Patterico's Pontifications

6/24/2020

Court Decision Favoring Flynn Is Dishonesty of the Sort We Have Not Seen Since Impeachment

Filed under: General — Patterico @ 9:14 pm



So the Flynn decision came out this morning, and while I had a chance to briefly comment on it and put it in its proper context, I have not yet had a chance to analyze the ruling in detail. Until now.*

This passage from Judge Rao’s opinion encapsulates everything that is wrong with the decision:

The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity … in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted). On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry — for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions — are insufficient to rebut the presumption of regularity to which the government is entitled.

There is a double sleight of hand going on here, and I am happy to explain it. I will call the first sleight of hand the “Shifting Standard” move, because the standards discussed by Judge Rao are the standards to deny a Rule 48 motion, not to hold a hearing about one. The second move is very, very important. I call it the Dishonest Two-Step:

Step 1: You do not get to put on evidence.
Step 2: I rule against you because you have put on no evidence.

Remember that because I will keep coming back to it. This is what is happening when Judge Rao tells you, with a straight face, that “[o]n the record before the district court” there is “no clear evidence to contradict the government’s representations.” To anyone with a brain and an attention span of any reasonable length, that assertion ignores the fact that the district court had no chance to develop any sort of record at all.

Through her laughable opinion, Rao uses both of these deceptive moves — the Shifting Standard move and the Dishonest Two-Step. Rao consistently writes the opinion as if Judge Sullivan had heard and denied the motion and she was merely applying standards from case law that go to the question of whether the denial should be upheld. (The Shifting Standard move.) As she engages in this trickery, Judge Rao blinks her eyes innocently and says “well, gee, there just isn’t enough evidence here to meet the standard!” knowing all the while that she has prevented the hearing from happening and prevented any evidence from being put in the record. (The Dishonest Two-Step.)

Before I get further into the weeds and risk losing the reader’s attention, I want to make the point that there is a nasty precedent for the Orwellian Dishonest Two-Step: “We will decree that no evidence will be presented, and then rule against you because no evidence was presented.” If the Dishonest Two-Step sounds familiar, it’s what the GOP did in Trump’s impeachment. They voted against hearing from witnesses and the issuance of subpoenas, and then voted that no evidence had been presented. They voted against hearing from John Bolton, who had firsthand knowledge that the President tied aid to personal favors … and then voted to acquit because there was no evidence that anyone had firsthand knowledge that the President tied aid to personal favors.

Indeed, we saw this Dishonest Two-Step attitude on display just today, when two Department of Justice attorneys testified to shocking political interference with decisionmaking over antitrust enforcement and the sentencing recommendation for a criminal pal of the President. Jim Jordan, eternally bereft of both jackets and shame, pressed Roger Stone prosecutor Aaron Zelinsky as to whether he had ever spoken directly to Bill Barr or other high-level DoJ officials about their demands that he forego usual DoJ practices, in order to benefit Stone. Zelinsky replied that he had asked to speak with these officials but had been refused. Jordan then compared his lack of knowledge to that of the witnesses from the impeachment! (He was right, but for the wrong reasons!)

Zelinsky was also asked, by Jordan and others, about whether he could justify certain actions taken by the Special Counsel — actions that I suspect he could easily justify, but (he explained) he had not been cleared by DoJ to talk about. His inability to talk was treated as an admission of guilt by every Republican lawmaker to employ the tactic.

Now, it’s time for an old-fashioned fisting fisking. Watch as I quote yet another passage from Rao’s opinion where she 1) applies the Shifting Standard move (applying the standard for ruling on a dismissal to a decision about whether a hearing can take place); 2) applies the Dishonest Two-Step, and 3) (bonus dishonesty): mischaracterizes the dissent’s argument (this part will take even more space to show). Whee! Let’s get started!

