Reply With Quote
somebody call ducks, chrisbot needs repairing
yup
I’m not going to turn this article into an extended legal review of all the potentially relevant — in a tangential way — case law on federal rules which has come down in various Circuit Courts of Appeal over the last 100 years. There will be amicus briefs filed that will chart that path — maybe even Judge Gleeson will go down that road. But those who do will only be engaging in an exercise of legal sophistry and obfuscation because the answer to the question before Judge Sullivan is quite simple, and it was provided by the Court of Appeals for the DC Circuit just four years ago in its decision in the case of United States v. Fokker Services.
There will be efforts to “distinguish” Fokker — to say it’s not a sufficiently similar case to control the outcome here — and efforts to point to other decisions in the DC Circuit or other Circuit Courts of Appeal which point in a different direction for an answer to the Rule 48(a) question. But that’s all a distraction and a waste of time because Judge Sullivan cannot escape Fokker. A District Court judge in the District of Columbia is obligated to follow the rulings of the Circuit Court for DC — he does not have a choice. He cannot “dissent” and reach a decision based on his own views. He might not like or agree with the outcome that is dictated by the Fokker case, but in order to respect the oath of his office, he is duty-bound — bound by the Cons ution — to respect and apply the law as it is established by a court of a higher status than the Court he presides in.
There are four words in the language of Rule 48(a) that are the source of the consternation and controversy surrounding the DOJ motion to dismiss. In its entirety Rule 48(a) reads as follows:
Rule 48. Dismissal: (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
“Leave of court” simply means with the court’s permission — permission. But the combination of the two orders entered by Sullivan yesterday will result in the filing of literally thousands of pages of legal analysis as to what a court is en led to do in coming to a decision about whether to grant such permission.
I’ll state the answer first — what does the phrase mean? — and offer an overview of the cases which dictate what Sullivan’s final decision must be.
Q — What does “with leave of court” mean in the context of Rule 48(a)?
A — Nobody knows.
Source — Supreme Court of the United States. In Footnote 15 of its decision in Rinaldi v. United States, the Court said the following:
The words “leave of court” were inserted in Rule 48(a) without explanation.
The insertion of those words is one of those instances where Congress changed the language of a proposed rule — by inserting language that was not in the proposal sent by the Supreme Court — but provided no explanation or rationale for why, or the significance of the additional language. They are essentially a blank canvas upon which judges have provided their own meaning.
The Supreme Court’s 1977 decision in Rinaldi addressed the meaning of the language — but did not adopt a conclusive meaning because the Court decided such a meaning was not necessary to the outcome of the case.
DOJ’s motion relies on Rinaldi to support its position that Judge Sullivan has no meaningful discretion in deciding how he should rule on the motion to dismiss. In Rinaldi the defendant was convicted at trial. After the trial, the Department of Justice joined with the defendant in making a joint motion to dismiss the case on the basis that it had been brought by an individual prosecutor who misrepresented to the trial court his authority to do so. The defendant had been previously convicted in state court for the same conduct that cons uted the federal offense with which he was charged. Bringing the federal case in that situation violated a well-known DOJ policy, and when asked about that by the trial court, the prosecutor misrepresented to the Court that he had secured all the necessary approvals to file the case as an exception to the policy, when that was not true.
The defendant raised the issue of the policy violation in his appeal. The government agreed with the defendant before the appeals court, and the D.C. Court of Appeals remanded the case to the District Court for further consideration. On remand the government moved to dismiss the case pursuant to Rule 48(a) — the same rule that has been invoked in the DOJ Motion to Dismiss Gen. Flynn’s case. But the District Court in Rinaldi denied the motion because it had not been made before the defendant was convicted, and because of the prosecutor’s bad faith in misleading the court.
A divided D.C. Court of Appeals upheld the District Court’s denial of the Rule 48(a) motion by a vote of 7-6. The majority view was that the Government’s misconduct gave the District Court adequate reason to deny the motion, and that the defendant had no right to have an otherwise valid conviction dismissed simply because the Justice Department violated its own internal policy.
