DOJ dropping criminal case against Gen Flynn (UPDATE: DC Cir. dismisses case) (8 Viewers)

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    FullMonte said:
    Not.at.all.

    Example A: "Hey, I'm going to be the new president's National Security Adviser. I'm looking forward to working with you. Here is my contact information, please let me know if there is anything you need. Once we take office, I'd like to meet with you to discuss the way forward."

    Example B: "Hey, I'm going to be the new president's National Security Adviser. I know that the current administration is pushing for you to take certain actions. If you do the opposite of what they want, I can assure you that the incoming president will reward your country."

    Do you think those two are not a "sharp distinction as a practical matter"?
    Click to expand...
    As a practical matter - how do you distinguish between the two?

    Example A's are not having an impartial reviewer transcribe the meeting for the New York Times. The meetings are not open to the public.

    But more to the point - Example B isn't, never has been, and should not be a problem. That is a big reason for having transition teams. To hamstring incoming Administrations as you seem to suggest just seems incredibly stupid.
     
    The moose said:
    This is gonna get fun.

    The judge is gonna hold Barr in check here.

    www.npr.org

    Court Appoints Retired Judge To Oppose Justice Department In Michael Flynn Case

    Judge Emmet Sullivan has also asked retired Judge John Gleeson to address whether Flynn should face a contempt hearing for perjury.
    www.npr.org www.npr.org
    Click to expand...
    What's funny is that Judge Sullivan is violating his own order that he gave December 20, 2017 and his prior denial of amicus briefing.
    20200514_105221.png

    This quote from Judge Sullivan stands out to show how he's doing now exactly what he said couldn't be done before:

    "The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases."

    It turns out that Flynn amicus John Gleeson once worked with Mueller prosecutor Andrew Weissmann.

     
    SaintForLife said:
    What's funny is that Judge Sullivan is violating his own order that he gave December 20, 2017 and his prior denial of amicus briefing.
    20200514_105221.png

    This quote from Judge Sullivan stands out to show how he's doing now exactly what he said couldn't be done before:

    "The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases."

    It turns out that Flynn amicus John Gleeson once worked with Mueller prosecutor Andrew Weissmann.

    Click to expand...


    What is funny the DOJ thinks they can run all over the system to get want they want.

    That is the funny part.

    Did you honestly think that judges were gonna allow their time to be pissed away with no concerns?

    The DOJ is gonna have to seriously work to make this turd fly.
     
    The moose said:
    What is funny the DOJ thinks they can run all over the system to get want they want.

    That is the funny part.

    Did you honestly think that judges were gonna allow their time to be pissed away with no concerns?

    The DOJ is gonna have to seriously work to make this turd fly.
    Click to expand...
    It's almost as if you are unable to comprehend much less read the articles you post and/or the posts you respond to.

    Why are you ignoring what the Judge has said previously that totally goes against what he's trying to do now? I'm not expecting a real answer from you.
     
    SaintForLife said:
    It's almost as if you are unable to comprehend much less read the articles you post and/or the posts you respond to.

    Why are you ignoring what the Judge has said previously that totally goes against what he's trying to do now? I'm not expecting a real answer from you.
    Click to expand...
    Why are you ignoring the Google machine?

    Please Google whom these people are that Glenn dude here where did you find that white supremacists defending dirt bag?

    Oh that is right on places that cater to the white supremacists?


    The first thing I do to your posts is not read I Google the dirt bags you post.

    You know what nine out of ten they are dirt bags.

    Then I don't bother reading. I post what a dirt bag they are.

    Quit posting dirt bags please.

    Why don't you just Google them before post please
     
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    SaintForLife said:
    What's funny is that Judge Sullivan is violating his own order that he gave December 20, 2017 and his prior denial of amicus briefing.
    20200514_105221.png

    This quote from Judge Sullivan stands out to show how he's doing now exactly what he said couldn't be done before:

    "The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases."

    It turns out that Flynn amicus John Gleeson once worked with Mueller prosecutor Andrew Weissmann.

    Click to expand...

    The Order appointing Amicus Curie - https://apps.npr.org/documents/document.html?id=6889889-Show-Temp - claims "inherent authority" to appoint amicus curie to oppose the government's charging decision. The Order then uses two cases for support of that authority - the only citations supporting the Court's "inherent authority"

    U.S. v. Fokker Services: The Circuit Court Panel's decision stated, as a matter of established law, the judiciary is not to second-guess the Executive’s decisions of “whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges.”

