D.C. Circuit Decides to Hear Michael Flynn Case En Banc
This likely means a reversal. WaPo:
A federal appeals court in Washington will take a second look at a judge’s effort to scrutinize the Justice Department’s decision to drop its case against President Trump’s former national security adviser Michael Flynn.
The full U.S. Court of Appeals for the D.C. Circuit agreed Thursday to revisit U.S. District Judge Emmet G. Sullivan’s plan to examine the politically charged matter, reviving the unusual case testing the limits of the judiciary’s power to check the executive branch.
The court’s brief order set oral arguments for Aug. 11. The decision to rehear the case before a full complement of judges wipes out the June ruling from a three-judge panel that ordered Sullivan to immediately dismiss the case and said Sullivan was wrong to appoint a retired federal judge to argue against the government’s move to undo Flynn’s guilty plea.
Here is the court’s order:
Break: DC Circuit will rehear Michael Flynn case as full court, per new order pic.twitter.com/uatExzgeFQ
— Mike Scarcella (@MikeScarcella) July 30, 2020
Always trust content from Patterico!
Well, er … maybe not always. After all, I did blow the original call on the panel decision after hearing the oral arguments. Judge Henderson, whom I initially had pegged as a partisan hack, did a bait and switch at oral argument making her sound like a vote to deny Flynn’s petition. The day the decision came out, I acknowledged my poor prediction, and showed that I had learned nothing by turning right around and issuing another one in the very same post:
I should have stayed out of the prediction business with this panel decision, and I should not be making further predictions on the case, but here is my prediction on the case. The full court will stay this order, rehear the case en banc, and reverse the decision.
So far I am two for three, and today’s order (especially the wording of the order) seems like a pretty strong indication that I will go three for three (making my total average three for four, since I blew the panel decision prediction, but a .750 batting average will get you millions in the major leagues. OK, OK, I’ll stop making it about me. No, wait, I need to quote myself just one more time).
On June 24, I wrote a post titled Court Decision Favoring Flynn Is Dishonesty of the Sort We Have Not Seen Since Impeachment, in which took apart Judge Rao’s majority opinion, saying this:
Judge Rao’s opinion is an absolute travesty — a collection of dishonest rhetorical moves that are unworthy of an Article III judge sitting on one of the most prestigious federal appellate courts in the nation. Judge Rao and Judge Henderson should be ashamed of themselves, and I hope they get slapped down by the en banc court as they so richly deserve to be.
I stand by that analysis.
So what about the wording of today’s order suggests a likely reversal?
As I said in a post addressing the crowd who thought Rao’s order was the bee’s knees because SePeRaShuN uV pOwERz, mandamus relief “is obviously not available for technical reasons having to do with who is injured and alternative means of addressing any injury.” And what does the court’s order above ask the parties to focus on? Why, it says this: “The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.” That is the issue on which the full court will reverse the panel, and it is the same point I identified in June (and it’s not like I’m a legal genius for identifying it; it’s obvious if you have followed this at all).
People need to keep in mind that in the current posture, the court is still addressing a narrow and very clear issue: should the D.C. Circuit have intervened before Judge Sullivan even had a chance to rule? This is an easy question to answer if you’re not blinded by partisanship: of course not! But the resolution to that question does not mean that Judge Sullivan could get away with denying the Government’s motion to dismiss … or even, necessarily, that he is going to try.
All an en banc reversal would mean at this stage is that Judge Sullivan would get a chance to do the job assigned to him under Rule 48(a) of the Federal Rules of Criminal Procedure, and determine whether there is an adequate basis to grant leave of court to dismiss the case.
Me, I don’t think there is. I think he should deny the motion. But my view is distinctly in the minority, and I really have no idea what Judge Sullivan will do.
But at this point it seems increasingly clear that it’s going to be up to him in the first instance. And that is a Very Good Thing for the usual application of the rule of law.
Hooray for a return to sanity! Let’s continue it on November 3! (Not later, Mr. Trump. November 3.)
Patterico (115b1f) — 7/30/2020 @ 5:49 pmWrong decision, but expected. I’ve given up on leftists on the court ever voting for anything other than their own political preferences, rule of law be damned.
NJRob (eb56c3) — 7/30/2020 @ 5:57 pm2… yes, agreed.
Colonel Haiku (2601c0) — 7/30/2020 @ 6:01 pmAgreed. It was a brief order, but it still contained the part about “no other adequate means to attain the relief”. As I see it, it’s a clear signal that Flynn does have adequate means for relief and that Barr/Powell need to come up with a compelling argument to change their minds. I think it also means that they’re going to judicially spank Henderson and Rao, with Rao getting most of the swats.
Paul Montagu (1ef895) — 7/30/2020 @ 6:06 pmHow is it wrong, NJRob and Colonel Haiku? I mean, other than going against your preferred politics, do you have an argument that addresses the relevant questions, like the elements of mandamus relief, and how the question asked by the court should be answered?
Patterico (115b1f) — 7/30/2020 @ 6:12 pmI just think it means they didn’t like Rao’s legal analysis and they don’t want it standing as precedent from their court. This is the DC Circuit a/k/a the Federal Circuit, one judge below the Supreme Court, dealing with mostly government law, and the law on the issue as left by Fokker and Rinaldi could use some tightening up.
nk (1d9030) — 7/30/2020 @ 6:14 pmMy opinion based on the track record of leftist judges and that there is no dispute between the 2 parties at hand (prosecution and defense).
NJRob (eb56c3) — 7/30/2020 @ 6:20 pmHow does that legally justify mandamus relief, given that one of the elements of mandamus relief is that there is no other adequate way to obtain the remedy, and the parties have no idea what Sullivan will do? I understand you have your suspicions based on the amicus brief, but Sullivan has rejected opinions of amici before and it’s a plain violation of the mandamus standard to interfere when a) the rule calls for leave of court and b) the trial court might well grant the relief requested?
