Patterico's Pontifications

6/25/2020

Just How Far is the “Separation of Powers” Crowd Willing to Go?

Filed under: General — Patterico @ 8:29 am



At the risk of seeming monomaniacal* about the Flynn case, I think it would be interesting to explore and discuss what would be the proper bounds of Judge Sullivan‘s discretion if the case were to go en banc, the absurd Court of Appeals panel decision were to be reversed, and Judge Sullivan were allowed to conduct a hearing on the Government’s motion to dismiss.

The Government’s central position throughout is to intone the phrase “separation of powers” over and over. The Government’s attorney stammered somewhat at the oral argument when it was pointed out to him that any potential violation of the separation of powers by merely allowing an inquiry into the Government’s reasoning was an injury, not to Flynn, but to the Government — which had not filed its own request for relief. Oops! But while that technicality alone would justify denying relief, let’s examine the separation of powers issues anyway. I propose to do so through presenting some (I hope) easy hypotheticals that illustrate the points I am making. I know I have proposed some more limited form of these hypotheticals in the past, but here I think it’s worth spinning out at some length.

Assume the Government comes to court and says it wishes to dismiss the case for the following reasons. Assume each given justification is the sole justification; we’re not adding these up but imagining several different situations in which the Government offers a single justification. (You’ll notice that many of these hypothetical justifications are unrealistically frank; just pretend you’re watching a scene from “Liar Liar” with Jim Carrey.)

  • 1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.
  • 2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.
  • 3. We request to dismiss this case because we think lilacs are very pretty flowers.
  • 4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.
  • 5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.
  • 6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.
  • 7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.
  • 8. We request to dismiss this case because we say so.

Me, I see all of these as insufficient to justify the granting of a Rule 48 motion to dismiss. To me, there has to be some reason offered, making #8 insufficient. The motion to dismiss can’t be motivated by rank corruption such as bribery (#1), even if it represents the true position of DoJ by reason of that bribery (#2). The reason must bear some relevance to the case (#3) and it can’t be a patently fabricated falsehood that is contradicted by every scrap of paper in the case and all evidence available to the five senses (#4). I don’t think the reason could be a blatantly unconstitutional reason like race (#5) and I personally believe that it could not be justified for patently corrupt reasons (such as #6) or even purely out of cronyism (#7).

I think if DoJ were to come and actually offer one of these justifications, the court could use the power granted to it by Rule 48 to deny the motion because it found the justification either insufficient or blatantly contrary to the public interest.

Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

Would the Court of Appeal grant that writ?

Imagine the same scenario for each of the remaining justifications. The Government offers no reason in its motion, but in reality its secret reason is that the prosecutor thinks lilacs are pretty, or wants to cut a break to a white guy, or … that he was told to dismiss the case because President Trump wants to get his buddy off.

Are you telling me it violates the Constitution for the judge to simply say he wants to inquire further?

To me, that’s an easy question to answer. Of course not. It seems to me that the court should be allowed to inquire into the reasons, at least in some minimal fashion such as asking the decisionmakers questions about whether the proffered reasons are irrelevant, blatantly false, corrupt, and so forth.

He should at least be allowed to ask.

Now whether he is entitled to dismiss the case once he gets his truthful answer (if he does) is arguably a slightly harder question, depending on the scenario and depending on your view of the separation of powers. I’ll bet you the Separation of Powers crowd thinks that some of these justifications *(or lack thereof) are just peachy. I’m confident they think that the Government can march in and offer no reason at all, as in Scenario No. 8, and demand that the court dismiss. I bet they think several of the other justifications are fine, whether disclosed or held secret.

Their views might frighten you. But it certainly would be interesting to know how far they’d be willing to take this.

These are the sorts of questions that I think should be asked at any argument in this case — perhaps not on mandamus, where the relief is obviously not available for technical reasons having to do with who is injured and alternative means of addressing any injury. But these are the questions that go to the heart of why we have a leave of court requirement.

Just how far are the authoritarians willing to go?

*My philosophy is, when I get interested in a topic, I can add value by discussing it in depth. If you are coming here for your daily news and you are upset that I am not simply reciting the top story of the day, you don’t really understand this blog and you likely never will.

107 Responses to “Just How Far is the “Separation of Powers” Crowd Willing to Go?”

  1. Patterico,

    At the risk of seeming monomaniacal* about the Flynn case…

    Please continue to write for free about things that interest you and I’ll continue to read the ones I’m also interested in.

    Time123 (daab2f)

  2. To play devil’s advocate, it seems like none of your eight examples corresponds very closely to the one the feds actually used.

    Maybe they weren’t intended to, but I guess the pro-Barr argument is that they gave a colorable justification which isn’t absurd on its face like your #4 or obviously corrupt or nonsensical like your others.

    One could perhaps fairly say the government’s justification (In the context of case’s history) could create the suspicion that #6 or #7 were the real motivation, and it is here, I guess, that Rao wants to say the government is entitled to a presumption of propriety.

    Dave (1bb933)

  3. It’s your blog so you should discuss any topic you deem worthy.

    I also don’t think I’ve ever seen anyone declare that this site is their go-to news aggregator (speaking of, now that Drudge has been corrupted, mine is Realclearpolitics and a few conservative Twitter feeds).

    Lastly, I’ve never considered you monomaniacal about Flynn. I just figured it was related to you being monomaniacal about Trump (which I’m not criticizing, you’ve explained why you think he must be run out of office).
    _

    harkin (485617)

  4. None of those 8 options comes even close to the DOJ’s rationale for dismissing the case. Yet, you didn’t provide them along with your hypotheticals…. why not?

    The DOJ provided a strong and rational justification as to why they’re motioning for dismissal.

    I get the point you are trying to hammer here… in that, shouldn’t Judge Sullivan be allowed to have a hearing to ask questions before ruling that motion to dismiss?

    If there were some obvious egregious malfeasance by either the defense or prosecution? Sure, I think past dictas and precedents would support that. But I don’t see it. Hell, it’s the prosecution that is rectifying a wrong here.

    However, asking a separate party to assume the prosecuturial role in order to expand the scope beyond what the defense/Government has already provided? Do you not see the circus for what that would be?

    Seems to me that folks are playing the game whereby you are arguing for a preferred outcome and working backwards to support that outcome. In doing so, you’re ignoring ample exculpatory evidence that if taken to trial, it’s very difficult to see a conviction.

    whembly (c30c83)

  5. Patterico,

    None of those are sufficient reasons. But to what extent is the judge allowed to investigate and prove the states assertions? You say they can’t call witnesses, but it seems like that leaves a big whole in the courts ability to get to the bottom of things.

    Can the USA call in the line prosecutor, tell them it’s all about lilacs and have the line prosecutor swear under oath that to the best of their personal knowledge the reason is lilacs? In which case the judge’s questions would yield no fruitful information.

    Looking at it from the other side

    Regarding separation of powers and the remedy of congressional oversight; If the answer is that Congress holds the executive branch accountable, then doesn’t that create a situation where the house would end up re-litigating matters that come before the court? In my example above, congress might say “We think lilacs are a pretext that the court couldn’t investigate out of respect for the separation of powers so we’re going to hold hearings on the matter as part of our oversight activities.”?

    I think this would lead to 2 practical concerns.
    1. This puts congress in a situation where they’re re-litigating what a court has already decided, and what are the limits to that? They could argue that any result they dislike is potentially corrupt.
    2. In cases where there is a criminal defendant that could put that person essentially on trial a 2nd time. Congress can’t pass laws targeted at a specific person, but the investigation itself would be burdensome.

    Basically I think the courts need the authority to become reasonably certain that what they’re being told is accurate.

    Time123 (89dfb2)

  6. Posts like these are why I’ve always enjoyed reading this blog and followed you here after the Redstate purge. Lovely logic, even when I disagree.

    nate (5efffe)

  7. I agree with Patterico.

    The judicial process is not a weapon that the Executive can pick up and put down as it pleases. I know that Roy Cohn taught Trump differently, and maybe you can’t teach a son-of-a-b!tch new tricks, but the courts can kick him to the curb when he tries to pull his old ones.

    Neither is it a way to immunize cronies from future prosecutions by contorting the rules of procedure to grant what amounts to a prosecutorial pardon, and no judge should be obliged to put his seal to that. Yes, I’m talking about inserting “with prejudice” into a Rule 48(a) nolle prosequi.

    But wait, there’s more than that in this case. Flynn pleaded guilty! It cannot be said often enough. There is a plea of guilty on the record! That puts him almost entirely in the hands of the court, and renders the role of the prosecutors ministerial for all practical purposes, since the court is not bound by the prosecutors’ sentencing or bail on appeal recommendations. And what else is left?

    nk (1d9030)

  8. If the DOJ gave any of the eight examples as justification for the motion to dismiss, it should and would be denied. No. 8, for all that it would be crazy for anyone to say that to a federal judge, might have the best chance of being accepted given the DC Circuit panel’s view of the presumption of regularity.

    Agree that the court was wrong to grant the writ, but don’t see it as dishonest; the separation of powers rationale has some merit even if the court took it too far here.

    But why does the judge’s inquiry have to be a public hearing? Why not call the DOJ attorneys into chambers and demand to know, with no court reporter present, what’s really going on, and, if not satisfied with the answers, then go back into court and state on the record that the motion is pretextual and is denied? The DOJ might have legitimate reasons for the dismissal that it doesn’t want to put on the record, such as prosecutorial misconduct, whether negligent or intentional.

    Maybe criminal lawyers could clear this up: as a federal prosecutor, who is your client? If your client is the government, do you have a duty not to reveal internal client communications to the court, and if so, how do you square that with your duty as counsel to be honest with the court?

    RL formerly in Glendale (40f5aa)

  9. The DOJ might have legitimate reasons for the dismissal that it doesn’t want to put on the record, such as prosecutorial misconduct, whether negligent or intentional.

    If there was prosecutorial misconduct I want that on the record!

    Time123 (daab2f)

  10. But why does the judge’s inquiry have to be a public hearing? Why not call the DOJ attorneys into chambers and demand to know, with no court reporter present, what’s really going on, and, if not satisfied with the answers, then go back into court and state on the record that the motion is pretextual and is denied? The DOJ might have legitimate reasons for the dismissal that it doesn’t want to put on the record, such as prosecutorial misconduct, whether negligent or intentional.

    The Constitutional right to a public trial in a criminal case is the public’s as much as it is the government’s or the defendant’s, and neither the government nor the defendant have the unfettered right to waive it.

    nk (1d9030)

  11. Thanks, Patterico, for another fantastic post. It was these “monmaniacal” posts that drew me to your site in the first place.

    felipe (023cc9)

  12. #9, 10. Legitimate points, but not all trial proceedings, in civil court anyway, are public even though all trials are public. Judges may conduct conferences in chambers to discuss things ranging from mundane case management issues up to more sensitive matters the lawyers don’t want the jury to hear, and often there’s no court reporter present. Maybe the rules are different in criminal court.

    RL formerly in Glendale (40f5aa)

  13. If this was dropped because of proprietorial misconduct i want to know it.

    The filing to withdraw doesn’t assert that there was action that would rise to that level. But it seems to imply it. If there was the DOJ needs to say so. If thee wasn’t that should be clear also.

    Actually alleging that would create an incentive for the previous prosecutors to challenge what is being said.

    Time123 (89dfb2)

  14. If we assume that the Executive branch wants General Flynn to avoid a penalty for his admitted lying, wouldn’t it be more direct to simply allow him to be sentenced and then have the president issue a pardon?

    Would there be a greater political cost than they have now? It’s doubtful, particularly given the expectation of pardons for Mr. Manafort and Mr. Stone.

    John B Boddie (f44786)

  15. As it pertains to bribery and other corruption, perhaps the prosecutor (Van Grack) could appear before Congress and tell the Judiciary Committee if the Flynn motion to dismiss was kosher.

    Paul Montagu (d27749)

  16. This is the kind of post that we come here for.

    This x 100: The judicial process is not a weapon that the Executive can pick up and put down as it pleases.