[T]he dissent glosses over the presumption of regularity to which the Executive is entitled in the exercise of its prosecutorial discretion. While the district court is not a “rubber stamp” when considering whether to grant “leave of court” under Rule 48, Ammidown, 497 F.2d at 622, any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary,” Armstrong, 517 U.S. at 464.

Oh, Judge Rao, we notice the Shifting Standard move! The language bolded above to the effect that “any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary” has nothing to do with whether the court can hold a hearing. So it’s another example of the Shifting Standard move I noted above: Rao applying “the standard for ruling on a dismissal to a decision about whether a hearing can take place.” If you doubt me, read the Armstrong case and correct me.

Moving on:

The dissent fundamentally misstates our opinion by insisting we hold “a district court may not even consider [a Rule 48 motion] before giving its ‘leave.’”

ORLY? Well, put a pin in that.

Perhaps that is to distract from the simple fact that neither the dissent nor the district judge has identified a legitimate basis to rebut the presumption here. Our precedents emphatically leave prosecutorial charging decisions to the Executive Branch and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as briberyneither of which is manifest in the record before the district court.

Well done, Judge Rao! Two fallacies in a single sentence. First there’s the Shifting Standard move again: “and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery.” Um, [coughs into hand] bullshit. Not a single one of the cases you cite says that a court may “scrutinize” (read: a court may hold a hearing concerning the issue of whether to grant) a motion to dismiss “only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery.” The cases you cite allowed the district judge to hold a hearing and merely found that a motion to dismiss could not be granted absent showings of the sort you describe.

And immediately after this, in the same sentence, you use the Dishonest Two-Step, stating “neither of which is manifest in the record before the district court” …

… because, of course, you have prevented the district court from developing any sort of record at all. It’s … it’s kind of like you held that a district court may not even consider a Rule 48 motion before giving its leave. (Remember? That’s the part we put a pin in.)

Now we come to a more complicated but equally dishonest argument. Judge Rao says:

The dissent argues the presumption is overcome in this case because of the government’s “complete reversal” in moving to dismiss charges it previously supported. Dissenting Op. 17–18. Yet the government necessarily reverses its position whenever it moves to dismiss charges under Rule 48(a), and so the reversal standing alone cannot provide the irregularity. Given the absence of any legitimate basis to question the presumption of regularity, there is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution.

Let’s actually read the part of the dissent referred to by the bolded language. Keep in mind that, according to Judge Rao, the dissent’s reference to the government’s “complete reversal” supposedly is an effort by the dissent to show that the presumption of regularity has been overcome such that the district judge is allowed to hold a hearing. In other words, according to Judge Rao, the dissent accepts her (totally made up by her) claim that, in order to even hold a hearing, a district judge must come up with evidence that overcomes the presumption of regularity. And here (she says), the dissent’s claim is that this evidence comes in the form of the government’s reversal. Now read the actual language of the dissent and see if it actually says what Judge Rao has claimed it says:

The majority opinion effectively transforms the presumption of regularity into an impenetrable shield. In 2017, the then-Acting Attorney General told the Vice President that Flynn’s false statements “posed a potential compromise situation for Flynn” with the Russians, Gov’t Mot. Dismiss Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May 7, 2020), and just a few months ago, the prosecution said that Flynn’s false statements to the FBI “went to the heart” of a valid counterintelligence inquiry and “were absolutely material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at 10–11,No.1:17-cr-232, ECF No. 132 (Nov.1,2019). Now, in a complete reversal, the Government says none of this is true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr- 232, ECF No. 198. The Government doubles down by asserting in its motion to dismiss that Flynn’s statements could not have been “material” within the meaning of 18 U.S.C. § 1001 because the FBI had no grounds for any “viable” investigation of Flynn at the time he made those statements, id. at 13, even though that contention appears squarely belied by our precedent, see United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010) (“We . . . hold[] a statement is material if it has a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it was addressed.”) (emphasis added); United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (Scalia, J.) (“A lie influencing the possibility that an investigation might commence stands in no better posture under § 1001 than a lie distorting an investigation already in progress.”). This is no mere about-face; it is more akin to turning around an aircraft carrier.

