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Monday, December 16, 2019

MULTIPLE UPDATES: Judge Rejects Flynn Motions

The memorandum opinion of Judge Sullivan is 99 pages long, so obviously I can't have read it. We'll soon see what others think.

What I noticed first was that Sullivan takes a shot at Flynn's attorney, Sidney Powell, suggesting that she has engaged in "professional misconduct" for plagiarization, by "merely provid[ing] a hyperlink" to a brief she quotes rather than a direct citation (p. 17):



A. Ethical Concerns with Mr. Flynn’s Brief

The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12,15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v.United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22. 
The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud,deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R.8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.” United States v. Bowen, 194 F. App’x 393, 402 n.3(6th Cir. 2006); accord LCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.” Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77 n.2 (D.D.C.2006).

I dunno. Sullivan's language strikes me as a bit over the top, a bit of a cheap shot, in that Powell was hiding nothing (any more than Flynn hid anything from the FBI)--what she did doesn't appear to be "dishonesty, fraud, deceit, or misrepresentation”, even if it wasn't in full compliance with the rules.

I have to admit that I'm unable to follow the Judge's reasoning as to the merits. Let me break up the paragraphs here into major points, beginning on p. 49:


iii. Mr. Flynn’s False Statements Were Material

Mr. Flynn argues that his false statements to the FBI were not “material” for two reasons.
First, Mr. Flynn contends that his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election because the interviewing FBI agents did not ask him a single question about election interference or any coordination between Russia and the Trump campaign. 
Next, Mr. Flynn argues that the FBI had recordings and transcripts of his conversations with the Russian Ambassador, arguing that the FBI “knew exactly what was said” and “nothing impeded [the FBI’s] purported investigation.”
The government responds that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s “counterintelligence investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election.”

The judge cites nothing about how chatting Flynn up--that's exactly how the FBI intended the setup interview to appear--about his legitimate official business "went to the heart" of anything. Here's how he reasons:

Mr. Flynn’s first argument--[his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election]--fails to appreciate the FBI’s strategic decisions and investigative techniques. Cf. United States v. VanMeter, (FBI uses “a variety of conventional investigation techniques” to “unearth [] numerous leads”).

That may be, but surely an explanation of what technique was involved and how it related to the Russia investigation re the 2016 election would be in order? Am I missing something here? Is Sullivan really suggesting that the FBI was warranted in randomly investigating and testing for accuracy and/or truthfulness anyone in the Trump administration who happened to come in contact with a Russian diplomat? 

Sullivan goes on to state that Flynn and Powell fundamentally misunderstand the law of materiality. I'm not so sure they do misunderstand that:

Mr. Flynn’s second argument is foreclosed by D.C. Circuit precedent. See United States v. Moore, 612 F.3d 698, 701(D.C. Cir. 2010) (holding that “a statement is material if it has a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it was addressed”).

Once again, it seems to me that some discussion of how Flynn's account of his official conversations with the Russian ambassador in this instance had a natural tendency to influence the FBI in any of its functions is called for. Yet there is none. Restating the law through quotes from other cases hardly seems dispositive for this case with its unique set of facts. Instead, Sullivan rather fliply says that 18 USC 1001 doesn't require him to "function as [an] amateur sleuth[]".

I certainly hope this gets appealed. As I've argued in the past, there appears to me to be a fundamental issue of due process here, with regard to the whole question of predication. Everything we've seen indicates that the FBI had no basis whatsoever for investigating Flynn in the first place--and therefore, as I've argued, the interviewing agents can hardly be said to be acting in an official capacity. To that extent I would regard what they did as a fraud on the government. I'd very much like to see a court rule on that whole issue--whether the FBI can test the truthfulness of any person without a legitimately predicated investigation. This interpretation of due process seems to me to be manifestly unjust and ripe for review.

No doubt there will be more analysis soon.

ADDENDUM: I'll go on the record here, FWIW, that I continue to believe that Flynn will eventually be exonerated.

