Patterico's Pontifications

8/11/2020

Flynn Oral Argument in Motion

Filed under: General — Patterico @ 8:28 am



I came into it late and have to start working, so I’ll listen to the bulk of it later. However, listening to the Solicitor General arguing, I was struck by Judge Wilkins finally getting to the matter I have asked here many times:

If a defendant has been convicted and sentenced, and there is video of the Attorney General accepting a briefcase of cash from an agent of the defendant, and the Government requests that the case be dismissed … does the District Judge have to dismiss the case?

The Solicitor General’s answer?

Yes. The defendant gets off scot free.

Perhaps the Attorney General can be investigated for bribery and prosecuted, but the defendant gets off scot free — under a rule (Rule 48) that requires “leave of court” for a dismissal.

That strikes me as an extreme position. Am I the only one?

45 Responses to “Flynn Oral Argument in Motion”

  1. I agree with you.

    DOJ came in and made claims about Flynn. Then the DOJ changed their mind, said things they had asserted were not accurate and wanted to drop the charges. They didn’t allege that any mistakes were made, or that anyone at the DOJ did anything wrong.

    But they sure don’t want the judge to ask any questions about what’s happened.

    Maybe this was an honest mistake and we should all just go home.

    But I think it’s more likely that either;
    1. The DOJ has dropped the charges for improper reasons.
    2. The DOJ brought the case for improper reasons.

    Either way, I would like the Judge to force the DOJ to explain their decisions on the record. If these types of cases are wrong they should be wrong for everyone, not just the president’s friends. If they’re OK, than they shouldn’t be dropped for political reasons.

    Time123 (ea2b98)

  2. Isn’t that the crux of this debate.

    How is “leave of court” defined?

    Or, is it the famed I know it when I see it (which means, it’s up to the judge dummy!)?

    I’m inclined to think the en banc is going to vacate the panel ruling… because there seems to be legit concerns that the mandamus is inappropriate applied.

    The best Flynn can get, imo, is for the en banc to instruct Sullivan to have his hearing without additional fact-finding sessions and the Gleeson apppointment.

    whembly (c30c83)

  3. @1

    DOJ came in and made claims about Flynn. Then the DOJ changed their mind, said things they had asserted were not accurate and wanted to drop the charges.

    You’re going to have to expand that…

    What is/are the things the DOJ stated that were not accurate?

    whembly (c30c83)

  4. The judge is being asked to overturn the defendant’s guilty plea. Unless it can be shown that either a) The defendent did not understand what he was doing or b) the offense to which he pled was not a crime, any argument of overturning it seems ridiculous.

    John B Boddie (042948)

  5. @4

    The judge is being asked to overturn the defendant’s guilty plea. Unless it can be shown that either a) The defendent did not understand what he was doing or b) the offense to which he pled was not a crime, any argument of overturning it seems ridiculous.

    John B Boddie (042948) — 8/11/2020 @ 8:49 am

    The DOJ is arguing there wasn’t a crime.

    The Defense is arguing that AND argued (before rescinding due to DOJ dropping the case) of ineffectual counsel, numerous brady violations and other issues.

    whembly (c30c83)

  6. @3, Correct me if I’m wrong,

    1. Isn’t the DOJ now asserting that Flynn’s lie’s were not material?
    2. Flynn’s plea wasn’t proper? (or at least they’re not fighting the accusation that it was improperly obtained)

    Time123 (b4d075)

  7. @5, I think we’re pretty close….Honestly if the DOJ committed brady violations I’d like a record of that.

    Time123 (b4d075)

  8. It’s an extreme position because Barr and the SG have painted themselves into an intellectual corner.

    Paul Montagu (c280e0)

  9. @8

    @5, I think we’re pretty close….Honestly if the DOJ committed brady violations I’d like a record of that.

    Time123 (b4d075) — 8/11/2020 @ 8:56 am

    Right here buddy:
    https://www.politico.com/f/?id=0000016f-a6d4-d209-a1ef-a6de35e20000

    Technically, this motion was withdrawn with a statement that they’ll reapply if necessary when the DOJ motion to drop the case.

    whembly (c30c83)

  10. My previous post should be directed to Time123 @7, my apologies.

    But to comment on @8 by Paul… I disagree. The courts has other means to address the bribery hypothetical… rule 48 isn’t the proper mechanism per Fokker.

    whembly (c30c83)

  11. Assuming the D.C. Circuit rules against #Flynn, he’ll likely appeal to #SCOTUS—which could mean it’s the middle of next year before the case is resolved.

    If, like me, you think Sullivan would have (begrudgingly) granted DOJ’s motion to dismiss, the case would be over *by now.*

    The lawyering strategy here is … interesting. I’m not at all sure seeking mandamus *before* Sullivan ruled on DOJ’s motion was in *Flynn’s* best interest.

    At best, it was in *DOJ’s* interest—to prevent Judge Sullivan from creating a record of what happened behind the scenes.

    https://twitter.com/steve_vladeck/status/1293196866075725824

    Davethulhu (527049)

  12. A ham sandwich hangs in the balance.

    beer ‘n pretzels (477d53)

  13. I would agree that it is extreme.

    There is, though, a growing segment of society that seems to believe that the Constitution really is a suicide pact.