I do not read this as a concession that an about-face is necessary to justify a mere hearing. I read it as Judge Wilkins saying that Judge Rao has taken the presumption of regularity and, by preventing a hearing from taking place, turned that presumption into an “impenetrable shield” that prevents the court from even inquiring as to why the dismissal happened. Oh, and by the way, Judge Wilkins says, this is hardly a minor change in position, and let me explain in detail why.

Judge Rao’s opinion is an absolute travesty — a collection of dishonest rhetorical moves that are unworthy of an Article III judge sitting on one of the most prestigious federal appellate courts in the nation. Judge Rao and Judge Henderson should be ashamed of themselves, and I hope they get slapped down by the en banc court as they so richly deserve to be.

*I first learned of the decision at 7:11 a.m. I had to shower, dress, meditate, pray, let out the dogs, feed the dogs, make breakfast, and blog my reaction by 8:30 a.m. (Yes, I have a morning routine. No, it doesn’t get disturbed by this sort of thing.) Under these circumstances, I think I did a pretty good job. I don’t see anyone in the comments to my first post who criticized me for not taking the decision apart in detail. After all, my views on this whole affair are a matter of public record and I have written about them many times before today. Anyone who made such a complaint would be a complete and utter jackass, I think we can all agree!

UPDATE: If you’re obsessed with the “separation of powers” argument, read this.

57 Responses to “Court Decision Favoring Flynn Is Dishonesty of the Sort We Have Not Seen Since Impeachment”

  1. Yellow

    Patterico (115b1f)

  2. Nobody rides for free with Trump.

    I never thought “Judges!” was a sufficient reason to put an orange baboon in the Oval Office in the first place (like Putin gives a hoot about Roe v. Wade), or that his judges would be of any higher quality than his other appointments. He only knows store-bought people.

    nk (1d9030)

  3. @2. Fox has become his Home Shopping Network for staffing.

    DCSCA (797bc0)

  4. …actions that I suspect he could easily justify, but (he explained) he had not been cleared by DoJ to talk about.

    That’s what leaks of classified info are for.

    beer ‘n pretzels (fbad48)

  5. I guess we are doing standup comedy, the evidentiary record is clear about the utter fraud perpetrated by yates grack and weissman.

    Narciso (7404b5)

  6. It’s really the sidewinding way Trump is going about this that’s the most despicable. Why can’t he straight-out pardon Flynn? Why does he need to corrupt the DOJ, the courts, Barr, Rao, and let’s not forget that he tried it with Comey too, to get his buddy off?

    nk (1d9030)

  7. Reading Pat’s takes on Flynn is like watching a Mirror Universe episode of Star Trek. D.GOOCH

    GOOCH (a6e222)

  8. I understand that religious conservatives are happy that Trump is letting the Federalist Society install judges that will rule the way they like on abortion and religious liberty. I am not sure they are really facing up to the fact that on every other issue these judges tend to be hopeless hacks.

    Victor (a225f9)

  9. Once weve read the book we know the strategy

    https://mobile.twitter.com/Techno_Fog/status/1275915520508923906

    Narciso (7404b5)

  10. Rao consistently writes the opinion as if Judge Sullivan had granted the motion and she was merely applying standards from case law that go to the question of whether the denial should be upheld.

    I think you may mean “as if Judge Sullivan had denied the motion”

    lurker (d8c5bc)

  11. Thanks for the explanation, Patrick.

    We can’t take four more years of this.

    Dave (1bb933)

  12. Splitting atoms with your mind again, dan, i told you stop doing that.

    Narciso (7404b5)

  13. So, what’s the story with possible en banc review?

    Is there a particular time frame where it would be initiated, if it’s going to?