I also note that sundance continues to take moronic shots at AG Barr,

By withholding the classification material (particularly the Susan Rice memo to file) Attorney General William Barr has built the gallows upon which Flynn will hang.

IOW, since Barr hasn't declassified everything that sundance, in his wisdom, thinks Barr should declassify, Barr is complicit in Sullivan's ruling.

UPDATE 1: In the past I have expressed a belief that AG Barr is not able to simply dismiss a case that is being prosecuted by a local USA office. That appears not to be a fully accurate view although, as you'll see, it's not an easy thing or a step that any AG would lightly take. I've learned that in a letter dated June 6, 2019, before she was actually counsel for Michael Flynn, Sidney Powell suggested to Barr that he take steps to have the case dismissed. A full copy of the long letter can be found as Attachment 1 here, beginning at page 31 of the full pdf.

In her letter, Powell cites the example of the DoJ moving to dismiss the Ted Stevens prosecution. That, however happened after Judge Sullivan had on his own identified serious misconduct and the original prosecutors were under investigation. My understanding is that to dismiss a prosecution the government must make a motion and provide a reason, and the decision will remain up to the judge. For the AG to take that step in a local prosecution would require, I believe, a specific finding that would force the replacement of the prosecutor(s). As you'll see from the excerpt I provide below, Powell's first request is that the prosecutors all be replaced.

All this comes up against the question of what's going on in the overall Barr/Durham investigation--would making such a move prejudice the investigation in any way? None of this is easy. I believe that specific misconduct could be identified, but that for reasons that he feels unable to make public at this point, Barr is unwilling to take that step. Part of the reason for that may stem from Powell's second request--that a determination be made as to the basis for the investigation of Flynn. That, of course is what I keep going on about. Unfortunately, to do so could tip the hand of the Barr/Durham investigation. We'll see. In the meantime, here are the specific requests Powell made of Barr



UPDATE 2: Margot's right, of course: pleading guilty twice under oath and examined about voluntariness by the court doesn't help. But check this out--the plagiarism charge really was a cheap shot:








47 comments:

  1. Months ago Sullivan seemed annoyed that Flynn is still arguing but not withdrawing his plea. He needs to withdraw his plea to force discovery of the truth. Maybe Sidney Powell will move to dismiss and/or withdraw the plea, but I think she needs to do at least one.

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    1. Good point--perhaps you're right. We're gonna find out soon. She's a highly experienced trial and appellate lawyer, so she must've had her reasons. Nevertheless I found Sullivan's reasoning lacking.

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  2. I'm not a legal beagle, so I can't say anything about the salvo Sullivan directed at Powell. But Powell, apparently, left herself open to it. Maybe she thought Sullivan was someone else. An honest man?

    Flynn was set up. You have posted more than enough material on this blog to substantiate that, as has Sundance over at CTH. Sullivan's finding is a blow.

    I thought a Flynn reversal was a "slam dunk," to steal a phrase from one of our intelligence luminaries. If a judge can put the screws to Flynn, dismissing utterly all the exculpatory material, not to mention the odious shenanigans of the FBI, then I'm afraid every last one of the miscreants Barr is after has a very good chance of walking free. I mean, Powell had the goods!

    I'm starting to imagine again a world where all these desperadoes get off. They've been moved aside and promoted. The ones who've been cashiered, if that is the correct term for early retirement, still have their sweetheart 80% defined benefit federal pension plans.

    Not one of them has been taken down.

    Very disheartening.

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    1. I understand where you're coming from and share the feelings. However, I think what Barr has consistently done is let the processes work out, giving people the opportunity to do the right thing. When that doesn't happen he takes the steps that he's able to, within the constraints of the big picture Durham investigation. It's possible that the completion of the OIG report frees his had a bit. We'll see.

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    2. I just finished "Licensed to Lie." Powell is effusive in her praise for the courage, etc. of Judge Sullivan. He claimed not to have read the book during one of the hearings, but could it be that he does not want to be accused of being played by Powell?

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    3. Not so much that as that Powell was asking him to go much further than in the Stevens case. In the Stevens case the FBI agent came forward. In this case they're holding ranks against Flynn.

