Tuesday, June 9, 2020

Shipwreckedcrew On DoJ's Flynn Brief Part 1

A lot of people are keyed up for Friday, when oral arguments in the Flynn/Sullivan case take place before a three judge panel of the DC Circuit Court of Appeals. To prepare readers for the oral arguments, Shipwreckedcrew, a former federal prosecutor, is focusing on the DoJ brief in a three part series. In my view his focus is well selected because that's what the decision should turn on. The DoJ brief presents well known legal and, especially, constitutional principles that should be decisive. Here's a link to the full article: Oral Arguments in Gen. Flynn Case on Friday — An Introduction to What’s Ahead.

In Part 1, shipwreckedcrew focuses on the Separation of Power issue. He begins by reprising the case. I won't go through that, but I want to draw attention to his really excellent summation of what happened in the big picture of the case:

... in less than four months, the Special Counsel obtained a guilty plea from Gen. Flynn.  And we now know it accomplished this task without doing any of the following:
  • Providing Gen. Flynn’s lawyers with a recording or transcript of his call with Amb. Kislyak.
  • Providing Gen. Flynn’s lawyers with the approved and filed copy of the Form 302 Memo of Interview completed by the interviewing agents.
  • Advising Gen. Flynn that the interviewing Agents did not believe he had intentionally misled them with his answers to their questions.
  • Disclosing any factual details about how Gen. Flynn’s answers during the interview had the potential to mislead or impede the FBI investigation such that the would be legally “material” under the alleged crime of making false representations.
This list could continue with several more entries.  But the point is well made – in four months the Special Counsel was able to ram a plea deal down Gen. Flynn’s throat by threatening prosecution of his son, and by promising him a term of probation as a sentence – all he had to do was agree to cooperate and provide information about Pres. Trump and the Trump campaign.

Shipwreckedcrew assumes his readers will understand the significance of this, but I want to expand on that a bit because these tactics on the part of Team Mueller very much play into the case that DoJ will be arguing.

What we see from this list of the four important things that Team Mueller did NOT do is simply this: Team Mueller withheld from Flynn all matters that would have demonstrated that Team Mueller had no case against Flynn. By extorting a plea through threats against his son, Flynn was denied access to material that would have refreshed his own recollection of events and was instead forced to rely on Team Mueller's fasle representations of those events. That's a shocking miscarriage of justice and fair play, which any Department of Justice should remedy as quickly as possible. Dismissing the case with prejudice--insuring that the injustice can never be repeated--is a no-brainer and, as a prosecutorial decision, should be basically non-reviewable by any court.

In other words, having determined that there has been a miscarriage of justice by the Executive Branch in bringing the prosecution, it is DoJ's ethical duty to remedy the injustice. The role of the Judicial Branch in our constitutional order is to preside over and adjudicate cases and controversies involving parties in conflict. It is no part of a judge's role to expand his proper role by arrogating to himself the Executive role and pursuing a prosecution on his own initiative--nor is it in the power of a judge to do so.

It's that last part--the constitutional principle that the prosecutorial power of the Executive must be maintained separate from the judicial power precisely in order to uphold justice--that shipwreckedcrew hones in on. I'll skip his lead up--but which I highly recommend--and present the essentials of the argument:

The Brief first addresses the question as to why there is “urgency” to cutoff Judge Sullivan from pursuing his intended course of conduct.  Why not allow this matter to be dealt with in the ordinary course – allowing Judge Sullivan to conduct proceedings he deems necessary, issue a ruling based on his findings, and then allow any party who disagrees with his ruling to challenge that ruling in the normal appeals process. 
The Brief responds to this question by advancing the idea that moving expeditiously by way of a Writ avoids “an unwarranted impairment” by Judge Sullivan of the Executive Branch’s “performance of its constitutional duties.”
At its core what this argument advances is the idea that when the Executive Branch, while executing its constitutional duties to see that that the laws are faithfully executed and enforced, comes across information establishing that an ongoing enforcement action is mistaken or amounts to an injustice, the Executive must move with all due haste to bring the enforcement action to an end. 
The Justice Department has taken a position in a legal filing with the Judicial branch that it is no longer convinced that Gen. Flynn committed a crime, and it is certain that it would not be able to prove any such crime beyond a reasonable doubt if it attempted to do so in a trial. 
Yet based on Justice Department conduct up to the date of that determination, Gen. Flynn remains a defendant in a criminal case pending in United States District Court. As such, the Justice Department has an ethical obligation – and an obligation under its own internal policies (explained later) – to move without delay to bring an end to that pending matter. 
What Judge Sullivan proposes to do is an “unwarranted impairment” of the Executive Branch’s effort to fulfill its constitutional obligations to Gen. Flynn.  The Justice Department has filed a motion that is within the scope of its authority. Where the contents of that motion address the necessary legal standards that the Justice Department must follow in taking the action contemplated by the motion, there is no basis for the Judicial branch to “look behind” the motion for some ulterior motivation. 
The course of action proposed by Judge Sullivan is unwarranted in terms of the substance, that the process he proposes to follow is an interference with Executive branch functions in violation of the Separation of Powers doctrine.

This is a straightforward, uncomplicated, ethically compelling argument. This is the argument that DoJ leads with in its brief, so we can expect that it will also be the argument it leads with at the oral arguments. Any questions from the judges will very likely focus on this argument, since it is the heart of the government's case and Sidney Powell will likely be focusing on the facts that establish prosecutorial misconduct.


  1. Replies
    1. It looks to me like a pretty level headed article. I assume that Durham has pretty much everything the House had. One difference is that these referrals, coming from the House, will probably include referrals for perjury (House testimony is under oath) and possibly obstruction of Congress. This could have a synergistic effect on Durham's investigation. OTOH, that doesn't necessarily mean prolonging the investigation. Those referrals could be used for leverage in plea deals--extra charges to bargain with.

    2. I expect cooperation in exchange for reduced sentences.

      I'm eagerly awaiting justice coming after Brennan, Clapper, Comey, McCabe, Mueller and Weissmann. The list is not all inclusive.

  2. The Justice Department has taken a position .. that ... it would not be able to prove any such crime beyond a reasonable doubt if it attempted to do so in a trial.

    This is a key point that should be understood by people who emphasize that Flynn pleaded guilty.

    Flynn has indicated that he was willing to withdraw his guilty plea so that a trial could be conducted. However, the Justice Department now says that, because of new information that has come to light, it could not convict Flynn in a trial.

  3. Monumental hypocrisy is destroying the fabric of national trust and cohesiveness, and that is no trivial thing. Case in point.

    A police officer in Minneapolis intervenes with a lifelong drug addict in custody and summons paramedics because he is in acute medical distress due to overdose and a toxic cocktail of conflicting drugs. In the process of intervening, an approved restraint is used and the act is recorded on video. The police officer is not accorded a presumption of innocence and is convicted of murder in national media. The country then erupts into riots (abetted by political leaders) and hundreds of innocents are severely injured or killed, and arson/looting reign terror in major cities around the planet. The police officer is indicted within a few days of the act.

    Alternately, a corrupt Obama Administration seduces major elements of the Executive Branch into becoming de facto criminal enterprises and proceeds to engineer and execute a coup against a duly elected president. Top officials in the nation's premiere law enforcement agencies activity participate and the ongoing coup spans 4 years and counting. To date, not one single Fing indictment has been issued for any of the hundreds of participants in the coup.

    We no longer have a nation. Insanity reigns supreme.

    1. The 60s and the aftermath of cultural destruction through education, the takeover of our social institutions by the Left, has left the country demoralized in a very literal sense. It's everywhere apparent, even in the middle class.