    Dave (1bb933)

  14. Biden/Maxine/2020

    mg (8cbc69)

  15. Biden/Pinnochio/2020

    mg (8cbc69)

  16. But enough about buttigeg.

    Narciso (7404b5)

  17. I suspect that the rest would love to hear this case and shred the opinions of Henderson and Rao.
    Marty Lederman has a detailed breakdown, and here’s a part that Patterico didn’t pick up.

    The first error is that the opinion doesn’t make any effort at all to explain how Flynn—the party petitioning for mandamus—lacks adequate alternative means to remedy his injury if Judge Sullivan denies the motion to dismiss. Of course, that’s because Flynn does have such a remedy: he can appeal if and when the judge denies the motion and enters a judgment of conviction against him (something that may well not even happen). The panel majority doesn’t suggest otherwise. And that should be the beginning and the end of this mandamus petition, as Judge Henderson herself has explained: “Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.” In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015).
    The panel, however, decided to grant the petition, anyway, based upon an alleged injury to the Department of Justice if Judge Sullivan so much as holds a hearing on the government’s Rule 48(a) motion to dismiss. As Judge Wilkins emphasizes, however (dissent pp. 7-9), the government hasn’t petitioned for mandamus relief, and so any particular injury it might suffer as a result of Judge Sullivan’s hearing is irrelevant to whether Flynn has other means of remedying his own injuries–and thus whether Flynn is entitled to extraordinary mandamus relief.

    Paul Montagu (d27749)

  18. think you may mean “as if Judge Sullivan had denied the motion

    Yes, thank you. Fixed.

    Patterico (115b1f)

  19. The rest of the circuit court.

    Paul Montagu (d27749)

  20. I’ve haven’t read the whole thing, but I was stopped by your first few paragraphs. IRC, the whole point is that Judges have no right to demand a trial go on when both the Prosecutor and the Defendant have agreed to stop it. Its only permitted when there is OBVIOUS skullduggery by the prosecution. Sullivan couldn’t point to one thing that showed the prosecution was stopping the prosecution for nefarious reasons. That’s Rao’s point. Instead, Sullivan wants to have a hearing to investigate, snoop around, and determine if he can find any unethical behavior. In effect, he wants to prosecute the prosecutor! And he’s hired Gleeson to play the role of Grant inquisitor.

    Sullivan doesn’t get to do that. He doesn’t get to hold hearings because there’s a POSSIBLITY of unethical behavior by the prosecutor. Sullivan’s doesn’t get to say “Hey, there’s some smoke here, I’ll hold a investigation and hire outside counsel to INVESTIGATE”. He’s the TRIAL JUDGE. He’s supposed to be impartial. Which he is NOT.

    BTW, I just learned the DC Cirucit of 15 Judges has 11 Democrats! How the heck did that happen? Anyway, given that ratio, I won’t be surprised if this circus continues.

    rcocean (2e1c02)

  21. Great post. Succinct and easy to understand.

    Dustin (e3a6ae)

  22. I’m still finding Sullivan’s behavior bizarre. Why is he hiring outside counsel to answer the Court of Appeals? Was he too stupid to write his own response? Why is he accusing Flynn of perjury when he changed his plea from Guilty to innocent. When does that ever happen? Why is asking for others to file briefs when that’s never done in criminal cases?

    And we now know, he tried to lock up Stzork’s notes that show Obama ordered Comey to investigate Trump in Jan 2017 and go after Flynn. I’m wondering if this whole thing isn’t a cover up.

    It might go to the SCOTUS, but then we run into Roberts, who’ve joined the Resistance.

    rcocean (2e1c02)

  23. Sullivan doesn’t get to do that. He doesn’t get to hold hearings because there’s a POSSIBLITY of unethical behavior by the prosecutor. Sullivan’s doesn’t get to say “Hey, there’s some smoke here, I’ll hold a investigation and hire outside counsel to INVESTIGATE”. He’s the TRIAL JUDGE. He’s supposed to be impartial. Which he is NOT.

