DOJ dropping criminal case against Gen Flynn (UPDATE: DC Cir. dismisses case) (4 Viewers)

[BobE]

 

[FullMonte]

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.

If you can't differentiate between a member of a transition team simply having a meet and greet with foreign governments and preparing to meet once they take office, and that person actually negotiating with that foreign government against the current administration's policy, I'm not sure how I can spell it out for you.

As for example B not being a problem....you consider telling the members of the incoming administration that they can't negotiate AGAINST THE CURRENT ADMINISTRATION'S policies before taking office as "hamstringing" them?

 

[stevo3]

If you can't differentiate between a member of a transition team simply having a meet and greet with foreign governments and preparing to meet once they take office, and that person actually negotiating with that foreign government against the current administration's policy, I'm not sure how I can spell it out for you.

As for example B not being a problem....you consider telling the members of the incoming administration that they can't negotiate AGAINST THE CURRENT ADMINISTRATION'S policies before taking office as "hamstringing" them?

To your question at the end: YES.

The outgoing Administration's policies are no longer relevant. They are the OUTGOING Administration. The singular thing that separates us from faux democratic republics is the peaceful transition of power. Without that, you descend into the banana republics that are rife with corruption.

 

[stevo3]

I had selected a whole bunch of comments in this thread that I was going to multi-quote but most of them have been addressed or have gotten so mixed up it wouldn't be worth the time. So instead, I'm just going to summarize the reason this is a scandal much larger than Watergate ever dreamed of being.

The FBI opened a CI on an opposition candidate's campaign team. Already shady, but I'll allow it on the grounds that there may have been real intel that members of this campaign "may" have been acting against the interest of national security. But then the FBI determines that there is no credibility to the intel and begins the process to close the investigation. At which point Peter Strozk in league with the 2nd in command at the FBI, Andrew McCabe, reaches out to the agents charged with closing the investigation to keep Operation Crossfire Hurricane open because they now have the Steele Dossier to use as evidence for more FISA warrants to spy on American citizens and attempt to derail the now incoming president's administration.

Now, what is the one thing they can't have in this new "Inexperienced" administration? Someone in a position of actual power that knows the inter-workings of the intelligence community and will begin asking questions and demanding to see intel, evidence, information, etc. of this ongoing investigation. AKA, Michael Flynn, incoming National Security Advisor. So now we have the handwritten notes, or email, of the FBI agents asking "What is our objective with Flynn?" To convict him or get him fired? Why? They needed to get him out of the way otherwise their investigation was DOA and their jobs could be in jeopardy.

Now we know just how shady this all was due to Good Ole Jim Comey's publically televised interview in which he stated that he he called Flynn and asked if he could send a couple of agents over to get his statements on a couple of things. When asked if he (Flynn) should get the Whitehouse Council involved and get some legal representation, Comey (THE HEAD OF THE FBI) told him that was not necessary. (I know many can play armchair QB and say that Flynn should have known better and gotten legal representation, but again, he had THE HEAD OF THE FBI tell him it was not necessary.)The result of this "chat" was the FBI agents saying they didn't think he lied to them. Yet, the reason he was indicted and charged was the direct result of something he stated in this meeting.

During which, he had to sell his house to cover his extensive legal fees and only pleaded guilty to keep his son from being investigated and ruined in the same manner. MANY OF YOU HAVE ASKED "What crime was his son being threatened with?" Well as we have seen from the release of all the recent information, the FBI doesn't actually need a crime to investigate. They will make something up and come up with the crime along the way. Flynn was deteremined not to let the same thing happen to his son.

When asked about whether he would have tried this with another administration, Comey (THE HEAD OF THE FBI) casually said 'No. I would not have tried this with a more "Experienced" administration." Meaning he knew there would be a good bit of chaos and uncertainty in the early days of this administration so he figured he could get away with something so shady.

Now we have the release of the House Intel Committee's investigation transcripts and have learned that all the pertinent members of the Obama Admin that were interviewed, including the head of Crowdstrike (Company tasked with investigating the Clinton server rather than the FBI) testifying there was no evidence of collusion or that the Russians hacked the server. Yet these very same officials went on every media outlet who would have them saying the exact opposite on national television, radio, etc. All the while, these very same officials had leaked the more damning pieces of the investigation (without context or substantive evidence to corroborate it) to the MSM who were all to eager and willing to report on it and then devote multiple news cycles shouting about how it was finally the "Bombshell" that would end the Bad Orange Man's reign. These were also the very same individuals who we have learned requested the unmasking of Flynn (THE INCOMING ADMINISTRATION'S NATIONAL SECURITY ADVISOR) in his converstations with foreign individuals. In essence, spying on the incoming administration's team.