    Dana (25e0dc)

  17. #12 – in the federal courts where I practice, even mundane case management issues are memorialized in a docket entry, and all party submission to the court are presumptively available to the public with extremely narrow exceptions primarily aimed at trade secrets and some personal privacy issues (and even then, you’re typically expected to submit a redacted version that can be publicly released). Maybe it’s different in state courts, but at the federal level the public right of access is afforded immense weight, which would seem to be of greater–rather than lesser–import in a case involving the maladministration of justice one way or another.

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

  18. The judicial process is not a weapon that the Executive can pick up and put down as it pleases.

    It became weapon long before some here decided to flag it as such.

    But, better late than never.

    beer ‘n pretzels (a73d0d)

  19. *became a

    beer ‘n pretzels (a73d0d)

  20. None of those 8 options comes even close to the DOJ’s rationale for dismissing the case. Yet, you didn’t provide them along with your hypotheticals…. why not?

    I would have thought the answer was obvious, but maybe not. I provide hypotheticals because people have an impossible time discussing first principles when presented with the actual facts. So I use hypotheticals to illustrate obvious rationales. In other words, can a judge reject a motion to dismiss if the proffered justification is obviously false? obviously irrelevant? obviously corrupt? Does the judge’s inability to scrutize the proffered justification stem from the nature of the justification (we have determined that one of the elements cannot be proved) no matter how obviously false the basis of that justification might be (namely, we cannot prove element #1 because it turns out Flynn is a deaf mute who cannot speak)?

    I’d be interested to know how you would answer each of the typos. Then you and I could engage in a more detailed and meaningful discussion about how, if at all, the real justification is different. But I am unwilling to engage in such a discussion with a pro-Flynn person if they are not first willing to say how they would rule in each of the proffered examples. It provides an insight into your first principles unencumbered by prejudice about the realities of the situation.

    The DOJ provided a strong and rational justification as to why they’re motioning for dismissal.

    I personally find it laughable — and I notice that most people who try to summarize it, summarize it incorrectly, making reference to all manner of prosecutorial malfeasance that Flynn has alleged but that the Government has actually denied. If you read their latest submission.

    I get the point you are trying to hammer here… in that, shouldn’t Judge Sullivan be allowed to have a hearing to ask questions before ruling that motion to dismiss?

    If there were some obvious egregious malfeasance by either the defense or prosecution? Sure, I think past dictas and precedents would support that. But I don’t see it. Hell, it’s the prosecution that is rectifying a wrong here.

    This is the Dishonest Two-Step discussed in my previous post. You don’t see it because the judge has not been allowed an inquiry. What if he asked Van Grack what happened and Van Grack gave an answer very much like Aaron Zelinsky gave Congress: I was told to do something unprecedented and that the reason was political?

    However, asking a separate party to assume the prosecuturial role in order to expand the scope beyond what the defense/Government has already provided? Do you not see the circus for what that would be?

    A judge asking pointed questions need not be a circus.

    Seems to me that folks are playing the game whereby you are arguing for a preferred outcome and working backwards to support that outcome. In doing so, you’re ignoring ample exculpatory evidence that if taken to trial, it’s very difficult to see a conviction.

    If you want to accuse me of intellectual dishonesty, I won’t talk to you further and if you persist I’ll simply remove you from the blog. I’ve done it before and I will not hesitate to do it with you if you push me.

    I’d really prefer to have a discussion about the ideas in the post, beginning with an answer as to what happens in the 8 (really 16) hypos above. I can’t have the discussion with someone who insists on suggesting I am intellectually dishonest, but maybe there is one person on the Internet who can both take up Flynn’s case in response *and* conduct themselves politely.

    That would be great.

    Patterico (115b1f)

  21. RL formerly in Glendale:

    You made similar points on the other thread and I responded there at some length. I hope you check it out.

    Patterico (115b1f)

  22. I posted much of this over a month ago, after reading a case that Patterico thought was on point. I didn’t really get a response, probably because IANAL. It discussed the Executive powers and when a court might intervene.

    I’ve been reading Cowan, and particularly the section on when a Court should act in the public interest. Cowan itself cites United States v Nixon (1974) (the Watergate tapes case) as being of particular note, and it says:

    The Chief Justice, speaking for a unanimous court, went on to conclude that the legitimate needs of the judicial process may very well outweigh Executive privilege; and that it is necessary to resolve these competing interests in a manner that preserves the essential function of the Executive Branch by according high respect to its claim of privilege. Ultimately, the Court sustained the power to subpoena Executive material pertaining to the fair administration of criminal justice without affecting the national security.

    So, there needs to be a CLEAR and OVERWHELMING reason for a court to intervene when the President claims Executive Privilege, and the Watergate tapes were such an exceptional and clear case.

    A few paragraphs later, Cowan concludes it’s “public interest” examination with:

    The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

    Clearly contrary. Not “might be contrary.” Not “some feel it is contrary.” Not even “many lawyers think it is contrary.”

    Manifest public interest. This would be something that most members of the public agree on and feel that their interests would be substantially harmed were the Court not to act. Like the Nixon tapes.

    It is rather a stretch to suggest that strongly divided public opinion lends itself to either of these tests. That some (even many) prosecutors and other court officers may feel strongly about the judicial advisability of allowing the prosecution to be dropped does not change that. That some politicians feel strongly about it should not even enter into it as it is JUST this sort of political pressure that the opponents of the dismissal cite.

    Cowan does not seem to argue for Sullivan.

    Kevin M (ab1c11)

  23. Yikes. The blockI posted much of this over a month ago, after reading a case that Patterico thought was on point. I didn’t really get a response, probably because IANAL. It discussed the Executive powers and when a court might intervene.

    I’ve been reading Cowan, and particularly the section on when a Court should act in the public interest. Cowan itself cites United States v Nixon (1974) (the Watergate tapes case) as being of particular note, and it says:

    The Chief Justice, speaking for a unanimous court, went on to conclude that the legitimate needs of the judicial process may very well outweigh Executive privilege; and that it is necessary to resolve these competing interests in a manner that preserves the essential function of the Executive Branch by according high respect to its claim of privilege. Ultimately, the Court sustained the power to subpoena Executive material pertaining to the fair administration of criminal justice without affecting the national security.

    So, there needs to be a CLEAR and OVERWHELMING reason for a court to intervene when the President claims Executive Privilege, and the Watergate tapes were such an exceptional and clear case.

    A few paragraphs later, Cowan concludes it’s “public interest” examination with:

    The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

    Clearly contrary. Not “might be contrary.” Not “some feel it is contrary.” Not even “many lawyers think it is contrary.”

    Manifest public interest. This would be something that most members of the public agree on and feel that their interests would be substantially harmed were the Court not to act. Like the Nixon tapes.

    It is rather a stretch to suggest that strongly divided public opinion lends itself to either of these tests. That some (even many) prosecutors and other court officers may feel strongly about the judicial advisability of allowing the prosecution to be dropped does not change that. That some politicians feel strongly about it should not even enter into it as it is JUST this sort of political pressure that the opponents of the dismissal cite.

    Cowan does not seem to argue for Sullivan.

    Kevin M (ab1c11)

  24. Yet again, reinserting the block quotes.

    I posted much of this over a month ago, after reading a case that Patterico thought was on point. I didn’t really get a response, probably because IANAL. It discussed the Executive powers and when a court might intervene.

    I’ve been reading Cowan, and particularly the section on when a Court should act in the public interest. Cowan itself cites United States v Nixon (1974) (the Watergate tapes case) as being of particular note, and it says:

    The Chief Justice, speaking for a unanimous court, went on to conclude that the legitimate needs of the judicial process may very well outweigh Executive privilege; and that it is necessary to resolve these competing interests in a manner that preserves the essential function of the Executive Branch by according high respect to its claim of privilege. Ultimately, the Court sustained the power to subpoena Executive material pertaining to the fair administration of criminal justice without affecting the national security.

    So, there needs to be a CLEAR and OVERWHELMING reason for a court to intervene when the President claims Executive Privilege, and the Watergate tapes were such an exceptional and clear case.

    A few paragraphs later, Cowan concludes it’s “public interest” examination with:

    The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

    Clearly contrary. Not “might be contrary.” Not “some feel it is contrary.” Not even “many lawyers think it is contrary.”

    Manifest public interest. This would be something that most members of the public agree on and feel that their interests would be substantially harmed were the Court not to act. Like the Nixon tapes.

    It is rather a stretch to suggest that strongly divided public opinion lends itself to either of these tests. That some (even many) prosecutors and other court officers may feel strongly about the judicial advisability of allowing the prosecution to be dropped does not change that. That some politicians feel strongly about it should not even enter into it as it is JUST this sort of political pressure that the opponents of the dismissal cite.

    Cowan does not seem to argue for Sullivan.

    (sorry for the repeated comment)

    Kevin M (ab1c11)

  25. This is just a “reasonable person” standard comment, IANAL.

    Generally speaking, I think the DOJ can dismiss a case for whatever reason it deems acceptable internally and should the legislative branch believe there is corruption from the US Attorney General, they should impeach him.

    However, there is also the requirement that the prosecution can only dismiss with the leave of the court, which would seem to mean that there are circumstances when a judge can say “no”. On top of that, it looks like a judge has a right to ask for the full reasons and to change the way in which a case is dismissed, so the DOJ doesn’t, in fact, appear to have full control over the process.

    Sullivan seems to be acting under the idea that the reason the DOJ is asking for a dismissal is a corrupt reason which will not be addressed by the legislative branch (and he appears to be correct, IMO) so he’s pitching a fit (which seems to be his legal right to do) but that ultimately his only real recourse will be to dismiss without prejudice (which he appears to be able to do) in order to minimize the corruption factor. It doesn’t seem, based on precedent, like he can really refuse to dismiss the case.

    Nic (896fdf)

  26. Patterico, #21

    I did read your response, and thank you. I’ll look at the cases the majority relied on. It’s at best disappointing when someone misstates what a case stands for, and would be worse when a federal judge does it. Feel like a naif but still wonder if (or hope) the Flynn case trainwreck could be the product of a lot of mistakes and not necessarily malicious or wrongful conduct by Mueller or Barr or anyone else, all the other revelations notwithstanding.

    Also (Not that) Bill O’Reilly, #17, that’s a good point about federal courts. But even in my limited experience there I can recall going back to chambers with opposing counsel to discuss the next steps in a case with the judge. The scheduling decisions the judge made ended up being memorialized in an order, but there was no record of what counsel said. This is asking, not stating, but if Judge Sullivan had said he wanted to hear from the DOJ lawyers in chambers about why they want to dismiss the case, would that have been out of line?

    RL formerly in Glendale (40f5aa)

  27. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

    But is it a “pending prosecution” after the guilt of the accused has been ascertained?

    As nk points out, what is pending at that point is sentencing, not prosecution.

    Dave (1bb933)

  28. I’d be interested to know how you would answer each of the typos. Then you and I could engage in a more detailed and meaningful discussion about how, if at all, the real justification is different. But I am unwilling to engage in such a discussion with a pro-Flynn person if they are not first willing to say how they would rule in each of the proffered examples. It provides an insight into your first principles unencumbered by prejudice about the realities of the situation.

    1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should dismiss promptly and consider sanctions against lead prosecutor.

    2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should dismiss promptly, however with some strong choice words highlighting the bribery of the AG and POTUS. Additionally, the Judge should not default into inviting an amicus to act as a court-appointed prosecutor.

    3. We request to dismiss this case because we think lilacs are very pretty flowers.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should be like “WTF is this crap?? Then schedule a hearing on an aggressive schedule whereby the JUDGE asks some pointed questions to the prosecution before rendering verdict on dismissal motions. Unless there’s some obvious malfeasance on part of the government the Judge should dismiss the case (with some pointed words towards any improprieties on the prosecution for giving such inane reasonings). However, the Judge should not default into inviting an amicus to act as a court-appointed prosecutor.

    4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should be like “WTF is this crap?? Then schedule a hearing on an aggressive schedule whereby the JUDGE asks some pointed questions to the prosecution before rendering verdict on dismissal motions. The prosecution is arguing a demonstrable lie to the court here, so the malfeasance-o-meter should be pinging this Hypo Judge’s radar. If prosecution insists on this lie, simply deny the motion and sanction the prosecutor.

