Friday, May 15, 2020

Is Sullivan's Game To Delay Team Mueller Indictments By Durham?

Yesterday I quoted a lawyer son to the effect that Sullivan's perjury/contempt gambit in the Flynn case doesn't make a lot of legal sense--More On Perjury And Contempt:

Sullivan would actually be creating a huge problem because he would, in effect, be asking the government to prove Flynn knew he didn't make material false statements to the FBI but decided to plead guilty anyway. And so Flynn would certainly have the right to explain that he felt forced to plead guilty because of the threat to indict his son. ...
Besides, for a statement to be perjury, I am 99% sure the defendant has to make a false statement of fact, not a false legal conclusion--and materiality is a legal conclusion. I'm sure Flynn admitted to making conflicting statements to federal investigators, but it's not perjury for him to believe at the time of the plea that his statements were material.

My expressed view was that all of this is essentially a delaying tactic by Sullivan--he's stalling--to which my son responds:

Makes sense. At this point Sullivan is just making the law up as he goes along—and entering long briefing schedules—just to drag it out.

That much is perfectly clear, and as I keep saying: every lawyer and judge in the land can recognize this.

The question then becomes--to what purpose is this delay, the stalling tactics that make a mockery of justice (which is denied when delayed) and the federal courts? This means that Sullivan is in some sense a co-conspirator in the big picture conspiracy, but what exactly is his game?

Here I speculate--to a degree that I'm not normally comfortable with, but which is necessary at this juncture.

Two things have been clear to me for a long time--which I've maintained repeatedly:

1) Durham is aiming for indictments from Team Mueller;
2) The clearest path right now--from our vantage point--to the heart of Team Mueller and the big picture conspiracy is through the Flynn case.

I'm not sure exactly how this works, but I'm speculating that Sullivan is seeking to delay peforming what is now simply his "ministerial function" (as higher courts have characterized any judge's role at this point} of dismissing the prosecution of Flynn because he wants to delay entering a final judgment in the case. I'm guessing that the specific reason for this is that, as long as there is no final judgment in the Flynn case, John Durham's planned indictments of Team Mueller personnel--indictments that are based at least in part, but possibly a large part, on the abuses of the Flynn case--may also be delayed.

I'm open to correction on this, of course, but I'm trying to make real and specific sense of what's going on. Because in any above-board legal sense it makes NO sense.

Needless to say, if true, this scheme cries out for the remedy Brett Tolman, Margot Cleveland, and others are now calling for: a writ of mandamus ordering the dismissal of all charges against Michael Flynn and removal of Sullivan from the case on remand.

ADDENDUM: Also needless to say--but I'm saying it anyway--is that any indictment of Team Mueller personnel would have a major impact on the entire Russia Hoax narrative going into the 2020 elections. Obviously the continuing revelations will have an effect, but indictments are special. The spectacle of a federal judge colluding in plain sight with political operatives in the context of a criminal case is far beyond unseemly.

Desperate times, desperate measures.

UPDATE: J. E. Dyer (h/t aNanyMouse) addresses these issues and offers a number of explanations. Here, I think is her best capsulization of it all:

The whole thing, meanwhile, looks like a play for time.  In that respect, it’s probably related to what’s going on with the John Durham investigation, and what is about to emerge regarding many of the same Obamagate principals who have a vested interest in the outcome of Michael Flynn’s case.


  1. The Flynn revelations were perhaps meant to flush out co-conspirators and make them make mistakes and/or reveal themselves. It sure looks like Sullivan is revealing himself. What if we find we also have "resistance judges" ? I mean, if there are several actors across multiple parts of the government, why not the judiciary? It would certainly help with their lawfare tactics. Everything written about Sullivan describes him as a capable, intelligent jurist. So as you say, why does he do what he does now?

    1. It's high time, IMO, for the upper levels of the Judicial Branch to get involved. They're getting dragged through the mire of the Swamp, starting with the NSA abuse.