All of which led to the Mueller Investigation and the Impeachment attempt which amounted to a whole lot of wasted taxpayer dollars and basically, attempted sabotage of a presidential administration. For nothing. Literally nothing.

 

[Humperdoo]

MSNBC host fails to ask Biden about Flynn unmasking request after he denied any involvement in case

MSNBC host Lawrence O'Donnell had the first TV interview with Joe Biden since his name appeared on the list of Obama officials who had requested the unmasking of former national security advisor Michael Flynn but failed to address it directly during the sitdown.

www.foxnews.com

 

[Savage]

Love me some Rand Paul. Good discussion over why this crap is a big deal. It seems like some people have lost their minds and are willing to let the government do whatever the hell they want if that means taking down Trump.

 

[dtc]

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.

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.

Intervention is an interesting term you've used to incorrectly characterize the role he's playing.

 

[dtc]

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?

Be for real.

It's un-American to not vilify attorneys.

 

[dtc]

I had selected a whole bunch of comments in this thread that I was going to multi-quote but most of them have been addressed or have gotten so mixed up it wouldn't be worth the time. So instead, I'm just going to summarize the reason this is a scandal much larger than Watergate ever dreamed of being.

The FBI opened a CI on an opposition candidate's campaign team. Already shady, but I'll allow it on the grounds that there may have been real intel that members of this campaign "may" have been acting against the interest of national security. But then the FBI determines that there is no credibility to the intel and begins the process to close the investigation. At which point Peter Strozk in league with the 2nd in command at the FBI, Andrew McCabe, reaches out to the agents charged with closing the investigation to keep Operation Crossfire Hurricane open because they now have the Steele Dossier to use as evidence for more FISA warrants to spy on American citizens and attempt to derail the now incoming president's administration.

Now, what is the one thing they can't have in this new "Inexperienced" administration? Someone in a position of actual power that knows the inter-workings of the intelligence community and will begin asking questions and demanding to see intel, evidence, information, etc. of this ongoing investigation. AKA, Michael Flynn, incoming National Security Advisor. So now we have the handwritten notes, or email, of the FBI agents asking "What is our objective with Flynn?" To convict him or get him fired? Why? They needed to get him out of the way otherwise their investigation was DOA and their jobs could be in jeopardy.

Now we know just how shady this all was due to Good Ole Jim Comey's publically televised interview in which he stated that he he called Flynn and asked if he could send a couple of agents over to get his statements on a couple of things. When asked if he (Flynn) should get the Whitehouse Council involved and get some legal representation, Comey (THE HEAD OF THE FBI) told him that was not necessary. (I know many can play armchair QB and say that Flynn should have known better and gotten legal representation, but again, he had THE HEAD OF THE FBI tell him it was not necessary.)The result of this "chat" was the FBI agents saying they didn't think he lied to them. Yet, the reason he was indicted and charged was the direct result of something he stated in this meeting.

During which, he had to sell his house to cover his extensive legal fees and only pleaded guilty to keep his son from being investigated and ruined in the same manner. MANY OF YOU HAVE ASKED "What crime was his son being threatened with?" Well as we have seen from the release of all the recent information, the FBI doesn't actually need a crime to investigate. They will make something up and come up with the crime along the way. Flynn was deteremined not to let the same thing happen to his son.

When asked about whether he would have tried this with another administration, Comey (THE HEAD OF THE FBI) casually said 'No. I would not have tried this with a more "Experienced" administration." Meaning he knew there would be a good bit of chaos and uncertainty in the early days of this administration so he figured he could get away with something so shady.

Now we have the release of the House Intel Committee's investigation transcripts and have learned that all the pertinent members of the Obama Admin that were interviewed, including the head of Crowdstrike (Company tasked with investigating the Clinton server rather than the FBI) testifying there was no evidence of collusion or that the Russians hacked the server. Yet these very same officials went on every media outlet who would have them saying the exact opposite on national television, radio, etc. All the while, these very same officials had leaked the more damning pieces of the investigation (without context or substantive evidence to corroborate it) to the MSM who were all to eager and willing to report on it and then devote multiple news cycles shouting about how it was finally the "Bombshell" that would end the Bad Orange Man's reign. These were also the very same individuals who we have learned requested the unmasking of Flynn (THE INCOMING ADMINISTRATION'S NATIONAL SECURITY ADVISOR) in his converstations with foreign individuals. In essence, spying on the incoming administration's team.

