trump campaign that it was a catastrophe to realign American interests with those of a terror state. And now that the candidate he’d advised was the new president-elect, Flynn was in a position to help undo the deal. To stop Flynn, the outgoing White House ran the same offense it used to sell the Iran deal—they smeared Flynn through the press as an agent of a foreign power, spied on him, and leaked classified intercepts of his conversations to reliable echo chamber allies.
Colonel Haiku (2601c0) — 5/21/2020 @ 11:31 amhttps://www.tabletmag.com/sections/news/articles/russiagate-obama-iran
My understanding is that they were monitoring Kislyak’s calls, not targeting Flynn specifically.
Time123 (80b471) — 5/21/2020 @ 11:40 am@26 Isn’t nolo pleas accepting the charge without admitting guilt?
Pleading no contest, he would be saying, “I am not admitting I lied, but I’m not going to fight the charge.”
In other words, it would have fit the situation which Flynn now claims to have existed.
So any potential cross-examiner would not be be able to use his own admission in court under oath that he lied, because he would have made one.
Kishnevi (8c03ee) — 5/21/2020 @ 11:43 amObamagate? …….but President Obama had the Article II up until the inauguration. Where’s the beef?
FredDibna (822e93) — 5/21/2020 @ 12:08 pmSo, when does “Obamagate” become “AT&Tgate” because the telephone company did not use encryption which would have blocked the FBI from listening in on Flynn’s and Kislyak’s all? Tomorrow, the day after tomorrow, 4:00 am Sunday morning when Trump tweets it out?
nk (1d9030) — 5/21/2020 @ 12:22 pmAs soon as Trump thinks demonizing AT&T will be to his advantage.
Time123 (80b471) — 5/21/2020 @ 12:26 pmhttps://twitter.com/ZoeTillman/status/1263544118594191362/photo/1
Looks like Judge Sullivan has 10 days to respond to Flynn’s Wit of Mandamus.
whembly (c30c83) — 5/21/2020 @ 12:27 pm#24, #28, #30. Thanks for clearing that up. It does seem like the FBI must have been monitoring Kislyak as opposed to Flynn, because if it had been the latter they would have had to have gotten a warrant, which we would have heard about long before now.
It still seems inconsistent that they didn’t need to redact or “mask” Flynn’s identity because it was a domestic call, but if it was a FISA intercept they would have had to. Is there an actual coherent rationale behind the privacy protections for Americans under the laws governing eavesdropping?
There’s been a lot of comment about whether Flynn is either a traitor or close to one, or instead is practically a hero singled out for prosecution for nefarious political reasons. But does any of that actually matter — shouldn’t the question be, has Flynn been treated fairly, and received due process, not been a victim of material Brady violations, etc? Maybe I’m misinterpreting things, but it seems like most people’s conclusions about whether Flynn is scum or hero drive their conclusions about the propriety of the DOJ’s actions in this case. For those commenters with criminal law experience, can anyone explain whether, if the same standards that would apply to any ordinary defendant were applied to Flynn, there would be any reason to question the conduct of the prosecution, whether before or after the motion to dismiss? If anyone’s answer is, “see my previous 89 posts” then sorry for being dense. I’ll re-read them.
RL formerly in Glendale (40f5aa) — 5/21/2020 @ 12:30 pmMind control lasers.
Dave (1bb933) — 5/21/2020 @ 12:31 pmJudges do not respond to defendants’ appeals. Of any kind. In any way. Including petitions for writs of mandamus. The DOJ is supposed to as the party opponent and now pardon me while I take a few minutes to laugh uncontrollably.
nk (1d9030) — 5/21/2020 @ 12:33 pm@38
The DC Circuit stated:
whembly (c30c83) — 5/21/2020 @ 12:43 pmIf so, if he was used as a witness in another case, couldn’t the defense impeach the witness’ credibility?
How in the wide, wide wonderful world of sports do you reckon he wouldn’t be impeached in any stinking event? He’s a walking impeachment as a witness. (See the period?)
Ragspierre (d9bec9) — 5/21/2020 @ 12:43 pmJudge Sullivan: “Oh, yes, Brair Fox. Throw me in that ol’ briar patch!”
Ragspierre (d9bec9) — 5/21/2020 @ 12:47 pm#38. I’d say you were right 99+% of the time, but the order specifically orders the district judge to respond and says the government may, in its discretion, also respond. That doesn’t sound like the typical mandamus petition where the lower court is the respondent but never responds because the “real party in interest”, i.e., the beneficiary of the lower court’s ruling, will file any opposition to the petition. This order looks different — or is that just typical language in the DC Circuit?