By a vote of 6-3, the Supreme Court reversed, and determined that the case must be dismissed. But opponents of Gen. Flynn — in the form of dozens of incoming amicus briefs and the briefing of Judge Gleeson — will likely seize upon other language in Footnote 15, specifically the following:
But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973).
The argument that has been advanced by the pundit class is that the dismissal is a political favor to Pres. Trump, therefore not in the interests of justice and thus “contrary to the public interest.” They will argue that the language of the footnote confirms that the district court can deny the motion based on a finding that the DOJ motion is improperly motivated.
But that is not actually what the Court said in Rinaldi, as the full text of the quoted footnote makes clear. The full text of Footnote 15 reads:
The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the cir stances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection…. But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest…. It is unnecessary to decide whether the court has discretion under these cir stances, since, even assuming it does, the result in this case remains the same.
(At the ellipses, I omitted internal case citations to lower court decisions.)
The bolded language states that the Supreme Court did not decide whether the “with leave of court” phrase in Rule 48(a) provides discretion to a district court to deny a motion made by the government on the basis that the district court finds — in its view — that granting the motion would be “contrary to the public interest.” As is the common practice of the Supreme Court, it opted to not address that question because doing so was not necessary to the decision in the case.
But if we turn to a more recent decision of the Court of Appeals for the DC Circuit — which are binding on Judge Sullivan — one case strongly supports the proposition that Judge Sullivan is not en led to evaluate the motives of a co-equal branch of government in making a charging decision — an issue that is uniquely within the authority of the Executive branch of government under our cons utional framework.
In 2016, the Court of Appeals for the DC Circuit decided the U.S. v. Fokker Services case finding that the district court judge committed reversible error in denying a joint request from the government and the defendant to “exclude time” under the Speedy Trial Act. The district court had denied the request because it disagreed with the charging decisions made by the government in the case leading up to the motion. The district court had pressed the prosecutors to explain why they had decided to not pursue criminal charges against individual corporate officials. When he was not satisfied with the answers he was provided, he denied the joint request to exclude time. The Appeals Court explained:
[P]ursuant to the agreement, the government filed with the district court a one-count information against Fokker, together with the [Deferred Prosecution Agreement]…. [T]he government and Fokker filed a joint motion for the exclusion of time under the Speedy Trial Act, in order to “allow [the company] to demonstrate its good conduct and implement certain remedial measures.”… The district court then held a series of status conferences, during which it repeatedly emphasized its concerns about the absence of any criminal prosecution of individual company officers…. The court requested several additional written submissions from the government. The government was asked to explain why the interests of justice supported the court’s approval of the deal embodied by the DPA, and also to address whether Fokker’s initial disclosures to the government had in fact been voluntary…. The district court later expressed that it might still reject the DPA because it was “too good a deal for the defendant.”… [T]he district court denied the joint motion for the exclusion of time. In explaining the reasons for its decision, the court criticized the government for failing to prosecute any “individuals … for their conduct.” …. According to the court, approval of an agreement in which the defendant had been “prosecuted so anemically for engaging in such egregious conduct for such a sustained period of time and for the benefit of one of our country’s worst enemies” would “promote disrespect for the law.”
The Fokker case involved a motion to exclude time under the Speedy Trial Act. The Speedy Trial Act is a federal statute that governs how quickly a case must be brought to trial, and is intended to protect the rights of both the defendant and the “people” to have a timely disposition of federal criminal cases once they are indicted. But, just like Rule 48(a), agreements to suspend the running of time under the Speedy Trial Act, even if jointly requested by both parties, still require approval of the court and a court finding that the granting the motion is “in the interests of justice.”
With regard to what authority that language actually gave to the District Court in ruling on a joint motion to exclude time, the DC Court of Appeals wrote:
While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled cons utional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.