    5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should be like “WTF is this crap?? Then schedule a hearing on an aggressive schedule whereby the JUDGE asks some pointed questions to the prosecution before rendering verdict on dismissal motions. The prosecution is demonstrating clear malfeasance and simply deny the motion and sanction the prosecutor for bringing this crap-rationale into court. Sanctions should be considered.

    6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should be like “WTF is this crap?? Then schedule a hearing on an aggressive schedule whereby the JUDGE asks some pointed questions to the prosecution before rendering verdict on dismissal motions. The prosecution is demonstrating clear malfeasance and simply deny the motion. Sanctions should be considered.

    7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.
    [still hypothesizing Jim Cary’s Liar, Liar here] Hypo Judge should be like “WTF is this crap?? Then schedule a hearing on an aggressive schedule whereby the JUDGE asks some pointed questions to the prosecution before rendering verdict on dismissal motions. The prosecution is demonstrating clear malfeasance and simply deny the motion. Sanctions should be considered.

    8. We request to dismiss this case because we say so.
    Now we get to whether rule 48 is either mostly a ministerial act, or “with Leave of Court” empowers a Judge to be the full final arbiter whether or not a government’s dismissal is done in good faith. I’m honestly split on this as I definitely thing the Hypo Judge has some “room” to order a hearing to ask pointed questions. However, if we’re talking about Judge Sullivan’s actions, I don’t think having an extreme Anti-Trump partisan ex-Judge act as a pseudo prosecutor is kosher. Or, at least, I don’t wish it to be kosher.

    If you’re worried about accountability, Congress could exercise Congressional oversight in demanding the what/when/how they arrived to their dismissal decision. That way, in the public, both the Article I & II branches can be held to account by voters.

    The DOJ provided a strong and rational justification as to why they’re motioning for dismissal.

    I personally find it laughable

    I personally find it compelling.

    — and I notice that most people who try to summarize it, summarize it incorrectly, making reference to all manner of prosecutorial malfeasance that Flynn has alleged but that the Government has actually denied. If you read their latest submission.

    I’m not like most people. 😉

    The Government’s position is that they disagree with the accusation of malfeasance by the defense. What would you expect the DOJ to do here? Air out all the dirty laundry? Has that ever happened before? I suspect they’d be singing a different tune had this case gone to trial though, with the DOJ doing much to mitigate embarrassments.

    I get the point you are trying to hammer here… in that, shouldn’t Judge Sullivan be allowed to have a hearing to ask questions before ruling that motion to dismiss?

    If there were some obvious egregious malfeasance by either the defense or prosecution? Sure, I think past dictas and precedents would support that. But I don’t see it. Hell, it’s the prosecution that is rectifying a wrong here.

    This is the Dishonest Two-Step discussed in my previous post. You don’t see it because the judge has not been allowed an inquiry.

    Is it normal for judges to conduct a pseudo-prosecution hearing? Like an inquisition (I don’t mean to imply witch-hunting, but really the judge “acting as if” the prosecution?).

    What if he asked Van Grack what happened and Van Grack gave an answer very much like Aaron Zelinsky gave Congress: I was told to do something unprecedented and that the reason was political?

    I’m going to say this with feelings, because I don’t think you appreciate what’s going on here:
    The.Whole.Bloody.Thing.Is.Bloody.Political.From.Top.to.Botton!! Of course its political. From the 2016 campaign, to Obama/Biden’s Logan Act escapade, to firing of Comey, to Mueller Report, to Barr sending Jensen, to Durham, to the DOJ finally determining to dropping the case. One is a reaction to the other.

    However, asking a separate party to assume the prosecuturial role in order to expand the scope beyond what the defense/Government has already provided? Do you not see the circus for what that would be?

    A judge asking pointed questions need not be a circus.

    Inviting a partisan former Judge who mere days before his Amicus appointment wrote an anti-Trump screed that gets much of the facts wrong to be the pseudo-prosecutor to argue against the dismissal is by definition a circus.

    Seems to me that folks are playing the game whereby you are arguing for a preferred outcome and working backwards to support that outcome. In doing so, you’re ignoring ample exculpatory evidence that if taken to trial, it’s very difficult to see a conviction.

    If you want to accuse me of intellectual dishonesty, I won’t talk to you further and if you persist I’ll simply remove you from the blog. I’ve done it before and I will not hesitate to do it with you if you push me.

    I wouldn’t call you engaging in intellectual dishonesty. If you were, I’ll call you out on that explicitly. I think you are definitely letting your inherent “prosecutor” bias and/or “anti-Trump” bias influencing your opinions here.

    The intellectual dishonesty that I’ve witnessed is mostly done by those lawfareblog folks and twitter-lawyers…

    I’d really prefer to have a discussion about the ideas in the post, beginning with an answer as to what happens in the 8 (really 16) hypos above. I can’t have the discussion with someone who insists on suggesting I am intellectually dishonest, but maybe there is one person on the Internet who can both take up Flynn’s case in response *and* conduct themselves politely.

    That would be great.

    Patterico (115b1f) — 6/25/2020 @ 1:10 pm

    Each hypos responded and I’m trying my best to be polite. If you think I’m too belligerent, you can kick me to the curb… it’s your house.

    whembly (c30c83)

  29. how woke is a white guy if he wakes up and goes to work?

    mg (8cbc69)

  30. Jeffrey, Patterico was pretty clear he couldn’t predict how things would go.

    This idea that there is some objective reality that, yet again, Trump and his pals must be declared exonerated, is an idea for rallying outrage and division. Buckle up for next year.

    Dustin (e3a6ae)

  31. biden/fiorina in blackface/2020

    mg (8cbc69)

  32. Donald Trump personally biased not only the DOJ

    Jeffrey appears to be arguing that AG Barr isn’t biased on Trump’s favor.

    now a 3 judge panel

    Read the dissent. One of those three judges is not bashful about calling Rao out repeatedly.

    Dustin (e3a6ae)

  33. whembly,

    I deeply appreciate your willingness to respond to the hypotheticals. For now, I will ignore or place to one side your comments about the political nature of the case and about my motivations and concentrate only on the hypotheticals. Before I get into what I think we have learned about your position — and I think we have learned a lot! — I would like to ask you to finish responding to the hypos. You did answer 1-8 very thoroughly, but I’m hoping to get an answer to this part as well:

    Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

    Would the Court of Appeal grant that writ?

    Imagine the same scenario for each of the remaining justifications.

    Change “would” to “should” here — *should* the Court of Appeal grant that writ?

    You needn’t necessarily give a blow-by-blow account of each of the eight situations unless you think it’s useful or helpful to do so. I just want to see how your analysis changes, if at all, when the Government hides its true motivation in the hypotheticals. And if the propriety of the judge inquiring further depends upon the nature of the motivation that is being hidden from the court.

    I promise to get back to you if you do this. In fact, if it doesn’t sidetrack the discussion too much, I’ll summarize part of what I think I have learned from your responses. I think you have indicated that in each of the hypos described, the judge should be allowed in your view to ask further questions. Whether the proferred reason is rank corruption aka bribery by the line prosecutor (#1); or bribery of top officials (#2); or obvious irrelevancies (#3); or obvious lies (#4); or “clear malfeasance” (your words) with any of a) a racial angle (#5), b) a desire to protect the president from incriminating testimony (#6), or a desire to benefit the president’s pal (#7), you have said the judge has authority to ask more questions. Correct? Indeed, I read your comment as saying that you even think the judge has some room to ask pointed questions if the Government offers no reason at all.

    What I really want to know now is how your thoughts change (if they do) if the Government’s true motivation is any of Nos. 1-7 but the proferred explanation is #8: go take a flying leap, judge, it’s none of your business. I.e. how do you answer the questions I have posed in the post that I reproduce in the indented block quote earlier in this paragraph?

    If you can answer that for me, and also tell me whether I have correctly stated what I have stated so far (I know there’s more to your opinion; I’m not talking about an amicus yet; I’m just asking if the judge can inquire further for now) then I think we are on the brink of starting a real discussion on this.

    Thanks again for your time and effort!

    Patterico (115b1f)

  34. It seems as if the rule that some would like is that the judge has to agree with the reasons for dismissal. Which makes it anything BUT ministerial.

    A different hypothetical: We ask to dismiss because we believe that sufficient evidence as to DoJ malfeasance has accumulated to cause us to lose confidence in this case. In particular, we have doubts as to the ethics of the methods used to coerce the guilty plea.

    Does the judge have the power (let alone the duty) to inquire as to the nature of these doubts, or is a mere showing that they exist sufficient to force his hand?

    Kevin M (ab1c11)

  35. It seems as if the rule that some would like is that the judge has to agree with the reasons for dismissal. Which makes it anything BUT ministerial.

    That is not *my* conception of how the rule should operate.

    A different hypothetical: We ask to dismiss because we believe that sufficient evidence as to DoJ malfeasance has accumulated to cause us to lose confidence in this case. In particular, we have doubts as to the ethics of the methods used to coerce the guilty plea.

    Does the judge have the power (let alone the duty) to inquire as to the nature of these doubts, or is a mere showing that they exist sufficient to force his hand?

    You recognize that is a hypothetical. It is not what the Government has said here.

    I think the judge could ask questions to elucidate the nature of the malfeasance. How far he could go or whether that justified dismissal would depend on a number of factors.

    But he could ask.

    Patterico (115b1f)

  36. I think we’re overthinking it a lot more than Judge Sullivan is. I think he thinks that he had a decent and ethical team of prosecutors whom he could trust to observe due process, but which were replaced by political hacks and hired shysters he wouldn’t trust to tell him if it was daylight outside. He very likely also thinks that they’re trying to not only make a joke of his courtroom but also to bind him to their antics and he wants no part of that. Remember, they may be bringing the motion to dismiss but it will be his signature and seal on the order. That’s what I think.

    nk (1d9030)

  37. That’s a great point, nk.

    Patterico (115b1f)

  38. Eevin M,

    Thank you for your oft-repeated comment. I agree with most of what you say except when you say Cowan does not favor Sullivan. Surely it favors his asking the questions! To find whether there is a situation clearly contrary to the manifest public interest.

    I agree that’s the standard, and it’s a tough standard, and it makes it *hard* for Sullivan to deny the motion.

    But he gets to ask the questions, at least.

    I’d love for you to respond to the hypotheticals of the post. I have one person doing so. I’d love to have two!

    Patterico (115b1f)

  39. Thank you, Patterico. It’s an easy guess. When a case is reversed on appeal, the appellate court does not say that the plaintiff or defendant erred. It says the trial court erred.

    nk (1d9030)

  40. which were replaced by political hacks and hired shysters he wouldn’t trust to tell him if it was daylight outside

    If your starting point is that Trump and all his minions are the scum of the earth (this may be true, but needs more proof) then you are going to come to a conclusion that everything they do is scummy and criminal. But it really doesn’t turn on any points of law to speak of.

    Kevin M (ab1c11)

  41. How perceptive does a judge need to be to see that the new team of prosecutors is throwing the case? A case in which they already have a guilty plea? A case in which the original team withdrew? Bias against Trump and his minions is not necessary to explain anything.

    nk (1d9030)

  42. BTW, are we sure that Sullivan’s exploration of contempt is, or only is, directed at Flynn?

    nk (1d9030)

  43. Patterico, I was going to respond to those hypotheticals but I found myself nodding along with whembly. I don’t really have a lot to add to that.

    As for Cowen, I agree that he gets to decide on the import of the scumminess he sees, if that’s what he sees. I just don’t believe this case is anywhere as important to the public as the cases in precedents. Everyone cared about Nixon and the tapes. Everyone from lawyers to cab drivers to housewives. I’m not sure that anyone but the chattering classes care about this one, and mostly they care about it as a chew toy or counting coup.

    Perhaps it means more to prosecutors who constantly worry about (and possibly have experienced) political interference. But as a layman? Meh. Since I worry more about zealous prosecution of harmless acts than I do about some guy getting off for an act that has no indentifiable victim and where at least *some* crap when on offstage, I really don’t mind seeing the DoJ getting a black eye.

