Saturday, May 23, 2020

MULTIPLE UPDATES: Remarkable: Sullivan Hires Hugely Expensive Lawyer

I can think of two possible reasons for this off hand. 

One reason is that Sullivan may possibly fear disciplinary action for his contumacious actions--contumacious toward obvious DC Circuit precedent. He may feel he needs help in fending off the consequences of his action.

The other reason may be that he feels he needs help in explaining his actions. I have a problem with this, however, in that the Court of Appeals ordered the "district judge" (Sullivan) to respond. I took it that that meant the Court of Appeals wanted Sullivan's own explanation for his actions. Like TechnoFog (also below) I have to wonder whether the Court of Appeals will even allow this--who ever heard of a judge calling in a boutique defense lawyer to explain an order he has given, when the Appeals Court has asked him for an explanation? If he can't explain his own orders he should step down. Is he really flipping the Appeals Court off?

All things considered, I have to go with the first alternative, but we shall see. 

The federal judge who refused a Justice Department request to immediately drop the prosecution of former Trump adviser Michael Flynn has hired a high-profile trial lawyer to argue his reasons for investigating whether dismissing the case is legally or ethically appropriate. 
In a rare step that adds to this criminal case’s already unusual path, U.S. District Judge Emmet G. Sullivan has retained Beth Wilkinson to represent him in defending his decision to a federal appeals court in Washington ... 
Wilkinson, known for her top-notch legal skills and get-results style, is expected to file a notice with the court in the coming week about representing the judge. ... 
A federal judge doesn’t typically hire private counsel to respond to an appeals court, ... 
Sullivan also asked retired New York judge John Gleeson to examine whether Flynn may have committed perjury while pleading guilty to lying about his pre-inauguration contacts with Russia’s ambassador. Flynn’s lawyers then accused Sullivan of bias and asked the U.S. Court of Appeals to intervene. 
On Thursday, that higher court took the extraordinary step of ordering Sullivan to answer within 10 days. The court also invited the Justice Department to comment. 
Wilkinson, a go-to advocate for prominent officials snared in major Washington investigations and high-stakes legal battles, now joins the fray. Wilkinson represented Justice Brett M. Kavanaugh when he was a Supreme Court nominee and battling accusations he had sexually assaulted Christine Blasey Ford when they were both teens. Her firm also represented [Cheryl Mills] longtime confidant of Hillary Clinton amid an investigation into whether Clinton, then secretary of state, had mishandled classified information while trying to avoid using government emails.

Mike Davis and TechnoFog ask a highly pertinent question:

Mike Davis
Is Judge Sullivan personally paying for these private attorneys to represent him?
Or are taxpayers on the hook for this highly unusual arrangement?

4:58 PM · May 23, 2020

Techno Fog
Flynn update via WaPo: 
Judge Sullivan - ordered to explain his reasons for not granting the DOJ motion to dismiss - has hired a lawyer to apparently do his work for him.

4:02 PM · May 23, 2020

Techno Fog
Certainly an odd development. Theres no reason Sullivan can't respond to appeals court order himself. 
"A federal judge doesn’t typically hire private counsel to respond to an appeals court" 
Unsure if the appeals court will allow this. 
4:07 PM · May 23, 2020

Andy McCarthy weighs in:

Andy McCarthy
What is Judge Sullivan thinking? A judge tells Court of Appeals he needs a lawyer to represent him on his management and rulings in a case? Where outcome, whether he likes it or not, is obvious under Circuit precedent? Are plaudits for anti-Trump cred worth his reputation? 1/2 
6:26 PM · May 23, 2020

Andy McCarthy

He’s totally entitled to fume on the record that Flynn looked him in the eye and swore that he lied, that Flynn’s erratic litigation strategy caused the court needless effort, and that he thinks DOJ is wrong. But the law requires him to grant the dismissal. Do your job.

Senator Tom Cotton makes an obvious but still excellent point:

Tom Cotton

Judge Sullivan is supposed to be neutral arbiter.
But he hired a high-powered defense attorney to justify his bizarre attempt to force Flynn's prosecution. 
How can Sullivan judge this case when at this point, he's effectively a participant?

