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Thursday, May 14, 2020

More On Perjury And Contempt

Here is more evidence that Sullivan isn't doing any of this because he thinks he's found a winning issue and will be able to jail Flynn. A lawyer son wrote to me, pointing out that Sullivan is opening up a huge can of worms, a battle that he can't possibly win in the long run. Which means he's probably only looking to the short term--initiating delaying tactics to somehow help the Obamagate plotters outlast the Barr/Durham posse. Every judge in the land, every lawyer in the land, knows this is what's going on, even if they won't say so. So:


By the way, on all that Flynn stuff with Judge Sullivan thinking of bringing contempt charges ... I don't think Sullivan thought the contempt charges through. I think any contempt arising from "perjury" involving the guilty plea would have to fall under indirect criminal contempt. Direct contempt is meant to be an immediate punishment for actions that are making it impossible for the court to function (e.g., when the defendant spits in the prosecutor's face or starts screaming at the judge). Although Sullivan is apparently thinking of holding Flynn in contempt for making false statements at his plea--which would have been "in the presence of the court"--Sullivan did nothing at the time about it. So, in order to hold him in criminal contempt at this late remove, it would have to be indirect criminal contempt.
And indirect criminal contempt is a new criminal charge, which means Flynn would have a right to counsel, discovery, a trial, a right to confront witnesses, etc. 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. (This is very different from the ordinary indirect criminal contempt charge, which revolves around rather simple, ancillary matters, such as, e.g., whether the defendant violated the court's order by having contact with the victim or complaining witness.)
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.

18 comments:

  1. Fascinating. I wonder if some judge friends are trying to tell Sullivan to stop sawing off the limb that he has perched himself on.

    I have egg on my face. I thought that he was a good and honest judge. He's just another contemptible loser.

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  2. Hi Mark,

    I think second sentence should say "pointing out that Sullivan..." ?

    Excellent points by the lawyer son!

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    Replies
    1. Thanks, greencork. That whole sentence was a mess.

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  3. Mr. Wauck, or any lawyer here,

    Who disciplines federal judges? I believe that Alcee Hastings was impeached and convicted by the House and Senate. Is there a judge's panel that metes out punishment or admonitions, or, are they free to run their fiefdom as they see fit?

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  4. https://en.wikipedia.org/wiki/United_States_federal_judge#Discipline

    Part of the beauty of an "independent judiciary"--impossible for a judge to get away with bad behavior. Haha! Joke's on you!

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    Replies
    1. A good argument can be made to either term limit them or force them to be elected.

      Rob S

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  5. Sidney Powell is lethal. She has more than demonstrated that. It will be interesting to see what moves she makes against this judicial misconduct.

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  6. Mark, I keep forgetting to ask you and your readers a handful of basic questions about the Flynn case which continue to confuse me. Maybe somebody knows the answers?

    1. Did Van Grack ever produce the Flynn/Kislyak recording (or a verbatim transcript) to Flynn? If he did, is it in the public record?

    2. We know there are at least two FBI 302s describing the Strzok/Pientka interview with Flynn. Only the later 302 (which was rewritten by Page and Strzok) has apparently been produced.

    a. Based on the rewritten 302 what is the precise false statement Flynn is alleged to have made?

    b. Based on the original 302 what is the precise false statement Flynn is alleged to have made?

    3. Isn't Judge Sullivan required to confirm that each of the elements of the crime charged is true before he accepted Flynn's plea?

    a. How could he do this if he never had a recording or transcript of the Flynn/Kisyak call?

    b. How could he do this if there was an original 302 which might have conflicted with the rewritten 302 and he never saw the original 302?

    c. Did Strzok or Page or Pientka ever describe the disparities between the original 302 and the re-written 302?

    d. If the original 302 could have been interpreted more favorably to Flynn than the re-written 302, wouldn't the original 302 be exculpatory Brady material which would have to be disclosed to Flynn?

