Petitioner respectfully requests a Writ of Mandamus ordering the district court to
(1) grant the Government’s Motion to Dismiss with prejudice,
(2) vacate its order appointing an amicus curiae, and
(3) assign the case to another judge for any additional proceedings.
The one thing that surprised me was that Powell didn't point out Sullivan's painfully obvious ignorance concerning the Constitutional definition of Treason. Powell did, of course, several times point to Sullivan's now infamous Treason Tirade as evidence of prejudice and grounds
for removing Sullivan from the case. And rightly so. However, while the Circuit Court will be well aware that, even assuming the original government charges against Flynn were true, nothing remotely resembling Treason occurred, I thought that for the sake of completeness Powell should have expressly point this out. An express description of Sullivan's painful ignorance regarding the facts of the case and the Constitutional definition of Treason could only have strengthened the case for his removal.
On the other hand, Powell's presentation of the injustice done to Flynn by DoJ, by the FBI, and by Team Mueller is moving. So also is her presentation of the unscrupulous and determined efforts of Sullivan to assume the role of prosecutor to punish a defendant he obviously hates for purely political reasons.
By any reasonable standards this petititon should be a slam dunk. However, I'm somewhat disappointed that DoJ has failed to weigh in to date. Hopefully that will happen before the week is out.
UPDATE: I should add another disappointment for me in Powell's petition. She does mention the issue of predication. She does so by quoting the government's motion to dismiss:
the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an ‘absence of any derogatory information.’”
That may seem fine, but from my perspective I would never, ever, want to give the impression of conceding that "the the FBI’s counterintelligence investigation into Mr. Flynn" was EVER a "justifiably predicated investigation." IT WAS NOT. IT NEVER WAS. The entire "predication" of that investigation--as documented in the opening and closing ECs (both presumably either written by or, if not, then approved by Joe Pientka)--rested on two propositions. The predication maintained that it was reasonable to believe that Michael Flynn was an agent for the Russian government because:
FLYNN had ties to various state-affiliated entities of the Russian Federation, as reported by open source information;
and FLYNN traveled to Russia in December 2015, as reported by open source information.
That is laughably inadequate as a basis for launching a full investigation of anyone. Travel to Russia and "ties" to the innumerable "entities" of the Russian Federation that are state-affiliated is simply not probative in any way for the proposition that any given person is a Russian agent. If it were, virtually anyone who has ever travelled to Russia would have a full investigation opened on them. And I'm here to tell you that that is not the way the FBI operates.
I really wish Powell had attacked the entire predication for any investigation of Flynn in those very specific terms. And I'm very disappointed that Barr allowed that motion to dismiss to go forward with such a pusillanimous semi-repudiation of the Flynn investigation.
In your view, did her appeal do justice to the gag-order aspect of this?ReplyDelete
And, dare the Circuit Court Gods rope-a-dope their response, before she dares to run it to the Supremes?
How much time must she give the Circuit, before she goes around them?
No. She left out a few of things that might have made it stronger--her inability to get a hearing on her motion to dismiss, for example, as evidence prejudice. However, there's more than enough included to make it a slam dunk for any court with integrity. That's the key. She included all that was needed.Delete
"...there's more than enough included to make it a slam dunk for any court with integrity."Delete
We are talking about the D.C. judiciary in the year 2020 A.D., or did the subject change and I missed it?
I’d say Powell knows the territory very, very well. I can’t imagine her doing anything that wasn’t right. She may have decided to keep it simple…to the bare, most pertinent facts Those are enough. As for Anonymous below, how can the prosecution (the DoJ), having moved for dismissal go back and dispute her motion because the judge went rogue?Delete
I’d say Powell knows the territory very, very well. I can’t imagine her doing anything that wasn’t right. She may have decided to keep it simple…to the most pertinent facts Those are enough. As for Anonymous below, how can the prosecution (the DoJ), having moved for dismissal go back and dispute her motion because the judge went rogue? They could agree with her motion, I suppose.Delete
Had she done justice to the gag-order aspect of this, this would've emphasized the urgecny of appellate action.Delete
The gagging of Flynn is obviously a hyper-political maneuver, to hinder emergence of crucial truths.