    In the end, the Trumpies are just as sleazy, and they have left slime all over the place in this effort to free Flynn. It is a Pyrrhic victory at best, although Trump won’t understand that.

    Kevin M (ab1c11)

  44. How perceptive does a judge need to be to see that the new team of prosecutors is throwing the case? A case in which they already have a guilty plea? A case in which the original team withdrew? Bias against Trump and his minions is not necessary to explain anything.

    It’s totally obvious what is happening but it’s extra shameful that a couple of hackish appellate judges are complicit in the coverup.

    Patterico (115b1f)

  45. Patterico, I was going to respond to those hypotheticals but I found myself nodding along with whembly. I don’t really have a lot to add to that.

    So can I at least get an amen that the D.C. Circuit panel decision was crap? You could totally howl and moan if Sullivan denied the motion. But if you were nodding with whembly in his answers to the hypos, it seems to me that you and he have both pretty much conceded that the recent decision was wrong *at least as to* the part that directs Sullivan to grant the motion without asking questions.

    If you can’t bring yourself to say that, then I’d like you to perform your own independent analysis of the hypos so we can hash it out.

    Patterico (115b1f)

  46. Trump’s pick for Manhattan U.S. attorney refuses to say he would recuse from probes of president’s associates
    President Trump’s nominee to take over the Manhattan federal prosecutor’s office after the abrupt dismissal of U.S. Attorney Geoffrey Berman refused on Thursday to say whether he would recuse himself from pending investigations involving Trump’s interests and associates if confirmed for the post.

    …….. [W]hen pressed by Rep. Carolyn B. Maloney (D-N.Y.) to “commit, right here, to recusing yourself” from matters in which the president has a personal stake, Clayton demurred.

    “What I will commit to do, which is what I commit to in my current job, is to approach the job with independence and to follow all ethical rules,” Clayton responded.
    ………..
    Clayton’s nomination to take over the job may already be in trouble. Sen. Lindsey O. Graham (R-S.C.), chairman of the Senate Judiciary Committee, signaled over the weekend that he would honor the “blue slip” veto system granting home-state senators a say in whose nomination proceeds. Several Democrats, including the Democratic senators from New York, have called on Clayton to withdraw his nomination.
    ……..

    Rip Murdock (e7189f)

  47. I think that the appeals court (I have not read their decision) should have at least reached to: has the judge stated concerns that *might* be contrary to a manifest public interest. If so, then they should allow Sullivan to proceed. If they did not ask for that question to be briefed, then they are doing it wrong (and Sullivan should still have brought it up).

    The whole debate here is whether the DoJ is being political in an unacceptable way, and at least some of the participants in this debate, on both sides, have political dogs in the hunt.

    As I said, Flynn is pretty much just a chew toy now. Those who actually care about Flynn, as opposed to how the case affects Trump, are in the minority. They may always have been.

    Kevin M (ab1c11)

  48. DoJ is being political in an unacceptable way

    By this I mean that many things the DoJ does are, and must be, political. Adding staff to prosecute civil rights crimes is a political decision, but acceptable, as is transferring some of that money to fight, say, the drug war. Even stupid political decisions can be OK.

    Kevin M (ab1c11)

  49. One of the standard Libertarian arguments relates to the advisability of giving money and power to government. Trump’s administration might be an obvious example of the mistake this is, but I would hope that the kind of scrutiny that has descended upon him will continue to his successor(s). I doubt it will, and that’s too bad.

    Kevin M (ab1c11)

  50. You are missing the bigger picture. What happened to Flynn could be done anyone, because there are way too many ways for prosecutors to mess with people’s lives that have a practical purpose for society. I’m at the point that there should be a separate trial for every plea deal, and if a prosecutor is threatening someone’s family to get them to take a plea, they should lose their own liberty and not be disbarred.

    Unconstitutional Overcriminalization.
    Point‐​and‐​convict adjudication
    Near‐​zero accountability for police and prosecutors.
    Clarke Neily says it far better than I ever could.

    https://www.cato.org/blog/americas-criminal-justice-system-rotten-core

    Nick Temple (008ee0)

  51. @ 33 whembly,

    I deeply appreciate your willingness to respond to the hypotheticals. For now, I will ignore or place to one side your comments about the political nature of the case and about my motivations and concentrate only on the hypotheticals. Before I get into what I think we have learned about your position — and I think we have learned a lot! — I would like to ask you to finish responding to the hypos. You did answer 1-8 very thoroughly, but I’m hoping to get an answer to this part as well:

    Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

    Would the Court of Appeal grant that writ?

    Imagine the same scenario for each of the remaining justifications.

    Change “would” to “should” here — *should* the Court of Appeal grant that writ?

    You needn’t necessarily give a blow-by-blow account of each of the eight situations unless you think it’s useful or helpful to do so. I just want to see how your analysis changes, if at all, when the Government hides its true motivation in the hypotheticals. And if the propriety of the judge inquiring further depends upon the nature of the motivation that is being hidden from the court.

    I promise to get back to you if you do this. In fact, if it doesn’t sidetrack the discussion too much, I’ll summarize part of what I think I have learned from your responses. I think you have indicated that in each of the hypos described, the judge should be allowed in your view to ask further questions. Whether the proferred reason is rank corruption aka bribery by the line prosecutor (#1); or bribery of top officials (#2); or obvious irrelevancies (#3); or obvious lies (#4); or “clear malfeasance” (your words) with any of a) a racial angle (#5), b) a desire to protect the president from incriminating testimony (#6), or a desire to benefit the president’s pal (#7), you have said the judge has authority to ask more questions. Correct? Indeed, I read your comment as saying that you even think the judge has some room to ask pointed questions if the Government offers no reason at all.

    What I really want to know now is how your thoughts change (if they do) if the Government’s true motivation is any of Nos. 1-7 but the proferred explanation is #8: go take a flying leap, judge, it’s none of your business. I.e. how do you answer the questions I have posed in the post that I reproduce in the indented block quote earlier in this paragraph?

    If you can answer that for me, and also tell me whether I have correctly stated what I have stated so far (I know there’s more to your opinion; I’m not talking about an amicus yet; I’m just asking if the judge can inquire further for now) then I think we are on the brink of starting a real discussion on this.

    Thanks again for your time and effort!

    Patterico (115b1f) — 6/25/2020 @ 4:55 pm

    @45 Patterico, I was going to respond to those hypotheticals but I found myself nodding along with whembly. I don’t really have a lot to add to that.

    So can I at least get an amen that the D.C. Circuit panel decision was crap? You could totally howl and moan if Sullivan denied the motion. But if you were nodding with whembly in his answers to the hypos, it seems to me that you and he have both pretty much conceded that the recent decision was wrong *at least as to* the part that directs Sullivan to grant the motion without asking questions.

    If you can’t bring yourself to say that, then I’d like you to perform your own independent analysis of the hypos so we can hash it out.

    Patterico (115b1f) — 6/25/2020 @ 7:39 pm

    whembly (c30c83)

  52. Bah… press send too soon. Sorry! I’ll post my answer soon!

    whembly (c30c83)

  53. @ 33

    whembly,

    I deeply appreciate your willingness to respond to the hypotheticals. For now, I will ignore or place to one side your comments about the political nature of the case and about my motivations and concentrate only on the hypotheticals. Before I get into what I think we have learned about your position — and I think we have learned a lot! — I would like to ask you to finish responding to the hypos. You did answer 1-8 very thoroughly, but I’m hoping to get an answer to this part as well:

    Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

    Would the Court of Appeal grant that writ?

    Imagine the same scenario for each of the remaining justifications.

    Change “would” to “should” here — *should* the Court of Appeal grant that writ?

    Just to be clear, I’m NOT channeling Jim Carey’s Liar, Liar character here…

    If the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The Appeals Ct should deny the mandamus and instruct the district court to rule on the dismissal. I would think the rules/precedents *WOULD* allow the district judge to ask SOME pointed questions and then grant the motion as long as the prosecutor gives a rational explanation.

    This scenario seems weird to me…as in, why would the judge ask about bribery if its unknown at this point. Remember, it’s “Unbeknownst to the court”.

    You needn’t necessarily give a blow-by-blow account of each of the eight situations unless you think it’s useful or helpful to do so. I just want to see how your analysis changes, if at all, when the Government hides its true motivation in the hypotheticals. And if the propriety of the judge inquiring further depends upon the nature of the motivation that is being hidden from the court.

    As for 2-8:
    I think my answer is the same as above. (although, I’m still absorbing our conversations so I may change my mind as we develop these train of thoughts) I’m NOT convinced the Judge can just go on a fishing expedition, inviting amici-as-psudo-prosecutor, hold further evidentiary hearings in order to root around *why* the DOJ would drop the case outside of clear & obvious malfeasance. Again, I think it’s okay simply holding a hearing to ask pointed questions about the case and the official rationale, so long as its confined to the developed records of the case and between the Judge and the defendent/prosecution.

    I still stand by my understanding that the intent of Fokker does seem to allow for some sort of review, but only in case of clear & obvious malfeasance. But I’ll agree that there’s wriggle room for any district judge to simply hold a hearing and make the participants answers *some* questions.

    With Flynn’s case, succinctly stated: the defense agrees with dismissal with prejudice based on new evidence that DOJ discovered, which was relied on as the determination that the proof is inadequate if taken to trial. This is more than “because we said so”, and that should be enough for Sullivan to grant the motion. However! If the Judge wants to hold a hearing to clarify the record in front of him and have both parties answer some questions under oath, I think there’s room for that. What Judge Sullivan is doing though… isn’t that.

    One of the things that caught my attention during the mandamus hearing was Henderson’s “presumption of regularity”. As a layman, I was curious as to WTF that really meant and correct me if I’m wrong, it’s this concept that there’s an understanding between the courts and the DOJ that the DOJ does things in accordance with high principles with well defined rules and regulations, such that courts generally don’t make them prove that everytime they do anything.

    Rao, presumably with input from Henderson I believe or to get Henderson’s vote, goes into that in her ruling and calls it out in the end by saying [shorthand]”On the record before the district court, there is no clear evidence contrary to the government’s representation”. Which I took that to mean that the majority didn’t see any evidence that there are problems with the DOJ changing course in requesting the case to be dismissed (which I agree).

    I promise to get back to you if you do this. In fact, if it doesn’t sidetrack the discussion too much, I’ll summarize part of what I think I have learned from your responses. I think you have indicated that in each of the hypos described, the judge should be allowed in your view to ask further questions. Whether the proferred reason is rank corruption aka bribery by the line prosecutor (#1); or bribery of top officials (#2); or obvious irrelevancies (#3); or obvious lies (#4); or “clear malfeasance” (your words) with any of a) a racial angle (#5), b) a desire to protect the president from incriminating testimony (#6), or a desire to benefit the president’s pal (#7), you have said the judge has authority to ask more questions. Correct? Indeed, I read your comment as saying that you even think the judge has some room to ask pointed questions if the Government offers no reason at all.

    Abiding by your hypos scenarios… correct.

    What I really want to know now is how your thoughts change (if they do) if the Government’s true motivation is any of Nos. 1-7 but the proferred explanation is #8: go take a flying leap, judge, it’s none of your business. I.e. how do you answer the questions I have posed in the post that I reproduce in the indented block quote earlier in this paragraph?

    If you can answer that for me, and also tell me whether I have correctly stated what I have stated so far (I know there’s more to your opinion; I’m not talking about an amicus yet; I’m just asking if the judge can inquire further for now) then I think we are on the brink of starting a real discussion on this.

    Yep.

    Thanks again for your time and effort!

    Patterico (115b1f) — 6/25/2020 @ 4:55 pm

    Thanks for taking the time as well and especially tolerating my non-laywerly gibberish!

    @45 Patterico, I was going to respond to those hypotheticals but I found myself nodding along with whembly. I don’t really have a lot to add to that.