    4. Did Covington see the call recording/transcript or original 302 before acknowledging that Flynn gave a false statement? If not, why didn't Covington insist on seeing this evidence before letting Flynn plead?

    5. If Van Grack couldn't produce the call recording/transcript or original 302 how could the Government ever prevail in a trial? How could they prove their case? Why would Flynn ever plead under these circumstances?

    6. Did the Government (Weissmann) who we now know was listening to everything Flynn had said on a phone for months threaten Flynn with something worse than prosecuting his son?

    7. Why did Flynn plead? If he knew he was being set up, why wouldn't he go to trial, defend with all of the problems I've raised, and add in his knowledge of all of Obama's wrongdoings?

    8. And if he lost, why wouldn't a pardon have been assured based on all of the flaws in the Government's case which we now know about?

    Such a curious case!

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    1. Both the recording and any transcript are classified.

      Check Statement of Offense
      https://www.justice.gov/file/1015126/download


      Judge Emmet Sullivan Likely Committed Reversible Error In Taking The Guilty Plea of General Michael Flynn
      https://www.redstate.com/shipwreckedcrew/2020/05/12/very-likely-judge-emmet-sullivan-committed-error-in-connection-with-flynn-sentencing/

      Flynn was talked into the plea by a combination of representations by his lawyers that the government had a strong case and pressure against his son.

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    2. Dan Bongino was talking about this very issue today

      Rob S

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    3. "Both the recording and any transcript are classified."

      Does that mean that even the defendant couldn't see the evidence against him?

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    4. In the Flynn case it means Covington agreed to plead Flynn before the charges were brought and forego all discovery. That's what Team Mueller very much needed, because they knew non-conflicted attorneys would get the evidence for their client. So when Powell took the case the file she got had next to nothing that she really needed. Powell demanded that all Brady material--including classified--be turned over and the government fought tooth and nail to exclude everything classified. That, of course, is what she really wanted. My understanding is she has not received any of the classified stuff from Sullivan and only recently got some redacted stuff from Shea. Sullivan turned her down on key requests. Just because.

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  7. So Mark, you made your son send you an email...
    ;-)

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  8. Hey, Flynn’s got his old representation back ...

    Via GatewayPundit linking to Dan Abram’s Law and Crime ...

    https://lawandcrime.com/high-profile/michael-flynns-fired-lawyers-just-filed-court-papers-to-reappear-in-his-case/

    “ U.S. District Judge Emmet Sullivan of the District of Columbia on Thursday ordered the clerk of the court to “add Covington & Burling LLP (‘Covington’) as an interested party in this matter and directed counsel for Covington to file a notice of appearance on behalf of Covington as an interested party.”

    Yeah, I know, he doesn’t, but, why not? Judges can be localized tyrants and this is beyond credulous anyway.

    Kafka, are you here?

    - TexasDude

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    Replies
    1. He's gonna try to drag this out past November.

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  9. What is Judge Sullivan's bias / rating based on his history of judgements?

    There is stuff out there I believe, it may be on a paid site.

    Here is something on the appeal / circuit court level, nice visualization.
    http://visualfa.org/circuit-court-map/

    Another DC Appeals court is open, but Senate has not confirmed any judges for a few months.
    https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Donald_Trump

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  10. Stephen McIntyreMay 16, 2020 at 4:11 PM

    Flynn has an easy defense. At the time, FBI had concealed 302 from him - even edited 302 which would have shown problem. Flynn wouldn't recall being asked by agents about sanctions (as opposed to expulsions), but without his own record, he couldnt be sure. If agents had provided 302s in a timely fashion to defense, someone would have figured it out much earlier.

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    1. An easy defense, but a long and expensive row to hoe if the higher courts wait for Sullivan to enter a final judgment before taking an appeal or addressing a motion for a writ of mandamus. And all the while being smeared in the media.

      BTW, I've thoroughly updated the other post re tech cuts and unmasking.

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