All of which led to the Mueller Investigation and the Impeachment attempt which amounted to a whole lot of wasted taxpayer dollars and basically, attempted sabotage of a presidential administration. For nothing. Literally nothing.

Wow. That's an enormous bit of fiction.

 

[Savage]

Wow. That's an enormous bit of fiction.

Great response. Can you elaborate on why, or which parts you feel are fiction?

 

[dtc]

Great response. Can you elaborate on why, or which parts you feel are fiction?

I think fiction is the wrong term. It's more like fictionalized history.

You know. It's a story woven to make a dramatic point that's based on actual characters and events, but not necessarily accurate.

Sort of like The Titanic with DeCaprio and Winslett. Yes, it sank, but no, there wasn't any miraculous love story complete with recovered jewels.

 

[Savage]

I think fiction is the wrong term. It's more like fictionalized history.

You know. It's a story woven to make a dramatic point that's based on actual characters and events, but not necessarily accurate.

Sort of like The Titanic with DeCaprio and Winslett. Yes, it sank, but no, there wasn't any miraculous love story complete with recovered jewels.

OK, so this is just a vague dismissal because you don't like the words he said. Labels such as fake news monger and conspiracy theorist are too played out/overused, or maybe don't make sense anymore because the facts are coming out, so we're going with fictional historian now.

 

[JimEverett]

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


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.

I guess I can see the logic there, but it does seem weak if that is the best authority the Judge can find. The proposition that a Judge has authority after a finding of guilt seems rather uncontroversial - what is not so uncontroversial is the ability to put in what is essentially a private-party to prosecute on behalf of the state. If there was some history of that, which seems possible, it would seem like the Judge would cite that authority.

Further, it would seem to make more sense to me that he allow/appoint amicus curie to argue against the Motion to Withdraw the Plea as opposed to argue against the Motion to Drop the Charges. I mean more to your point - it is clear the Judge can rule on both Motions without regard to the DOJ and without the amicus curie. I could see him wanting, perhaps, to make his decision upholding the guilty plea more "appeal proof" by having an actual response in opposition to it.

An as far as the potential contempt charge - why would there be a need for an amicus? The Court can clearly rule on that without regard to the prosecution.

 

[JimEverett]

If you can't differentiate between a member of a transition team simply having a meet and greet with foreign governments and preparing to meet once they take office, and that person actually negotiating with that foreign government against the current administration's policy, I'm not sure how I can spell it out for you.

As for example B not being a problem....you consider telling the members of the incoming administration that they can't negotiate AGAINST THE CURRENT ADMINISTRATION'S policies before taking office as "hamstringing" them?

I have said I understand the difference. Its really not a particularly salient point.
For one thing - the "practical" effect I am talking about is the air of illegality of any potential meeting - whether it is your example A or B: the view you and Taylor seem to be taking in that "negotiations" are a step too far will, in all practical effect, throw doubt on to any and every interaction with foreign representatives. Which will severely hamstring incoming Administrations.
The example, which is just one of many we could use, of Albright in 2008 shows that there weren't neutral observers transcribing the talks for universal publication.

Second, the idea that transition teams essentially act as networking events like they are recent graduates strikes me as comical. The point is more akin to hitting the ground running as opposed to starting from scratch and that requires much more than exchanging business cards.

 

[TaylorB]

I guess I can see the logic there, but it does seem weak if that is the best authority the Judge can find. The proposition that a Judge has authority after a finding of guilt seems rather uncontroversial - what is not so uncontroversial is the ability to put in what is essentially a private-party to prosecute on behalf of the state. If there was some history of that, which seems possible, it would seem like the Judge would cite that authority.

Further, it would seem to make more sense to me that he allow/appoint amicus curie to argue against the Motion to Withdraw the Plea as opposed to argue against the Motion to Drop the Charges. I mean more to your point - it is clear the Judge can rule on both Motions without regard to the DOJ and without the amicus curie. I could see him wanting, perhaps, to make his decision upholding the guilty plea more "appeal proof" by having an actual response in opposition to it.