It seems to me your opinion is a political one and not a legal one. You’re entitled to your opinion but these are judges of the law, not politics. And if you want to argue with me about that and argue that they are merely being political, then you have to have a legal argument to make or your complaint rings hollow, and sounds like *you* are the one being political about a legal issue.
So what is your legal argument on the narrow issue of mandamus? The fact that the parties have no dispute doesn’t answer the question. If Flynn had bribed Barr, the two parties would have no dispute.
Patterico (115b1f) — 7/30/2020 @ 6:25 pmI totally agree with this. Having this mandamus precedent on the books — a piece of partisan hackwork designed to please a President — would introduce chaos into the mandamus procedure in that Circuit. There is no way they let that stand.
Patterico (115b1f) — 7/30/2020 @ 6:27 pmI don’t understand how a judge can take up an issue that the prosecution refuses to prosecute. But then, I’m not a lawyer. So there’s that.
Gryph (76a0c3) — 7/30/2020 @ 6:30 pmI’m not arguing with you. You’re trying to debate me and I’m not debating. I offered my opinion based on a political analysis not a legal one.
NJRob (eb56c3) — 7/30/2020 @ 6:34 pmI think the fact that the defendant confessed their guilt in open court and was awaiting sentencing has something to do with it.
Dave (1bb933) — 7/30/2020 @ 6:35 pm12. So? Judges still don’t prosecute. It’s not their role in the adversarial justice system. You have a long row to hoe to change my mind.
Gryph (76a0c3) — 7/30/2020 @ 6:37 pmWhy did the judge who took the plea, recuse afterwards.
Narciso (7404b5) — 7/30/2020 @ 6:38 pmAs I understand it, the prosecution’s role is to establish the guilt of the accused.
That having been done (he told the world, under oath, in court, that he was guilty) the judge passes sentence and the prosecution’s role is advisory.
And indeed, the present litigation is the result of the judge wishing to gather information before agreeing to the prosecutor’s recommendation.
Since lawyers are involved, it’s probably not quite that simple, but in the eyes of the law Flynn is currently guilty of the crime(s) he confessed to, and prosecutors – by themselves – don’t have the power to pardon convicts.
Dave (1bb933) — 7/30/2020 @ 6:55 pmOK. It’s a legal case in a court of law.
Patterico (115b1f) — 7/30/2020 @ 6:56 pmNo one here would like it if we built building based on politics instead of engineering. I know some people feel like the law is a game but refusing to fix this makes that even more like a game.
DRJ (aede82) — 7/30/2020 @ 7:02 pmOn its face, the order for rehearing Patterico posted seems to concern itself with the authority of the Court of Appeals to interfere interlocutarily (that’s a legal term for “put their own two cents in”) in a trial proceeding, but I hope that the decision, whichever way it comes out, will also provide guidance to future trial courts on the breadth of their discretion in Rule 48(a) cases. That would make it a useful precedent.
nk (1d9030) — 7/30/2020 @ 7:03 pm*interlocutorily” with an “o” not an “a” (and I’m still not sure it’s a word)
nk (1d9030) — 7/30/2020 @ 7:05 pmJudges ruling in favor of a judge. How unexpected.
beer ‘n pretzels (7eab0c) — 7/30/2020 @ 7:12 pmWith all respect, when you go to a law school, you learn court opinions, not law. The law can be twisted into a pretzel, and has been, as long as it serves a judge’s purpose. And that’s from the very beginning, i.e. Marbury v Madison.
NJRob (eb56c3) — 7/30/2020 @ 7:24 pmFrom what I’ve read everything Sullivan is doing is unprecedented or highly unusual. He’s appealing a 3 panel judge decision. but he’s not the prosecution or the defense, he’s the judge! Why is that even permitted? Why did he hire someone to make the case for indicting Flynn for perjury? The issue seems to be clear that under the current case law, Sullivan has no right given the facts of the case to keep the court case going or sentence Flynn when DoJ says the trial is over.
So what is he trying to accomplish? other than hurt flynn? what is the appeals court (full court) trying to accomplish? Sullivan is off on some kooky vendetta or something and the appeals court wants it to continue.
rcocean (fcc23e) — 7/30/2020 @ 7:26 pmWe have seen the 4 leftist judges on the highest court make a mockery of the legal world with their decisions, either in the majority or minority. To claim that it is law is to claim the Emperor is wearing clothes.
Look at Obergefell v Hodges for a recent example.
NJRob (eb56c3) — 7/30/2020 @ 7:26 pmThe face of it, the prosecutors lied, in their presentation to judge contreras, its taken 3 1/2 years to get to the truth
Narciso (7404b5) — 7/30/2020 @ 7:29 pmWhy anyone except the legal beagles would think this is a good thing is beyond me. We get involved in this legal mumbo-jumbo and lose sight of the fact that the trial is over. Flynn never should have been prosecuted, and its time to wrap this circus up. This whole thing has been a travesty. Any Democrat would be home celebrating, but because we have left-wing Democrat judges and a Trump appointee, this must go on and on and on.
rcocean (fcc23e) — 7/30/2020 @ 7:29 pmExactly. the 4 leftists constantly vote as a bloc and you can forecast how they are going to vote based on their left-wing politics. The other 3 could just go on a permanent vacation and let Kagan cast 4 votes instead of one. Its a clown show, like so much of the Federal judiciary. but the D’s obviously love it, and you can never get the R’s to do anything about it, because they won’t do ANYTHING unless the Chamber of Commerce pays them off.
rcocean (fcc23e) — 7/30/2020 @ 7:33 pmDifferent law schools teach in different ways but many use the Socratic Method which helps students understand, think about, analyze and discuss legal concepts. In general, students state a legal issue, principle or concept; the professor uses questions to pinpoint exceptions: and that information enables the student to better define/refine the legal concept. We do that here in our discussions.