RL formerly in Glendale (40f5aa) — 5/21/2020 @ 12:48 pm@41
He should be fine…right? All he has to do is point out the rule allowing him to do so.
whembly (c30c83) — 5/21/2020 @ 12:54 pmFox News:
Patterico (115b1f) — 5/21/2020 @ 1:23 pm*Almost* a dream panel for Flynn. Rao (Trump appointee) dissented in the Mazars case along with Henderson (Bush appointee) and only one other judge (8-3 decision). [Bah — Wilkins is an Obama appointee. I had brain flatulence and mixed him up with a Fourth Circuit judge appointed by Reagan earlier. Mea culpa.]
Patterico (115b1f) — 5/21/2020 @ 1:28 pmHe should be fine…right? All he has to do is point out the rule allowing him to do so.
Not real sure I understand, BUT I think you can expect Sullivan’s response to be…
1. very terse, or
2. replete with good law and rules citations where the defense motion was notably naked emotionalism.
Or something else…
Ragspierre (d9bec9) — 5/21/2020 @ 1:31 pmCan an appeals court rule on the lower court before the lower court made its decision? This seems unusual, even more unusual than what Sullivan has done so far.
Paul Montagu (b3f51b) — 5/21/2020 @ 1:47 pmMandamus is generally a remedy that calls on an appellate court to do just that (rule on a question before a final verdict). It allows the movant to ask for a ruling (generally of law) during the pendency of a matter. It serves judicial economy and the rule of law by (hopefully) correcting a misapplication of law or a legal standard before the matter is tried or otherwise determined.
Ragspierre (d9bec9) — 5/21/2020 @ 2:09 pmAnd to add on to #48, mandamus review is discretionary, so an appellate court can, and usually does, issue a “postcard denial” of a mandamus petition that reads “the petition is denied” with no explanation required. Typically when your opposing counsel files a mandamus petition you don’t respond right away because there’s no reason to as the appellate court will probably deny it before you can file anything.
The DC Circuit’s order requiring a response from the district judge thus seems unusual. It may be as Patterico suggested (#45) that it’s a dream panel for Flynn. Or maybe it’s just such a high-profile case the court feels it has to act like it’s taking the petition seriously even if the judges just want to summarily deny it. I hope the DOJ motion to dismiss is granted, but don’t get the basis for the mandamus petition — how is Judge Sullivan merely asking for another issue to be briefed contrary to law so that an appellate court needs to step in? Can’t see what the judge has done wrong to justify extraordinary relief.
RL formerly in Glendale (40f5aa) — 5/21/2020 @ 3:39 pmThank you, whembly @ 38. I think that’s a ruling granting the writ of mandamus. They bought Sidney’s argument that an entry of Rule 48(a) dismissal is merely a ministerial act by the trial court. The citation of Fokker is a dead giveaway. The ten-day order is like when they call a contempt citation a rule to show cause. A gentler, kinder way of saying it.
nk (1d9030) — 5/21/2020 @ 5:05 pmLooks like Sullivan – that Judicial Giant on the Potomac – has some ‘plaining to do. I assume, he will dazzle everyone with his brilliance, and the Appeals court will allow him to proceed.
rcocean (846d30) — 5/21/2020 @ 5:17 pmI assume he will write something sufficient to persuade the court to allow him to proceed, for now. It’s pretty much a no-brainer to wait until he has made a decision. That Powell is worried Judge Sullivan won’t agree with her does not create an emergency, no matter how many Kafka references she makes.
Patterico (115b1f) — 5/21/2020 @ 5:21 pmFokker does not say it’s a ministerial act.
Patterico (115b1f) — 5/21/2020 @ 5:21 pmFrom what I read, and not being a lawyer, the Appeals court has asked both the Government and the Judge to address Powell’s petition. Sullivan will have to explain and justify himself, as opposed to hiding behind his ridiculous pose of “Just asking questions” and “Hey, help me out with some amicus Briefs”.
Can other file briefs on the Judges behalf with the Appeals court? Or is he on his own?
rcocean (846d30) — 5/21/2020 @ 5:24 pmOK thanks. I wrote my response, while Patterico was posting his. Interesting that you think Powell will lose this one. This may just play in Sullivan’s hands then.
rcocean (846d30) — 5/21/2020 @ 5:26 pmI modified my comment above to add: “[Bah — Wilkins is an Obama appointee. I had brain flatulence and mixed him up with a Fourth Circuit judge appointed by Reagan earlier. Mea culpa.]”
Patterico (115b1f) — 5/21/2020 @ 5:28 pmIt’s a shot across the bow. Judge Sullivan knows this panel will reverse if he denies the motion. But I think — I said I *think* (remember: I am out of the prediction business!) — they will at least allow him to make his decision. It would be little short of bizarre if they did not. Talk about judicial overreach.
