Patterico's Pontifications

5/21/2020

So, Flynn Was Never “Masked” to Begin With

Filed under: General — Patterico @ 8:29 am



OBAMAGATE!!!

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:

You can TrusTed to come out swinging on this, on account of how much he loves him the Rule of Law, you know.

97 Responses to “So, Flynn Was Never “Masked” to Begin With”

  1. So much for #ObamaGate.
    Maybe 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.

    Paul Montagu (b3f51b)

  2. #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)

  3. Yeah, 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)

  4. 2… no big deal around here, Whembly. All by the book.

    Colonel Haiku (2601c0)

  5. Ken 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)

  6. Obamagate is about whatever mr trump, peace be upon him, says is bad about Obama.

    Appalled (1a17de)

  7. T-rump: “Laws…? I dun neeeeed no steeeenkin’ laws…!!!”

    Ragspierre (d9bec9)

  8. “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)

  9. @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)

  10. #ObamaGate is about an outgoing administration of opposition party monitoring the incoming administration for overt political reasons.

    whembly (fd57f6) — 5/21/2020 @ 8:48 am

    The 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)

  11. the recipient was david Ignatius, the leaker was probably James baker, currently with lawfare,

    narciso (7404b5)

  12. Yeah, 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 am

    You’re complaining about Bias? That’s sad.

    Time123 (80b471)

  13. Obamagate 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)

  14. Because, Rule of Law!!!!!!!!!!

    Right, 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)

  15. It was the FBI, not the NSA, that wiretapped Kislyak’s calls and created the summary and transcript, the former officials said.

    We 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
    foreign ambassadors were sometimes eavesdropped on, particularly ones semi-hostile at least, but thought the NSA did that. They do try to break codes.

    Sammy Finkelman (4591c3)

  16. 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)

  17. Right, because pulling an Obama and

    It’s OK when Obama does it, like assassinating US citizens without due process.

    Hoi Polloi (dc4124)

  18. @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)

  19. This 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)

  20. Here’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)

  21. @20

    Here’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

    Because, obviously, they wanted Flynn available as a witness for other prosecution.

    whembly (c30c83)

  22. It’s OK when Obama does it, like assassinating US citizens without due process.

    Since 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)

  23. why 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)

  24. @19

    This is an admittedly ignorant question, but under what authority was the FBI monitoring Flynn?

    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.

    Or was the FBI instead monitoring Kislyak’s calls in the US and from there got Flynn’s name?

    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)

  25. …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)

  26. Because, 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)

  27. @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)

  28. This 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)

  29. Barack 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.
    https://www.tabletmag.com/sections/news/articles/russiagate-obama-iran

    Colonel Haiku (2601c0)

  30. This 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?

    My understanding is that they were monitoring Kislyak’s calls, not targeting Flynn specifically.

    Time123 (80b471)

  31. @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)

  32. Obamagate? …….but President Obama had the Article II up until the inauguration. Where’s the beef?

    FredDibna (822e93)

  33. So, 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)

  34. As soon as Trump thinks demonizing AT&T will be to his advantage.

    Time123 (80b471)

  35. https://twitter.com/ZoeTillman/status/1263544118594191362/photo/1

    Looks like Judge Sullivan has 10 days to respond to Flynn’s Wit of Mandamus.

    whembly (c30c83)

  36. #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)

  37. Here’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?

    Mind control lasers.

    Dave (1bb933)

  38. Judges 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)

  39. @38

    Judges 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

    The DC Circuit stated:

    Order

    Upon consideration of the emergency petition for a writ of mandamus, it is

    ORDERED, on the court’s own motion, that within ten days of the date of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020 (ECT No. 198). See Fed. R. Crim. P. 48(a): United States v. Fokker Services B. V. 818 F.3d 733 (D.C. Circ. 2016). The government is invited to respond in its discretion within the same ten-day period.

    whembly (c30c83)

  40. If 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)

  41. Judge Sullivan: “Oh, yes, Brair Fox. Throw me in that ol’ briar patch!”

    Ragspierre (d9bec9)

  42. #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)

  43. @41

    Judge Sullivan: “Oh, yes, Brair Fox. Throw me in that ol’ briar patch!”

    Ragspierre (d9bec9) — 5/21/2020 @ 12:47 pm

    He should be fine…right? All he has to do is point out the rule allowing him to do so.

    whembly (c30c83)

  44. Yeah, 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’

    Fox News:

    Former national security adviser Michael Flynn’s name was not actually masked in a key document detailing his calls with the Russian ambassador in late 2016, Fox News has confirmed.