DRJ (aede82) — 7/30/2020 @ 7:35 pmTrump gives you enough doggie treats. You don’t need the courts doing it too. You’ll get too fat, and that’s not good for puppies.
nk (1d9030) — 7/30/2020 @ 7:36 pmWe all have a mindset that impacts how we see things. Some engineers are more cautious than others. Some lawyers see the law primarily as a method for social change and others see it as a method to resolve conflicts. And some doctors see abortion or euthanasia as morally wrong and some see them as proper care for their patients.
There are universal truths but not everything or everyone agrees on what they are.
DRJ (aede82) — 7/30/2020 @ 7:48 pmAlso, I know nk may be the only one who reads my comments. Thank you, nk.
DRJ (aede82) — 7/30/2020 @ 7:50 pmI love how the Dem-appointed justices are pilloried for allegedly voting en bloc, and in the next sentence, the Repub-appointed justices are pilloried for not voting en bloc.
Situational ethics FTW!
By the way, you are wrong about the Dem-appointed justices always voting together. They do it more than the Republican-appointed ones:
There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.
Dave (1bb933) — 7/30/2020 @ 7:50 pmOops, clicked send too soon on that last one
Here is the link, which is from last September
https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/
Also, since there are five Republican-appointed justices, and only four Democrats, a better measure would be how many times Thomas, Alito, Gorsuch and Kavanaugh voted together vs. how many times Ginsberg, Breyer, Sotomayor and Kagan vote together.
Dave (1bb933) — 7/30/2020 @ 7:54 pmThis sounds like the mother that was willing to cut her baby in half. I know it’s not what you intend, but the way you give equivalency to both sides makes it appear that way. There is such a thing as right and wrong.
NJRob (eb56c3) — 7/30/2020 @ 7:54 pmSo you are admitting we can predict the 4 leftists votes in lockstep based on politics and not law. Thanks.
NJRob (eb56c3) — 7/30/2020 @ 7:56 pmFWIW I am fairly certain Judge Henderson was opposed but changed her mind during rebuttal, when the government lawyer argued that this was the only way to let the government correct its prosecution mistakes. She seemed to do a 180 at that point, and you could tell from the way the government lawyer focused on it that he thought she had switched. So you were almost 4 for 4.
DRJ (aede82) — 7/30/2020 @ 7:56 pmIs there any issue that is gray for you, NJRob? I appreciate your stand for principles but surely you understand that not everyone agrees.
DRJ (aede82) — 7/30/2020 @ 8:00 pmConservatives (all five of them) vote “in lockstep” 37/67 (55%) of the time.
The liberals (four of them) vote “in lockstep” 51/67 (76%) of the time.
But if we took any four of the conservatives, to get a number that can be compared directly with the four liberals, the percentage would mathematically *have* to be higher (closer to 76%).
Thus, the difference, if there is any, is not very significant.
Dave (1bb933) — 7/30/2020 @ 8:02 pmSince you get to flip a justice and play musical chairs, that’s a false equivalency. Just exclude the guy that votes leftist on most key votes (Roberts) and then do the math. It’s not hard.
NJRob (eb56c3) — 7/30/2020 @ 8:05 pmAlso, you need to look at the politicized cases. The ones “that matter” so to speak. The left votes in lockstep. The so called conservatives don’t, much to my and the Constitution’s chagrin.
NJRob (eb56c3) — 7/30/2020 @ 8:07 pmDRJ,
I’m sure there is. But not on issues of the Constitution and individual rights. Probably for the best that I went into finance and not law.
NJRob (eb56c3) — 7/30/2020 @ 8:08 pmI read them. I just got back from a long basketball game with my son.
Patterico (115b1f) — 7/30/2020 @ 8:17 pmI’d have to hear it again; I agree that seemed to give some insight into her (partisan) thinking but I thought she was the one who brought up the concept you’re referring to, in a question.
Patterico (115b1f) — 7/30/2020 @ 8:19 pmAnd that concept has zero to do with mandamus, so if that concept (that the Government’s laughable reasons for its own 180 was a laudable attempt to undo an injustice) was what changed her mind, it reveals her to be even more political and goal-oriented than before.
Patterico (115b1f) — 7/30/2020 @ 8:21 pmMore mathematically, suppose any justice of a given ideological stripe (republican-nominated or democrat-nominated) has some probability to vote for with together with his/her peers.
If this probability, call it P, is the same for all conservative justices, and independent of other factors, then we can estimate it.
We assume the chance for any two randomly chosen conservative justices to agree is P.
The chance for three to agree is P^2. The chance for four to agree is P^3. And the chance for all five to agree is P^4.
We know that all five agree 55% of the time, hence:
0.55 = P^4
and P = 0.86
The same model can be applied to the four liberal justices. If the probability for two of them to agree is Q, the probability for all four to agree is Q^3.
We know that all four agree 76% of the time, hence:
0.76 = Q^3
and Q = 0.91
So the liberal justices – individually – are about 5% more likely to agree with each other.
This is obviously a naive model, but it demonstrates that the differences are not as dramatic as some want to suggest.
Dave (1bb933) — 7/30/2020 @ 8:21 pmThis is what I was thinking of:
DRJ (aede82) — 7/30/2020 @ 8:25 pmAlso, I know nk may be the only one who reads my comments. Thank you, nk.
It is, literally, my pleasure, DRJ.
nk (1d9030) — 7/30/2020 @ 8:27 pmI would like to see the Court address the reasons for requiring leave of court. Is it pro forma or are there cases where an inquiry is appropriate, especially if the case is like this where the “unrepresented” party is the public interest.