What is important to take away from this language is that the Court of Appeals has already ruled definitively in the D.C. Circuit that it is not proper to elevate language in a statute passed by Congress in such a way as to contravene the longstanding and foundational cons utional understanding of the respective roles of the Executive and Judiciary in the manner by which the criminal justice system operates. The Court of Appeals reversed the district judge for using the “approval of the court” language as a basis to impose his judgment with regard to the charging decisions in the case in place of the government’s judgment on those issues with which he disagreed. Not only did he lack the power to do that — he lacked the power to even entertain the possibility of denying the motion to exclude time on that basis because to do so was to interfere on questions that are uniquely committed to the Executive to decide.
The same limiting principles apply here. The opponents of the motion by DOJ would elevate the language of a RULE of procedure — not even a statute passed by Congress and signed by the President — above the cons utional framework under with the Judiciary and Executive perform different functions.
So, as the Supreme Court acknowledged in Rinaldi, it is impossible to know what was meant by “with leave of court” when it was inserted into the text of the rule proposal that became Rule 48(a) without explanation.
But the Court of Appeals for the DC Circuit conclusively told us what it did NOT mean — it does not mean that Judge Sullivan has the power to go behind the reasons for the decision set forth in the DOJ Motion to Dismiss, and that he does not have the authority to subs ute his view of the case for the Executive Branch’s view of the case based on four words in a procedural rule.
Here is my prediction for what Judge Sullivan will eventually do if he is forced to make a decision on the motion. He will write a long long opinion that is a one-sided work of historical revision that ignores nearly all the misconduct on the part of the investigators and prosecutors, and relies greatly on the proceedings by which Gen. Flynn was led to plead guilty. He will then comb through every scrap of paper he can find to denigrate and dismiss the rationale that has been offered by DOJ, and find that all the legal arguments offered are specious.
He will conclude by excoriating Gen. Flynn for the “conduct” underlying the charges that were brought against him — and likely for uncharged conduct involving the allegations of FARA violations (but he won’t make the mistake of referencing “treason” again), and explain why Gen. Flynn’s conduct, in Judge Sullivan’s view, was a threat to the Flag, Democracy, Apple Pie, and Hot Dogs.
But in the final paragraph he will say that, notwithstanding everything he has found to be true as reflected in his opinion, he has no choice under the law but to grant DOJ’s motion and dismiss the case.
He’ll order that his opinion be published in the Federal Supplement, with the goal being that his account will be the definitive historical account of the Gen. Flynn saga.
He’ll do what the law commands him to do, but he’ll do it in such a way that he’s a hero to all his left-wing legal cronies.
https://www.redstate.com/shipwrecked...ss-flynn-case/
somebody call ducks, chrisbot needs repairing
redstate, vehemently unbiased source
IG reports point out the problems, Prosecutors do the burying.
HOROWITZ IS COMING
err, i mean... HUBER, no wait, DURHAM
TSA and his predictions
Did you say Pepperidge Farms?
That dude probably has an inch of chicken grease under that sloppy stash.IG reports point out the problems, Prosecutors do the burying.
DEVIN NUNES VINDICATED -- AGAIN. Think back to March 2017. Republican Rep. Devin Nunes, then chairman of the House Intelligence Committee, announced he had learned about the "unmasking" of Trump transition officials by the outgoing Obama administration. Most people didn't even know what unmasking was; it referred to the disclosure of names of Americans whose communications were incidentally picked up in U.S. intelligence surveillance. In this case, one American unmasked was Gen. Michael Flynn, the incoming Trump national security adviser, whose conversations with Russian ambassador Sergey Kislyak were intercepted by U.S. spies. The unmasking led to enormous grief for Gen. Flynn and the country.
Nunes' announcement was quickly dismissed as a "stunt," a "charade," and a "fiasco." "The unmasking stunt was completely fabricated," said former Obama Justice Department official Matthew Miller. "Devin Nunes is dangerous," pronounced the New York Times' Frank Bruni. "Nunes' Fake Scandal" declared the New Yorker. Similar sentiments echoed across the hallowed halls of the Washington Post, the Times, CNN, and MSNBC.