    A congressional source familiar with the surveillance told Fox News that Flynn’s name was not redacted in the initial report about his calls with then-Russian Ambassador Sergey Kislyak, and that his name from the unredacted transcript of the calls was then leaked to the press.

    Patterico (115b1f)

  45. *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)

  46. He 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)

  47. *Almost* a dream panel for Flynn.

    Can 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)

  48. Mandamus 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)

  49. And 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)

  50. Thank 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)

  51. Looks 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)

  52. Looks 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.

    I 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)

  53. 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.

    Fokker does not say it’s a ministerial act.

    Patterico (115b1f)

  54. From 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)

  55. OK 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)

  56. I 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)

  57. OK 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.

    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.

    Patterico (115b1f)

  58. Fair 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)

  59. to *do* the same thing

    nk (1d9030)

  60. Oh, wait! I suppose Sullivan could certify a question of his own: Whether Rule 48(a) authorizes dismissal with prejudice.

    nk (1d9030)

  61. It 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)

  62. Come 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)

  63. You don’t have to be insane to be a Trumpkin, but it helps.

    nk (1d9030)

  64. Allegiance and loyalty are primary, not secondary virtues in this situation.

    What a colossal mother lode of crap!

    Ragspierre (d9bec9)

  65. Patterico 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)

  66. No. Don’t you want answers to the many important questions now before the court?

    Ragspierre (d9bec9)

  67. Come 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)

  68. Can 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)

  69. Another take on the DC circuit’s actions… I didn’t realize this is a bigger deal…

    1) The wording of the DC Circuit’s order directing Judge Sullivan to personally respond to @SidneyPowell1’s writ shows it is deeply troubled by Judge Sullivan’s actions. #appellatetwitter pic.twitter.com/pnIpMnZMTx

    — John M. Reeves (@reeveslawstl) May 21, 2020
    4) Rule 21(b)(1) allows the DC Circuit to deny the writ petition outright, without asking for a response. This is what happens with the vast majority of writ petitions. #appellatetwitter pic.twitter.com/R9gJjnhQmk

    — John M. Reeves (@reeveslawstl) May 21, 2020
    7) If the DC Circuit ordered a response and did nothing else, that alone would be a huge deal. But the DC Circuit didn’t stop there. #appellatetwitter

    — John M. Reeves (@reeveslawstl) May 21, 2020
    20) The DC Circuit is thus making Judge Sullivan–a lifetime federal judge–publicly and directly explain to them his actions. #appellatetwitter pic.twitter.com/2soNvhbZ8D

    — John M. Reeves (@reeveslawstl) May 21, 2020
    21) In short, of all the options available to the DC Circuit for ruling on @SidneyPowell1 ‘s writ, the DC Circuit, chose the most extreme, rare, and drastic of them. #appellatetwitter pic.twitter.com/bY1gY51ffd

    — John M. Reeves (@reeveslawstl) May 21, 2020
    23) This promises to be anything but dull going forward. #appellatetwitter

    — John M. Reeves (@reeveslawstl) May 21, 2020

    whembly (fd57f6)

  70. It 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)

  71. And 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)

  72. 67… ya gotta be “more flexible”, appalled 😉

    Colonel Haiku (2601c0)

  73. It 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)

  74. 63… Ya don’t need scales on your belly to be a lawyer, but it helps.

    Colonel Haiku (2601c0)

  75. fokker seems to be a repeat offender, ten years apart,

    narciso (7404b5)

  76. whembly, 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)

  77. Ya 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)

  78. @71

    And 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 am

    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)

  79. @76

    whembly, 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 am

    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)

  80. As 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)

  81. @80

    nk (1d9030) — 5/22/2020 @ 9:31 am

    Gotcha.

    I guess we’d have to wait to see what Judge Sullivan has to say to the DC Circuit.

    Thanks!

    whembly (fd57f6)

  82. You need to be more specific, both as to your assumption and what rule you refer to in 78.

    Ragspierre (d9bec9)

  83. 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?

    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)

  84. Thank you, whembly @ 38. I think that’s a ruling granting the writ of mandamus.

    You 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.”

    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.

    Fokker doesn’t say that it is ministerial.

    The ten-day order is like when they call a contempt citation a rule to show cause. A gentler, kinder way of saying it.

    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)

  85. It 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?

    Appellate courts are not bound by factual findings. It’s just a higher standard of review – clearly erroneous vs. de novo.