DRJ (aede82) — 7/30/2020 @ 8:30 pmI wasn’t fishing for compliments but thank you.
DRJ (aede82) — 7/30/2020 @ 8:32 pmDRJ, it’s my belief, expressed in a couple of previous posts, that the Supreme Court has suggested that a dismissal contrary to the public interest that is tainted with impropriety could be the basis of a denial of the motion.
The exact contours of this, however, are not clear.
Patterico (115b1f) — 7/30/2020 @ 8:37 pmUnfortunately, we seldom analyze cases here the way we were taught in law school. We are seldom coldly disinterested, unconcerned with the outcome, and applying the law to the facts. Which is okay, Patterico won’t flunk us. 😉
nk (1d9030) — 7/30/2020 @ 8:38 pmMy understanding of this issue came from reading your posts. (Thank you. It is nice to understand issues before they make the news.) As I read the summary of the oral argument, the government is especially keen to foreclose any inquiry that leads to discovery or questioning about the prosecution decisions. I understand why they feel that way, and I am being sincere. It would chill the process if every thought, comment, and idea were discoverable. But imo there is no other way to protect the public interest in fair proceedings.
DRJ (aede82) — 7/30/2020 @ 8:46 pmMy guess is the court will focus on the unusual fact pattern where the government and defendant agree to an unconditional dismissal. The court could grant the trial court more latitude in those cases because they are so rare, and usually involve defendants where there is evidence of innocence as opposed to guilt. Limiting a decision to those cases would not impact many other cases but would protect the public interest.
DRJ (aede82) — 7/30/2020 @ 8:50 pmStrzok had some sort of friendship with Contreras, which was revealed when the pillow-talk texts between Strzok and Page were brought to light. My guess is that Contreras chose caution and recused.
Paul Montagu (1ef895) — 7/30/2020 @ 8:54 pmThere is also the issue of dismissal with prejudice and whether that makes a difference.
DRJ (aede82) — 7/30/2020 @ 9:08 pmDRJ (aede82) — 7/30/2020 @ 7:50 pm
I always read you comments, DRJ. You are one of my favorite commenters.
felipe (023cc9) — 7/30/2020 @ 9:08 pmWell, thanks so much, felipe. Now I feel like a heel for saying that and I don’t feel unappreciated at all, but my contributions on legal topics are lightweight compared to Patterico, nk and others. They aren’t worth reading most of the time but bless you guys for acting like they are.
DRJ (aede82) — 7/30/2020 @ 9:14 pmAdd me to the DRJ fan-club.
Did Flynn become guilty (as far as the law is concerned) when he confessed, or is there some later step in the process where that would become official?
I assume it would be before sentencing, which I understood was pending.
In a jury trial, I guess it would be when the judge allows the jury’s verdict to be read.
Dave (1bb933) — 7/30/2020 @ 9:21 pmDRJ,
you treat people with respect and are fair and honest with your opinions. Not sure why you think those wouldn’t be read. I just figured you were being self-deprecating, but now I’m not sure. Yourself and JVW are two of the most enjoyable reads because you offer humility with your posts.
Yes I could learn from that. But I’m stubborn and grew up (and live) in a hostile environment.
NJRob (eb56c3) — 7/30/2020 @ 9:22 pmThere is also the issue of dismissal with prejudice and whether that makes a difference.
That really sticks in my craw, too, because it is neither in Rule 48(a) nor in its history.
nk (1d9030) — 7/30/2020 @ 9:27 pm22.
Flynn’s petition for mandamus makes the judge a party for purposes of that petition. But Sullivan’s standing happens to be irrelevant. The en banc court can and did take the matter up on its own initiative, irrespective of Sullivan’s participation.
Soliciting an amicus brief to make arguments the parties aren’t willing to is something courts do. SCOTUS did it in Seila Law.
I’d suggest reading more reliable sources, but that might take the fun out of it for you.
lurker (d8c5bc) — 7/30/2020 @ 9:33 pmYou know, we have the Jussie Smollett case in Chicago which is very similar. The State’s Attorney filed a 16-count indictment and then nolle prossed it (same thing as 48(a)). A private citizen (albeit a former judge) filed a petition in court for the appointment of a special prosecutor to reinstate the charges. It was granted, and Jussie is now a defendant again.
nk (1d9030) — 7/30/2020 @ 9:34 pmI also read and appreciate your comments, DRJ.
lurker (d8c5bc) — 7/30/2020 @ 9:34 pmI was being candid, NJRob. I try to help with the legal discussions but I am not as good a student of the law as people like Patterico, nk, Beldar, and others.
As for Flynn’s guilt, Dave, I think it is when he enters his guilty plea pursuant to Rule 11 of the Federal Rules of Criminal Procedure:
I think Flynn did this twice.
DRJ (aede82) — 7/30/2020 @ 9:35 pmThe Smollet case is similar and I bet most people here can see why letting the State dismiss charges in that case is troublesome.
DRJ (aede82) — 7/30/2020 @ 9:39 pmDRJ, at 30, I’m finding this conversation quite interesting because of your part in it.
Dave, at 32: I occasionally find it amusing that the last time the Supreme Court had a majority of Justices appointed by a Democrat was during the *Johnson* administration.
DRJ, at 36, in an odd way I think this is a debate between different principles. I see the defense of *legal consistency* as being an important principle in and of itself — without it the law becomes arbitrary and capricious and a tool for tyranny.
aphrael (f63619) — 7/30/2020 @ 9:40 pmRule 11 also governs withdrawal of a guilty plea prior to sentencing. Flynn has asked to do that.
DRJ (aede82) — 7/30/2020 @ 9:45 pmaphrael, you are another lawyer who always adds a good comment on legal issues.