6:08 PM · May 23, 2020

I dunno. If I'm the Appeals Court at this point, I think I'm rather PO'ed.

UPDATE 2: Zerohedge:

Apparently, Sullivan needs Wiklinson's help to explain what he's up to - and why he isn't simply the deep state's bitch.

Zerohedge has a serious point, actually. You'll recall how I've been saying that the Flynn case leads straight to the heart of Team Mueller. Well, once the Flynn case is dismissed, all that comes front and center. Now, check out what shipwreckedcrew tweeted earlier today--and he doesn't strike me as the bomb throwing type:

Heads will explode on the left if AG Barr makes public that he has initiated an investigation into Andrew Weissman and Co.  I think events have revealed that Mueller was a figure head, and the Anti-Trumper lawyers brought to the SCO called all the shots.
3:14 PM · May 23, 2020

Yes, Weissmann was the heart of Team Mueller.

And notice the way shipwreckedcrew phrases that: "Heads will explode on the left if AG Barr makes public that he HAS initiated an investigation into Andrew Weissman and Co. Like me, shipwreckedcrew appears to assume that Weissmann is a definite target. Long since, IMO.

Is this the real and very specific reason for these frantic attempts to somehow prolong the Flynn case?

UPDATE 2: There's divided opinion on what's going on here, and especially regarding whether Sullivan has a right to an attorney in this situation. My lawyer son points out that Sullivan appears to be treating this proceeding as similar to a contempt citation--that was my thinking behind suggesting that Sullivan fears disciplinary proceedings. A show cause hearing. The Court of Appeals order, while framed in response to a petition for a writ, certainly suggested that Sullivan was acting in contempt of binding Circuit precedent, among possibly several other improper or outright unethical acts. On the other hand, no matter the tone of the order, it can be argued that the two moments are distinguishable and that Sullivan should not be allowed to treat himself as a defendant--at this stage. After all, judges aren't allowed to out source their rulings in other situations, so why should this be different unless the Court of Appeals expressly allowed for it?

Here are some Twitter threads that discuss the issue of Sullivan hiring an attorney. It appears that this is a highly unusual situation, although it is in fact the logical extension of Lawfare war against all opposition and situation ethics:

Courts normally prefer to deal with discrete issues in small chunks--which is wise. But sometimes the big picture must be considered. Sullivan is making a mockery of the very notion of an impartial judiciary. And that is what our legal revolutionaries believe--that there is no such thing as impartiality and that all that matters is winning. It's about power. It goes back as far as--and probably farther than--Plato's Gorgias.


  1. And... Wilkinson's married to CNN's David Gregory... Geez Quite the swamp.

  2. One possibility is that Sullivan is a masochist. His actions to date support this. He is down for the struggle. He is a leader (in his own mind) of the resistance. If the Appellate judges allow this, they will be tarred with the same brush Sullivan is using to besmirch himself, his career, and his profession. There is a point of no return...


  3. "Remarkable" is one good way of putting it. I'm not sure there is a word that adequately describes this or the events preceding it. It's unbelievable.

  4. Just when you thought it couldn't get any more weird...

    Glad I stocked up on popcorn when I did.

  5. Everything you needed to know: Wilkinson first gained notoriety by representing Timothy McVeigh

  6. Cliche and still used by law enforcement all over ...

    “If you are telling the truth, why do you need a lawyer?“

    “It’s my Constitutional right, officer.”

    “You are not detained in any way.”

    “I still want a lawyer.”

    Maybe Judge Sullivan should have thought about this when it became obvious Flynn was not given this most basic Constitutional right that Judge Sullivan is now invoking.

    This appears to go way beyond being angry or annoyed Flynn changed his guilty plea under oath in his court.

    - TexasDude

    1. Did you just say that I'm not being detained? Well then cancel the lawyer and buh-bye, ossifer.

  7. I commented previously that, at the root, this is a major problem for Roberts to address, and sooner rather than later.

    This circus act by Sullivan is fast becoming a train-wreck fiasco for the reputation of the Judiciary. The longer this goes on, the more divided the country becomes, and that image will now extend to the Judiciary as a whole.