    Fin v. Ministry of State: was a case concerning when a federal court could exercise federal supplemental jurisdiction in a civil case - not a criminal case.

    Bizarre.
     
    JimEverett said:
    The Order appointing Amicus Curie - https://apps.npr.org/documents/document.html?id=6889889-Show-Temp - claims "inherent authority" to appoint amicus curie to oppose the government's charging decision. The Order then uses two cases for support of that authority - the only citations supporting the Court's "inherent authority"

    U.S. v. Fokker Services: The Circuit Court Panel's decision stated, as a matter of established law, the judiciary is not to second-guess the Executive’s decisions of “whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges.”

    Fin v. Ministry of State: was a case concerning when a federal court could exercise federal supplemental jurisdiction in a civil case - not a criminal case.

    Bizarre.
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    I think Judge Sullivan knows he can't do anything more to Flynn so he's giving the Resistance one last chance to relitigate the discredited Russia investigation. He's setting up an easy reversal by a higher court if he denies an unopposed motion or moves forward on his perjury claim.
     
    TaylorB said:
    McCarthy basically says "I agree with Barr that because the counterintelligence investigation was BS, then Flynn's lies were not 'material,' but the DOJ should have dropped the case because it was a crappy case anyway."

    He mischaracterizes the scope of the CI probe to fit his argument that it was BS:

    "The FBI opened a counterintelligence probe of Flynn in August 2016 on the absurd ground that he might be a clandestine Russian agent. (Flynn is a retired three-star Army general and decorated combat commander, who had then recently written a book identifying Russia as a committed global adversary of the United States.)"

    In truth, the FBI was trying to determine whether Flynn was "being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly be a violation of [FARA] or other related statutes." Sure, the CI probe encompassed exploring whether Flynn was a "clandestine Russian agent," but it also encompassed whether he was simply coordinating activities with Russia in a way which might be illegal or impact national security. Which he was.

    The call with Kislyak wherein Flynn secretly negotiated US foreign policy appears to me to fall squarely within the scope of what the CI probe was trying to uncover. The discussions with Kislyak seeking non-retaliation on sanctions and seeking to influence their UN vote appear to constitute "coordinating activities with the Russian Federation" in a manner which was potentially a threat to national security and/or illegal. So it is unsurprising that the emergence of the call affected the government's analysis about whether to continue the CI probe into Flynn and interview him about the call.

    Nevertheless, McCarthy agrees with Barr that the CI investigation was BS and therefore, the lies would have been "immaterial." It appears to me and to numerous former federal prosecutors that the "materiality" defense is ridiculous, unprecedented, and clearly politically motivated. We're never going to agree on this forum about the soundness of Barr's legal argument regarding materiality. But to proclaim Flynn's innocence by touting Barr and the DOJ's legal argument without acknowledging Barr's fixation on exonerating Trump and friends from the Mueller probe is disingenuous. Whatever the soundness of the legal arguments Barr's making, let's not pretend like we don't know why he's making them.

    Moving on. Next, McCarthy sets aside the materiality argument and wonders why the DOJ didn't dismiss the case just because it was a crappy case:

    "In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn’s 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn’t have a prayer of convicting Flynn at trial."

    "In Flynn’s case, the government could not conceivably have met its burden of proof. In dismissing the case on a legal rationale, the Justice Department avoided the potential of an ugly trial that would have damaged the FBI and DOJ."

    I am a bit surprised McCarthy didn't consider that one of the reasons "scant attention" has been paid to the government not being able to meet its burden of proof against Flynn is because, uh, Flynn admitted to the crime, under oath, in front of a federal judge, at least twice. I don't think the DOJ often dismisses cases against people who have admitted to the crimes they've been accused of. Certainly the points McCarthy raises about the factual weaknesses of the case would have been considerations for Flynn in deciding whether to roll the dice and try his case, but despite those weaknesses, Flynn admitted to the crime.

    In light of Flynn's admission of guilt, it's hard to imagine thinking he's not actually guilty unless you think the FBI / DOJ coerced him into pleading guilty by threatening him or his son with crimes they didn't commit -- otherwise, he wouldn't have admitted to doing a crime that the FBI couldn't prove (didn't have "a prayer" of proving, according to McCarthy). And some of Flynn's defenders seem to think that's exactly what happened, citing FBI and DOJ behavior that they say "proves" Flynn's innocence because the FBI and DOJ were "out to get" him.