    So can I at least get an amen that the D.C. Circuit panel decision was crap? You could totally howl and moan if Sullivan denied the motion. But if you were nodding with whembly in his answers to the hypos, it seems to me that you and he have both pretty much conceded that the recent decision was wrong *at least as to* the part that directs Sullivan to grant the motion without asking questions.

    If you can’t bring yourself to say that, then I’d like you to perform your own independent analysis of the hypos so we can hash it out.

    Patterico (115b1f) — 6/25/2020 @ 7:39 pm

    I’d like to add this: Had Sullivan NOT invited all the Amicus crap (particularly Gleeson), then yes this D.C. Circuit panel decision is crap.

    This goes back to a 9-0 SCOTUS opinion in Sineneng-Smith with which Justice Ginsburg wrote and bitch-slapped the 9th Circuit for improper amicus briefing. While that was during a Circuit level, I don’t see how Judge Sullivan’s amici with Gleeson squares with the SCOTUS Sineneng-Smith ruling. I do find it interesting that Rao doesn’t really mention this SCOTUS case (the amicus for defense did!), but she does call out that Judge Sullivan does not have “inquisitorial” powers. So maybe I missed a footnote or this is her way of linking that ruling to hers. Being a novice in reading decisions from the courts, I’ll admit I don’t know if that’s meaningful or not.

    whembly (c30c83)

  54. I don’t believe the reason for Barr’s motion to dismiss is based on separation of powers, even though that’s what he claimed or mumbled. It’s been his long held position that, under the Constitution, the executive can basically do whatever he wants. That’s been Trump’s long held position as well, which is why he appointed Barr as AG in the first place.

    In other words, this isn’t about separation of powers, it’s about removing checks and balances on the executive from the legislative and judicial branches. And I have a real problem with that.

    I won’t say that Barr lied to Congress in his confirmation hearing, but he did give cleverly crafted, misleading statements. He did the same when the Mueller report came out, misrepresented its contents and delayed its release for a month.

    From what I’ve read about this debacle, Flynn was working as a lobbyist for Turkey and Russia, and getting payed handsomely for it, without reporting it to the relevant federal authorities as required by FARA. He was using his connections in the government to enrich himself by advising foreign entities. That was during the Obama administration, and the FBI and CIA were keeping tabs on Flynn’s activities, understandably so, as they should. In fact, after the election, the Obama administration warned the Trump transition team about Flynn, said he might be compromised.

    Trump appointed him as his national security advisor anyway. Trump welcomes foreign interference in elections, as long as it helps him win. I mean, he openly called for Russian hackers to dig up dirt on Hillary. That’s what the Mueller probe was all about.

    Mueller found insufficient evidence to indict Trump for collusion, following DOJ guidelines (which are not laws) that a sitting president cannot be indicted. In the course of his investigation, Mueller did find that Flynn had violated FARA, because the case had been handed over to him, and when asked about it, Flynn lied.

    In the course of events, Mueller declined to indict Flynn for violating FARA and instead indicted him for lying to federal investigators. Flynn plead guilty, probably under a plea agreement to shield his son from investigation. So there was no prosecution, no trial, no jury verdict; only an investigation, an indictment, and a guilty plea.

    The only thing left is the sentencing phase. That is what is before Judge Sullivan. My question is, how can the DOJ move to dismiss the prosecution when there was never a prosecution to begin with? There was an indictment and a guilty plea. Is Barr going to seriously argue that the judiciary cannot move forward with sentencing, because of “separation of powers”?

    I have no idea what is going to happen in this case. To me, this whole scenario is ridiculous. Flynn pleaded guilty, meaning he agreed to sentencing. So let him be sentenced and be done with it. The most likely outcome would be maybe a few months in jail or probation, and a fine. So what?

    I admire your hypotheticals, Patterico. They’re funny, but it’s because they’re funny, they’re informative and elucidative.

    However, if you really want to read about tortured language and legalistic hairsplitting, look up Hales v. Petit (1554, England). That case reads like a Monty Python and the Flying Circus skit. The lawyers argued that a suicide cannot be deemed a suicide, because a dead man cannot kill himself. Or you could just read the gravedigger’s scene in Hamlet, which is an accurate portrayal of the absurdity of the argument.

    Gawain's Ghost (b25cd1)

  55. Do we need hypotheticals when we have actual cases?

    Consider U.S. District Judge Emmet Sullivan criticizing prosecutors Joseph Bottini and James Goeke in the trial of Senator Ted Stevens.

    Sullivan — after the verdict — appointed a special prosecutor to investigate Justice Department lawyers who repeatedly withheld evidence from defence lawyers and the judge during the month-long trial.

    Suppose the DoJ had found – before trial — that their own prosecutors had withheld exculpatory evidence. (Suppose, too, that the Senator was as corrupt just as corrupt as charged. But evidence is evidence…) Then the DoJ comes to court, says “Oops, our guys violated our rules, and we want to drop the case rather than face the embarrassment.”

    What does Sullivan do? Convict the accused destroy his reputation and degrade trust in the process and THEN try to fix the prosecution’s office. Or does he dismiss the case even though he knows the
    guy’s guilty?

    pouncer (b0e023)

  56. 7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.

    It’s not teue that Mikke Flynn is a bddy of Trump, because Trump knew him (or worked with hm) for only a bit morre than half a year, but Trump can feel that going after Flynn was a way of going after him.

    All of these justifications are, for the purposes of this post, NOT said to the court, but the court maybe could perhaps suspect that that is the reason. The exact reason actually isn’t important to the judge – the judge was concerned about the possibility that the reasons given were not the true reasons.

    The hypotheticals you give involve the question that, if someone says no reason is needed, what if the true reason were one of those? What of the Attorney General of the United States or the resident, had been bribed? Does the court have no power to stop it, or at leastestalish that as fact?

    I think Judge Sullivan was concerned back on the day when Mike Flynn pleaded guilty even. about the possibility that Mike Flynn was playing games with the court and might later withdraw his guilty plea when it was safer for him and he wouldn’t face prosecution on other charges. Therefore he made his swear that he was truly guilty of the crime.

    I think the judge wanted the whole process just to afford him an opportunity to hold Mike Flynn in contempt and send him to jail for contempt of court, which he maybe can’t do without a proceeding of some kind.

    Now he could lose that battle, because Flynn can claim that he thought he was guilty, but he wasn’t, because he was not aware enough of the lack of materiality of the questions.

    The judge nevertheless could still force Mike Flynn to proclaim that he intentionally lied either to the FBI on January 24, 2017, or, worse, to him in court (by claiming he intentionally lied to the FBI when in fact he did not) Flynn, in fact, would not be likely to go that latter route.

    Sammy Finkelman (3102d6)

  57. Gawain’s Ghost (b25cd1) — 6/26/2020 @ 9:27 am

    From what I’ve read about this debacle, Flynn was working as a lobbyist for Turkey

    That part seems clear.

    and Russia,

    That’s probably true, but Mueller didn’t want to go into it.

    Because he was a lobbyist for Russia (wtin the U.S. government) while he was still director of the Defense Intelligence Agency! and Obama forced him to retire because of that, and it reflects badly on Obama that he did nothing more.

    Now it has not been established that Mike Flynn had reached any kind of monetary arrangement with Russia while he was still in office. Nor has it been establiished that Mike Flynn was being dishonest in any of his pro-Russian advocacy while in the government. But he did get money from Rt afterwards.

    and getting payed handsomely for it, without reporting it to the relevant federal authorities as required by FARA.

    Mueller was on;y making a case against him over Turkey (where he tecnically wasn’t get paid by the Turkish government, but by a newspaper publisher who was a supporter of Erdogan so he ad his lawyers thought he was in the clear. Mueller’s team did not want to look into what he did for Russia (ot technically there RT) because then you would get into the question of when did it start, and that would raise the question of why Flynn was not investigated for possible violaton of the Espionage Act back in 2013 and 2014. (I mean he spet a whole day in GRU headquaters in Moscow – with a cover story of course.)

    He was using his connections in the government to enrich himself by advising foreign entities. That was during the Obama administration, and the FBI and CIA were keeping tabs on Flynn’s activities, understandably so, as they should. In fact, after the election, the Obama administration warned the Trump transition team about Flynn, said he might be compromised.

    I don’t know. Did Barack Obama actually say to Trump that Mike Flynn might be compromised, or did he avoid saying that?

    He thought the security threat from Mike Flynn was gone forever when he was forced to retire, but it turned out not to be the case.

    Trump appointed him as his national security adviser anyway.

    Continuing him in the job he’d had during the campaign. As promised and publicly hinted at before the election.

    Now the question is: Who suggested Flynn to Trump and did Vladimir Putin have anything to do with that? That seems to be a big unknown.

    Trump welcomes foreign interference in elections, as long as it helps him win. I mean, he openly called for Russian hackers to dig up dirt on Hillary.

    When badgered by reporters. What he asked them to find was something that, as far as anyone knew, was no longer available. (Hillary Clinton’s deleted emails. It turns out they probably still existed, on Anthony Weiner’s laptop, and circumstances gave the FBI access to them ad they had to go through a whole convoluted automated process to avoid any human being reading them.)

    Mueller found insufficient evidence to indict Trump for collusion,

    He found that Russia did not conspire with any american in the hacking, and it followed therefore that no American conspired with Russia.

    following DOJ guidelines (which are not laws) that a sitting president cannot be indicted. In the course of his investigation, Mueller did find that Flynn had violated FARA, because the case had been handed over to him, and when asked about it, Flynn lied.

    Asked about what?

    In the course of events, Mueller declined to indict Flynn for violating FARA and instead indicted him for lying to federal investigators.

    This was all a plea bargain

    Flynn plead guilty, probably under a plea agreement to shield his son from investigation.

    Flynn claims that, but it was probably to halt further investigation of himself, which maybe on;y Flynn knew where it cold lead. Flynn also agreed to co-operate\.

    So there was no prosecution, no trial, no jury verdict; only an investigation, an indictment, and a guilty plea.

    Correct. A guilty pleas to something which the FBI had previously cleared him of, and which in any case they could not prove. They couldn’t prove he hadn’t had a memory lapse.

    The only thing left is the sentencing phase. That is what is before Judge Sullivan. My question is, how can the DOJ move to dismiss the prosecution when there was never a prosecution to begin with? There was an indictment and a guilty plea.

    That’s a prosecution.

    Is Barr going to seriously argue that the judiciary cannot move forward with sentencing, because of “separation of powers”?

    I have no idea what is going to happen in this case. To me, this whole scenario is ridiculous. Flynn pleaded guilty, meaning he agreed to sentencing. So let him be sentenced and be done with it.

    Flynn couldn’t withdraw his guilty plea, but Attorney General Barr did it for him. He gave several reasons.

    The most likely outcome would be maybe a few months in jail or probation, and a fine. So what?

    Well, nobody wants to go to jail, even for a few months. There are also some civil disabilities.

    Sammy Finkelman (3102d6)

  58. @55


    In other words, this isn’t about separation of powers, it’s about removing checks and balances on the executive from the legislative and judicial branches. And I have a real problem with that.

    The separation of powers issue *is* part of this case.

    The decision to dismiss lies solely within the Article II branch, just as it is to decide whether or not to bring charges. As Rao stated in the mandamus majority opinion, the judicial role is “confined”…”to extremely limited circumstances in extraordinary cases.”

    She makes the point that the DC Circuit’s cases have said before in other contexts that it is sufficiently harmful when the trial court’s actions are usurping a specific executive power. This makes sense as you’re not going to get that usurpation back again later. IE, Judge Sullivan appointing Gleeson to present arguments IN OPPOSITION to the DOJ’s dismissal motions whereby Gleeson advocated a full adversarial process with additional evidentiary hearings. That can’t be undone simply with an appeal.

    The harm to the separation of powers with respect to Article II branch is being usurped by the Article III branch by forcing the Article II branch to reveal it’s internal deliberative process “behind its exercise of prosecutorial discretion, interfering with [its] charging authority.” This isn’t something that can be undone by winning on future appeal.

    From what I’ve read about this debacle, Flynn was working as a lobbyist for Turkey and Russia, and getting payed handsomely for it, without reporting it to the relevant federal authorities as required by FARA. He was using his connections in the government to enrich himself by advising foreign entities.