    It’s disappointing you wouldn’t read the whole post, but why is it OK for Sullivan and other judges to do this in other cases, but not OK this time, when it’s Trump’s team being corrupt?

    Did you complain about this when Sullivan used an investigation into the DOJ’s misconduct in the Ted Stevens prosecution?

    Sullivan couldn’t point to one thing that showed the prosecution was stopping the prosecution for nefarious reasons. That’s Rao’s point.

    Rao’s point is that you are not allowed to check on if there’s corruption until after you’ve already proven there’s corruption. It’s ridiculous and this is just a way to protect corruption.

    Dustin (e3a6ae)

  24. Paul,

    I should have said that I read and agree with and endorse the arguments made by the dissent, which do “pick up on” what Marty Lederman says. I’m not writing my own dissent; it’s a blog post and already something of a long one. These are just the points that jumped out at me.

    Patterico (115b1f)

  25. I have a question related to Dave’s question. Some say that the only parties that can appeal this are Flynn and the corrupt DOJ. Obviously they won’t. Others say Judge Sullivan can appeal, even though the judge is not a party and lacks standing.

    Which is correct?

    I know the circuit could hear the case on its own initiative, but is that the only way that happens?

    Dustin (e3a6ae)

  26. Sullivan doesn’t get to do that. He doesn’t get to hold hearings because there’s a POSSIBLITY of unethical behavior by the prosecutor.

    He gets to hold a hearing because the Rule requires leave of court.

    I don’t know that he can, say, subpoena internal emails. But it seems to me that he could require the relevant decision makers to appear, be put under oath, and swear that they weren’t bribed. (Even the government concedes bribery can be a basis to deny a Rule 48 motion, so should he not be allowed to ask the relevant decision makers whether they were bribed?) And I’d he can do that, her can ask them if they did this to make Trump happy. And if they deny that, he can hold their feet to the fire on whether they have done similar things in similar situations elsewhere NOT involving a Trump crony.

    Who knows? Maybe the prosecutor who resigned would say something like Aaron Zelinsky said: I was told we were doing this for political reasons. Oh, who told you that? Let’s get him in and see if he says the same and why.

    That all strikes me as perfectly appropriate. Sure, it means the government could probably get away with it if they’re willing to lie. But maybe someone would tell the truth.

    He can’t know if he can’t ask. And Rao, who desperately wants to be on the Supreme Court (good luck), does not want him to be able to ask. Because she is a hack.

    Patterico (115b1f)

  27. Dustin,

    I believe Sullivan could call for en banc review. I doubt he will. He knows he does not need to. If no judge on the Court of Appeals calls for it (and I think someone will) under these public and fraught circumstances, then there is not a sufficient groundswell to take it en banc anyway.

    Patterico (115b1f)

  28. @Patterico: Judge Rao does emphasize that while judicial inquiry MAY be justified in some circumstances, Flynn’s situation “is plainly not the rare case where further judicial inquiry is warranted.”

    I think that’s the crux of the debate here.

    You may not LIKE the DOJ’s justification to dismiss this case, but they did explicitly explain why.

    Why is that NOT enough for Judge Sullivan (or you for that matter)?

    @Thread: Sullivan *can* call for enbanc since he’s a respondent.

    However, its more likely that at least one of the circuit Judges will call for an enbanc.

    Keep in mind that Fokker was written by Chief Judge Srinivasan, an Obama appointee. You’d think that Judge Srinivasan would NOT want Fokker’s legitimacy undermined in some way irrespective to some desired partisan outcome of the Flynn case. Judge Wilkins’ dissent implies that Fokker was wrongly decided, and that it conflicts with other federal appellate courts. I would bet that Judge Srinivasan will NOT be impressed by that argument in deciding whether to grant en banc rehearing. However, all it takes is one Judge…

    So, I’d wager this isn’t over yet.

    whembly (c30c83)

  29. The Flynn decision doesn’t pass the smell test

    District Judge Emmet G. Sullivan, aghast over a move with little precedent, smelled political interference. He asked John Gleeson, a former federal judge, to advise on whether the Justice Department should be allowed to drop the case.