    As a certain right-leaning economist likes to say, solve for the equilibrium.

    john (cd2753)

  14. A case with no foundation, prosecuted by men without souls, see weissman andrew, arthur andersen.

    Narciso (7404b5)

  15. Have we revised the coin dealers.

    Narciso (7404b5)

  16. 3. whembly (c30c83) — 8/11/2020 @ 8:47 am

    What is/are the things the DOJ stated that were not accurate?

    That Michael Flynn;s lies were material to an investigation.

    Sammy Finkelman (083d4c)

  17. He didnt lie, grack and co did.

    Narciso (7404b5)

  18. @9, if this is dismissed what happens to those allegations?

    Time123 (ea2b98)

  19. @17

    3. whembly (c30c83) — 8/11/2020 @ 8:47 am
    What is/are the things the DOJ stated that were not accurate?

    That Michael Flynn;s lies were material to an investigation.

    Sammy Finkelman (083d4c) — 8/11/2020 @ 9:59 am

    Sammy, the linchpin of the DOJ’s rationale to drop the case was that it was not material to the investigation, as Crossfire RAZOR ended.

    whembly (c30c83)

  20. @19

    @9, if this is dismissed what happens to those allegations?

    Time123 (ea2b98) — 8/11/2020 @ 10:07 am

    I’m not sure I follow…

    It’s still in public record.

    whembly (c30c83)

  21. In other cultures the officials would commit seppuku, here they go on msnbc

    Narciso (7404b5)

  22. @19, those are allegations made by Flynn’s attorney. They haven’t been stipulated by the DOJ and there’s no ruling on their accuracy. They’re not more compelling than any other allegation by one party in a dispute.

    If the charges are dismissed to they become moot? Or are they follow up on?

    Time123 (b4d075)

  23. @20, my understanding is that this is not the definition of ‘material’ that is typically used by the DOJ.

    Time123 (ea2b98)

  24. @23

    @19, those are allegations made by Flynn’s attorney. They haven’t been stipulated by the DOJ and there’s no ruling on their accuracy. They’re not more compelling than any other allegation by one party in a dispute.

    If the charges are dismissed to they become moot? Or are they follow up on?

    Time123 (b4d075) — 8/11/2020 @ 10:30 am

    I’m not 100% sure as this is a federal proceeding.

    whembly (c30c83)

  25. @24

    @20, my understanding is that this is not the definition of ‘material’ that is typically used by the DOJ.

    Time123 (ea2b98) — 8/11/2020 @ 10:31 am

    It’s the Mueller team who introduced a novel interpretation here… not the DOJ.

    Mueller alleged that Flynn lied to FBI agents concerning matters material to an official proceeding.

    There’s two problems here:
    1) There was no official proceeding. Crossfire RAZOR ended in early January. So, anything Flynn said could NOT be material as there was no official investigation.
    2) Read the transcript, Flynn didn’t mention economic sanctions as Mueller indictment alleged… he only discuss the expelling of diplomats. The Mueller team orchestrated the classic bait-in-switch here…
    https://www.foxnews.com/politics/read-flynn-kislyak-transcripts-of-conversations-during-trump-transition

    whembly (c30c83)

  26. I hadn’t heard that the AG was bribed in this case. Nor do I see how such an extreme hypothetical has much bearing in any event. Suppose the AG was being controlled by alien mind rays?

    Kevin M (ab1c11)

  27. One might wonder what induced a certain jusge not to prosecute one of the three top money launderies in the world deutsche bank and citigroups affiliate banamex were the others?

    Narciso (7404b5)

  28. @27

    I hadn’t heard that the AG was bribed in this case. Nor do I see how such an extreme hypothetical has much bearing in any event. Suppose the AG was being controlled by alien mind rays?

    Kevin M (ab1c11) — 8/11/2020 @ 11:28 am

    I’ll go better on the hypothetical… flip the script:

    Imagine if Bill Barr arrested Judge Sullivan, demanding that he answer questions about bribery, collusion with Obama allies (remember, he appointed Gleeson shortly after his anti-Flynn Op-ed), etc…all because Bill Barr was “worried” it “might” have influenced him in this case?

    Would you be okay with that?

    That’s essentially what Judge Sullivan is doing to in this case and specifically to the DOJ.

    It’s why separation of powers arguments is compelling here.

    whembly (c30c83)

  29. It’s why separation of powers arguments is compelling here.

    Judges are deciding a separation of powers issue involving the judicial branch. Seems kosher.

    beer ‘n pretzels (8cd54c)

  30. Whembly, that’s an easy one. If the DOJ has evidence that passes the threshold that Judge Sullivan has taken bribes they should absolutely act on that.

    I’ll not that this

    collusion with Obama allies (remember, he appointed Gleeson shortly after his anti-Flynn Op-ed), etc…all because Bill Barr was “worried” it “might” have influenced him in this case?

    Doesn’t appear to meet that requirement.