DRJ (aede82) — 7/30/2020 @ 9:47 pmDRJ, i’m absolutely certain that I should know the answer to this and have forgotten it, for which I apologize, and were you not a lawyer before you retired? I ask because I usually assume you are, and there’s something about the combination of #67 and the way you appear (to me) to be undervaluing your contribution which suggests to me that maybe I’m wrong and you weren’t.
I will also say this — I very much hope you (or anyone) found a path through life that you were happy with, or at the very least found contentment with it, and from what I know of you, I very much believe that you have. And yet at the same time, if you weren’t a lawyer, it was a great loss for the profession, and possibly (depending on what it gained as a result of the way you did spend your professional life) a great loss for Texas.
aphrael (f63619) — 7/30/2020 @ 11:59 pmI was a practicing lawyer years ago but I went inactive to care for a disabled child, so my legal knowledge is dated.
DRJ (aede82) — 7/31/2020 @ 12:44 amWe have set up a system where the left never gets charged, and the right is consistently under attack this has been true since the 90s.
Narciso (7404b5) — 7/31/2020 @ 5:28 amAnd they knew about nasser as well
https://mobile.twitter.com/Techno_Fog/status/1289028705818480642
Narciso (7404b5) — 7/31/2020 @ 5:36 amThis is silly.
John Edward was charged with the same crime as Cohen, but they Jury acquitted him.
Time123 (53ef45) — 7/31/2020 @ 5:56 amBill had the whitewater investigation for most of his presidency, and was impeached after Ken Star caught him in a perjury trap. (I think the investigation and impeachment was correct FWIW)
Obama specifically didn’t do any investigations of the Bush administration.
The Director of the FBI made a very damaging announcement about Hillary Clinton right before the election, it’s likely that it harmed her.
After 3 years of Trump Rule the DOJ hasn’t provided any charges against her for mishandling classified information. At this point you have to conclude that the evidence doesn’t support the accusation that have been made.
DRJ, I read your comments, but rarely have much to add or disagree with so I don’t say anything.
Time123 (53ef45) — 7/31/2020 @ 5:57 amA comedy in 3 acts
Act 1
Act 2
Act 3
Time123 (53ef45) — 7/31/2020 @ 6:00 amRegarding the topic of the post. IANAL but it makes sense to me that a rule put in place for situations where all other remedies are exhausted should only apply once all other remedies are exhausted.
As far as the merits go, he lied to the FBI, he admitted that several times and had he followed through on his commitments this would be over.
Time123 (53ef45) — 7/31/2020 @ 6:04 amYou preach “rule of law” but you are very disrespectful of judicial decisions you disagree with using terms like hack and dishonest. Your respect for the rule of law is extremely haphazard.
1DaveMac (16cd0f) — 7/31/2020 @ 6:25 amJohn edwards is a wart on a toad johnny depp licked in his hunter thompson film, no one gives a farthing about him.
Narciso (7404b5) — 7/31/2020 @ 6:47 am#60 As usual, people don’t address the point being made. You offer justification for Sullivan’s crazed behavior. The point is this is highly usual and/or unprecedented. The fact that you can go through your law books and find one or two SOMEWHAT SIMILAR cases doesn’t change that. You also don’t address his demanding an en blanc hearing after the 3 judge panel turned him down. Why did he do that? He’s the judge. He has NO skin in the game. But like I said, he has some crazed hatred of Flynn – who he described as a “Traitor”. He should’ve been pulled from the case.
rcocean (2e1c02) — 7/31/2020 @ 7:08 amThe process is the punishment,
Narciso (7404b5) — 7/31/2020 @ 7:12 amAs for the discussion upthread about The Liberals voting as a bloc. As usual, the Left can only come back with “well, everyone does it”. No they don’t. There hasn’t been a single IMPORTANT case, where Kagan, Ginsberg, Breyer, or Sotomayor has broken from the Liberal bloc and been the deciding vote for the “Conservative” decision. There have been a few cases, where Breyer and Kagan have broken off and voted with the 5 conservatives. But guess what? That was only AFTER they knew they were going to lose and they almost wrote a separate concurrence stating they were only agreeing for narrow legalistic reasons and were trying to minimize the impact.
unlike the conservative justices, the liberal bloc is results orientated. They have no judicial philosophy except advancement of the Liberal/left agenda through judicial activism.
rcocean (2e1c02) — 7/31/2020 @ 7:15 am1. It’s unusual, but not unprecedented.
Time123 (af99e9) — 7/31/2020 @ 7:24 am2. He’s a party to the case. That gives him skin in the game.
3. Your description of ‘crazed hatred’ is melodramatic. Also, developing an opinion of the defendant based on information revealed through judicial proceedings doesn’t seem unjust.
4. He asked for an en banc hearing because he felt the 3 judge panel got it wrong, and he’s a named party in the case.
5. You don’t care about any of this. You just know that Flynn is part of your team so you want good things to happen to him. You have no principle beyond tribalism.
He’s a counter point to your assertion.
Time123 (af99e9) — 7/31/2020 @ 7:25 amWhere’s the comedy? Our court system has become a tragedy of the commons, but not a comedy. Faith in the institution has crumbled because the ends have overtaken the means.
NJRob (eb56c3) — 7/31/2020 @ 7:25 amAs far as the merits go, he lied to the FBI, he admitted that several times and had he followed through on his commitments this would be over.
It actually is over already, except that Sullivan wants to play prosecutor.
Defendants withdraw guilty pleas, and innocent people plead guilty. Defendants convicted by a jury of peers and sentenced have their convictions withdrawn by the same prosecutors that convicted them. Prosecutors drop slam dunk cases. You act as if this never happens.
I guess what we’re learning is that you can’t make law enforcement do what it doesn’t want to do, whether it’s Flynn, Smollet, a mob given free reign to destroy a federal building, HRC, a deputy director “lacking candor”, a senior administration official who leaks classified information, etc….