    Before the Mueller investigation, FARA violations was only prosecuted on handful dozen times. Typically, once a FARA violation is discovered, the receipient is given opportunities to retroactively file/correct the forms. Flynn was never given that typical opportunity and that fits with the aggressive, overzealot attitudes by the Mueller team. (ie, sending SWAT team to geriatric Stone)

    That was during the Obama administration, and the FBI and CIA were keeping tabs on Flynn’s activities, understandably so, as they should.

    Which the counter-intel investigation in early Jan for NO DEROGATORY information found via multiple agencies.

    In fact, after the election, the Obama administration warned the Trump transition team about Flynn, said he might be compromised.

    No. Obama warned Trump not to hire Flynn. There’s zero report that Obama warned Trump that Flynn may be compromised. Zero. In fact, we have emails/contemporaneous notes describing Obama’s concerns to letting the incoming administration know of these investigations.

    Obama and his cronies knows that Flynn knew where to look for the proverbial bodies buried done by the Obama Administration. Flynn was on the warpath to undo the policies that the Obama administration worked so hard for.

    This was all about policy differences, for a naked partisan reason.

    Trump appointed him as his national security advisor anyway.

    As his right.

    Trump welcomes foreign interference in elections, as long as it helps him win. I mean, he openly called for Russian hackers to dig up dirt on Hillary.

    He openly JOKED about it in one of his campaign stop. Additionally, the DNC email server has hacked MONTHS before that campaign statement.

    That’s what the Mueller probe was all about.

    No. It was obvious that Mueller probe found out all along that there was no Russian “collusion” with the Trump campaign. Most of their efforts were to develop obstruction charges under novel theories.

    Mueller found insufficient evidence to indict Trump for collusion, following DOJ guidelines (which are not laws) that a sitting president cannot be indicted.

    Which every POTUS since that OLC start has supported.

    In the course of his investigation, Mueller did find that Flynn had violated FARA, because the case had been handed over to him, and when asked about it, Flynn lied.

    A violation that was perpetuated by Flynn’s original counsel, whom had an unwaivable conflict because of that whom had vested interested to encourage Flynn to take a plea deal.

    With recent evidence that substantiates that the statement Flynn made to the FBI were immaterial, and thus the DOJ determine that they couldn’t prove that false statement charge beyond the reasonable doubt.

    In the course of events, Mueller declined to indict Flynn for violating FARA and instead indicted him for lying to federal investigators.

    Which is against DOJ regulation. This regulation stipulates that in order to accept a guilty plea, the charge must be the one with the heaviest penalty. Then, at the sentencing, so long as the defendant cooperation the government will seek reduced time.

    Flynn plead guilty, probably under a plea agreement to shield his son from investigation.

    That wasn’t disclosed to the court, thus violating Giglio! ANOTHER exculpatory information. The reason why the prosecution wanted to hide it, is so that Flynn’s character wouldn’t be impeached in a different trial to further other prosecution.

    So there was no prosecution, no trial, no jury verdict; only an investigation, an indictment, and a guilty plea.

    Due to incompetent/conflicted original attorneys and prosecution’s misfeasance (or at worse, malfeasance).

    The only thing left is the sentencing phase. That is what is before Judge Sullivan. My question is, how can the DOJ move to dismiss the prosecution when there was never a prosecution to begin with? There was an indictment and a guilty plea. Is Barr going to seriously argue that the judiciary cannot move forward with sentencing, because of “separation of powers”?

    A guilty plea doesn’t END the case. The judge has yet to render the sentence so the prosecution/case isn’t “over”.

    A plea is NOT a conviction and so the Article II branch still has the primary constitutional role until at least a judgment is entered (after sentencing). I’m pretty sure during the mandamus hearing the DOJ took that argument even a bit farther, arguing it had the primary role up through appeal. That makes sense that the government can appeal an adverse verdict as well.

    I have no idea what is going to happen in this case. To me, this whole scenario is ridiculous. Flynn pleaded guilty, meaning he agreed to sentencing. So let him be sentenced and be done with it. The most likely outcome would be maybe a few months in jail or probation, and a fine. So what?

    So what? Due process is bloody important. Separation of powers is bloody important.

    Former Obama officials and anti-Trump operatives using the levers of the federal government against what amounts to political opponents for purely partisan reasonings is bloody important!


    Gawain’s Ghost (b25cd1) — 6/26/2020 @ 9:27 am

    whembly (c30c83)

  59. Well, whembly, an investigation was conducted, for due reason, an indicted was issued, and a guilty
    plea was offered. There was no prosecution, because there was no trial. The accused pled guilty before the case went before any court. Therefore, there was no prosecution. There is only sentencing to be determined.

    That is not prosecution, because there was no prosecution to begin with. The defendant pled guilty before the case ever went to trial! On what basis does the DOJ dismiss charges after a guilty plea has been entered?

    The judge should be and is perfectly entitled to inquire about the rationale behind the motion to dismiss, before he renders his decision. He’s not presiding over a prosecution, because none ever took place. He’s presiding over a sentencing hearing on a defendant who has already pled guilty.

    There is no legal rationale for dismissing a case that was not and is not under prosecution. The defendant pled guilty upon indictment, for crying out loud. Flynn is guilty, and he knows it and has admitted as much.

    So why is Barr ordering the DOJ to dismiss charges in an already decided case, which was never prosecuted to begin with, prior to sentencing?

    Explain that to me. Obviously you did not reference the case I cited above, or bother to read Shakespeare. A suicide cannot be deemed a suicide, because a dead man or woman could not kill themselves after they are dead.

    This is the sort of tortured logic and legalistic wordplay we’re dealing with here.

    Gawain's Ghost (b25cd1)

  60. #60

    Well, whembly, an investigation was conducted, for due reason, an indicted was issued, and a guilty
    plea was offered. There was no prosecution, because there was no trial. The accused pled guilty before the case went before any court. Therefore, there was no prosecution. There is only sentencing to be determined.

    That is patently false.

    The case is still active. The case is only over once the judge renders a sentencing judgements.

    The parties can still submit other motions for the judge to consider.

    As did the defense when Flynn’s attorney submitted a motion to withdraw the plea. That’s a valid motion for which Judge Sullivan would have to render a judgment. Just because the plea was submitted and that the sentencing hearing is needed…doesn’t render any other motions moot.

    Just as the government could, and did, when they submitted the motion to dismiss the case.

    That is not prosecution, because there was no prosecution to begin with. The defendant pled guilty before the case ever went to trial! On what basis does the DOJ dismiss charges after a guilty plea has been entered?

    It ABSOLUTELY a prosecution. There just wasn’t a TRIAL.

    The DOJ, in light of new evidence, does have the inherent ability to withdraw the prosecution and such deliberations are solely privvy to the Article II branch (outside of obvious malfeasance).

    Keep in mind that a plea deal MUST be something that the government can reasonable get a guilty plea had it gone to court.

    The judge should be and is perfectly entitled to inquire about the rationale behind the motion to dismiss, before he renders his decision.

    I agree he has some wriggle room… just not that whole amici-pseudo-prosecutor opposing the dismissal motion.

    He’s not presiding over a prosecution, because none ever took place. He’s presiding over a sentencing hearing on a defendant who has already pled guilty.

    Again. False. The case is still pending. Judge Sullivan is presiding over the prosecution case and even when he accepts the guilty plea, that doesn’t end the CASE.

    There is no legal rationale for dismissing a case that was not and is not under prosecution. The defendant pled guilty upon indictment, for crying out loud. Flynn is guilty, and he knows it and has admitted as much.

    Yes, there are legal avenues to withdraw the plea.

    People *DO* plead out for crimes they didn’t commit in order to avoid the full weight of the federal government’s prosecution.

    Again, with his new attorney, the motioned for plea withdrawl due to ineffective counsel (original attorneys were conflicted) and government mis/malfeasance (violation of giglio and brady materials). Shortly thereafter, the government motioned to withdraw the case, thus for technicality the defense withdrew the motion to withdraw the plea (which can be resubmitted if the case doesn’t get dismissed).

    Withdrawing the plea successfully means they’d go to trial.

    So why is Barr ordering the DOJ to dismiss charges in an already decided case, which was never prosecuted to begin with, prior to sentencing?

    Because of numerous exculpatory evidences was discover in these last few months.

    Explain that to me. Obviously you did not reference the case I cited above, or bother to read Shakespeare. A suicide cannot be deemed a suicide, because a dead man or woman could not kill themselves after they are dead.

    This is the sort of tortured logic and legalistic wordplay we’re dealing with here.

    Gawain’s Ghost (b25cd1) — 6/26/2020 @ 12:05 pm

    I think I explained it well enough. 😉

    whembly (c30c83)

  61. I’d like to add this: Had Sullivan NOT invited all the Amicus crap (particularly Gleeson), then yes this D.C. Circuit panel decision is crap.

    Before I go too far discussing your answers, whembly, you do realize that the two issues are separable, right?

    I mean, the Court of Appeals, which itself invited amicus briefs (you know that, right?) could have said:

    Judge Sullivan, you invited amicus briefs and that is bad. BAD! We know this because the amicus briefs we invited here in the Court of Appeals told us so. So, no amicus briefs for you! However, because it’s so obvious that you should be able to conduct a hearing and ask pointed questions that even a pro-Flynn fellow like whembly can understand the need for a hearing, we are going to let you have your hearing, because we started writing an opinion saying you can’t and we can’t make it work legally no matter how hard we try. It’s just so obvious that you have to be allowed to make a ruling before we rule that, OK, fine, we love us some Trump and we love us some Flynn but go ahead, have your stupid hearing.

    It sounds like that would be consistent with what you’ve been saying. Am I wrong?

    Patterico (115b1f)

  62. 1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.

    That’s an oversight issue for the DOJ, not the judge. They can step in and replace him and even file criminal charges for something like this if necessary.

    2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.

    I can’t even process this one. POTUS and the AG are volunteering to be impeaching and jailed, for starters.

    3. We request to dismiss this case because we think lilacs are very pretty flowers.

    This is also an oversight issue for the DOJ, if the AUSA is filing motions while on drugs. The judge may also (I imagine) request clarification or require the AUSA resubmit the motion and say something sensible and could certainly sanction the attorney. Either way I figure it’s career-ending for the acid-dropping AUSA.

    4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.

    Sanctionable conduct. DOJ would probably be pissed too. This is another one I just can’t wrap my head around. Obvious lies to the court? They’d probably deal with that first.

    5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.

    This is the toughest one. If there actually was such a practice at DOJ it would be an equal protection violation but one without a judicial remedy. Impeachment would have to be the solution. If there *wasn’t* such a practice or order I think that attorney might have to answer some uncomfortable questions before the judge even got to consider the motion.

    6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.

    This one is another really weird one because a simpler solution would just be to pardon him. Impeachment would be the answer if there really was something to incriminate him on.

    7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.

    My answer is just a rehash of 6, really.

    8. We request to dismiss this case because we say so.

    Then, yeah. The judge isn’t allowed to investigate the prosecutor’s motives, partly because that would put pressure on the prosecutor to NOT drop cases even when the interest of justice really does merit such an outcome, since it’ll be his ass on the line.

    DarkTechObserver (6cc401)

  63. DarkTechObserver,

    I’m really trying to get your view, in each case, as to whether the judge is even entitled to ask questions, or whether he must dismiss the case. As to a lot of these, you’re saying, essentially, “what a weird hypo! I can’t get my head around it!”

    OK … but that does not help me discern your first principles. I want to know whether your view is, for example:

    * The court must dismiss a case even if DoJ admits it is requesting dismissal because the AG has been bribed

    or

    * The court can conduct a hearing if the AUSA says a dismissal has been requested because of the defendant’s race.

    That sort of thing.

    The fact that you *also* think that other consequences should occur to various people (why, if that happened, they should jail the prosecutor!!!!) does not by itself answer the question of whether, as to each hypothetical, the judge is allowed to a) inquire further and/or b) deny the motion to dismiss.