    If Sullivan dares to put forth a document drafted by Wilkinson, or if Wilkinson presents herself before the bench of the Court of Appeals; they should cite Sullivan for contempt, remove him immediately from the Flynn case, and appoint a new judge. Sullivan can only "win" by turning his courtroom into a political boxing match, which ought to concern Roberts greatly.

  8. Any bets that Sullivan "resigns in protest" after all his dilatory tricks -- like hiring an outside lawyer to wrote is "term paper," which will surely be followed by a request for extention -- fail, and when the Appeals Court shoves the Mandamus order down his throat, he authors an op ED for the NY Times. WashPo, etc., and hands in his resignation in protest because he wasn't allowed" to make a fully reasoned argument to back up his court-room BS?

    1. This seems an expensive way to resign.

    2. "his resignation in protest, because he wasn't 'allowed' to make a fully reasoned argument".
      Wasn't allowed, because of... wait for it... his *race*!

    3. At Legal Insurrection today, reader Subotai Bahadur (May 23, 2020 at 7:18 pm) opines that
      "Sullivan would not have taken this stand in the first place, if he did not have the *assurance* of the Democrats, including their Nomenklatura, that something more was up.
      His appointments outside the normal criminal law procedures implies a strong possibility, that the Left has decided to *split and discredit* the entire Judicial branch.
      At which point, disputes will depend on which side’s judge has the case, regardless of law, precedence, or anything approximating justice...."

      There's too much at stake here, for the Dems not to move heaven and earth, to get Sullivan to take one for the team.

    4. If this isn't a trial balloon, it is, according to CTH reader (lawyer) "oldersoul", stunning:
      "I can only imagine, that the Circuit panel assIgned to this matter is livid.
      Sullivan is besmirching the *dignity* and integrity of the *entire* federal judiciary now.
      It is projecting the *worst possible optics* imaginable."

    5. Indeed, the longer time elapses, before Sullivan denies this WaPo story, the more CTH reader oldersoul's comment holds, that Sullivan is "*besmirching* the dignity and integrity of the entire federal judiciary".
      Perhaps much of the point is (as Subotai Bahadur says) to *split and discredit* the entire Judicial branch".

  9. I would agree with you that your first option is probably the correct one--Sullivan worries about disciplinary consequences of his actions. Sullivan just seems so committed to his course of action, that I have come to question whether his actions are corrupt. His hiring an attorney--this attorney--only reinforces my view.

  10. I recommend holding fire on anything from WaPo, using a source "who spoke on the condition of anonymity"!!
    The big use of trial balloons, is to test waters.

    1. I beat almost everybody to the draw on this, and now you want me to delete my post?

    2. "you want me to delete my post?"
      Not at all.
      I just fear, that this announcement may be some Lefty game, only marginally related to the purported point.
      They almost never actually do, what they claim to be doing.

    3. Hopefully someone here will know more than I, of the nuances of Trial Balloon ploys, as they may apply to this situation.

  11. Doesn't Judge Sullivan have judicial clerks to help him out? I understand that they are mostly [all?] neophytes and that he hasn't actually practiced law in near 4 decades; but if it were all above board, wouldn't he rely on them to write his response? I would think the appeals court would be satisfied with a competent, if plain, response within the context mentioned above and in honor of his office.

    The most charitable reading of this maneuver is that he is grandstanding and drawing things out with a trial lawyer he thinks can gum up the works long enough.

    There are several darker, less charitable rationales which can be easily pondered. One particular tin-foiled direction is that the wife of a CNN personality now has more access to the inner workings of this trial, it's relations to what the DoJ/Durham is now pursuing; and it's a way to retain an avenue to leak stuff to the media long after the trial is dismissed.

    1. “ ... but if it were all above board, wouldn't he rely on them to write his response?“

      Bingo. This actually goes way beyond any consensual or custodial interview that I referenced above.

      Judge Sullivan has deemed his risk enough to employ legal counsel on a case he is still presiding over!

      That, in and of itself, is damning.