But, Flynn somehow is where we put our foot down.
beer ‘n pretzels (273645) — 7/31/2020 @ 7:31 amHes the nail that stands upright, that should teach him a lesson.
Narciso (7404b5) — 7/31/2020 @ 7:34 amThe Lincoln Project’s latest video has a Trump voter waking up from a 3.5 year coma.
His family attempts to answer the question: “Did I miss anything interesting?”
“Wake Up”
Dave (1bb933) — 7/31/2020 @ 7:41 amIt was funny (to me at least) that your opening comment was
-It’s sad that Courts only care about politics and not law.
Patterico responded
-What do you think of the law
You concluded
-I’m not making a legal argument, I’m making a political argument.
Obviously I’m summarizing here and if I’m characterizing your point incorrectly it’s not intentional.
I don’t agree with you that the ends have overtaken the means in our courts. I think there’s ample room to improve, but I notice that the Pro-Trump conservatives make a lot wild claims that end up not going anywhere and use the lack to results as proof that courts are corrupt, instead of as evidence that the initial claims aren’t supported by the available evidence.
Time123 (af99e9) — 7/31/2020 @ 7:50 amYou need to hop on the grievance train, Time123!
Dave (1bb933) — 7/31/2020 @ 7:55 amKnocking on a deaf man’s door will do you just as much good as trying to rationally discuss Flynn’s case with Trumpkins.
nk (1d9030) — 7/31/2020 @ 8:02 amFree Jussie!
nk (1d9030) — 7/31/2020 @ 8:04 amTime123,
I wasn’t going to get into the weeds in a legal discussion when we know it doesn’t matter and that the courts will find whatever they need to justify their decision when it comes to a political question. I believe that the Constitution is inherently conservative, which is why I don’t need to claim the Constitution is “living” to conform to my beliefs.
NJRob (eb56c3) — 7/31/2020 @ 8:04 amJussie filled a false report and abused police assets, just like the FBI did. You’re right nk, lots in common.
NJRob (eb56c3) — 7/31/2020 @ 8:06 amI notice that
the Pro-Trump conservativesTrump critics make a lot wild claims that end up not going anywhere and use the lack to results as proof thatcourts arethe DOJ is corrupt…what you meant to say
beer ‘n pretzels (888d61) — 7/31/2020 @ 8:09 amThere is no such creature as a “Pro-Trump conservative”. It’s like “dry water”. A meaningless phrase.
nk (1d9030) — 7/31/2020 @ 8:24 amAt least we agree about Barr.
Dave (1bb933) — 7/31/2020 @ 8:28 am@95. … about Barr.
Reagan Seed.
____
94.There is no such creature as a “Pro-Trump conservative”.
Perhaps; but Kavanaugh and Gorsuch are likely thankful.
DCSCA (797bc0) — 7/31/2020 @ 8:40 am@69. You’re an angel.
DCSCA (797bc0) — 7/31/2020 @ 8:42 amApparently everyone is a Reagan seed….which means the phrase likely has no meaning
AJ_Liberty (ec7f74) — 7/31/2020 @ 8:44 amTrump Trash.
Dave (1bb933) — 7/31/2020 @ 8:45 am@99. One in the same; you’re catching on.
DCSCA (797bc0) — 7/31/2020 @ 8:55 am98. Except it does; as you sow, so shall you reap. Deal w/it; ‘denial’ is a river in Egypt.
DCSCA (797bc0) — 7/31/2020 @ 8:57 amA Flynn re-do is make-work; the dude will be pardoned, a la Stone.
DCSCA (797bc0) — 7/31/2020 @ 9:00 am^102. commuted… whatever… the fish will get off the hook, a la Trump.
DCSCA (797bc0) — 7/31/2020 @ 9:02 amBiden is you, Deezy-Eska.
And on January 20, he will take office, plagiarize every word you’ve ever cared about and laugh at you while gently caressing the hair of your closest living female relative.
Deal w/it;’delaware’ is a river in Delaware.
Dave (1bb933) — 7/31/2020 @ 9:05 am> I was a practicing lawyer years ago but I went inactive to care for a disabled child, so my legal knowledge is dated.
DRJ,
aha! that makes a lot of sense, and is a very good reason to have gone inactive.
knowledge may be dated. skill isn’t. 🙂
aphrael (f63619) — 7/31/2020 @ 9:05 amNor is wisdom.
Dave (1bb933) — 7/31/2020 @ 9:09 amIf you can prove a judge is dishonest, you can file an ethics complaint with the bar association. Surely an ethical legal profession would disbar a dishonest judge. If you can’t prove it, then you may be bearing false witness.
1DaveMac (16cd0f) — 7/31/2020 @ 9:20 amAny judge that votes to uphold Roe is a dishonest judge. It’s no different than upholding Dred Scott or Plessy.
NJRob (eb56c3) — 7/31/2020 @ 9:36 am“as you sow, so shall you reap….‘denial’ is a river in Egypt”
Again…Trump as politician….has nothing to do with Reagan’s political philosophy or strategy. I would wager that….like Bush I and II….Reagan would be aghast about Trump. It’s also unsupported that economic deregulation….implies some sort of political deregulation….where all rules/norms are abandoned. Your proof is woefully inadequate….your proof starts with QED rather than ending with it.
Also, Trump has become a Rorschach….where people project whatever there bugaboo is…. I was told we got Trump because of Obama and his excesses….or because McCain/Romney were losers….or because Hillary was evil…and so we needed a real fighter….an outsider. You just want to find some tenuous link to Reaganomics….as if Trump couldn’t have run for President (earlier) as a New York City pro-choice pro-infrastructure-spending Democrat.