    To those people, I want to know the following: (1) what crimes was Flynn (or Flynn Jr.) threatened with that he didn't commit? (2) notwithstanding whether Flynn lied to the FBI about it, are you OK with Flynn negotiating in secret with Russia (from whom Flynn had made tens of thousands of dollars in the prior year, and had been identified to Flynn as having committed cyber-crimes against the US) about Obama's foreign policy on Trump's behalf while Obama is still in office? (3) are you OK with Flynn making $500,000 as a secret foreign agent for Turkey while advising a president-elect on foreign policy, (4) are you OK with Flynn secretly selling nuclear technology without congressional approval to countries without counterproliferation agreements with the US (Saudi Arabia)?

    Finally, I do not want to ignore the other suggestions of there having been prosecutorial misconduct, but it is hard to follow all of the arguments that are set forth in various news articles and twitter threads. So I'm asking again, what is the strongest piece of evidence that was revealed in the last week that exonerates Flynn? Please direct me to the exhibit and/or argument and explain why it exonerates him. If you want to list two, or three, that's fine; I just find it difficult to respond to twitter threads and opinion articles. Whatever the evidence is, does it exonerate him with respect to the other things I listed that have nothing to do with his prosecution?
    Click to expand...

    The FBI had decided that they would not pursue the claims that you are now asking someone here to waste time and refute.
    SaintForLife said:
    The Twitter posts or threads that for some reason you are unable to read all have the screenshots of those documents. You are a smart guy so this game you are playing makes it quite obvious that you aren't interested in having a good faith debate.
    Click to expand...

    Dude, I have already told him that the most damning evidence is the extent to which Barry and company were involved in the entire setup.

    You have somebody from team Barry leaking confidential information to the WaPo and then turning around using the story. It's the same crap they did with the FISA court.

    Then you have the same people making the CNN and MSNBC rounds giving vague references to "muh collusion" evidence changing their tune when they are under oath.

    If you have someone that wants to be stuck in 2017 that's just where they are going to be.
     
    Also - interestingly enough, Justice Ginsburg just authored an unanimous opinion last week upholding the party-presentation-priniciple which states that judges must decide cases as presented by the parties before them.

    Justice Ginsberg: [C]ourts are essentially passive instruments of government.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”
     
    JimEverett said:
    The Order appointing Amicus Curie - https://apps.npr.org/documents/document.html?id=6889889-Show-Temp - claims "inherent authority" to appoint amicus curie to oppose the government's charging decision. The Order then uses two cases for support of that authority - the only citations supporting the Court's "inherent authority"

    U.S. v. Fokker Services: The Circuit Court Panel's decision stated, as a matter of established law, the judiciary is not to second-guess the Executive’s decisions of “whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges.”

    Fin v. Ministry of State: was a case concerning when a federal court could exercise federal supplemental jurisdiction in a civil case - not a criminal case.

    Bizarre.
    Click to expand...
    Fokker dealt with deferred prosecution agreements (DPAs) and specifically distinguished them from plea agreements accepted by a court:

    Whereas a district court enters a judgment of conviction and then imposes a sentence in the case of a plea agreement, the court takes no such actions in the case of a DPA. Rather, the entire object of a DPA is to enable the defendant to avoid criminal conviction and sentence by demonstrating good conduct and compliance with the law. And a DPA’s provisions are agreed to by the parties, not the court, with no occasion for the court to adopt the agreement’s terms as its own. The court never exercises its coercive power by entering a judgment of conviction or imposing a sentence.

    The proposition Sullivan is using Fokker for is that the court's acceptance of a guilty plea is the point at which the decision-making power is transferred from the executive to the judiciary. Unlike Flynn's guilty plea / conviction, DPAs do not reach that point. That is the principle I said yesterday would most likely persuade Sullivan not to dismiss the charges against Flynn 👇

    TaylorB said:
    But to me, the most compelling line in the brief is from a 2016 DC Circuit case: A guilty plea represents a turning point between “the Executive’s traditional power over charging decisions and the Judiciary’s traditional authority over sentencing decisions.” Which means that once Sullivan accepted Flynn's guilty plea, he was considered "convicted," and the DOJ transferred control of his case to the court.