      Why are soo many people, now including a federal judge, willing to go to such drastic lengths against Trump?

      Yes, this is all about Trump ... by proxy.

      Even now I am surprised at the lengths and depths. What is it they fear? What is soo bad or why is Trump soo bad to justify this?

      Even with what we know about the massive corruption, I am still surprised when something like this happens.

      - TexasDude

  12. For all his anti-Trump-NESS, doesn't it seem rather far-fetched that Sullivan would be protecting Weissmann of all people?

    Talk about coming full-circle, I don't think even Kafka would dream up such a plot!

  13. NewNeo makes a good point I forgot about ...

    Judge Sullivan was not the first judge in Flynn’s case, Judge Contreras was. He was removed or recused himself regarding a relationship with Strozk, but not before Contreras got Flynn’s first guilty plea.

    Yeah, same judge that Trump lambasted for the Trump U case.

    Also, this case has been in trial in some version going on 5 years. If the Constitution was followed, this might have just been another scalp by the Deep State, except appeal, of course.

    - TexasDude

  14. A few reactions.

    1. This whole circus smacks of the stop at nothing antics of Lawfare to me. I just don't believe Sullivan would go where he has gone all on his own. This seems orchestrated.

    2. I wonder who will pay Wilkinson's fee? Gleeson's too. If Sullivan is acting ultra vires why would the United States be liable for obligations he incurs? By analogy, corporate directors are personally liable for their ultra vires acts.

    3. If Flynn's plea were to stand, Trump would be 'forced' to pardon him. In some strange contortion maybe Nadler would deem this another impeachable offense. You know Nadler and Co. has another offensive in the works.

    4. Weissmann must go down. Of all the conspirators his actions are perhaps the most indefensible. He was read into Crossfire Hurricane from the beginning. Long before Mueller, and he knew, beyond a shadow of a doubt, by May 2017 that there was 'no there there'. He ran the probe out for two years, hobbling Trump's presidency and turning the 2018 House election. His actions were entirely of a partisan political nature and thus an abuse of power and a perversion of justice. Certainly meriting disbarment.

    5.Slightly off thread, but it has been suggested (by Lee Smith and others) that Obama went after Flynn to protect the Iran deal and his legacy. This may be true, in part, but the monstrousness of the criminality employed to stop Flynn suggests that there is something deeper, and even darker, at stake. We shall see.

    1. #4 Yes

      #5 Yes, the whole surveillance state weaponized against political opponents that was developed under the Obama regime.

    2. "This whole circus smacks of the stop at nothing antics of Lawfare"

      Indeed. But at a certain point it becomes lawlessfare. Mark has been alluding to the drift that absolutely must be corrected. I like the "heads on pikes in front of DOJ" idea that somebody mentioned. Where we apparently disagree is that he/she did not require the pikes to be aflame.

  15. I want to add that if Sullivan is talking to others (Lawfare?) about this case I would certainly want to take a close look at the application of the rules relating to ex parte communications with the court.

    1. Do you have any doubt? I don't. What we're seeing in the meltdown of the judicial branch was inevitable when morality is reduced to positivism and then to what you can get away with--as we were discussing.

    2. @Mark -- I want to reminisce a bit about positivism and
      "what you can get away with". I seem to have gone over the word limit (again) so I'll break my post up into two parts.

      1/ I finished law school in 1976 (as we've discussed you and I are very nearly contemporaries), went to clerk for a federal judge, and joined a pre-eminent Wall St law firm on Jan 1, 1978.

      In retrospect this was the very tail end of the 'old days'. There's much that has changed since the 'old days' but I want to focus on "and then to what you can get away with".

      Most of the clients of the firm at the time had been with the firm for decades. There were lengthy professional relationships and in not a few cases intertwined personal relationships. There was enormous mutual trust and respect.

      I won't say our clients worshiped us (and our advice) but there was a deep and abiding trust. So when a lawyer in our firm recommended a course of action 'X' to a major financial institution to stay within the bounds of the law, the client as a matter of course accepted the advice and did 'X'. Even when it was financially disadvantageous to do so. Even when, if he did '-X', he was unlikely to be found out. And there was no great downside to staying within the bounds of 'the law' because our client's competitors were also staying within the bounds of the law.

