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Tuesday, June 30, 2020

Brief Flynn Case Update - 6/30/17

Yesterday Jan Jekielek of The Epoch Times came out with an interview with Flynn lead attorney Sidney Powell. The interview is nearly an hour long and I'm not done with it yet. However, at the very beginning there is a brief exchange in which Powell explains the current status of the case. Or tries to. In effect, she is only able to speculate about what is going on with Sullivan. Here is my transcript, which I offer because it may answer some of the typical questions that are asked. One word of explanation. While Powell states that the Court of Appeals doesn't set an explicity time within which its order must be complied with, the standard time period for executing orders is something like 21 days (I'll be happy to be corrected on that if I'm mistaken). It's possible that Sullivan intends to simply delay for that period of time, given that he has suspended his other activity in the case. Here's the exchange:

Q: Jan Jekielek 
A: Sidney Powell 
Q: Let's talk about where we are today. The DC Circuit Court of Appeals has basically said, has ordered Judge Sullivan, to close the case. And I think he had 24 hours to do so and he didn't do it. So, What's going on? Where are we at here? 
A: Well, they don't really put a time limit on the order, but I can't say in my decades of practice--and we're not going to number those--that I've ever seen a judge NOT do what he was told to do by what's called a writ of mandamus or extraordinary writ--an order directly from the Circuit Court of Appeals to do something. They always do it within 24 to 48 hours. I just haven't seen that happen, with the possible exception of one case way back when. I had to get a writ of mandamus issued against a federal district judge TWICE in the same case. Now we are certainly hoping that doesn't have to happen here and that the order will be signed shortly, because he's [Sullivan's] not a party to the case. That doesn't mean the full court can't review the case on its own, but it would be unprecedented to do so in these circumstances.

That's where we stand for now. As I indicated above, my best guess is that Sullivan intends to delay up to the point that delay would become defiance. That would bring us up to approximately July 15, the day before his previously scheduled hearing, set for July 16. That hearing was suspended by Sullivan's own order. That would simply be Sullivan giving the Court of Appeals the bird.

26 comments:

  1. Meanwhile, General Flynn has reentered the gladiators' coliseum with an article I read yesterday and is still appearing on some conservative websites. The gist is don't allow the 2% (Antifa, BLM, thugs, etc.) control our great nation.
    We can anticipate a more full throated endorsement of DJT in the future, perhaps acting as his military response point man in taking military leadership to task; the most recent example being their recommended promotion of Alexander Vindman. Clearly a shot across the bow with the hope DJT will remove Vindman from the promotion list and the predictable leftist media reaction.

    DJL

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    1. I didn't read it but saw what the gist was--and it's true. Hopefully the current craziness will be a wakeup call to fence sitters.

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  2. Well, Sullivan's actions seem intent on delaying the inevitable. Why wouldn't Sullivan attempt to appeal the ruling on or about July 15th, thereby kicking the can down the road even longer? Or maybe he just sits there and forces Powell to have to file for another writ. If Powell has to file for a second writ, is there any recourse?

    The longer this goes on, of course, the more out of line Sullivan's actions appear. I'm sure this would be like riling up a a hornet's nest, but at what point does Sullivan's actions potentially become a furtherance of the conspiracy to deprive Flynn of his rights and subject to Durham's investigation?

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    1. If she has to file a second writ, he is history.

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  3. What is fascinating about the Powell interview is, for the first time, a prominent DC insider (former DOJ line prosecutor) stating publicly that DOJ/FBI have been conducting themselves as criminal enterprises at a systemic level. The more this story gets out onto the public information highway, the more pressure will be put onto Barr to take action. As Powell mentions in the interview, at a minimum, all the DOJ attorneys and FBI agents that participated in the Flynn persecution should have been fired weeks ago. Van Grack, in particular, should already have been indicted for repeated blatant perjuries before Judge Sullivan's court.

    The spring is winding tighter, and the hottest summer months are upon us. The mayhem will only increase until Durham steps before the microphones.

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  4. Is there any Rule of Appellate Procedure that prevented the COA from simply entering an order on their own?

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    1. While that question is above my pay grade, I suspect that it is possible--but highly unusual.

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    2. Wouldn’t that have precluded any or all of the members of the three judge panel from appealing? It would have been Wilkinson, but Judge Rao’s meticulously written opinion pretty much cut him off at the pass.

      Or did this non-lawyer miss something?

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  5. "Sullivan giving the Court of Appeals the bird."

    And demonstrating what about his fitness to be a federal judge? I'm sure Sullivan has no problem with a defendant giving him the finger in response to a court order.

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  6. There's an interesting exchange about halfway through the interview where Powell says she's still expecting to receive Brady material, as Van Graak had filed a long list of documents she's still waiting on. One document was from Jan 30, 2017 stating that Flynn was cleared/free of all issues--but two weeks later Comey is still telling the president they're not so sure. Comey promptly departs the WH and types up a memo detailing an obstruction allegation due to Trump suggesting the FBI see their way clear on Flynn. It's another interesting detail illustrating the FBI/Comey was out of control.

    There are other worthwhile aspects of the interview, but that stuck out to me.

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    1. Yeah, that tells you all you need to know about Comey. As far as I can tell they never tried to use that, but what a snake!

      In general I thought the personal aspects of the interview were what made it interesting--her interactions with the other attorneys.

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  7. Great interview!

    It’s very Strange the hero of her book for producing Brady material for the Alaska Senator Ted Stevens, did what he did to Flynn.