    David Nieporent (9c8c00)

  86. Certainly. Many of us have the scales of justice tattooed on our belly.

    …and a tramp stamp on your lower back…

    Colonel Haiku (2601c0)

  87. @82

    You 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 am

    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:

    MINUTE ORDER. This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party. The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. The Court recognizes that the movant sincerely believes that he has information to share that bears on this case, and that, understandably, he wishes to be heard. Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option. The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. The movant states that he disagrees with the similar Minute Order issued by Judge Berman Jackson in Criminal Case Number 17-201, but the contrary legal authority on which he relies is neither persuasive nor applicable. Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor. If the individual seeks relief from this Court’s rulings, he must appeal the rulings to the United States Court of Appeals for the District of Columbia Circuit. Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3) (Entered: 12/20/2017).

    The full section in the petition:

    A. The District Court Lacked Authority to Appoint an Amicus
    to Oppose the Government’s Motion to Dismiss or
    Investigate General Flynn for Contempt or Perjury.
    Neither the Federal Rules of Criminal Procedure nor the district court’s
    local rules authorize amicus participation in criminal cases. This is in sharp
    contrast to the district court rule governing civil cases, which does authorize
    the filing of amicus briefs. LCvR 7(o). Under the canon of statutory
    construction expressio unius est exclusio alterius, the express mention of
    amicus briefs on the civil side must be understood to exclude them on the
    criminal side. See Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C.
    Cir. 2014) (“the canon’s relevance and applicability must be assessed within
    the context of the entire statutory framework”) (emphasis added). The
    Supreme Court has held that this canon applies to the interpretation of
    district court local rules:

    Notably, the [Local] Rule excepted from its general ban the
    transmittal of certain proceedings—but it limited that exception to
    transmissions “within the confines of the courthouse.” The negative
    inference of this exception, of course, is that the Rule would have
    prohibited the streaming of transmissions, or other broadcasting or
    televising, beyond “the confines of the courthouse.”

    Hollingsworth v. Perry, 558 U.S. 183, 192 (2010).
    The judges of district court, having acted collectively under the
    authority of Congress, 28 U.S.C. §2071, made a reasoned decision to allow
    amicus briefs in civil but not criminal cases. “Those rules have ‘the force of
    law.’ Weil v. Neary, 278 U. S. 160, 169 (1929).” Hollingsworth, 558 U.S. at
    191.

    Prior to issuance of its extraordinary May 12, 2020, order, the district
    judge adhered scrupulously to the district court’s rules, denying some two
    dozen attempts by third parties to intervene or file amicus briefs in this very case.
    A December 20, 2017, Minute Order denies such a motion with a
    detailed explanation:

    MINUTE ORDER. This Court has received several motions to
    intervene/file an amicus brief along with letters in support from a
    private individual who is neither a party to this case nor counsel of
    record for any party. The Federal Rules of Criminal Procedure do not
    provide for intervention by third parties in criminal cases. The Court
    recognizes that the movant sincerely believes that he has
    information to share that bears on this case, and that,
    understandably, he wishes to be heard. Options exist for a private
    citizen to express his views about matters of public interest, but the
    Court’s docket is not an available option. The docket is the record
    of official proceedings related to criminal charges brought
    by the United States against an individual who has pled
    guilty to a criminal offense. For the benefit of the parties in
    this case and the public, the docket must be maintained in
    an orderly fashion and in accordance with court rules.
    The
    movant states that he disagrees with the similar Minute Order issued
    by Judge Berman Jackson in Criminal Case Number 17-201, but the
    contrary legal authority on which he relies is neither persuasive nor
    applicable. Therefore, the Clerk is directed not to docket additional
    filings submitted by the would-be intervenor. If the individual seeks
    relief from this Court’s rulings, he must appeal the rulings to the
    United States Court of Appeals for the District of Columbia Circuit.
    Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3)
    (Entered: 12/20/2017). [Emphasis added.]

    As the Supreme Court held in Hollingsworth, rules of court, no less
    than other regulations, are binding, not just on the parties, but the court
    itself. “If courts are to require that others follow regular procedures, courts
    must do so as well.” 558 U.S. at 199. Any change to the rules may not be
    implemented by a single judge in a particular case but must be initiated by
    the full court pursuant to its rule-making processes and subject to the
    requirement of public notice-and-comment. Id. at 193. “The Court’s interest
    in ensuring compliance with proper rules of judicial administration is
    particularly acute when those rules relate to the integrity of judicial
    processes.” Id. at 196. In Hollingsworth, this interest was sufficiently
    important for the Court to stay a high-visibility civil case—the morning trial
    was set to begin—to prevent broadcast of the trial to remote federal
    courthouses.