      This was beginning to change. I remember distinctly, by the mid-1980s, giving a client some difficult advice and getting quite a bit of push back. I told the client my understanding of the law and he said that others in his field were doing what I told him he could not do. I said, "Why does it matter what others are doing? This is what the law says." He asked me if he would get caught doing what he wanted to do and if so what the penalty was. I remember this vividly because I was taken aback, realizing I was unprepared, as part of my advice, to evaluate the risk of being caught violating the law and then evaluating the risk/reward of any penalty. I couldn't easily answer his question.

      It wasn't much later that evaluating risk of enforcement action and risk/reward of penalties became standard operating procedure. By the time of the Financial Crisis (~2008), when the misconduct of the big banks was being exposed for all the world to see, it was blatantly apparent that the gains a financial institution could achieve by disregarding the law far exceeded the penalties it would suffer, even if caught and penalized.

      (You will remember that no executive of a major bank was punished for any actions leading to the Financial Crisis and that all of the big banks were in fact bailed out.)

    3. Rather than positivism, I'd stress post-modernism, led by that consummate sadist Foucault.

  16. To me this just proves that God has a sense of humor...
    >I don't think even Kafka would dream up such a plot!

  17. I tried to google if Judge Sullivan has any kids. There seems to be no record. Maybe that's why he has no concept of why General Flynn would sacrifice himself to prevent his son from being persecuted? He is a sociopath with no sensitivity toward a parent's motivations.

  18. 2/ A few years before the Financial Crisis I was representing a large private equity group negotiating to purchase a business with a household name. The facts are a little 'technical' but bear with me. The seller was essentially auctioning off the business and thus there was pressure on my client to pay more than he wanted to. This led to a proposed financial structure encumbered with too much debt. One of the consequences of 'too much debt' is 'too little equity' which gives rise to the risk of insolvency. Insolvency in a 'private equity deal' can be a very bad thing because it can give rise to personal liability for the acquiror if the acquired company fails. I advised my client that the structure he was proposing gave rise to a risk of personal liability. He told me I better figure out a way to avoid the personal liability risk (implicitly if I wanted to continue the representation and get paid) and that, if I didn't, it would be me, and not him, who would be liable. Wow! He was taking "and then to what you can get away with" to its logical and ultimate conclusion. Not only would he do what he could get away with but if he were caught, I (his lawyer) would be responsible and not him!

    Today this (former) client is a billionaire owner of two major professional sports franchises. The moral is, as long as you don't get caught, and correctly evaluate the risk/reward of the penalty, there is a huge amount of money to be made. And far more money than the next guy can make who simply decides not to do something in violation of the law because it is 'wrong'.

    1. I suppose the conclusion to be drawn is that there is now a high level of complicity among politics, wealth accumulatin/business, and the upper levels of the legal profession. I've noted the various revolving doors that exist, and especially for lawyers, leading back and forth among all these ruling elements of our society, or living on the fringes of it and off it. At this level of institutionalized corruption this establishment has a vested interest in false philosophy, a vested interest in indoctrinating the masses in the false philosophy of relativism. It relativizes their own behavior and thus justifies it.

      The Left claims the role of victim, for its own purposes, while espousing essentially the same philosophy. The have-nots are entitled to adopt any means to the end of disinheriting the haves, since the haves did the same to render them have-nots. Both sides repudiate the philosophy of an objective human nature with an objective order of good and evil.

      That's where we are as a society for the most part, and that's what your experience exemplifies. The progression is logical enough.

      I told the story of my argument with my fellow agent/lawyer who maintained that there is no connection between law and morality. I recall another argument with two agents--one a lawyer the other an engineer who both rose into management. They were outspoken that my preoccupation with philosophical issues was a waste of time, that all philosophy was nothing but word games and BS.