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    4. Flynn's legal position IMO is pathetic - "Yes I'm guilty but they're corrupt!" What's Sullivan supposed to do with that?

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  3. I agree with Titan 28 that it's discouraging and makes me fear the perpetrators will get off scot-free.

    Whether they do or not, the American People can weigh in by reelecting DJT and turning out the Dems from the House with the Reps keeping the Senate.

    Then the Reps can decline to renew the FISC or strengthen protections for Americans.

    And the President can keep putting in honest judges.

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    1. McConnell just filed for cloture on 13 District Court judges. Badly needed. They've concentrated on Appellate, but they have lots of others in the pipeline.

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  4. I don't understand the judge's decision on the materiality argument; he argues it need only have the "potential to influence the understanding of material facts" but Flynn's statements to FBI agents who have the transcript of the call they asked him about cannot be influenced by Flynn's answers, because THEY HAVE THE TRANSCRIPT! THE TRANSCRIPT TRUMPS ALL WITNESS STATEMENTS! It's that simple.

    This brings me back, once again, to the key defect in the predication for the FBI interview of Flynn: since they already had the transcript, there is nothing Flynn can say about the content of his call with Kislyak that can change the FBI's understanding of that call; SO WHY DID THEY SEEK TO INTERVIEW HIM ABOUT THINGS THEY ALREADY KNEW ABOUT?

    It screams "perjury trap." There is no other plausible predication for an interview that can't make any difference.

    Ergo, Flynn was set-up.

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    1. That's what I've been arguing for many months. Sullivan fails to relate the law to the specific facts of the case, as far as I can tell.

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    2. The other issue that resonated with me is the conflict of interest created by Flynn's original lawyers.

      How is Flynn supposed to know the conflict is not waiveable? Why is Flynn punished for his lawyer's creating a conflict for themselves? Their advice to him to plead out to the 1001 charge -- even though he was innocent -- screams out for as incompetent legal representation: having created their own conflict between being responsible for creating a FARA filing that contained false statements, and their responsibility to represent their client's best interests, they had a vested interest in the FARA issue going away, and thus may have placed their own interests above that of the client's by advising him to plead out to a crime he did not commit, rather than fight it, because it made the embarrassing (for the law firm) false FARA filing "go away." This was self-serving of Flynn's law firm.

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  5. So in the past, Sullivan dresses down the DoJ completely. Is it possible that subsequent to that, some aspect of the judge's life has become known to the DoJ, and he is acting to protect himself? I do not make this suggestion flippantly; I would never have thought it possible until 2017 and the Mueller investigation. Just a thought...

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    1. Time for Judge Sullivan to take senior status.

      Rob S

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    2. Regarding Sullivan's 99-page opinion: I'm not a lawyer & TL;DR
      Also,Sullivan is 72 years old. I don't think he appreciates being pushed to do what Sidney Powell wants, while she can force the issue herself by withdrawing the plea & force discovery. Or withdraw the plea and watch the gov drop the charges to avoid discovery. He's not going to do her work for her. He's too old for that.

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  6. Flynn will have to withdraw the guilty plea to get discovery.

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  7. And, yes, that was a cheap shot at Powell- it isn't plagiarism is you cite the source in addition to putting in quotes. Perhaps she didn't source it the way Sullivan would like, but he badly abuses the word plagiarism.

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  8. .... since Barr hasn't declassified everything that sundance, in his wisdom, thinks Barr should declassify, Barr is complicit in Sullivan's ruling.

    I don't remember that Barr ever advised Flynn to surrender without a fight and to plead guilty.

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    1. Oh, I don't know, maybe the threat of bringing his son up on charges along with conflicted, ineffectual counsel who, apparently, did not advise effectively or defend him vigorously.

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  9. Flynn, if he wants to clear his name does have to take a courageous step, and withdraw the plea- force the government to try a case. Depending on judge to do the right thing is probably a fools errand in the best of circumstances, and Sullivan's reasoning on how the "lies" Flynn pled to being material is specious at best. The interview with Flynn was no attempt to get at the truth, it was a perjury trap beginning to end, and I think it probable they just made up stuff when the actual answers didn't suit them.