    Gleeson’s report this month was scathing. He accused the Justice Department of exercising a “gross abuse of prosecutorial power” to protect Flynn, charged Barr with “irregular” handling of the case, and described DOJ’s claims as “not credible” and “preposterous.”

    But Judge Neomi Rao, appointed by Trump, joined by Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, ruled to stop Sullivan in his tracks. The theme of their decision: Nothing to see here.

    “This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote for herself and Henderson, adding, “This is not the unusual case where a more searching inquiry is justified.”

    Are you kidding?

    Rao and Henderson sounded like defense lawyers for Barr’s department. “The district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.”

    Translation: God forbid that the truth be made public.

    “These actions,” they wrote of Sullivan’s moves, “foretell not only that the scrutiny will continue but that it may intensify.”

    Translation: God forbid that the DOJ has to answer more questions.

    Dave (1bb933)

  30. Well, Trump doesn’t smoke, so Rao’s only other choice was to pay for a tank of gas.

    nk (1d9030)

  31. These are just the points that jumped out at me.

    Noted. I probably should’ve said “didn’t bring up”.

    Paul Montagu (d27749)

  32. Sullivan reminds me of Frank Drebin’s turn as an umpire in The Naked Gun.

    beer ‘n pretzels (6d7ab9)

  33. Re: 31,i know he’s an old queen, but very few can resist the charms of prime Indian Aunty.

    urbanleftbehind (e46e71)

  34. This is like the python sketch about mr neutron and teddy salad, it doesnt make sense its not supposed to.

    Narciso (7404b5)

  35. Anyone who made such a complaint would be a complete and utter jackass, I think we can all agree!

    Yes. My guess is swc.

    DRJ (aede82)

  36. Agree with Patterico that the DC Circuit decision was wrong, but am troubled by the accusations of dishonesty leveled against the two judges in the majority. It seems to me it’s a defensible, albeit wrong, position to take that because of the presumption of regularity supporting the government’s charging decisions, there has to be something more than mere suspicion, something identifiable in the record, to justify a federal judge in conducting a further inquiry. That seems like a non-trivial separation of powers argument that you don’t have to be dishonest to endorse.

    The problem I see with the decision is that it unduly circumscribes the powers of the judge to control the proceedings before him and ensure there has not been a fraud on the court. We all know that often whether a witness is believable or not depends not on the black letters of the transcript but on the way the witness said whatever he or she said. I mean, that’s why we have juries. If Judge Sullivan thought, based on the demeanor and attitude of Flynn and the various prosecutors, that he was being played somehow, he should have the right to inquire about that whether or not you can point to anything damning in the previous hearing transcripts.

    A judge’s inquiry also doesn’t have to be a full-blown, on-the-record hearing. I’ll defer to those with actual knowledge of how things work in criminal court as to whether this is a good analogy, but this situation seems in some ways similar to a motion to withdraw as counsel in a civil case. The courts have more discretion to deny such motions if they think it will prejudice the client, but often the information they need to make a decision is something that can’t be said in open court. That’s because the attorney who wants to withdraw might have to reveal information that would give the other side an undue advantage if opposing counsel got to hear it. So what’s done is you go into chambers and tell the judge, as best you can without compromising attorney-client privilege, what’s happening, e.g., “Your Honor, the client left the state and won’t return our calls or emails” or whatever it is. I don’t know why Sullivan couldn’t have called the DOJ attorneys into chambers and said, “what’s really going on here?” and gotten the answers he needed. It seems like there may have been problems with the prosecution — maybe someone deliberately withheld exculpatory evidence from the defense — but the DOJ didn’t want to lay all that out on the record and so decided to rely on the thinner grounds stated in their motion to dismiss.