      Of course, that attitude is itself the expression of a philosophy. But it's a philosophy that amounts to unilateral disarmament in the face of societal corruption and degeneracy. I thought my career would put me on the side of righteousness, but the Bureau is full of young people educated as those 2/3 were. In fact, I'm sure it's much worse. From those who, to do them justice, would never have dreamt of breaking the law or engaging in personal immorality, we progress to the Strzoks and so forth. When you are no longer able to articulate principles, when you've been indoctrinated to the view that principles are either meaningless are the tools of the powerful to dominate others, the progression becomes inevitable.

      These are not new problems. They have recurred throughout history, although perhaps not on such a vast scale. Here's a good read, perhaps not the easiest. The chapter on Platon's Gorgias from V. 3 of Eric Voegelin's Order in History (which, yes, I definitely had in mind when naming this blog).

      What is Justice?

      “War and battle” are the opening words of Plato’s Gorgias, and the declaration of war against the corrupt society is its content.

    2. @Mark

      "I suppose the conclusion to be drawn is that there is now a high level of complicity among politics, wealth accumulation/business, and the upper levels of the legal profession. I've noted the various revolving doors that exist, and especially for lawyers, leading back and forth among all these ruling elements of our society, or living on the fringes of it and off it. At this level of institutionalized corruption this establishment has a vested interest in false philosophy, a vested interest in indoctrinating the masses in the false philosophy of relativism. It relativizes their own behavior and thus justifies it."

      Maybe there has always been a high level of complicity among politics, wealth accumulation/business, and the upper levels of the legal profession. It is certainly prevalent today.

      A perfect example is the notorious attorney, Kathryn Ruemmler, she of Enron fame (a principal character in Sidney Powell's Licensed to Lie), who leveraged her position as an Assistant US Attorney into the Justice Department and thence into the Obama White House, where she became White House Counsel.

      From there she moved to a multi-million dollar partnership at mega-law firm Latham & Watkins where she co-chaired the white collar crime practice and represented numerous Obama-era prominent Democratic figures.

      Last month, Ruemmler left Latham to join Goldman Sachs as global head of Regulatory Affairs and a member of the Management Committee. This job will undoubtedly pay her millions.

      Good for her. We are all entitled to be paid for our skills and our value. I guess the question is whether the legal profession has been corrupted by the tantalizing opportunities offered to those with political connections.

      Ultimately is it all about money and power and means to the end?

      Perhaps this takes us back to the question of what was really motivating Obama and his co-conspirators...

    3. The ultimate question for the Left seems to be: Where's mine? Clintons, Obama, etc. But they're better at shaping the narrative and have lots of willing helpers in the MSM.

      But you can't stop fighting.

    4. After my last post I went over to Red State to read shipwreckedcrew's post on Judge Sullivan and came across this comment by one of his readers about Beth Wilkinson's rise to fame and fortune:

      Robert_A_Hahn • 3 hours ago • edited
      A stint at Fannie Mae? I've noticed over the years that Fannie Mae is often used by the Democratic Party to "money up" its rising stars. Did Ms. Wilkinson perchance go in there worth a couple million, and then leave not long afterwards with over 10? If so, she's a member of the Democratic Nomenklatura.

    5. Heh. I like that "money up." Result? Best government money can buy.

  19. In your last update, "although the logical extension of Lawfare war against all opposition and situation ethics:..." looks like an incomplete clause, or do you mean "although IT IS the logical extension"?

  20. Reminds me of Harry Reid’s retort when asked about his Romney Tax Lie:

    “Romney didn’t win did he?”

    >The moral is, as long as you don't get caught, and
    >correctly evaluate the risk/reward of the penalty, there is
    >a huge amount of money to be made.

    1. Along the same lines, one of the younger Kennedy's famously described the Merchandise Mart as only the "second biggest thing" the Kennedy's "bought" in Chicago--the biggest being the 1960 election. This was widely treated as great wit by the liberal establishment. To get a flavor for it, in case you're not familiar with the Merchandise Mart:

      When it was opened in 1930, it was the largest building in the world, with 4,000,000 square feet ...

      It was purchased in 1945 or 1946 ... by the Kennedy family ... The purchase price was $13 million, roughly half of what it had cost to construct the complex twenty years earlier. The building revenues became a principal source of Kennedy family wealth, including being a source of political campaign funding.