An as far as the potential contempt charge - why would there be a need for an amicus? The Court can clearly rule on that without regard to the prosecution.

I am getting pretty far out over my skis in discussing federal criminal procedure, so I would take my response with a grain of salt, but here are my thoughts.

If it's reasonably within the court's authority to reject a motion to dismiss because the court views the defendant's guilt as already having been adjudicated, then I tend to agree with your suggestion that the most likely reason to appoint amicus curiae would be to make the ruling more "appeal proof," if the court decides to uphold the charges. I think if the court needed to engage in some sort of fact finding mission to determine either (1) whether the DOJ's motion was in bad faith, or (2) whether the dismissal served the interests of the US, that would justify having counsel appointed for the court, at least as a practical matter. I don't necessarily think the court's going to do that, nor do I necessarily think that's a great idea.

It's a closer call as to whether amicus is necessary as a practical matter to simply argue in favor of the court's power, but there does appear to be some authority for it. The law is laid out better in the Minute Order from May 12 than in the more recent order appointing amicus (you have to scroll down a bit for the Minute Order, this was the only link I could find that had the text in it):

Judge Temporarily Stops Dismissal of Michael Flynn Case | Law & Crime

Federal Judge Emmet G. Sullivan on Tuesday stopped — at least temporarily — the federal government's attempt to drop its case against former National Security Advisor Michael Flynn.

lawandcrime.com

And the first part of the Jin case ("Legal standard for filing amicus curiae briefs") shows some pretty broad authority for federal judges to appoint amicus curiae:

Youming Jin v. Ministry of State Security, 557 F. Supp. 2d 131 – CourtListener.com

Youming Jin v. Ministry of State Security — Rejecting plaintiffs’ motion for default judgment on one of the plaintiffs’ claims because the court lacked subject matter jurisdiction and dismissing the other claim for failure to state a claim

www.courtlistener.com

On the other hand, I've also seen some commentators discussing US v. Sineneng-Smith, a recent SCOTUS case that held 9-0 that the 9th circuit violated the "party presentation principle," who are saying Sullivan overstepped by appointing amici. The difference between Sineneng's and Flynn's cases to me is that the position amicus was taking in Sineneng was bolstering that of the defendant, who was already a represented party, whereas in Flynn's case, amicus is being presented to defend a position previously taken by the government that it has abandoned. (see US v. Arpaio https://www.leagle.com/decision/infco20180417186 - starting in the paragraph that begins "second, independent of any authority..." and through the following paragraph). Meaning there is relatively solid authority for appointing amici in Flynn, when there really wasn't in Sineneng. I am sure there are counter-points to the distinction I've drawn between Sineneng and Flynn, that's just my gut reaction to reading some of the case law.

Finally, regarding whether the court needs amicus on the contempt charge, you're probably right that it's not necessary as a practical matter. But Federal Rule of Criminal Procedure 42(a)(2) seems pretty clear that it's within the court's authority to appoint amicus to prosecute a contempt charge under these circumstances:
https://www.law.cornell.edu/rules/frcrmp/rule_42

I have been in the unfortunate position in my career of having to research ways to attack Article III judges' authority (in the context of civil cases), and it never ceases to amaze me how broad and unrestrained their power can be. My reading of Jin, Arpaio, etc. bolsters that for me regarding the ability to appoint amicus. I don't necessarily disagree with anything in particular that you said, I'm just skeptical of the idea that an appeals court or SCOTUS would rein in Sullivan's ability to do what he's doing.

 

[SaintForLife]

Intervention is an interesting term you've used to incorrectly characterize the role he's playing.

Can you explain the role he is playing?

 

[Humperdoo]

Be for real.

It's un-American to not vilify attorneys.

Play the lotto dtc. I agree with you there lol.
Hope you and yours are well.

 

[SaintForLife]

Once again Taibbi with an excellent article that highlights the crumbling of the Flynn and Russia cases while also criticizing the media's role.

 

[Farb]

I was looking for something in regards to Kerry chatting up Iran when Trump was president and came across this CNN article. Seems to cover both Kerry and Flynn. Obviously, one is wrong and the other is not but the article did have some pretty good details about the Logan Act as a whole and admin and transition teams contacting foreign governments.

https://www.cnn.com/2019/05/09/poli...n-kerry-logan-act-iran-facts-first/index.html