    Anyway, there’s room to disagree here without accusing the appellate judges or dishonesty, or accusing Sullivan of being on a partisan mission, or accusing either the Mueller team of prosecutors or the new group under Barr of corruption, etc. It seems that cases like this tempt everyone, including Sullivan and the DOJ, to stake out positions that are more extreme than necessary. But I don’t really know zip about criminal law or practice, so will gladly accept correction.

    RL formerly in Glendale (40f5aa)

  37. …there has to be something more than mere suspicion, something identifiable in the record, to justify a federal judge in conducting a further inquiry.

    I could agree with this IF this were an appeal from a court ruling that denied dismissal, but this is a mandamus case that says Sullivan should dismiss without any inquiry. The defense and government aren’t even willing to let Sullivan conduct any inquiry or even hold a hearing.

    DRJ (aede82)

  38. Except we have the evidence of massive prosecutorial misconduct amplified by the press, coordinated with the outgoing administrations chief principals at main justice and the bureau.

    Narciso (7404b5)

  39. There is already more than mere suspicion. Flynn plead guilty before two judges, and everyone agreed his lie was legally material. To dismiss this case based on materiality is cause for inquiry.

    DRJ (aede82)

  40. The government has already represented to the court there was no prosecutorial misconduct, narciso.

    DRJ (aede82)

  41. Or are you saying the DOJ prosecutors brought in by Barr lied in the court filing?

    DRJ (aede82)

  42. “Leave of court” must mean more than rubberstamping, RL. Even Judge Rao admitted that in the hearing.

    DRJ (aede82)

  43. Judge Sullivan has entered an Order described as follows in the docket:

    MINUTE ORDER as to MICHAEL T. FLYNN. In light of the Opinion and Order issued by the Court of Appeals on Mr. Flynn’s petition for writ of mandamus, the deadlines and hearing date set forth in the Minute Order of May 19, 2020 are HEREBY STAYED. Signed by Judge Emmet G. Sullivan on 6/24/2020.

    As far as I can tell, he has not dismissed the case.

    DRJ (aede82)

  44. #43. Agree, I’ve thought that from the beginning. But did you read the rest of my comment?

    RL formerly in Glendale (40f5aa)

  45. Yes, but I don’t see the analogy with the attorney-client example. At that point, the attorney and client are arguably adversarial, and the court and attorney have to worry about confidentiality so in camera makes sense.

    This is the opposite case, where the government and defense are acting in concert, and transparency to protect “the public interest” (which is the standard in the court cases on this issue) should be the concern.

    DRJ (aede82)

  46. look at the discovery documents, where is the evidence of what he was accused off, why did they force a plea,

    narciso (7404b5)

  47. The case was filed and Flynn plead guilty the following day. This was negotiated before it was even filed. They never did formal discovery — whatever they did happened before the case was filed. Flynn knew what he had done.

    DRJ (aede82)

  48. The case was filed and Flynn plead guilty the following day. This was negotiated before it was even filed. They never did formal discovery — whatever they did happened before the case was filed. Flynn knew what he had done.

    DRJ (aede82) — 6/25/2020 @ 10:06 am

    I don’t really think the plan was to plea guilty to shut off the discovery, and then recant once the AG has a chance to screw with the prosecution team, but it sure worked out well for those guys. Say what you will about Barr, don’t say he’s stupid. Also don’t say he’s concerned with his reputation.

    Dustin (e3a6ae)

  49. #46. This is an embarrassingly ignorant question, but for a federal prosecutor, who is the client? Is it the DOJ? Just wondering how much a prosecutor is at liberty to tell a federal judge who is inquiring into why the DOJ made any particular decision without violating attorney-client privilege. Or does that even apply?