    And this seems to happen with no consequences to the prosecution.

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    1. So far. I wouldn't want to be in Team Mueller's shoes on this one.

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    2. Sidney Powell's last words, and my daily prayer:
      "Fire 'em yesterday.
      At a minimum.
      And frankly what they've done is obstruction of justice for which they should be prosecuted.
      The Department of Justice is going to have to start prosecuting agents and lawyers who lie to the court and make up crimes against innocent people."

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    3. Her closing words were powerful, re these people thinking that the ends justify the means. It goes back to what I was telling Lee Smith about legal education since the 60s. In fact, just today on Twitter Sohrab Ahmari was saying the same thing about his law school experience, the moral bankruptcy of it.

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    4. At the very least they should all be disbarred. Let them learn to code.

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    5. "...what I was telling Lee Smith about legal education since the 60s."

      It's not a failure of legal education per se, but a malfunction of moral developement. I am convinced a person's moral character is 90% formed by their 17th birthday. No matter what field these people had entered into corruption would have followed. They were raised to be narcissistic bullies.

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    6. Sadly, I don't hold out too much hope for any punishment regarding prosecutorial misconduct, despite Sidney Powell's hope that Brandon Von Grack is back in his FARA office at DOJ hopefully undergoing serious OPR review. Why not? Because of DOJ statements like this footnote from their own filing just two weeks ago in response to Judge Gleeson:

      "...the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office."

      There is a big disconnect here between what Sidney Powell suggests and what the government will admit to. For myself, I don't trust government as far as I can throw the DOJ and FBI headquarters buildings.

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    7. That wasn't a "DoJ" statement. That was a statement by Jocelyn Ballantine who was one of the Flynn prosecutors from when Jesse Liu was still the USA. Ballantine wrote that, but she didn't write the motion to dismiss.

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    8. A number of people interpreted that as throwing the FBI under the bus, but her statement doesn't necessarily exonerate anyone nor does it bind Durham.

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    9. I agree with Mark- the footnote made tactical sense to focus the Motion more on the separation/constitutional arguments and the predicate issues, rather than get into a fact-heavy issue (misconduct) that may have required more hearings and fact-finding than Sullivan's dog and pony show with the amicus. Purpose of the motion was to get a graceful exit from this case (blocked by Sullivan), and save the rest for Durham or other more appropriate forum, one can hope...

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    10. I suppose you both may be right (Mark and Tom Bop), and I do hope so. But Michael Sherwin, Acting US Attorney DC, put his name on it, even if he didn't write it, and he's a Barr insider. Though I do think the real answer call will, in fact, come from Durham's investigation and subsequent indictments. If I don't raise my hopes too high, I might only have to fall...ehh, from the seventh floor or so.

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    11. @Mark

      "Her closing words were powerful, re these people thinking that the ends justify the means. It goes back to what I was telling Lee Smith about legal education since the 60s. In fact, just today on Twitter Sohrab Ahmari was saying the same thing about his law school experience, the moral bankruptcy of it."

      I, too, have written about this subject and posted some of my feelings here (although I have no idea whether they are retrievable).

      Short version: This idea of using the law as lawfare is fairly recent and it is not part of our mainstream legal tradition. Much of Anglo-American jurisprudence is based on a system of private party dispute resolution, wherein an aggrieved party has access to a court to resolve, for example, a trespass or a breach of contract. The circumstances of access are largely circumscribed by rules. Plaintiffs are required to have standing and the court must have jurisdiction. The final decision generally binds only the parties before the court. Opinions of judges are only binding to the extent they are necessary to directly resolve the dispute before them (holdings). Otherwise, their opinions are merely advisory (dicta).

      These, and many other, safeguards distinguished traditional Anglo-American jurisprudence from the abuses of other systems of 'justice'. Its an extreme example, but Star Chamber-type proceedings are simply not possible under the traditional norms of our system. Neither is the use of legal process to legislate.

      When I attended a major law school in the early 1970s, these bedrock principles were up for debate. I have written here of the distinguished Professor of Constitutional Law (and mentor of one of our most liberal Supreme Court justices) who lectured us about the opportunity we 'smart' law students would have to shape the system in ways the 'less smart' legislatures couldn't do in order to effect political change. This advice directly followed the 'expansive' Supreme Court decision in Roe v. Wade. In the ensuing years it became increasingly apparent that 'smart' lawyers would use legal process in ways previously unimaginable to effect political change.

      Which brings us to today.

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    12. Thanks. Law follows philosophy. Philosophy isn't just ivory tower, academic stuff. It matters in the real world, as we see also with all Marxist inspired or influenced movements. Disregarding that truth is a weakness of many 'conservatives.'

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  8. It occurs to me, on the Flynn case, the fact that 2 Repub judges were picked at all, when the Circuit has only 4 of them, vs. 7 Dems, was a very good sign.
    In the heyday of the DS, they should’ve had no trouble pulling strings, to get the panel to be 2-1 Dems.
    That they failed to put that sort of fix in, is a major hint that they’re position has declined.

    There may be 5 or 50 theories to explain this, but the one that jumps out is, that most Dem judges recused themselves, to duck what they expect to become a very hot potato (once Durham shakes the world?).
    What if Wilkins was the only one with the requisite political capital, to withstand the coming tsunami?

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  9. If the above is anywhere near right, Shipwreckedcrew will get his lack of en banc, no trouble.

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