Then everyone moved on. There was much more to discover. In 2018, Nunes announced the source of the notorious Steele dossier and the fact that U.S. intelligence used its false allegations to win court approval to wiretap a former Trump campaign official, Carter Page. Nunes was again denounced. His discovery was -- wait for it -- a stunt and a charade and a fiasco. But of course, Nunes was right.
So now, back to unmasking. Thanks to the efforts of Richard Grenell, the temporary head of U.S. intelligence, the list of Obama officials who submitted requests to unmask Flynn during the transition has finally been declassified. A total of 16 Obama officials sought secret information about Flynn, including Vice President Joe Biden, Director of National Intelligence James Clapper, CIA Director John Brennan, FBI Director James Comey, UN Ambassador Samantha Power, Treasury Secretary Jacob Lew, and White House Chief of Staff Denis McDonough.
The requesters were authorized to receive information about unmasking. Perhaps all of them had entirely legitimate and unremarkable reasons to need to see it. But the bottom line is, there sure were a lot of Obama people interested in Michael Flynn during the transition. What did they want? "The officials listed should confirm whether they reviewed this information, why they asked for it and what they did with it," said Republican Senators Ron Johnson and Charles Grassley, who asked for the information.
And then there is Devin Nunes. Just as with the dossier, he was right to point out unmasking. And as always, he's prepared to be denounced again. But he is feeling a sense of vindication. "I sounded the alarm on this in March 2017," he said in a statement Wednesday night. "It's an outrageous abuse of Americans' civil liberties for an administration to exploit our intelligence capabilities to spy on its political opponents. And that's exactly what happened."
https://www.washingtonexaminer.com/o...ndicated-again
Nunes
I don't always agree with Shapiro, but this is pretty good analysis on unmasking and Biden:yup
I’m not going to turn this article into an extended legal review of all the potentially relevant — in a tangential way — case law on federal rules which has come down in various Circuit Courts of Appeal over the last 100 years. There will be amicus briefs filed that will chart that path — maybe even Judge Gleeson will go down that road. But those who do will only be engaging in an exercise of legal sophistry and obfuscation because the answer to the question before Judge Sullivan is quite simple, and it was provided by the Court of Appeals for the DC Circuit just four years ago in its decision in the case of United States v. Fokker Services.
There will be efforts to “distinguish” Fokker — to say it’s not a sufficiently similar case to control the outcome here — and efforts to point to other decisions in the DC Circuit or other Circuit Courts of Appeal which point in a different direction for an answer to the Rule 48(a) question. But that’s all a distraction and a waste of time because Judge Sullivan cannot escape Fokker. A District Court judge in the District of Columbia is obligated to follow the rulings of the Circuit Court for DC — he does not have a choice. He cannot “dissent” and reach a decision based on his own views. He might not like or agree with the outcome that is dictated by the Fokker case, but in order to respect the oath of his office, he is duty-bound — bound by the Cons ution — to respect and apply the law as it is established by a court of a higher status than the Court he presides in.
There are four words in the language of Rule 48(a) that are the source of the consternation and controversy surrounding the DOJ motion to dismiss. In its entirety Rule 48(a) reads as follows:
Rule 48. Dismissal: (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
“Leave of court” simply means with the court’s permission — permission. But the combination of the two orders entered by Sullivan yesterday will result in the filing of literally thousands of pages of legal analysis as to what a court is en led to do in coming to a decision about whether to grant such permission.
I’ll state the answer first — what does the phrase mean? — and offer an overview of the cases which dictate what Sullivan’s final decision must be.
Q — What does “with leave of court” mean in the context of Rule 48(a)?
A — Nobody knows.
Source — Supreme Court of the United States. In Footnote 15 of its decision in Rinaldi v. United States, the Court said the following:
The words “leave of court” were inserted in Rule 48(a) without explanation.
The insertion of those words is one of those instances where Congress changed the language of a proposed rule — by inserting language that was not in the proposal sent by the Supreme Court — but provided no explanation or rationale for why, or the significance of the additional language. They are essentially a blank canvas upon which judges have provided their own meaning.