My two cents is that Trump emerged because FNC, Talk Radio, and Evangelical Leaders chose not to quash him early….because…as you rightly observe…..the country is more about entertainment than being serious. You can’t scare people daily about Obama and liberals….and not expect a demagogue to follow suit…..Trump took Talk Radio’s formula…then amplified and marketed it
AJ_Liberty (ec7f74) — 7/31/2020 @ 9:41 amThis is hardly surprising, given the way that Obama packed this court.
Kevin M (ab1c11) — 7/31/2020 @ 9:56 amHad it been Trump that packed the circuit and the decision had gone the other way, the complaints would be loud and strident. I expect that the court will pay some attention to the actual case, but there is a thumb on the scale that may be decisive.
Kevin M (ab1c11) — 7/31/2020 @ 9:59 am#108 Dishonesty is deliberate and done with knowledge. Individuals can make arguments based on premises that are in dispute with the parties honestly believing that their interpretation is the correct one. When you starting using terms like dishonest, hack, never trumper or Trump hamper, you are showing yourself to be no better than the person you are accusing.
1DaveMac (16cd0f) — 7/31/2020 @ 10:01 amThis is a fair POV. I don’t agree with it, but I understand where you’re coming from.
Time123 (457a1d) — 7/31/2020 @ 10:03 amOK. It’s a legal case in a court of law.
And, as we all know, judges are never swayed by politics or public opinion. Except for the hacks that disagree with me.
Kevin M (ab1c11) — 7/31/2020 @ 10:05 amThe phoniest of phony bastards… https://twitter.com/thecjpearson/status/1286101415241318401
Colonel Haiku (2601c0) — 7/31/2020 @ 10:15 amWhoops, wrong link… https://www.realclearpolitics.com/video/2020/07/30/tucker_carlson_obama_pouring_gasoline_while_country_falling_apart_due_to_racial_strife.html
Colonel Haiku (2601c0) — 7/31/2020 @ 10:17 amNah. Not going to play by Queensberry rules while dealing with those throwing mud and low blows. Roe is an abomination and must be stricken for our courts to heal.
NJRob (eb56c3) — 7/31/2020 @ 10:33 amSure – but part of the point is to force Trump to actually pay the political/reputational price, rather than whitewashing Flynn’s criminal conduct by perverting DOJ.
(Not That) Bill O'Reilly (6bb12a) — 7/31/2020 @ 10:46 am204. No, Davey. Not a documented PLAGIARIST like JoeyBee. But I’ve caught one– and got hiz ass fired from CBS.
DCSCA (797bc0) — 7/31/2020 @ 11:30 am^104.
DCSCA (797bc0) — 7/31/2020 @ 11:31 am@118. Sure – but part of the point is to force Trump to actually pay the political/reputational price, rather than whitewashing Flynn’s criminal conduct by perverting DOJ.
Trump pay a political/reputational price???
Are you high?
He’s been outed repeatedly as a philanderer, a cheapskate, a dubious deal maker; a tax chiseler, a sexist; a racist; a liar; been impeached, been insulted, been spray-tanned, slandered as a Russian agent and a capitalist pig. Yes, he’s as American as apple pie… 75%-plus of which are white voters tired of seeing angry blacks on their TeeVees every night. Term 2 outta draw some yuuuuuge ratings!
… and ‘The Silent Majority’ smiled.
DCSCA (797bc0) — 7/31/2020 @ 11:43 amBut under our system — both our legal system and our federal representative democracy — that must be done in the right way. It isn’t a matter of being polite or playing partisan games. Courts have rules and unless Roe v Wade is overruled by the Supreme Court, lower courts have to abide by it.
IMO the answer to problems with overreaching courts and Presidents is for Congress to do its job instead of caving into partisanship, power and attention. The only way to make that happen may be a credible third party.
DRJ (aede82) — 7/31/2020 @ 12:30 pmThis used to be a place where we talked about ways to improve the law. That still happens but many have soured on the legal system. Efforts to address improvements don’t get much discussion, which was at the heart of my pity party yesterday. I get the frustration, especially with the big social conservative issues, but I don’t understand giving up on the law. The alternative to law is brute force. As we saw in St Louis, even gated communities and AR-15s can’t protect us if brute force is the rule.
DRJ (aede82) — 7/31/2020 @ 12:48 pmI agree Trump will happily look awful to change a headline. He pinned a tweet about cancelling the election. He wants to be hated and garner attention.
It’s no slander to call him a russian agent though. Those who support him at this point, they don’t understand or they don’t care about the things I care about.
Dustin (4237e0) — 7/31/2020 @ 1:09 pmAnd, perhaps most damningly of all, he’s got YOUR vote locked up.
Dave (1bb933) — 7/31/2020 @ 1:15 pm@125. Temporary inconvenience; permanent improvement: the objective is to neuter the modern ideological conservative movement.
Welcome to 1964.
Glorious.
DCSCA (797bc0) — 7/31/2020 @ 1:19 pmDCSCA,
You explained your Trump admiration as support for a pragmatist but that has fallen apart now that we see Trump doesn’t have a clue about government or pragmatism. You have also said Trump attracts support because people want to be entertained, not governed.
You’ve worked in the media and advertising. Isn’t being entertained part of your value system, not ours? Have Trump or his family/businesses ever helped pay your salary?
DRJ (aede82) — 7/31/2020 @ 1:31 pm#123. A worthy goal indeed, but the American Bar Association has become a political organization and reform will be impossible as long as the legal profession is unwilling to reform itself. The rule of law does not exist. The rule of raw political power through the use of the legal system is what we have now.
1DaveMac (16cd0f) — 7/31/2020 @ 1:36 pmPolitics is war by other means.
1DaveMac (16cd0f) — 7/31/2020 @ 1:37 pm“I get the frustration, especially with the big social conservative issues, but I don’t understand giving up on the law.”