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    1. Can Flynn even withdraw his plea at this point?

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    2. My belief is that it can only be done with the judge's permission at this point. That would have been the case, again in my belief, once the plea agreement had been finalized.

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    3. So, that leads me to the obvious second question: is Judge Sullivan rejection of Flynn's attorney's motions a "subtle" way of "suggesting" to her that Flynn needs to withdraw his plea if he wants out of this mess?

      Is he signaling a willingness to entertain such a motion in his demolition of her current motions?

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    4. Example: somewhere in the Judge's decision today, he makes some statement like: "Flynn has not alleged his representation by previous legal counsel was deficient..."

      Is that a hint from the judge where Flynn's lawyer needs to go to get him to side with Flynn?

      IOw, is Sullivan leading Flynn's attorney by the nose, or am I reading too much into his decision?

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  10. -->"Everything we've seen indicates that the FBI had no basis whatsoever for investigating Flynn in the first place--and therefore, as I've argued, the interviewing agents can hardly be said to be acting in an official capacity."<--

    Nor can the interviewing agents be said to be acting in good faith. This is Beria territory--investigating the man, and not investigation=ng a crime.

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    1. If this decision is allowed to lead to Flynn in jail, and if DJT is pressured into not pardoning him, millions will indeed conclude that we are indeed in a Beria State, which must be resisted by such means as succession.

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  11. I'm disappointed in Sullivan. Of course I'm not an attorney so I don't know all the ins and outs.

    From a layman's perspective, Flynn got screw by the US Government and by his first lawyers and now by the judge.

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    1. Mark, Joe, etc., please post some views of the below comment on ins and outs, from the CTH post today on this travesty:

      omyword says:
      December 16, 2019 at 8:41 pm
      Barr is protecting a grand jury investigation. This judge is trying to FORCE him into turning over information from that ongoing investigation. Gen. Flynn is being held HOSTAGE, and Sullivan is making that happen. Not Barr.

      https://www.dailywire.com/news/scandal-reopens-court-papers-on-democrat-it-aide-imran-AWAN-make-new-revelation .

      If this is so, why wouldn't the judge just wreck the Awan case himself, by granting part of Sidney's request?

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    2. That's at least the type of thing I was referring to when I referred, above, to Barr having to operate "within the constraints of the big picture Durham investigation." He's juggling things, keeping multiple balls in the air, including impeachment, Schiff's criminality re subpoenas, etc. He's having to balance not just legal things but political things, too.

      Blaming Barr is crazy.

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    3. Mouse, I agree with Mr. Wauck. This is not an easy task and Barr will do it the right way. That's why I have respect for him. He's not going to undermine the Constitution and the rule of law.

      I just don't know what motivates Sundance sometimes. Heck, we're all beyond tired and want to see a blitzkrieg of charges against the Dems/Deep State/Media. But if it isn't done correctly, than we are no better than the Left. And we become a banana republic.

      I'm not wavering in my defense of Barr. But whether charges come or not, the People will have their say and they can humble the Dems with a red tide. I am hoping that the People are woke. They seem to be.

      Let's hope no man of good will is complacent when it comes to doing his duty on the first Tuesday in November of 2020.

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    4. Yeah, 2020 will decide, hopefully not by armies of illegals appearing on the vote rolls.

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  12. Now sundance is saying: "There’s a strong likelihood, that after the impeachment vote, President Trump will not be able to declassify anything, lest he be accused of obstructing his own impeachment. This is the same legal catch-22 President Trump faced in September 2018, when DOJ Rod Rosenstein advised (threatened) the President, that any action he took at the time to declassify material would be considered “obstruction” of the Mueller investigation."

    Is he missing something?

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  13. Barr's only been on the job for ten months. He can't undo all of this by snapping his fingers.

    I have far more faith in Trump, Barr and Durham than I do in Schiff, Nadler, Pierre Delecto, Rosenstein and Clapper.