The Supreme Court’s 1977 decision in Rinaldi addressed the meaning of the language — but did not adopt a conclusive meaning because the Court decided such a meaning was not necessary to the outcome of the case.
DOJ’s motion relies on Rinaldi to support its position that Judge Sullivan has no meaningful discretion in deciding how he should rule on the motion to dismiss. In Rinaldi the defendant was convicted at trial. After the trial, the Department of Justice joined with the defendant in making a joint motion to dismiss the case on the basis that it had been brought by an individual prosecutor who misrepresented to the trial court his authority to do so. The defendant had been previously convicted in state court for the same conduct that cons uted the federal offense with which he was charged. Bringing the federal case in that situation violated a well-known DOJ policy, and when asked about that by the trial court, the prosecutor misrepresented to the Court that he had secured all the necessary approvals to file the case as an exception to the policy, when that was not true.
The defendant raised the issue of the policy violation in his appeal. The government agreed with the defendant before the appeals court, and the D.C. Court of Appeals remanded the case to the District Court for further consideration. On remand the government moved to dismiss the case pursuant to Rule 48(a) — the same rule that has been invoked in the DOJ Motion to Dismiss Gen. Flynn’s case. But the District Court in Rinaldi denied the motion because it had not been made before the defendant was convicted, and because of the prosecutor’s bad faith in misleading the court.
A divided D.C. Court of Appeals upheld the District Court’s denial of the Rule 48(a) motion by a vote of 7-6. The majority view was that the Government’s misconduct gave the District Court adequate reason to deny the motion, and that the defendant had no right to have an otherwise valid conviction dismissed simply because the Justice Department violated its own internal policy.
By a vote of 6-3, the Supreme Court reversed, and determined that the case must be dismissed. But opponents of Gen. Flynn — in the form of dozens of incoming amicus briefs and the briefing of Judge Gleeson — will likely seize upon other language in Footnote 15, specifically the following:
But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973).
The argument that has been advanced by the pundit class is that the dismissal is a political favor to Pres. Trump, therefore not in the interests of justice and thus “contrary to the public interest.” They will argue that the language of the footnote confirms that the district court can deny the motion based on a finding that the DOJ motion is improperly motivated.
But that is not actually what the Court said in Rinaldi, as the full text of the quoted footnote makes clear. The full text of Footnote 15 reads:
The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the cir stances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection…. But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest…. It is unnecessary to decide whether the court has discretion under these cir stances, since, even assuming it does, the result in this case remains the same.
(At the ellipses, I omitted internal case citations to lower court decisions.)
The bolded language states that the Supreme Court did not decide whether the “with leave of court” phrase in Rule 48(a) provides discretion to a district court to deny a motion made by the government on the basis that the district court finds — in its view — that granting the motion would be “contrary to the public interest.” As is the common practice of the Supreme Court, it opted to not address that question because doing so was not necessary to the decision in the case.
But if we turn to a more recent decision of the Court of Appeals for the DC Circuit — which are binding on Judge Sullivan — one case strongly supports the proposition that Judge Sullivan is not en led to evaluate the motives of a co-equal branch of government in making a charging decision — an issue that is uniquely within the authority of the Executive branch of government under our cons utional framework.