@ aNanyMouse: Yes. Within the last few days I commented that I thought the aspect of CONTINUING harm to Flynn was very important. Of course in the factual situation any court will understand that, but it's sometimes important to have that in the record. Even if a higher court can infer that from other things she says, it's better to actually say it.Delete
Would the prosecution be afforded an opportunity to dispute (or agree) to Powell's motion? Her arguments were definitely moving. At least she gave the appeals court something interesting to read :) , and with an eye toward history, a document that can be pointed to as giving voice to the injustice the Obama administration visited upon this country.ReplyDelete
Yes, the government can join in. The government has related but distinguishable interests that Powell had no particular need to address for her client. Separation of Powers is the main government interest at this point. Sullivan has stomped all over that and shouldn't be allowed to continue.Delete
According to CTH reader jbowen82, the Supremes could duck any appeal (only) from her, because the case isn't “ripe”, until after a final verdict (sentence) is rendered.Delete
I would hope, that a DoJ brief, making your points about Separation of Powers etc., would make a SCoTUS hearing more likely.
Does that sound right?
No. If the SCOTUS wants to they will. This happens to raise important issues that are similar to issues the SCOTUS has dealt with very recently. The SCOTUS votes on what to take. Roberts would likely be the key vote.Delete
For what it's worth, shippedwreckedcrew weighed in and stated that overall Powell hit a grand slam, but he would've left off some of her points. He called them "playing to the public."ReplyDelete
It's on Red State.com if anyone is interested.
I'm not crazy about her writing style, but that should have nothing to do with the decision.Delete
He was a federal prosecutor for 22 years? She is a defense attorney. And we all know how subjective lawyers are when it comes to critiquing the work of other lawyers… Too often its about style over substance.Delete
This is a big story, which presently is being ignored by the NYTimes and CNN. Other big story today is the release of the unredacted Susan Rice memo to self in which we now get to read that Comey expressed concerns Flynn might be passing classified information to the Russians. Really? What a weasel.ReplyDelete
Judge Sullivan, whom I'm starting to take for an idiot, should stop by your blog. Your level of analysis and command of detail would save him a lot of work.
I'm beginning to think he's simply in over his head. He probably shouldn't be a judge.
In fairness to the MSM, they have to lead with the most important story of the day. So, Trump and HCQ. Right?Delete
Rather than being an idiot, I'll bet that the D.S. has mega-goods on him, as well as on most federal judges appointed for the two+ decades before DJT.Delete
We read within the last week or so that the MSM simply does not report on anything negative to Their side as opposed to President Trump. Deliberate silence. The WaPo’s ridiculous new motto notwithstanding. Democracy Dies In Darkness (2017),,,Delete
Of course, the MSM simply would not report on anything negative to their side.Delete
If the key players on our side expected anything else, I must fear that these players will be outmaneuvered.
And, reading Mark's critique, of the Writ application's take on FBI predication ("If it were, virtually anyone who has ever travelled to Russia would have a full investigation opened on them."), I do have much fear, that our side's players lack the smarts to avoid being outmaneuvered.Delete
Flynn’s case is a glaring red flag to any card carrying Democrat. So is the Russian Hoax against Trump of which Flynn’s case is apart of. Trump was a registered Democrat not long before he won the presidency as a Republican.ReplyDelete
If other Democrats deem you an enemy, there is nothing they will not do to ruin you and your family. Nothing.
Granted, they have help with the Republicans who are fellow travelers or have their own agendas that are helped by being in league.
If any Democrat thinks this cannot ever happen to them, all of this should make it crystal clear that it can.
Powell told Fox today, that she expects the DOJ to join in, to help end the case.ReplyDelete
Dare DoJ's brief address the points discussed above (about "treason", original predication, and the gag order), or must it be limited to Constitutional issues (e.g. Separation of Powers)?
Can we expect Powell/ DoJ to press the Circuit to rule w/ in a few weeks, or to bypass any Circuit delays, straight to the Supremes?
It's inconceivable to me that DoJ--especially Barr's DoJ--would not join in. What's going on from a constitutional perspective is all about Separation of Powers, and Barr has spent a lifetime defending the authority of the Executive Branch.Delete
As for whether DoJ would discuss anything beyond those constitutional issues, I'm sure they would go over the same ground as in their original brief, and they could always expand on it a bit. Sullivan raised the ante, so I would not expect DoJ to neglect any issue--the stakes are too high.
They probably wouldn't go into things like the gag order, since that didn't directly affect their running of the case, but they would certainly address everything that went into charging and prosecuting the case and that has anything to do with their decision to dismiss--lack of prosecutive merits, prosecutorial misconduct, etc.