    As this Court is aware, the prosecution of General Flynn has garnered
    at least as much publicity as the trial at issue in Hollingsworth. The district
    court’s disregard of rules that “have ‘the force of law’” in a criminal case,
    where concerns for “the integrity of the judicial process” are at their zenith,
    has been widely reported and drawn massive attention and criticism of the
    federal judiciary and this judge in particular. In the words of fabled Harvard
    Law Professor Alan Dershowitz, this undermines the notion that “Judges are
    Umpires, Not Ringmasters.” WALL ST. J. (May 13, 2020, 12:29 PM)
    https://www.wsj.com/articles/judges-are-umpires-not-ringmasters11589387368.
    This adverse effect will be exacerbated by the fact that the person the
    district court appointed to “present arguments in opposition to the
    government’s Motion to Dismiss” and to “address whether the Court should
    issue an Order to Show Cause why General Flynn should not be held in
    criminal contempt for perjury” had just published an opinion piece
    excoriating the Department of Justice’s Motion to Dismiss as “smack[ing] of
    impropriety,” of attempting to make the court “a party to corruption,” and of
    “reek[ing] of improper political influence.” John Gleeson, David O’Neil, and
    Marshall Miller, The Case Isn’t Over Until the Judge Says it’s Over, WASH.
    POST (May 11, 2011, 6:52 PM), https://www.washingtonpost.com/opinions/
    2020/05/11/flynn-case-isnt-over-until-judge-says-its-over/. Mr. Gleeson
    advocated that the court “assess the credibility of the department’s stated
    reasons for abruptly reversing course,” “compel the department to reveal”
    classified information, and “appoint an independent attorney to act as a
    ‘friend of the court’ . . . .”2 It did not take the district court long to follow
    these suggestions by appointing Mr. Gleeson as amicus.

    The district court’s order appointing Mr. Gleeson as amicus cites the
    court’s “inherent authority” and two cases (discussed below) to support the
    appointment. An order issued a day earlier is also revealing. That order
    noted, without mentioning the undocketed correspondence from the
    Watergate Group, that “the Court anticipates that individuals and
    organizations will seek leave of the Court to file amicus curiae briefs pursuant
    to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal
    Rules, but ‘[the Local Civil] Rules govern all proceedings in the United States
    District Court for the District of Columbia.’ LCvR 1.1.” United States v.
    Flynn, Crim. No. 17-232 (D.D.C. Minute Order May 12, 2020). App. 3: 75.
    However, the local civil rules cannot be read as authorizing procedures
    that the criminal rules exclude. By the district court’s logic, all the civil
    rules—some 130 pages—are incorporated into the criminal rules, whenever
    the criminal rules are silent. This includes Duty to Confer, LCvR 16.3,
    Pretrial Statements, LCvR 16.5, Class Actions, LCvR 23.1, Discovery, LCvR
    26.2, Motions for Summary Judgment, LCvR 7(h), Temporary Restraining
    Orders, LCvR 65.1, and a multitude of other procedures that no reasonable
    person would interpret as applying to criminal cases. Nor does the court
    have “inherent authority” to circumvent the rules, any more than did the
    district court in Hollingsworth.

    The district court cites two cases that do not support its orders: Jin v.
    Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008), and this
    Court’s opinion in Fokker Servs. But those courts were authorized to
    entertain amicus briefs—in Jin by LCvR 7(o), because it was a civil case, and
    in Fokker Servs. by Fed. R. App. P. 29, which authorizes this Court, unlike
    the district court, to entertain amicus briefs in criminal cases.
    The May 12, 2020, Minute Order establishes the court’s intent to allow
    multiple additional amicus briefs: “Accordingly, at the appropriate time, the
    Court will enter a Scheduling Order governing the submission of any amicus
    curiae briefs.” App. 3: 75. As with its appointment of Mr. Gleeson as amicus,
    nothing of the sort is authorized by the district court rules or any other
    authority. It undermines the prerogative to decline prosecutions which, as
    this Court held in Fokker Servs., is the Government’s alone.

    whembly (fd57f6)

  88. Patterico 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 pm

    Let’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:

    The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence.

    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:

    … Fokker, in its zeal to correct the district court for playing Attorney General, ignored valid concerns that the Attorney General will assume the role of judge or lawmaker.

    DRJ (15874d)

  89. I’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?
    — 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.

    nk (1d9030)

  90. 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)

  91. …and a tramp stamp on your lower back…

    Hack-ew is projecting again.

    Ragspierre (d9bec9)

  92. I’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)

  93. I 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)

  94. I 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)

  95. Wray 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)

  96. How 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)

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