Patterico (115b1f) — 5/21/2020 @ 5:30 pmFair enough, Patterico. “They accept the Fokker Part B interpretation of Rule 48(a)” is the way I read the citation, and “ministerial act” is my interpretation.
In Fokker, the Court of Appeals itself appointed an amicus curiae to argue against the writ of mandamus since the government and the defendant were in agreement. Sullivan should tell them to the same thing here, if he tells them anything at all.
nk (1d9030) — 5/21/2020 @ 5:41 pmto *do* the same thing
nk (1d9030) — 5/21/2020 @ 5:42 pmOh, wait! I suppose Sullivan could certify a question of his own: Whether Rule 48(a) authorizes dismissal with prejudice.
nk (1d9030) — 5/21/2020 @ 5:45 pmIt certainly looks like the appellate court would reverse Judge Sullivan if he denies the motion. But, can’t Sullivan make findings of fact based on whatever showing is made at the hearing on the motion? If he makes findings of fact that the motion to dismiss is based on some sort of fraud on the court, wouldn’t an appellate court be bound by the factual findings?
I have all along thought the Flynn case should be dismissed. But not if there is an actual fraud on the court being perpetrated. Hopefully the appellate court won’t prevent the judge from finding out.
RL formerly in Glendale (40f5aa) — 5/21/2020 @ 5:55 pmCome now, “Rule of law” was always a gentlemen’s agreement that required both sides to assent and cooperate in order for it to mean anything. Obama refused to cooperate, his followers and party refused to apologize, they no longer get the same protections or deference.
This has always been war to them far longer than it has been for us, they even have a blog called ‘Lawfare’, fercrissakes. Trump and his followers are simply joining up and fighting back.
Oh, and those Democrats that you’ve thrown in your lot with? Their main vocal online constituencies just spent all day wokewashing human traffickers with plaudits normal people would typically reserve for cancer survivors and Medal of honor recipients.
Conservatives elected a New Yorker. Liberals went all in on New York values. There is no rule of any law but power and its exercise while this war still rages. Allegiance and loyalty are primary, not secondary virtues in this situation.
(Note: This is Steppe Nomad.)
Flynntensity (4bc980) — 5/21/2020 @ 7:06 pmYou don’t have to be insane to be a Trumpkin, but it helps.
nk (1d9030) — 5/21/2020 @ 7:11 pmAllegiance and loyalty are primary, not secondary virtues in this situation.
What a colossal mother lode of crap!
Ragspierre (d9bec9) — 5/21/2020 @ 7:24 pmPatterico has said repeatedly that if Sullivan does anything but dismiss he will get reversed at the Circuit. I agree. I think Sullivan’s best move is to dismiss now. How he tells the Circuit that, I’m not versed enough in this aspect of law to say, but Sullivan needs to cut his losses now. The Circuit ordered him to make his filing in 10 days, and the unspoken rest of that sentence is “….or we will issue the writ of mandamus.”
If he’s going to get reversed if he does anything else, is’t dumb to do anything else.
TW2020 (4585fe) — 5/21/2020 @ 8:07 pmNo. Don’t you want answers to the many important questions now before the court?
Ragspierre (d9bec9) — 5/21/2020 @ 8:13 pmCome on all. We know that Flynn is too much a Trump acolyte to ever wear a mask. Even in conversations with the Russians.
Appalled (ffe037) — 5/21/2020 @ 8:38 pmCan someone clarify something for me?
If a rule is silent on whether or not a district judge can do something… is that left to the judge’s discretion?
Doesn’t the rule governing a district judge to request an amicus only for civil cases?
Or, is it that, district judges can largely do whatever they want so long as it’s not expressly prohibited?
whembly (fd57f6) — 5/22/2020 @ 8:17 amAnother take on the DC circuit’s actions… I didn’t realize this is a bigger deal…
whembly (fd57f6) — 5/22/2020 @ 8:28 amIt is a grave discourtesy on the part of the Court of Appeals. If they like Fokker so fokking much, they should do what the Fokker court did in the same situation of both the government and the defendant being on the same side, which is to appoint an amicus curiae on their own motion without any further ado.
nk (1d9030) — 5/22/2020 @ 8:38 amAnd to answer your previous question, judges can only do what the law says they can do, and the best judges only do what the law says they must do.
nk (1d9030) — 5/22/2020 @ 8:41 am67… ya gotta be “more flexible”, appalled 😉
Colonel Haiku (2601c0) — 5/22/2020 @ 8:46 amIt seems to me that this isn’t solely about dismissal anymore. This is about Flynn wanting to stop the possibility of being found in contempt of court. Maybe Judge Sullivan will address that in his response to the Circuit Court.