    2. For many of us, the Judicial Branch is a big part of the Swamp.


  2. Interesting theory. Playing devil's advocate here, Sullivan already has experience with Weissmann through the Ted Stevens case. As I understand it, he criticized the prosecutors and dismissed the case. So, he may have a guarded opinion of Weissmann and presumably would not want to defend Team Mueller.

    One theory I used to have is that he realized that Flynn was innocent and gave him a chance to recant. Maybe he figures that Flynn made his bed and he needs to lie in it?

    Another theory is that he is like a lot of people today, he has Trump Derangement Syndrome (TDS). I don't know the man so I can only guess. But, TDS is my current thought for Sullivan.

    In any event, we agree that he is in the wrong.

    1. Weissmann was heavily involved in the Enron case, but not, I believe, in the Stevens case. That would have been Judge Dabney Friedrichs' husband.

    2. Thank you for correcting me.

      Another thought that I had, and it goes along with my TDS theory, is the USA government structure, as currently populated, is so corrupt, and Trump threatens that corruption. Trump and Flynn are a burr to Sullivan, in that he is a defender of the status quo.

      My eyes have REALLY been opened to how corrupt this nation is. I see it in the persecution of churches, Michigan barbers, Texas hair salon operators and others. For example, no due process was accorded the 77 year-old barber who could not get unemployment. The Michigan AG strips his license without so much as a hearing. She is also the same person who wanted to keep a list of hate groups that was compiled with the help of the Southern Law Poverty Center (SLPC). The criteria to make the list as a hate group, per SLPC, seems to be that you don't tow SLPC's line.

    3. If you wanna do a REALLY deep dive, Dyer:

  3. Sullivan is a light in the shoes thin-skinned affirmative action hire. Most of what he's doing is petulance. I can't see him enrolled in the big picture. But say your speculation is warranted.

    If so, he has to be stopped. I don't know how, but surely there are legal remedies for rogue judges.

    The principle we need to keep hold of: everything goes away if Trump loses. The entire investigation: poof.

    Needs must when the Devil drives.

    1. J.E. Dyer suspects more than petulance, see :

      "Sullivan is doing so many things that seem likely to be reversible on appeal, this can’t just be a personal animus against Flynn....
      And, as with so many things going on today, it is no longer the “wise” or “temperate” course to assume away, what we can all see it probably is. It is not more likely that Sullivan has lost his mind, than that he is under outside *pressure*.

    2. Of course it's not petulance. There's a motive.

  4. Coincidence that Sullivan's sudden swerve through the constitutional guard rails immediately followed Obama's 11th Hour "leaked" comments on the Flynn case just as Flynn was about to be exonerated?

    Is somebody desperate to be able to smear and discredit Flynn as "a convicted felon who lied to the FBI," and have their media allies supplied with that bogus talking point?

    1. Here's the thing: The Flynn leak and the Flynn prosecution are separate. The revelations re the origins of the Flynn case and even leak prosecutions could go ahead, no matter what Sullivan does. Indictments of Team Mueller attorneys and FBI agents might be a different matter.

    2. So if this is meant as a blocking move, the question is why block here? The obvious reason is all roads lead to Weisman/Mueller.

      All this is speculative, but the wild actions of this judge warrant this speculation. I appreciate your caution in going this route, but as I say in the first post, we have to ask why Sullivan is doing this now. Maybe he is just that vain, but he is not stupid and has to realize the risk to his personal reputation going down this path.

    3. Axelrod today (sounds like a talking point):

      "So Barack Obama advised Donald Trump not to hire Flynn as natsec adviser. Trump ignored the advice. Flynn proceeded to lie to the FBI and VP about his call with the Russian ambassador, for which Trump fired him and Flynn pleaded guilty. And this is Obama’s fault?!?"


      "Alternative: Obama didn’t want Flynn hired because he was a threat to Obama’s legacy. When Trump hired him, Obama holdovers made sure he got fired anyway"

      Heshmat Alavi:

      "Back in the early days of the Trump presidency, GenFlynn realized the threat posed by Iran's regime & placed Tehran 'on notice'. I believe this is one of the main reasons he was ambushed in such fashion."