    Could you provide a more direct answer to the hypos that you have not answered yet? I can’t discuss principles with you until I get those answers.

    Patterico (115b1f)

  64. 1. No. That job belongs to the DOJ

    2. The hypo is insane and absolutely ridiculous in a dozen different ways. You might as well ask “What if the AUSA is mind-controlled by pod people”

    3. Yes, in the sense that the judge would be asking the attorney is he was alright and if he needed a doctor.

    4. I cannot get past the hypo “AUSA tells facially obvious and ridiculous lie to Federal judge” to make an analysis of what would happen next. I keep coming up with “But he wouldn’t do that and if he did that would be the focus on the next set of hearings”

    5. No. Impeachment is the solution. Any president issuing those orders would be sacrificing his career.

    6. No. Nothing stops the President from pardoning Flynn for the same reason. Impeachment is the solution.

    7. No. Nothing stops the President from pardoning Flynn for the same reason. Impeachment is the solution.

    8. No.

    DarkTechObserver (6cc401)

  65. @62

    I’d like to add this: Had Sullivan NOT invited all the Amicus crap (particularly Gleeson), then yes this D.C. Circuit panel decision is crap.

    Before I go too far discussing your answers, whembly, you do realize that the two issues are separable, right?

    How so? I consider endeavoring to conduct a hearing with an amici-partisan-pseudo prosecutor highly improper.

    I mean, the Court of Appeals, which itself invited amicus briefs (you know that, right?)

    That’s a function primarily slated for higher courts.

    I tried to find another example that’s similar to Flynn’s case… in that before the case was decided the judge orchestrated an amicus-pseudo prosecutor to continue the prosecution against the government’s wishes. My google-fu isn’t coming up with any… maybe you have some at your finger tips? The closest I’ve found are similar to what Judge Sullivan did post sentencing of the Ted Stevens case. But that was about prosecuturial misconduct so that’s a poor example.

    could have said:

    Judge Sullivan, you invited amicus briefs and that is bad. BAD! We know this because the amicus briefs we invited here in the Court of Appeals told us so. So, no amicus briefs for you! However, because it’s so obvious that you should be able to conduct a hearing and ask pointed questions that even a pro-Flynn fellow like whembly can understand the need for a hearing, we are going to let you have your hearing, because we started writing an opinion saying you can’t and we can’t make it work legally no matter how hard we try. It’s just so obvious that you have to be allowed to make a ruling before we rule that, OK, fine, we love us some Trump and we love us some Flynn but go ahead, have your stupid hearing.

    It sounds like that would be consistent with what you’ve been saying. Am I wrong?

    Patterico (115b1f) — 6/26/2020 @ 6:43 pm

    Yes. You’re wrong. If you think that’s what my or Rao’s arguments amount to, then sparks will fly here…

    There’s a distinction between all the hypos you’ve stated vs what Judge Sullivan is doing.

    Simply stated, the idea that what Sullivan is trying do here is above and beyond simply holding a hearing for some pointed questions imo. In fact, having a 2nd independent prosecution party against the defendant just seems abhorrent.

    whembly (c30c83)

  66. The hypo is insane and absolutely ridiculous

    Not an answer.

    Patterico (115b1f)

  67. We’ve known each other for years and you block me on Twitter after 30 minutes of conversation? I am truly disappointed.

    DarkTechObserver (6cc401)

  68. If you treat me with the same level of disrespect here I’ll ban you here too.

    Patterico (115b1f)

  69. Listen, respond to the hypos or discontinue the conversation.

    Patterico (115b1f)

  70. They are there for a reason. If you can’t understand the reason, not my problem.

    Patterico (115b1f)

  71. I went to some trouble writing this post and setting out hypos for a reason. If you want to call them insane and ridiculous, fine. Take yourself elsewhere. I don’t need to interact with people like that.

    Patterico (115b1f)

  72. The whole idea of a hypothetical is that it is unrealistic but it illustrates a principle.

    You *said* you wanted to discuss principles. This is how I want to do it. It’s my blog. If you don’t want to do it that way, go talk to someone else.

    Patterico (115b1f)

  73. I am learning from thinking about this, P. It reminds me of law school. Thank you.

    DRJ (aede82)

  74. I’m sure it was a total coincidence that the DOJ also “didn’t oppose” Roger Stone’s request to punt, I mean postpone, his sentence till the fall. He/they didn’t get it because the judge asked why exactly?

    Colonel Klink (Ret) (305827)

  75. This is just a rehash of what I said before. Trump is infamous for using the courts as his tool. From suing the DOJ when they investigated him for housing discrimination; to suing private citizens who filed objections to his building projects with the planning commission*; to his bankruptcies; to his NDAs; and much sundry. Now, he’s found his new Roy Cohn in William Barr, and Emmett Sullivan is having none of it.

    *BTW, New York’s anti-SLAPP law is the most pitiful in the country, hardly worth the label, but it applies squarely to those lawsuits.

    nk (1d9030)

  76. Excellent post! I do disagree with you completely, though. So let’s discuss. I haven’t read the other comments yet; I hope to do that tomorrow. The post says:

    In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

    That’s right. Sort of. The judge cannot delay dismissing the defendant (speedy trial right, after all) to conduct a fishing expedition. If he has seen money change hands in the courtroom and wants to hold a hearing the next day to inquire, that’s OK. He has a prima facie case of impropriety that would justify denying the motion to dismiss and notifying Justice that they’ll want to send in a new prosecutor. Note that in this case, Justice will be *happy* that the judge is denying, an important point, even though Justice’s evil agent, the prosecutor, will be unhappy. And this would even go if the judge read in the newspaper that the prosecutor had been bribed.

    But if, as in the Flynn case, the judge has an unhappy feeling that his political enemy Trump has somehow done something bad but he doesn’t know what but he doesn’t want to let him get away with it so he schedules a hearing in a month or two and asks everybody in Washington DC to submit dirt on the defendant AND he wants to ask the prosecutor if he’s been bribed, threatened, blackmailed, coerced, drugged, or replaced with a robotic version of his real self— then that’s no good. The judge has to have some basis for delaying denial, and he can’t delay releasing the defendant from his ordeal just because he has a funny feeling about it.

    Eric B Rasmusen (44e4a2)

  77. Ah– I forgot to add the link to this list of hypotheticals I wrote up tonight with the same idea as you, to explore when exactly Rule 48 denial should occur. I list your hypotheticals and give my immediate reactions opinion, wtihout giving much int he way of reasons yet (and I might change my mind– this really is instant reaction):

    I agree we need a reason, so #8 is no good. Bribery of the prosecutor is a bad reason, so #1 is no good; but if it truly represents the position of the executive branch then the judge should dismiss, so #2 is fine. It becomes a political question. Also, th reason need bear no relevance to the case– the statute just says there has to be a reason— so #3’s lilacs are fine. I don’t think we need even rational basis here. Recall Judge Wilkins’ hypo in oral argument: what if DOJ wants to dismiss to avoid inflaming racial tensions, but to admit that would inflame racial tensions? Same with #4. The lilacs and lie are just saying, “We’ve got a reason we don’t want to tell you,” and that’s OK. #5 is tough. I’ll punt on that for now. #6 and #7 are like the #2 bribes– they raise political questions (#2 has the motivation being criminal, so it’s harder, but really they’re all analogous to Justice deciding not to prosecute in the first place, and nobody’s suggesting that a judge can initiate a prosecution). I’ll expand on all of this if I have time, but note how they raise hard questions and sharpen the discussion. Good for you Patterico!

    https://www.rasmusen.org/blog1/rule-48-dismissal-when-should-a-judge-tell-a-prosecutor-he-cant-dimiss-charges/

    Eric B Rasmusen (44e4a2)

  78. That’s right. Sort of. The judge cannot delay dismissing the defendant (speedy trial right, after all) to conduct a fishing expedition. If he has seen money change hands in the courtroom and wants to hold a hearing the next day to inquire, that’s OK. He has a prima facie case of impropriety that would justify denying the motion to dismiss and notifying Justice that they’ll want to send in a new prosecutor. Note that in this case, Justice will be *happy* that the judge is denying, an important point, even though Justice’s evil agent, the prosecutor, will be unhappy. And this would even go if the judge read in the newspaper that the prosecutor had been bribed.

    But if, as in the Flynn case, the judge has an unhappy feeling that his political enemy Trump has somehow done something bad but he doesn’t know what but he doesn’t want to let him get away with it so he schedules a hearing in a month or two and asks everybody in Washington DC to submit dirt on the defendant AND he wants to ask the prosecutor if he’s been bribed, threatened, blackmailed, coerced, drugged, or replaced with a robotic version of his real self— then that’s no good. The judge has to have some basis for delaying denial, and he can’t delay releasing the defendant from his ordeal just because he has a funny feeling about it.

    Even Judge Henderson conceded at oral argument that Judge Sullivan had set a fairly expedited briefing schedule. Flynn is the one who has been dragging this out, although I think Sullivan should have sentenced him in December 2018.

    None of what has actually happened in reality has much to do with what you describe. In fact, kind of the whole point is that the judges on the Court of Appeal didn’t know what Sullivan was going to do in the hearing. Because they didn’t let him conduct it.

    Patterico (115b1f)

  79. I agree we need a reason, so #8 is no good. Bribery of the prosecutor is a bad reason, so #1 is no good; but if it truly represents the position of the executive branch then the judge should dismiss, so #2 is fine. It becomes a political question.

    I appreciate the answer. You have a very extreme view of executive power, and all I want you to recognize is that your view goes far beyond the case law *or* the position of the United States Government at oral argument, both of which conceded that bribery could justify denial of a Rule 48 motion.

    If you were not wedded to this position out of politics (and I apologize if that’s an unfair characterization, but you did call me a lefty on Twitter because of my position so I get at least one cheap shot in response, just to make it fair, don’t you agree?) do you really think you would approach a Rule of Criminal Procedure that requires leave of court for dismissal and say, as a matter of high principle, that if President Trump were bribed to release a top Al Queda terrorist who had pled guilty to murdering thousands, then a court entrusted with the decision to grant or deny leave would be forced to grant leave to dismiss that case?

    Patterico (115b1f)

  80. #5 is tough. I’ll punt on that for now.

    Why is it tough? Can you articulate the reason?

    Oh, by the way, supposedly because you are disagreeing with me I am going to ban you. That’s what I hear on Twitter, anyway.

    Except I’m not. Because, even though you disagree, you are a) engaging me in discussion on a high level, b) not insulting me, and c) not being dishonest.

    I can’t tell you how much I welcome such disagreement. I welcome it so much that I even spent a bunch of time engaging on Twitter tonight with a person who had called me “numnuts” and agreed with someone that I was “deranged.” And I’m happy to engage with you even though you unfairly deemed me a lefty with no knowledge of my background. We can overlook minor issues like that if the majority of the discussion is civil and both sides listen to one another.

    So welcome. I look forward to more discussion.

    Patterico (115b1f)

  81. Simply stated, the idea that what Sullivan is trying do here is above and beyond simply holding a hearing for some pointed questions imo.

    Well, the only way to find out for sure is for the en banc court to slap down Judge Rao and let Sullivan actually conduct the freaking hearing.

    Patterico (115b1f)

  82. @83

    Simply stated, the idea that what Sullivan is trying do here is above and beyond simply holding a hearing for some pointed questions imo.

    Well, the only way to find out for sure is for the en banc court to slap down Judge Rao and let Sullivan actually conduct the freaking hearing.

    Patterico (115b1f) — 6/26/2020 @ 9:50 pm

    That’s a bit disingenuous Pat… we *know* that Sullivan has accepted Gleeson to be a court-appointed prosecutor to adversarially argue against the government’s motion to dismiss the case. This appointment took mere days after Glesson wrote an op-ed chock full of anti-Flynn/anti-Trump screed, filled with numerous factual errors advocating for full adversarial hearings with the ability to conduct additional evidentiary hearings.

    We should be able to infer quite a bit here that this isn’t going to be a regular freaking hearing.