In 2016, the Court of Appeals for the DC Circuit decided the U.S. v. Fokker Services case finding that the district court judge committed reversible error in denying a joint request from the government and the defendant to “exclude time” under the Speedy Trial Act. The district court had denied the request because it disagreed with the charging decisions made by the government in the case leading up to the motion. The district court had pressed the prosecutors to explain why they had decided to not pursue criminal charges against individual corporate officials. When he was not satisfied with the answers he was provided, he denied the joint request to exclude time. The Appeals Court explained:
[P]ursuant to the agreement, the government filed with the district court a one-count information against Fokker, together with the [Deferred Prosecution Agreement]…. [T]he government and Fokker filed a joint motion for the exclusion of time under the Speedy Trial Act, in order to “allow [the company] to demonstrate its good conduct and implement certain remedial measures.”… The district court then held a series of status conferences, during which it repeatedly emphasized its concerns about the absence of any criminal prosecution of individual company officers…. The court requested several additional written submissions from the government. The government was asked to explain why the interests of justice supported the court’s approval of the deal embodied by the DPA, and also to address whether Fokker’s initial disclosures to the government had in fact been voluntary…. The district court later expressed that it might still reject the DPA because it was “too good a deal for the defendant.”… [T]he district court denied the joint motion for the exclusion of time. In explaining the reasons for its decision, the court criticized the government for failing to prosecute any “individuals … for their conduct.” …. According to the court, approval of an agreement in which the defendant had been “prosecuted so anemically for engaging in such egregious conduct for such a sustained period of time and for the benefit of one of our country’s worst enemies” would “promote disrespect for the law.”
The Fokker case involved a motion to exclude time under the Speedy Trial Act. The Speedy Trial Act is a federal statute that governs how quickly a case must be brought to trial, and is intended to protect the rights of both the defendant and the “people” to have a timely disposition of federal criminal cases once they are indicted. But, just like Rule 48(a), agreements to suspend the running of time under the Speedy Trial Act, even if jointly requested by both parties, still require approval of the court and a court finding that the granting the motion is “in the interests of justice.”
With regard to what authority that language actually gave to the District Court in ruling on a joint motion to exclude time, the DC Court of Appeals wrote:
While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled cons utional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.
What is important to take away from this language is that the Court of Appeals has already ruled definitively in the D.C. Circuit that it is not proper to elevate language in a statute passed by Congress in such a way as to contravene the longstanding and foundational cons utional understanding of the respective roles of the Executive and Judiciary in the manner by which the criminal justice system operates. The Court of Appeals reversed the district judge for using the “approval of the court” language as a basis to impose his judgment with regard to the charging decisions in the case in place of the government’s judgment on those issues with which he disagreed. Not only did he lack the power to do that — he lacked the power to even entertain the possibility of denying the motion to exclude time on that basis because to do so was to interfere on questions that are uniquely committed to the Executive to decide.
The same limiting principles apply here. The opponents of the motion by DOJ would elevate the language of a RULE of procedure — not even a statute passed by Congress and signed by the President — above the cons utional framework under with the Judiciary and Executive perform different functions.
So, as the Supreme Court acknowledged in Rinaldi, it is impossible to know what was meant by “with leave of court” when it was inserted into the text of the rule proposal that became Rule 48(a) without explanation.
But the Court of Appeals for the DC Circuit conclusively told us what it did NOT mean — it does not mean that Judge Sullivan has the power to go behind the reasons for the decision set forth in the DOJ Motion to Dismiss, and that he does not have the authority to subs ute his view of the case for the Executive Branch’s view of the case based on four words in a procedural rule.
Here is my prediction for what Judge Sullivan will eventually do if he is forced to make a decision on the motion. He will write a long long opinion that is a one-sided work of historical revision that ignores nearly all the misconduct on the part of the investigators and prosecutors, and relies greatly on the proceedings by which Gen. Flynn was led to plead guilty. He will then comb through every scrap of paper he can find to denigrate and dismiss the rationale that has been offered by DOJ, and find that all the legal arguments offered are specious.
He will conclude by excoriating Gen. Flynn for the “conduct” underlying the charges that were brought against him — and likely for uncharged conduct involving the allegations of FARA violations (but he won’t make the mistake of referencing “treason” again), and explain why Gen. Flynn’s conduct, in Judge Sullivan’s view, was a threat to the Flag, Democracy, Apple Pie, and Hot Dogs.
But in the final paragraph he will say that, notwithstanding everything he has found to be true as reflected in his opinion, he has no choice under the law but to grant DOJ’s motion and dismiss the case.
He’ll order that his opinion be published in the Federal Supplement, with the goal being that his account will be the definitive historical account of the Gen. Flynn saga.