    If Judge Sullivan's gut reaction to Barr's motion was the same as most lawyers who are not Trump defenders, he's likely to be extremely resistant to taking any action which might cede his Article III authority to Barr's DOJ. If there is solid legal support for the notion that it's simply no longer up to Barr, which at first glace there appears to be, that analysis is much cleaner than if the court were to engage a fact-finding inquiry into the department's good (bad) faith, which would be met with obstruction by the DOJ. And which would be difficult to prove whether or not the DOJ was in bad faith.

    My money at this point is on Sullivan denying DOJ's motion to dismiss the charges against Flynn. And the basis is the simple notion that it's the court's call, not the DOJs, at this stage. I am interested to see the DOJ's response, particularly regarding whether the executive retains any control after a guilty plea is accepted by the court. My guess is that there are plenty of instances in which courts have gone along with after-the-plea requests by prosecutors, but I doubt there are appeals courts which have held that the executive actually retained that power once the plea had been accepted by the court.
    Click to expand...
    The case I was citing from the Watergate brief☝ was Fokker. So I was not surprised yesterday PM when of all cases, Judge Sullivan cited Fokker in his order.

    Again, there may be legal authority that contradicts the "transfer of authority" proposition, and if there is, the DOJ will find it and will cite it in its briefs. But to me, that is the crux of the case, and I have not yet been persuaded that Sullivan will concede that the ball is still in the DOJ's court.
     
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    SaintForLife said:
    I think Judge Sullivan knows he can't do anything more to Flynn so he's giving the Resistance one last chance to relitigate the discredited Russia investigation. He's setting up an easy reversal by a higher court if he denies an unopposed motion or moves forward on his perjury claim.
    Click to expand...


    Oh that guy again who takes white supremacists clients on pro Bono. Matt Hale no less. The guy serving forty right now for placing a contract on a federal judge. Joan Lefkow the same federal judge that had he husband and mother murdered in her home by white supremacists.


    But please post away. I am sure he is a guy just defending the Constitution not murdering white supremacists for free!
     
    The moose said:
    Oh that guy again who takes white supremacists clients on pro Bono. Matt Hale no less. The guy serving forty right now for placing a contract on a federal judge. Joan Lefkow the same federal judge that had he husband and mother murdered in her home by white supremacists.


    But please post away. I am sure he is a guy just defending the Constitution not murdering white supremacists for free!
    Click to expand...

    What are you babbling about?

    Do you realize that the ACLU, back when it actually cared about civil liberties, took on the cause of the Klan? And then turned around and used the precedent set to defend the civil liberties of black activists?

    Or, that John Adams represented British soldiers involved in the "Boston Massacre?"

    It's un American to take the position that an attorney should be vilified because he has represented someone unpopular.

    You do want to be a good American don't you Moose?
     
    Beach Friends said:
    The FBI had decided that they would not pursue the claims that you are now asking someone here to waste time and refute.

    Dude, I have already told him that the most damning evidence is the extent to which Barry and company were involved in the entire setup.

    You have somebody from team Barry leaking confidential information to the WaPo and then turning around using the story. It's the same crap they did with the FISA court.

    Then you have the same people making the CNN and MSNBC rounds giving vague references to "muh collusion" evidence changing their tune when they are under oath.

    If you have someone that wants to be stuck in 2017 that's just where they are going to be.
    Click to expand...
    All I tried to do with my initial post on Flynn was to summarize and contextualize a complex legal case with a lot of rhetoric coming from both sides. To that end, I've responded in good faith to numerous issues raised by you, SFL, and Jim regarding Flynn. Whether or not you agree with my responses, I always try to respond to good faith substantive questions, despite myself having posed plenty of questions that no one has responded to.

    You asked for reasons why we think he lied, and I gave you a list of very specific reasons. Now, all I'm asking is that one of you point me to specific documents / evidence that came to light last week that exonerates Flynn. Your response the first time I asked for this was basically a summary of Tucker Carlson's 5/11 opening segment about "Obama / leaks," which helps explain why you think the whole investigation is a hoax, but which is not specific as to what led Flynn to plead guilty to a crime you say he didn't commit. Why can't you or SFL specifically identify the best pieces of evidence you've seen that establish his innocence and tell my why they exonerate Flynn? I have acknowledged that there was evidence in Flynn's case that I think was helpful to him. It's just never been clear to me exactly what you and others think is the best evidence that establishes that he didn't commit the crime of making false statements to the FBI.