DRJ (15874d) — 5/22/2020 @ 8:47 am63… Ya don’t need scales on your belly to be a lawyer, but it helps.
Colonel Haiku (2601c0) — 5/22/2020 @ 8:49 amfokker seems to be a repeat offender, ten years apart,
narciso (7404b5) — 5/22/2020 @ 8:53 amwhembly, why are you repeating what has already been posted, and which is the bald opinion of an obscure blogger? Haven’t you ever noticed that quite a few attorneys use blogs to flack for their services?
Ragspierre (d9bec9) — 5/22/2020 @ 9:16 amYa don’t need scales on your belly to be a lawyer, but it helps.
Certainly. Many of us have the scales of justice tattooed on our belly.
Ragspierre (d9bec9) — 5/22/2020 @ 9:18 am@71
Thanks for taking the time to respond…but, I still have questions.
Let me preface this… I play a table-top game called Warhammer 40k. It’s a miniature turn-based game usually on a 6×4 table with lots of dice rolling. The game is expressly written to be permissive-based – meaning, the rules must say that ‘thing’ I’m allowed to do.
From what I’m reading and several op-eds whom are also attorneys… it appears that the rule allowing for the district court judges to grant amicus are for civil cases. However, the rule is silent on whether a judge can do this for criminal cases.
Does that matter?
Hence why I asked if a rule is silent on something, does the judge have the discretion to do a “thing” (ie, grant amicus in criminal proceeding) so long as it isn’t prohibited by law or another rule?
whembly (fd57f6) — 5/22/2020 @ 9:24 am@76
Because I haven’t seen it posted.
I was always under the assumption that judges has wiiiiiiiide latitudes in the proceeding they oversee, so long is they’re not expressly prohibited.
Is that assumption wrong?
whembly (fd57f6) — 5/22/2020 @ 9:27 amAs I said above, Fokker is precedent for that in that Circuit. The Court of Appeals appointed an amicus curiae, and it was a criminal case. There are generally four kinds of “rules” that govern these kinds of things. Statutory (passed by Congress), Supreme Court Rules, local rules, and local general orders. An amicus here could be authorized by one we can’t find on the internet.
nk (1d9030) — 5/22/2020 @ 9:31 am@80
Gotcha.
I guess we’d have to wait to see what Judge Sullivan has to say to the DC Circuit.
Thanks!
whembly (fd57f6) — 5/22/2020 @ 9:34 amYou need to be more specific, both as to your assumption and what rule you refer to in 78.
Ragspierre (d9bec9) — 5/22/2020 @ 9:36 amI was always under the assumption that judges has wiiiiiiiide latitudes in the proceeding they oversee, so long is they’re not expressly prohibited.
Is that assumption wrong?
Not entirely. Some judges push the limit, some try to stay on the exact boundary,some try to stay well within. And it’s more a matter of temperment, not political philosophy. Rather like some lawyers push the rules as far as possible and some don’t.
And no one knows if they have gone too far unless an apellate court says so. Kind of
notum est, quod aliquando visa est.
Best answer is to trim about half the i’s off your wide and end up with wiiiide
Kishnevi (59d33b) — 5/22/2020 @ 9:44 amYou are mistaken. A ruling granting the writ of mandamus would read like so: “Petitioner’s request for a writ of mandamus is granted. The District Court is hereby instructed to enter an order dismissing the case.”
Fokker doesn’t say that it is ministerial.
You’re being consistent if not correct. An order to show cause why someone should not be held in contempt is not a finding of contempt. It is routine for a court to issue an order to show cause, and then after the hearing decide not to proceed any further with sanctions.
David Nieporent (9c8c00) — 5/22/2020 @ 9:54 amAppellate courts are not bound by factual findings. It’s just a higher standard of review – clearly erroneous vs. de novo.
David Nieporent (9c8c00) — 5/22/2020 @ 9:55 amCertainly. Many of us have the scales of justice tattooed on our belly.
…and a tramp stamp on your lower back…
Colonel Haiku (2601c0) — 5/22/2020 @ 10:10 am@82
Flynn’s own mandamus petition is where I’m getting this:
https://sidneypowell.com/wp-content/uploads/2020/05/Petition-filed.pdf
In part, Flynn’s attorney used the judge’s own words:
The full section in the petition:
whembly (fd57f6) — 5/22/2020 @ 10:23 amLet’s assume the Fokker Services case is authority for the principle that the Executive has primary control over charging and dismissing criminal cases (as I think it does). But the case also notes:
Judge Sullivan may argue that the way the DOJ and Flynn handled this dismissal has impacted the adjudication process, as well as evidences contempt for the court and the court system. Further, before the Flynn case made it relevant, the case has been criticized:
DRJ (15874d) — 5/22/2020 @ 10:24 amI’ll be sure to never say “George Washington is the father of his country” around you, Mr. Nierpont.