He’ll do what the law commands him to do, but he’ll do it in such a way that he’s a hero to all his left-wing legal cronies.
https://www.redstate.com/shipwrecked...ss-flynn-case/
you hear the beep and disconnect as he said "absolutely, it is".... not after the follow up question
Wilford Brimley got lapband surgery it seems.IG reports point out the problems, Prosecutors do the burying.
someone is worried
So a tweet means someone is worried.
someone is worried
OPEN MEMORANDUM TO BARAK OBAMA
To: Barack Hussein Obama
From: Sidney Powell
www.SidneyPowell.com
Date: May 13, 2020
Re: Your Failure to Find Precedent for Flynn Dismissal
Regarding the decision of the Department of Justice to dismiss charges against General Flynn, in your recent call with your alumni, you expressed great concern: “there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just ins utional norms — but our basic understanding of rule of law is at risk.”
Here is some help—if truth and precedent represent your true concern. Your statement is entirely false. However, it does explain the damage to the Rule of Law throughout your administration.
First, General Flynn was not charged with perjury—which requires a material false statement made under oath with intent to deceive.1 A perjury prosecution would have been appropriate and the Rule of Law applied if the Justice Department prosecuted your former FBI Deputy Director Andrew McCabe for his multiple lies under oath in an investigation of a leak only he knew he caused.
McCabe lied under oath in fully recorded and transcribed interviews with the Inspector General for the DOJ. He was informed of the purpose of the interview, and he had had the benefit of counsel. He knew he was the leaker. McCabe even lied about lying. He lied to his own agents—which sent them on a “wild-goose-chase”—thereby making his lies “material” and an obstruction of justice. Yet, remarkably, Attorney General Barr declined to prosecute McCabe for these offenses.
Applying the Rule of Law, after declining McCabe’s perjury prosecution, required the Justice Department to dismiss the prosecution of General Flynn who was not warned, not under oath, had no counsel, and whose statements were not only not recorded, but were created as false by FBI agents who falsified the 302.
Second, it would seem your “wingman” Eric Holder is missing a step these days at Covington & Burling LLP. Indelibly marked in his memory (and one might think, yours) should be his Motion to Dismiss the multi-count jury verdict of guilty and the entire case against former United States Senator Ted Stevens. Within weeks of Mr. Holder becoming Attorney General, he moved to dismiss the Stevens prosecution in the interest of justice for the same reasons the Justice Department did against General Flynn—egregious misconduct by prosecutors who hid exculpatory evidence and concocted purported crimes.
As horrifying as the facts of the Stevens case were, they pale in comparison to the targeted setup, framing, and prosecution of a newly elected President’s National Security Advisor and the shocking facts that surround it. This case was an assault on the heart of liberty— our cherished system of self-government, the right of citizens to choose their President, and the hallowed peaceful transition of power.
Third, the inability of anyone in your alumni association to find “anybody who has been charged [with anything] just getting off scot-free” would be laughable were it not so pathetic.
Many of your alum feature prominently in the non-fiction legal thriller published in 2014: Licensed to Lie: Exposing Corruption in the Department of Justice. A national best- seller, it focusses on the egregious prosecutorial misconduct of your longest serving White House Counsel, Kathryn Ruemmler; your counter-terrorism advisor Lisa Monaco; Loretta Lynch’s DAG for the Criminal Division Leslie Caldwell; and Mueller protégé Andrew Weissmann. While they worked as federal prosecutors on the Enron Task Force—under the purported supervision of Christopher Wray—they destroyed Arthur Andersen LLP and its 85,000 jobs; sent four Merrill Lynch executives to prison on an indictment that criminalized an innocent business transaction while they hid the evidence that showed those defendants were innocent for six years. Both cases were reversed on appeal for their over-criminalization and misconduct. Indeed, Andersen was reversed by a unanimous Supreme Court.