  5. The unmasking of Flynn by so many people, in a short period of time? Wouldn't this be the safest way to hide who the leaker was? One or two people , then it would be to easy to narrow it down.

    1. No, not really. Anyone can do the leak--it doesn't have to be one of the unmaskers that does the leaking.

  6. In military warfare, this tactic is known as a "fighting retreat", and it's purpose is to stave off an utter rout that would otherwise occur in battle. It's the best that the Deep State can muster at this point in time.

    There will be indictments coming, but the weapon that will do the most damage in the coming weeks and months is declassification and disclosure. This is what the Deep State fears more than indictments. They are perfectly willing to make Brennan the fall-guy, provided it ends there. That is their current goal.

    The crimes still hidden in the closet are much, much worse than anything revealed to date. But those disclosures must wait until next year.

    Very rocky road ahead.

  7. "those disclosures *must* wait until next year."
    What makes you so sure of that?

    1. The disclosures are significant enough that inciting a hot civil conflict is a non-trivial probability (anything from urban riots to organized militia actions). That's not something you want to instigate in the run-up to the presidential election.

    2. OK, that's not something you *want* to instigate in the run-up, but Barr has little choice.
      If he waits 'til next year, and DJT loses, the wait will be forever, and a hot civil conflict is *very* likely.
      "White patriarchy" backers won't just sit and wait, for each of them to be Flynned, one Toxic Honky at a time.

  8. Judge Sullivan is doing this to:

    1. Delay the case till after November, due to outside pressure.
    2. Get Flynn jail time.
    3. Be forced to acquit Flynn by a higher court, so he does not personally get the blame and avoid being slimed by the Resistance.
    4. get payback against Bill Barr for embarrassing him with the DOJ withdrawal, with documentation of malfeasance.
    5. Protect Obama, Eric Holder, and company.
    6. pad his ego, and show he is in charge of the case / court room. As Federal Judges in their chambers believe they have total power.
    7. prolong the case so he can punish the DOJ and other actors for lying to the court.

    A few SWAG's, I have no idea which, if any are correct.

    1. For a while I toyed with the idea that Sullivan was hard on Flynn in order to compel him to defend himself, not force the court to do his counsel's job.

      That notion has certainly been discredited.

    2. At CTH, Bill Durham says, May 15, 2020 at 7:53 pm:

      "Now Flynn makes since. Sullivan is not going to sentence Flynn. He is going to approve the dismissal. But he wants a big hearing, and *to dirty Flynn up, on the record*.
      Sullivan is doing his version of the Mueller report. Flynn took money for Russia speeches, lobbied for turkey, lied to pence, lied to the court, and bamboozled the doj. He got a plea, and then did not testify against his partners.
      Sullivan wants it, in a court record. They want to dirty Flynn up, to *justify the Trump surveillance*. Flynn is their patient zero."

  9. To go back to the prospect of pursuit of a Writ (from Barr), I should think that he should argue, that appellate courts should view the situation as particularly urgent, seeing as the judge's *gag* order vs. Flynn *still* stands.
    Might such courts take into account, the prospect of this order spurring huge public suspicion of the judicial system?
    Those in the media (e.g. Fox) on Flynn's side should be hammering away at this.

    1. The reason it's especially urgent--and you're absolutely right that it is--is because it strikes at the heart of our constitutional order, Separation of Powers (as Dersh argues today), role of the judiciary.

    2. Yeah, it strikes at the heart of so much of our constitutional order, incl. Freedom of Speech.
      What compelling national interest is threatened, by a restoring of this freedom for Flynn?

    3. And, to what extent has Ms. Powell stressed this gag aspect?

  10. Stone also has a Gag order.

    I did not realize Flynn also.

    1. Because what would a Communist show trial be without a gag order?