— If the practical effect of the Court of Appeals order is not to grant the writ of mandamus, what is it?
nk (1d9030) — 5/22/2020 @ 10:33 am— If “Fokker doesn’t say it is ministerial”, then what does it say it is?
— Having been fined for contempt only to have the judge vacate it sua sponte as I was writing the check, I’ll just demur on that one.
It’s a shot across the bow. Judge Sullivan knows this panel will reverse if he denies the motion. But I think — I said I *think* (remember: I am out of the prediction business!) — they will at least allow him to make his decision. It would be little short of bizarre if they did not. Talk about judicial overreach.
I don’t see it that way. I see them as refusing to let this go without a rebuttal, which the government is disinclined to do. They may well want to overturn a refusal, but they don’t want it so ugly as to make the ruling themselves without a decent argument on the other side. Sportsmanship, if nothing else.
Kevin M (ab1c11) — 5/22/2020 @ 10:49 am…and a tramp stamp on your lower back…
Hack-ew is projecting again.
Ragspierre (d9bec9) — 5/22/2020 @ 10:54 amI’m impressed by two thoughts, whembly…
1. It may have been Marcus Aurelius who observed that you never dip your foot in the same river twice. As applied here, the judge can rule against amicus filings at one point while being totally consistent at another point in allowing them, depending on the apparent needs of the case.
2. The brief dived off a legal drafting cliff with references to the popular press. No first year law student would include them in a brief to a trial court, much less an appellate court.
As to the issue of what Judge Sullivan may or may not do WRT amicus pleadings, that’s out of my wheelhouse. I can’t see how it is prohibited, but I’ve never been close to the DC Circuit, or handled a federal criminal matter.
Ragspierre (d9bec9) — 5/22/2020 @ 11:12 amI see that Wray has opened and internal FBI investigation into the handling of the investigation into Flynn.
I wonder how their findings will compare to the findings by Durham.
TW2020 (4585fe) — 5/22/2020 @ 12:16 pmI see that the DC Circuit’s order has been discussed extensively here.
One thing that I don’t see discussed is that the petition asked for Judge Sullivan to be removed for bias, including his “traitor” comment. And the fact that he previously adamantly stated that amicus briefs are not allowed in criminal cases (at least at the district court level), and now orders one.
Just speculation, but maybe they are looking for some response on that.
Bored Lawyer (56c962) — 5/22/2020 @ 1:03 pm93… https://twitter.com/davidspunt/status/1263900677421629440
Colonel Haiku (2601c0) — 5/22/2020 @ 4:03 pmWray should be fired for his handling of this. Oh, so now that others have shown the investigation into Flynn was shoddy, he’s going to investigate. Talk about a day late and a dollar short. And that’s assuming the whole purpose isn’t to whitewash and sabotage Durham. Anyway, Barr seems to have the DoJ well in hand, so I assume Wray will be fired, if he does that.
rcocean (846d30) — 5/22/2020 @ 8:18 pmHow can Sullivan “Cut his losses”? He should have forseen this and I assume he DID forsee this action by the Court of Appeals. Given his crazed Left-wing hatred for Flynn, I will be surprised if he “Cuts his losses”. I full expect to fight as hard as he can, and go down with guns blazing, if that’s what happens.
rcocean (846d30) — 5/22/2020 @ 8:22 pmhttps://www.grassley.senate.gov/sites/default/files/2020-05-29%20ODNI%20to%20CEG%20RHJ%20%28Flynn%20Transcripts%29.pdf
Here’s the Flynn transcript.
Yup. He was framed.
whembly (c30c83) — 5/29/2020 @ 3:11 pm#98 – I don’t see anything in the transcript that would lead you to believe Flynn was doing anything wrong. Maybe some one else could explain it.
rcocean (846d30) — 5/29/2020 @ 3:39 pmThe normally loquacious Comey has been very quiet lately. So many questions..,,
beer ‘n pretzels (13b205) — 5/29/2020 @ 3:45 pmben wittes, mr swalwell, care for a comment, senator schumer
https://apelbaum.wordpress.com/2020/05/24/his-mouth-is-full-of-cursing-and-deceit-and-oppression/#comments
narciso (7404b5) — 5/29/2020 @ 4:25 pm