    Time123 (b4d075)

  31. @27, Kevin it’s an extreme example of what ‘could’ happen. In fact we can probably use google to fins examples where prosecutors have taken bribes.

    Time123 (b4d075)

  32. The only hope the left has is moochele for v.p.

    mg (8cbc69)

  33. Judges are deciding a separation of powers issue involving the judicial branch. Seems kosher.
    beer ‘n pretzels (8cd54c) — 8/11/2020 @ 11:45 am

    Yes, Marbury v Madison.

    felipe (023cc9)

  34. CornPop as VP would be additive… street cred, someone Slow Joe could play off, as he runs his game on the electorate.

    And Joe’s Apology Chain for SecDef !!!

    Colonel Haiku (2601c0)

  35. mg (8cbc69) — 8/11/2020 @ 12:19 pm

    If they wanted to make it hard, they should go with Oprah. What have you got to lose?

    I am yours, you are mine, you are what you are
    You make it hard – Suite Judy Blue Eyes

    Aloha, Cuba

    felipe (023cc9)

  36. Look at the Yazoo Land Fraud case. If the DoJ has the power to dismiss the case, does it matter why? If it only has the power to dismiss the case for “good reasons”, who decides what are good reasons? Perhaps better not to open that can of worms.

    Jerryskids (702a61)

  37. I never knew you had a thing for Oprah, felipe.

    Oprah… teh Tsarina of Tumescence

    Colonel Haiku (2601c0)

  38. Heh, who knew I would be attracted to a billionaire? Love is truly blind!

    felipe (023cc9)

  39. AP: Appeals court seems wary of ordering dismissal of Flynn case

    WASHINGTON (AP) — A federal appeals court in Washington appeared inclined Tuesday to let a judge decide on his own whether to grant the Justice Department’s request to dismiss the criminal case against former Trump administration national security adviser Michael Flynn.

    Multiple members of the Washington court expressed skepticism at arguments from the Justice Department and Flynn’s attorneys that a judge was not empowered to probe the motives behind the government’s decision to abandon the prosecution of Flynn, who pleaded guilty as part of the special counsel’s investigation into the Trump campaign and Russia to lying to the FBI.

    The nearly four hours of arguments were the latest step in a long-running legal saga that has prompted an extraordinary power struggle between the executive and judicial branches. The case will almost certainly persist for months if the court rejects Flynn’s efforts to get a speedy dismissal and returns it to U.S. District Judge Emmet Sullivan, who refused to immediately grant the department’s request to drop the prosecution.

    Always trust content from … I don’t really have to say this again, do I?

    :-)

    Dave (1bb933)

  40. This appeal is about what leave of court means in a Rule 48(a) dismissal. Patterico’s post is making that point: Must the Court dismiss even if there are questions about what is going on between the prosecutors and the defendant?

    The DOJ and Flynn say Yes, probably because they see 48(a) as a rule designed to protect defendants from overzealous prosecutors but not to protect the public interest if the prosecution and defendant are engaged in collusion, bribery, undue influence, etc. But there are other views that agree with the argument Patterico has made from the start. This is exactly the kind of case Rule 48(a) was designed to address, and the appeals court can start the process of fixing this now.

    DRJ (aede82)

  41. By the way, defendants who are being targeted by overzealous prosecutors have always been able to ask a court for protection. It might be expensive, time-consuming, and an uphill battle but there is a remedy in court. A prosecution-defense bargain based on collusion, bribery or undue political/government influence has no remedy unless the leave of court requirement is interpreted to provide court oversight.

    DRJ (aede82)

  42. The prosecutors argue the remedy is to charge a new crime, and that is one way to deal with this. But it also means the original crime goes unpunished and the corrupt prosecution-defense bargain was successful. That is not justice.

    DRJ (aede82)

  43. Judges are deciding a separation of powers issue involving the judicial branch. Seems kosher.

    Blind hogs and acorns. Hint: Not all small, oval things are acorns.

    Yes, the Court of Appeals is deciding a separation of powers issue, but it’s their power over the discretion Congress granted a District judge. Courts of appeal are not the bosses of trial judges. They are more like quality control supervisors. Their job is to decide whether Sullivan’s actions are according to Congressional specifications. Not to substitute their judgment for his.

    nk (1d9030)

  44. OT

    What do you think of this?

    “After a remote proceeding Wednesday in Santa Barbara County Superior Court, triple-murder suspect Pierre Haobsh’s defense lawyers now have an upcoming meeting via Zoom with their client amid the COVID-19 pandemic.

    Pierre Haobsh
    Haobsh, 30, of Oceanside is accused of murdering Dr. Weidong “Henry” Han, 57, founder of the Santa Barbara Herb Clinic; his wife, Huijie “Jennie” Yu, 29; and the couple’s 5-year-old daughter, Emily.

    The victims’ bodies were found wrapped in plastic and duct-taped in the garage of their Goleta-area home on March 23, 2016.

    According to the Coroner’s Office, autopsies determined that all three died from gunshots to the head.”

    I think everyone should show up in person. Its not like there are so many people involved that you can’t stay 6 feet apart and wear masks

    steveg (43b7a5)


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