    We've been sliding downhill in so many ways for so long. I'm still optimistic but the fight is going to be long and hard. But it is worth persevering to preserve what is good about our nation.

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  14. Perhaps at this point, Gen. Flynn should do a Sean Hannity interview and "spill all the beans"?

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    1. While tempting, it would probably enrage the judge prior to sentencing or prior to a motion to withdraw his plea. We all understand what a tough position Flynn was in, but pleading guilty twice didn't help. He did that under oath, so he committed perjury twice if he now says he isn't guilty (which he isn't). Obviously we don't know everything that was said between him and his lawyers at the time. Powell took over a terrible case. I believe he'll be exonerated in the end, but he didn't make anything easy for anyone.

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  15. Sundance does have a point, though.

    Comey admitted to Congress on TV that the only reason he sent the FBI to Flynn was to take advantage of the naïveté of Trump's administration.

    Trump wss not ready to fully take office and one of the rumored reasons was that the GOP refused to help. Maybe it was hubris on Trump's part, but the fact is Comey would not have done that with any other administration as he admitted.

    Yes, Barr has been on the job for a relatively short period of time, but he is the face of bringing these folks to justice and all we get is more scalps by the previous admin that is all fraudulent and illegal.

    Remember, Trump is just the latest iteration of massive unrest by the flyovers, bitter clingers, and deplorables.

    The next iteration may not be as nice.

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    1. Sorry, forming a circular firing squad is always a bad idea. This is the biggest scandal in US history with all sorts of side issues. Sundance has no point at all re Barr.

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    2. No, I did not intend to suggest a circular firing squad, that Sundance clearly imports.

      Barr is great, Sessions was an utter failure that allowed this to fester and grow.

      Yet, Barr is the head of the DoJ, just as Sessions was. He will take the brunt of criticism justified or not.

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  16. Not to beat a dead horse, but.... one of the things that has always bothered me about Flynn's pleading guilty to a 1001 charge regarding his phone call with Russian ambassador is that he had no incentive to lie about it.

    The call was perfectly legal, the "Logan Act" nonsense was all nonsense, and the Obama admin had explicitly approved the transition team contacting foreign officials. So what possible benefit was there to Flynn to lie about the call? None.

    So, unless Flynn is a congenital liar who lies even when it is to his detriment, there is no way he intentionally lied to the FBI about the call (especially knowing as Flynn would have known that all calls to and from someone like the Russian Ambassador are monitored.)

    And since there is no evidence he was a congenital liar, we can reasonably conclude Flynn didn't intentionally lie to the FBI about his calls with Kislyak, which means he's not guilty of the 1001 charge that he pleaded guilty to.

    Under such circumstances, why didn't the judge say: "this is bullshit, and I don't believe the defendant when he says he committed this crime. What's going on here?"

    To believe the guilty plea is to believe that Flynn, with no possible benefit -- to him or the administration -- from doing so, nonetheless intentionally lied to FBI agents about a call he knew they would have a transcript of, and thus could tell if he lied.

    Surely Judge Sullivan can see through the transparent bullshit. He HAS to suspect the defendant is being blackmailed, for there is no other explanation for his guilty plea, since he could not have benefited from intentionally lying, and does not appear to be insane.

    Justice demands that the court refuse guilty pleas from people who are transparently not guilty of the crime, just as they refuse guilty pleas from publicity seeking mental cases who show up at the police station to plead guilty to every sensational crime committed.

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    1. I agree, but judges won't go there:

      "Justice demands that the court refuse guilty pleas from people who are transparently not guilty of the crime,"

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  17. Oh, and I should add, the Prosecutors are guilty of suborning the perjury of a false confession/guilty plea by Flynn.

    And that is Flynn defense against a potential perjury charge for swearing he comitted a crime he didn't: the prosecutors forced him into it and suborned his perjury, which he would not have otherwise undertaken but for the prosecutorial blackmail. I.e, his perjury was not willful.

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    1. You're right, but judges won't go there. The problem is that judges come up from the ranks of lawyers and are rated by the bar associations.

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