Unfortunately most people don’t understand that judges and justices aren’t simply making things up (most of the time)….and that there can be strong compelling arguments on both sides….everything is assumed political because it takes some work to understand what level of generality a justice is working at….how he/she is trying to resolve a conflict….and what motivates the approach used. Most people just stop at….does this fit with my ideology. Trump doesn’t help with this lazy thinking…..
AJ_Liberty (ec7f74) — 7/31/2020 @ 1:38 pm128.
My impression is that many people here agree with you. Not much point commenting on law, is there?
DRJ (aede82) — 7/31/2020 @ 1:40 pmWe all want justice.
All of Trump’s fans, who think Flynn got a raw deal. They want justice.
All of Trump’s critics, who think Flynn was corrupt, they want justice too.
And we don’t really understand this process where a defendant cancels a guilty plea while the prosecution, who has been replaced by the defendant’s pal the president, tries to stop the case. It’s complicated and while nk’s Chicago example shows not unique, it’s hard for the peasants like me to understand what’s next.
Honestly, I didn’t even understand if Sullivan had standing. Even the smart set here, the lawyers, the posters, they have predicted this case with mixed results.
My point: we all want justice and we all lack faith, in different degrees, that the process will bring us justice. So we seek an alternative path to justice. Fortunately we’ve got an election coming up, which is the most powerful relief valve in this situation.
But I am frustrated at how many ways people are losing faith that they can get justice from the system. 911 calls, bad cops, good cops, election integrity, it all seems to be in a haze.
Whatever the circuit does, they had better come up with a clear picture of what the rules are. Restore some predictability.
Dustin (4237e0) — 7/31/2020 @ 1:48 pmDRJ,
in my youth I held that viewpoint. But more and more I see that the law is only there to hold certain people to account.
Here’s another example:
https://hotair.com/headlines/archives/2020/07/appeals-court-vacates-dzhokhar-tsarnaevs-death-sentence/
NJRob (b51969) — 7/31/2020 @ 2:24 pmNarciso @70-
You also forgot Don Siegelman, convicted under dubious circumstances.
Rip Murdock (361788) — 7/31/2020 @ 2:31 pm#132 Justice and Morality are Subjective. The true rule of law would be neutral on these terms and allow a framework for working through these issues without putting it’s thumb on the scale.
1DaveMac (16cd0f) — 7/31/2020 @ 2:51 pm133… Simp-athy for Teh Devil, Rob.
Colonel Haiku (2601c0) — 7/31/2020 @ 2:52 pmand the t dawg was saved from the death penalty, isn’t that wonderful,
narciso (7404b5) — 7/31/2020 @ 2:56 pmhttps://legalinsurrection.com/2020/07/appeals-court-vacates-boston-marathon-bomber-death-penalty/
narciso (7404b5) — 7/31/2020 @ 3:00 pmOne major step at reform would be to sharply delineate the roles of the legislature vs judges and courts and limit the ability of the legal system to fix vague laws. If the legislature cannot write good law, through it out entirely and let the legislature attempt to clarify.
1DaveMac (16cd0f) — 7/31/2020 @ 3:02 pmForce the legislature to try to do their jobs. Don’t do it for them.
1DaveMac (16cd0f) — 7/31/2020 @ 3:08 pm@133: I’m sure the reversal had everything to do with the finer points of the law, honed by the Socratic Method, and nothing to do with the judges’ blanket opposition to the death penalty under any circumstance.
beer ‘n pretzels (aac2a1) — 7/31/2020 @ 3:15 pmIn the past, this would have been a place to discuss the appellate decision in the Boston bomber case — such as identifying the problem in the trial court that led to the appellate decision, clarifying that only the penalty phase will be retried, and noting that Tsarnaev could still get the death penalty. But why bother? The minds are made up here that justice is a lost cause and the law is useless.
DRJ (aede82) — 7/31/2020 @ 8:55 pmBecause its self evident he deserves the death penalty, and its equally clear general flynn deserves exoneration and teinstatement to the post he was forced out by subterfuge, one cannot be clearer.
Narciso (7404b5) — 7/31/2020 @ 9:00 pmBut the courts bend over backwards to excuse mccabes failings as head of counter terror division.
Narciso (7404b5) — 7/31/2020 @ 9:01 pmI looked it up and indeed Flynn is still a LT. General. That’s pretty amazing if you think about it.
Narciso, Flynn will have his day in court. We’re talking about a crime he did plea guilty to, where he would probably serve a week incarcerated, and even if you think he got a raw deal, his behavior and the level of responsibility and loyalty Americans expect of a three star general was clearly betrayed.
DRJ, my understanding is that a juror in the Tsnarnev trial was tweeting that he was a piece of garbage before his trial, and lied about that. It’s hard to see that as anything but a juror with an axe to grind taking full advantage to be involved in such a major case.
Do governments ever recover a nickel when they have to retry a case? Do jurors in these situations ever wind up in serious trouble? I don’t disagree with Narciso that this is a pretty clear death penalty, but I have no problem getting there the right way. A lot of times it’s the prosecutor who would try to avoid these kinds of pro-prosecution jurors just to save themselves from the appeal.
Dustin (4237e0) — 7/31/2020 @ 9:46 pmJust saw this at Hogewash….looks like the en banc court has sua sponte asked the parties to brief an additional issue…possibly other whether Judge Sullivan can or should be disqualified from the case? IANAL, however, so I may be reading too much into this.
https://hogewash.com/2020/08/07/an-interesting-question/
Jeff Lebowski (f903ff) — 8/7/2020 @ 7:34 amI found that i lost my ability to hear a few years ago, i miss it so much
Gonzalo Ackerman (59fa37) — 8/14/2020 @ 6:55 am