    Also, if this whole exercise is me just being stuck in 2017, then why do Tucker and Fox News still care so much about exonerating Flynn in May 2020? (Hint: it's the same reason Barr and Trump are still desperate to exonerate him).
     
    Maybe because they had no right to investigate him in the first place, making whatever "lie" immaterial? The FBI had a transcript of his call before the interview (sourced by a group of Trump's political opponents- Obama, Yates, Biden, Comey, Clapper, etc and leaked to WaPo), didn't believe he was lying after the interview, fudged up the 302s, was going to drop the case until a rabbidly anti-trump Peter Strozk intervened... Taylor do you not feel like any of this is wrong? For all your anti-Russia talk, you sure act like you'd support their government's tactics at crushing their opponents and anyone who rivals them, through any means necessary.
     
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    TaylorB said:
    All I tried to do with my initial post on Flynn was to summarize and contextualize a complex legal case with a lot of rhetoric coming from both sides. To that end, I've responded in good faith to numerous issues raised by you, SFL, and Jim regarding Flynn. Whether or not you agree with my responses, I always try to respond to good faith substantive questions, despite myself having posed plenty of questions that no one has responded to.

    You asked for reasons why we think he lied, and I gave you a list of very specific reasons. Now, all I'm asking is that one of you point me to specific documents / evidence that came to light last week that exonerates Flynn. Your response the first time I asked for this was basically a summary of Tucker Carlson's 5/11 opening segment about "Obama / leaks,"
    Click to expand...

    Easy there, if you want to start not so subtly accusing me of regurgitating something I can get snarky as well.

    I happen to be focused on the activities of members of the FBI and their co-conspirators. I think it is noteworthy that the FBI had decided to close Crossfire Razor until Peter Strzok (funny how that guy's name keeps coming up) breathlessly called the field agents to tell them not to shut the investigation down because, as we know, "Andy" the crew had an insurance policy they wanted in place in case Trump was elected.

    I think it is important that prior to the meeting, they actually documented that they wanted to get him to lie so they could prosecute him OR get him fired. (Since when has the FBI started performing the HR function for the WH?)

    I think it is important how shady the FBI was in securing a meeting with Flynn and even discussing in advance how they could slip in a statement that would kinda cover them on alerting him to his rights, while at the same time doing just the opposite.

    I think it is important that despite their goal, the closest they got to a lie was Flynn saying that he wasn't sure, but it was possible that he spoke to the Ruskie. I think it is important that those sitting in the room acknowledged that it would be easy enough to verify what was said because there was a transcript.

    It concerns me that the FBI's practice is to not record their interviews and yet, based on their recollection they can charge a citizen for lying to them. It gets more concerning in an instance, such as this one, where the normal procedures for documenting the interview were not followed. To say that there were irregularities in the way the interview was documented is an understatement. I don't care to overlook the fact that, even at this late date, documents relating to that interview are still missing.

    I think it is significant that on the 302 the agents have to verify that the subject was aware of the nature of the interview and yet, we know without a doubt, that the scheme was to ensure that Flynn did not know that he was actually the subject of the investigation.

    I don't know what your spin is on Barry and company leaking classified information to the WaPo, but I think it is (to use your words) crystal clear that it was an illegal act conducted for the political purposes.

    I personally don't care what the FBI was threatening to charge Flynn's son with. They used that threat as a bargaining chip to secure Flynn's plea and then, consistent with their conduct throughout, lied about having done that.

    Here is something to consider. Why is Joe "I was the guy" Biden, who loves to take credit for everything, trying to distance himself from the Flynn investigation? That's really not in his nature, and he has already been caught in a lie about his knowledge.

    I know you like to disparage AG Barr. The good news is Barr knew he would be desperately attacked when he took on this job and it is not going to slow him down.

    Unfortunately we may never see a conviction from a DC jury, but we will at least know the extent to which BHO disregarded the American tradition of a peaceful transition of power from one administration to another.
     
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    SaintForLife said:
    The only problem is Flynn didn't say what you claimed in example B. If you believe he did can you cite an official document that shows that to be the case?
    Click to expand...

    I didn't say that Flynn said that. The post I was responding to said that a member of the incoming administration speaking to a foreign government and a member of the incoming administration negotiating with a foreign government before taking office were not different, from a practical matter.

    I just took two examples that showed that those two things can be significantly different.
     

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