Fourth, even if your many alumni don’t remember multiple cases that had to be reversed or dismissed for their own misconduct, Judge Emmet Sullivan should remember dismissing the corrupted case against Ted Stevens. Judge Sullivan is the judicial hero of Licensed to Lie. It is that case that caused Judge Sullivan to enter the strong Brady order the Mueller and D.C. career prosecutors violated repeatedly in the Flynn prosecution.
Fifth, there is precedent for guilty pleas being vacated. Your alumni Weissmann and Ruemmler are no strangers to such reversals. At least two guilty pleas they coerced by threats against defendants in Houston had to be thrown out—again for reasons like those here. The defendants “got off scot-free” because—like General Flynn—your alumni had concocted the charges and terrorized the defendants into pleading guilty to “offenses” that were not crimes. Andersen partner David Duncan even testified for the government against Andersen in its trial, but his plea had to be vacated. Enron Broadband defendant Christopher Calger had his plea vacated. There are many others across the country.
Sixth, should further edification be necessary, see Why Innocent People Plead Guilty, written in 2014 by federal Judge Jed Rakoff (a Clinton appointee). Abusive prosecutors force innocent people to plead guilty with painful frequency. The Mueller special counsel operation led by Andrew Weissmann and Weissmann “wannabes” specializes in prosecutorial terrorist tactics repulsive to everything “justice” is supposed to mean. These tactics are designed to intimidate their targets into pleading guilty—while punishing them and their families with the process itself and financial ruin.
Most important, General Flynn was honest with the FBI agents. They knew he was—and briefed that to McCabe and others three different times. At McCabe’s directions, Agent Strzok and McCabe’s “Special Counsel” Lisa Page, altered the 302 to create statements Weissmann, Mueller, Van Grack, and Zainab Ahmad could assert were false. Only the FBI agents lied—and falsified do ents. The crimes are theirs alone.
Seventh, the D.C. circuit in which you reside vacated a Section 1001 case for a legal failure much less egregious than those in General Flynn’s case. United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008). Safavian sought advice from his agency’s ethics board and did not give them all the relevant info. The jury convicted him on the theory it was a 1001 violation to conceal the information from the government ethics board. The court disagreed: “As Safavian argues and as the government agrees, there must be a legal duty to disclose in order for there to be a concealment offense in violation of § 1001(a)(1), yet the government failed to identify a legal disclosure duty except by reference to vague standards of conduct for government employees.” General Flynn did not even know he was the subject of an investigation—and in truth, he was not. The only crimes here were by your alumni in the FBI, White House, intelligence community, and Justice Department.
These are just a few obvious and well-known examples to those paying any attention to criminal justice issues.
Finally, the “leaked” comments from your alumni call further evinces your obsession with destroying a distinguished veteran of the United States Army who has defended the Cons ution and this country “from all enemies, foreign and domestic,” with the highest honor for thirty-three years. He and many others will continue to do so.
The Pummelling
Now I know nothing is coming of this.
powell!
I saw her on Hannity - she is genuinely bat crazy -
whataboutism! mccabe mcabe - but mccabe is NOT who obama was talking about -
and mccabe was not charged because BARR could not make the case - NOT because he let him off
flynn - did not lie! FBI said so! - ing bull liar -
flynn lied- period.
whether the fbi said that flynn did not "appear" to display the normal signs a liar displays when lying
BECAUSE HE IS A GODDAMN EXPERIENCED LIAR!
Not because he wasnt lying - and the FBI knew because they HAD THE ING RECORDING
you idiot!
pizzagate FAIL!
Last edited by Spurs Homer; 05-14-2020 at 08:38 PM.
You can always tell when TSA is in manic mode when he starts double, triple posting and doing copypastas left and right.
*No one reads those.*
Here are the main things TSA is trying to cover up with his walls of text.
1) Flynn pleaded guilty under oath twice.
2) Officials requesting the unmasking of a person caught in an NSA intercept of foreign communications do not know the iden y of that person in advance.
3) They don't know the iden y of the person in advance because the iden y of the person is masked.
4) That's what masking means.
5) lol
6.) kys
lol Margot
?
Show where he literally committed treason.
Be specific. That's a very serious charge.
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