    RL formerly in Glendale (40f5aa)

  50. This is an embarrassingly ignorant question, but for a federal prosecutor, who is the client?

    The United States of America.

    nk (1d9030)

  51. Agree with Patterico that the DC Circuit decision was wrong, but am troubled by the accusations of dishonesty leveled against the two judges in the majority. It seems to me it’s a defensible, albeit wrong, position to take that because of the presumption of regularity supporting the government’s charging decisions, there has to be something more than mere suspicion, something identifiable in the record, to justify a federal judge in conducting a further inquiry. That seems like a non-trivial separation of powers argument that you don’t have to be dishonest to endorse.

    I appreciate the comment and want to clarify that by dishonest I mean intellectually dishonest. That is assuredly my view and I stand by it, and I did my best to explain in the post why I think Judge Rao is engaged in a deliberate sleight of hand in at least two ways. The cases she cites do not stand for what she claims, and the abscene of evidence in the record is compelled by her own decision to prevent evidence from being presented. You can disagree if you like, but I did offer a basis for my criticism.

    Anyway, there’s room to disagree here without accusing the appellate judges or dishonesty, or accusing Sullivan of being on a partisan mission, or accusing either the Mueller team of prosecutors or the new group under Barr of corruption, etc. It seems that cases like this tempt everyone, including Sullivan and the DOJ, to stake out positions that are more extreme than necessary. But I don’t really know zip about criminal law or practice, so will gladly accept correction.

    In most cases I would agree with you. But without going into a lengthy recitation of Bill Barr’s long train of abuses and usurpations, we are living in a United States where an Assistant U.S. Attorney told Congress yesterday, under oath, that he had been ordered to submit a more lenient sentencing brief than normal procedure would call for, for explicitly political reasons having to do with the defendant being Donald Trump’s crony. I can’t ignore the larger context in which Flynn’s situation arises, and my commentary is accordingly harsher than it normally would be. Again, I make no apologies. But I appreciate the comment.

    Patterico (115b1f)

  52. The government has filed updated discovery that is subject to a protective order. Here is how it is described:

    Dear Counsel:

    As we have previously disclosed, beginning in January 2020, the United States Attorney
    for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn
    investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the
    course of its review. The documents include handwritten notes of former Deputy Assistant
    Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former
    Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ
    document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney
    General Dana Boente, dated March 30, 2017 (23498-500). These materials are covered by the
    Protective Order entered by the Court on February 21, 2018; additional documents may be
    forthcoming.

    DRJ (aede82)

  53. 49 Dustin,

    I don’t think that either. I think Flynn negotiated a guilty plea beforehand to prevent his trial from being drawn out and implicating or affecting his family. He wanted it over with with the least possible publicity for someone of his importance to a new Administration. In other words, he may have wanted to get parole/a light sentence and try to stay under the radar. When parole/a light sentence did not materialize, he ended up doing the opposite.

    DRJ (aede82)

  54. Interesting, DRJ. Your ability to see the other point of view is also a point of weakness for me. I can totally see that being why Flynn made the decisions he did.

    Dustin (b62cc4)

  55. The judge was afraid that Mike Flynn intended, at some future time, to retract his plea bargain, and was probably afraid of that in nearly every case that went before him, because maybe this has happened in his cases before in the past. (it was not necessarily anything Flynn did, although it could have been. Perhaps the way Flynn reacted to being asked to say he was actually guilty of the offense he was pleading guilty too, raised his suspicions a bit/)

    I think Mike Flynn agreed to the plea bargain, most importantly, to halt an investigation which would uncover violations of law that probably have not surfaced, at least as prosecutable.

    He wasn’t waiting for an Attorney General that was on his side. He was probably waiting for Mueller to close up shop. Now Flynn might have accepted a non-prison sentence, but it looked like he might not get one so he postponed his sentencing.

    Meanwhile, who was paying for his lawyers? The old ones and the new ones?

    Sammy Finkelman (70b0bc)


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