    That’s why the DOJ argued in that mandamus hearing of the irreparable harm, in that Judge Sullivan is endeavoring the kind of hearing that would allow this amici-pseudo prosecutor, on behalf of the court, to get into the DOJ’s prosecutorial deliberations that many argues dangerously intrudes into separation of powers.

    whembly (c30c83)

  83. The defense argued the irreparable harm to Flynn was letting the process continue, which caused financial and emotional hardship on Flynn and his family. Almost every defendant experiences that. It is painful but not a basis to dismiss if there are still pending issues.

    DRJ (aede82)

  84. As for what we all know, we know Flynn plead guilty. We can only surmise what Gleeson would do.

    DRJ (aede82)

  85. The ONLY question that needs asked is “was the prosecutor bribed to move to dismiss or is it part of a plan to constantly harass the defendant?”

    That’s it. The justice system is set up so that we protect innocent people. Sometimes that means guilty people go free. (Honestly I don’t care of Flynn is guilty or not, thats irrelevant to this discussion).

    If both the defendant and the government want to dismiss, there is ZERO role in the courts to review that. That’s the system.

    You hate Trump so much you would throw out a critical part of the system just to get him. You would demand a potentially innocent person be railroaded because you HATE him.

    Step back and do you job. Let him go.

    Patrick Henry, the 2nd (43976c)

  86. Me, I see all of these as insufficient to justify the granting of a Rule 48 motion to dismiss. To me, there has to be some reason offered, making #8 insufficient. The motion to dismiss can’t be motivated by rank corruption such as bribery (#1), even if it represents the true position of DoJ by reason of that bribery (#2). The reason must bear some relevance to the case (#3) and it can’t be a patently fabricated falsehood that is contradicted by every scrap of paper in the case and all evidence available to the five senses (#4). I don’t think the reason could be a blatantly unconstitutional reason like race (#5) and I personally believe that it could not be justified for patently corrupt reasons (such as #6) or even purely out of cronyism (#7).

    FWIW I agree with you that none of the answers justify dismissal. IMO the DOJ has offered #4 when it claims Flynn’s lie was not material, a claim that is not supported by the facts already stipulated by the defendant in his plea or by logic. Further inquiry is warranted to find out the real reason for this about face by the government.

    “Leave of court” must mean more than a rubberstamp of whatever the defense or the government say. In this case, the parties want the court to rubberstamp dismissal because they agree, which leaves no representation for the public interest unless the court is able to fully develop and be transparent about the facts. The government (especially) should want that to happen unless it fears transparency.

    DRJ (aede82)

  87. There are dismissal reasons that would be acceptable to a court if alleged and shown. For instance:

    9. The government articulated how the defendant offered assistance and willing cooperation to the prosecutors that justified dismissal. (I think Flynn cooperated initially and the first prosecutors told the court that in their sentencing recommendation of no/minor jail time, but then he stopped cooperating.)

    10. The defendant was actually (as opposed to technically, as the government claimed here) innocent as shown by the evidence proffered to the court.

    11. The evidence was wrongfully acquired by the government. (The government specifically represented that there was no prosecutorial misconduct.)

    DRJ (aede82)

  88. That’s a bit disingenuous Pat… we *know* that Sullivan has accepted Gleeson to be a court-appointed prosecutor to adversarially argue against the government’s motion to dismiss the case. This appointment took mere days after Glesson wrote an op-ed chock full of anti-Flynn/anti-Trump screed, filled with numerous factual errors advocating for full adversarial hearings with the ability to conduct additional evidentiary hearings.

    We should be able to infer quite a bit here that this isn’t going to be a regular freaking hearing.

    That’s why the DOJ argued in that mandamus hearing of the irreparable harm, in that Judge Sullivan is endeavoring the kind of hearing that would allow this amici-pseudo prosecutor, on behalf of the court, to get into the DOJ’s prosecutorial deliberations that many argues dangerously intrudes into separation of powers.

    And with your calling me disingenuous, the discussion ends.

    Patterico (115b1f)

  89. You hate Trump so much you would throw out a critical part of the system just to get him. You would demand a potentially innocent person be railroaded because you HATE him.

    Goodbye. Your time as a commenter here is now over.

    Patterico (115b1f)

  90. This is so interesting. I had a good association with the name “Patrick Henry, the 2nd” and so when I went to ban him I looked at a few of his past comments. He has had 222 comments approved here. Interestingly, he recently announced that although he was a hardcore NeverTrumper, and used to post here a lot, he has recently decided that he will vote for Trump. Well, that’s fine, and of course (contrary to what you read from dishonest people) I don’t ban people for supporting Trump. However, it’s interesting that someone would transform into a Trump voter and then shortly afterwards post an offensive attack comment like the one above. Accusing me of demanding someone be railroaded out of hate for that person is of course going to get you banned. I just find it interesting that the political transformation, and the transformation into someone who leaves such an aggressively dishonest and false attack comment, happen at the same time.

    Patterico (115b1f)

  91. I didn’t really think discussion with whembly was going to work. He’s so emotional about this case that I knew he would lapse into an attack on my honesty sooner or later.

    I should stop beginning projects that I already know are doomed to fail. Shouldn’t I?

    Where did that Rasmusen fellow go? I tried asking him more questions and he seemed level-headed and yet disagreed. I was looking forward to that discussion.

    Patterico (115b1f)

  92. if President Trump were bribed to release a top Al Queda terrorist who had pled guilty to murdering thousands, then a court entrusted with the decision to grant or deny leave would be forced to grant leave to dismiss that case?

    Yes. Note that if Trump simply released the terrorist before filing charges, admitting it was brcause he was bribed, NOBODY would say the court could order Trump to file charges. Nor, I think, would anybody say that a statute authorizing a judge to cut out the exec branch and file prosecutions by himself would be constitutional.

    Now consider dismissal. Suppose the judge denies dismissal of charges. What’s supposed to happen next? Trump can still throw the case by telling the prosecutor to do a bad job. It’s not hard to lose a case, especially with a jury to convince beyond a reasonable doubt, and there’s a zillion technical legal mistakes that could derail the prosecution. All the judge could do is try to drag out proceedings, using the process to punish the defendant— which it looks like is what Judge Sullivan is trying to do to Flynn.

    Eric B Rasmusen (44e4a2)

  93. #5 is tough. I’ll punt on that for now.

    Why is it tough? Can you articulate the reason?

    It’s tough because equal protection law is intricate, scholastic, and politicized, so it’s hard to discuss. It’s not so interesting as the others, either, because it’s less likley to come up (the others are extreme, but there are moderate versions, e.g. it’s not a bribe to Trump, just him doing a favor for a political ally…)

    Eric B Rasmusen (44e4a2)

  94. I can’t tell you how much I welcome such disagreement. I welcome it so much that I even spent a bunch of time engaging on Twitter tonight with a person who had called me “numnuts” and agreed with someone that I was “deranged.” And I’m happy to engage with you even though you unfairly deemed me a lefty with no knowledge of my background. We can overlook minor issues like that if the majority of the discussion is civil and both sides listen to one another.

    So welcome. I look forward to more discussion.

    Agreed. I don’t know why it’s so hard to have reasonable arguments on the web. Something very bad is how nobody seems to give anybody else the benefit of the doubt, or to improve their wrong arguments (steel man them) rather than dodge (straw man them). Maybe it’s a peril of being an advocate; I’m just a professor, so I have the luxury of being able to be even-handed without worrying about whether I’m stiffing a client.

    Eric B Rasmusen (44e4a2)

  95. That’s a bit disingenuous Pat… we *know* that Sullivan has accepted Gleeson to be a court-appointed prosecutor to adversarially argue against the government’s motion to dismiss the case. This appointment took mere days after Glesson wrote an op-ed chock full of anti-Flynn/anti-Trump screed, filled with numerous factual errors advocating for full adversarial hearings with the ability to conduct additional evidentiary hearings.

    Tangentially, I wondered about the judicial ethics of this. Is it proper for a judge to get suggestions for how to manage ongoing cases from op-eds in newspapers? Or is that improper ex parte contact? If it is, what’s the penalty?

    Eric B Rasmusen (44e4a2)

  96. A judge who, knowing that the prosecutor has been bribed, agrees to dismiss the case, is an accomplice to the bribery; and, to anticipate you, so is a judge who strongly suspects that there’s something corrupt going on and purposefully closes his eyes to it.

    nk (1d9030)

  97. BTW, I find #3 entirely unrealistic. Lilacs? Hmm, I don’t think so. Now, pansies or daffodils, that’s more likely.

    nk (1d9030)

  98. Like trading a malcontent punk for five top of the line taliban commanders one of them their top torture specialist, well someone would go after that person you would think

    Narciso (7404b5)

  99. Another softball question, another incoherent garbled answer….

    Kilmeade: “Since you have done a lot for the African-American community, what is your message to them when their ancestors were enslaved because of [these leaders who are commemorated on these monuments]?”
    Unstable Idiot: My message is that we have a great country, we have the greatest country on Earth. We have a heritage, we have a history and we should learn from the history, and if you don’t understand your history, you will go back to it again. You will go right back to it. You have to learn. Think of it, you take away that whole era and you’re going to go back to it sometime. People won’t know about it. They’re going to forget about it. It’s okay.
    Now what I do like, I like the idea of building new statues to people, to great people. People that have done something. And I think that’s okay.
    But you don’t want to take away our heritage and history and the beauty, in many cases, the beauty, the artistic beauty. Some of the sculptures and some of this work is some of the great — you can go to France, you can go anywhere in the world and you will never see more magnificent work. And that’s a factor. It’s not the biggest factor but it’s a factor.

    No one is going to forget that a number of states seceded from our country so they could keep almost 4 million dark-skinned people as the personal property of pale-skinned people, with no rights.
    I can’t help but think that words like “heritage” (which Trump said twice) are code for southern white Confederate-friendly culture. Also, Trump doesn’t understand that there is no real relationship between understanding American history and keeping statues of Confederate soldiers who fought to keep a race of human beings enslaved, or that the motivations for erecting a number of those statues weren’t for edifying reasons.
    After his “white power” re-tweet today, Trump isn’t even bothering to hide his racism anymore.

    Paul Montagu (c8b54e)

  100. Crap. That should’ve been in the open thread.

    Paul Montagu (c8b54e)

  101. The vandalize the monuments of abolitionists and the commander of the union unit in glory, this is a movememt funded by a white maoist terrorist who woul gut your family like bernardine doehrn raved as charles manson did to roman polanskis wife, they are a locust among the plain, and too many institutions have surrendered before then

    Narciso (7404b5)

  102. If somebody had capped bill ayers years ago, before the courts would spring him and he was free to infect two generations of young people with his hatred for america. Many things would be better now

    Narciso (7404b5)

  103. Yes gleason shows leniency to a bank that launders hundreds of millions of dollars in drug profits and terrorist lucre, but a 33 year army veteran with a spotless record he puts the screws to.

    Narciso (7404b5)

  104. Eric B Rasmusen came back, P. Check 93 et seq.

    DRJ (aede82)

  105. Look we know this was fraudulent when they wouldnt print the call, then judge contreras recused then they hung this plea over him for two years and his covington atty was spinning it took sydney powell the texan tornado to get the truth out and a little discovery help the details ive provided

    Narciso (7404b5)

  106. @92

    I didn’t really think discussion with whembly was going to work. He’s so emotional about this case that I knew he would lapse into an attack on my honesty sooner or later.

    I should stop beginning projects that I already know are doomed to fail. Shouldn’t I?

    Patterico (115b1f) — 6/28/2020 @ 1:52 pm

    You keep pounding the table that Sullivan ought to have his hearing.

    I’ve met you in the middle that I believe there might be wriggle room for that…

    I’ve even gone through each of your hypos as you requested, in good faith.

    However, you really haven’t addressed my concerns about Sullivan’s appointment of Gleeson, who has been very explicit as to how he wants this hearing to be conducted. Namely, holding additional evidentiary hearings and demanding prosecutorial deliberations (which many argues is a separation of power issue).

    Hence my response to your “let Sullivan actually conduct the freaking hearing”… which is not an attack on your honesty.

    whembly (c30c83)


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