    2. Yesterday (at Unz) AE wrote of data:
      "From a recent SurveyUSA today nationwide poll, mean estimates of the *percentage of police* officers in America who are “bad cops”, by selected respondent demographic characteristics:

      Overall, more than one in every four officers are perceived to be bad apples. That’s striking.

      When the economic collapse comes, the country is done. Nobody *trusts* anyone or anything anymore. *Inertia and economic expediency* are just barely holding things together–for now."

    3. aNony--Those polls are similar to "push" polling where scenarios are described with associated questions, posed to deliver a slanted outcome. Polling is no longer objective, it is used as a news hook to write a story that reinforces the narrative.

      Most people have no contact with the police, so they have no basis to make a judgment--they rely on what they read/see in media.

      For example: "Given what you've seen reported regarding police misconduct, in the wake of the George Floyd killing in police custody, how do you rate the police in this country? 1) Very favorable; 2) Somewhat favorable; 3) Uncertain; 4) Somewhat unfavorable; 5) Very unfavorable.

      Given your answer above, what percentage of the police force in America is comprised of bad cops?

      Even people who respond (above) with "very favorable" will answer e.g., 2-5% because they know cops aren't perfect. And people who respond "very unfavorable" will answer 50-100%, as believing most or all cops are bad.

      That's how you "25%" even though most people don't have even one interaction per year with a police officer. I think I've had three official interactions in 30 years--outside of friends who are officers.

      The 80/20 rule for police seems appropriate. 80% of their activity is with the same 20% of the population. Therefore, on what basis is 80% of the public forming an opinion? Media.

    4. Well 2-3 years before that incident a young woman was murdered by a cop when she called about screaming she heard in a rich neighborhood. At the trial the entire police department lied for him. The only cop who told the truth was the defendant. The only reason there were no riots was because she was white. Minneapolis has lots of problem

      Rob S

    5. There is nothing wrong with being suspicious about cops. We all should be suspicious of those who wield power. Especially if their last name are Schiff, Clinton or Obama.

      Rob S

    6. Jeez, when you put it like that, it sounds bad.

    7. "Polling is no longer objective, it is used as a news hook to write a story that reinforces the narrative."

      Precisely. Recall the polling the Leftstream media pointed to that The Wicked Witch of Westchester was going to win "in a landslide". It was all but inevitable. Trump had no chance. That was the narrative repeated, not to inform but to persuade, across every network right up to election eve when their nightmare unfolded over the course of many immensely enjoyable hours.

  4. I agree with Unknown's second paragraph. It is well stated.

    With respect to his third paragraph, I believe that justice is coming, and coming soon.

    1. If it doesn't come soon, it'll be time for a Divorce.

    2. I believe that justice is coming, but I am really starting to think momentum is shifting to Biden (appalled to hear myself say that) and he will have the DoJ dismiss the cases with prejudice the day after he takes oath (assuming he can still speak). Hopefully Sullivan will still be around to open a judicial inquiry.

  5. mistcr,

    I think that the narrative is that the momentum is shifting to Biden, but, not necessarily, the reality. Let's wait till Biden has to speak at the convention, if he even is allowed to be the nominee. Let's see when Trump is on the campaign trail and he starts up his ad campaign.

    There's a lot of difference between saying one isn't voting for Trump and going into a voting booth and then actually listening to the gut when the time comes to make a choice.

  6. Insofar as the momentum is shifting to Biden, it could very easily be temporary, and shift as early as next week, if the Circuit rules to really spank Sullivan.
    The longer they dog it, the more the momentum-shift solidifies, unless (w/ in weeks) they outright move to have him tossed from the bench.

    Let's wait, some 'til Biden has to speak at the convention, but more for him announcing his Veep pick.
    So far, folks are telling pollsters their mood, toward a Biden/ DreamPick ticket.
    Once he has to *specify* a name, watch the gloves come off, amongst moderates/Indies or Hard Lefties, seeing as it's obvious, that the Veep pick will really be the PoTUS pick.
    An Abrams scares moderates/Indies, a Klobuchar puts off blacks/ Ultra-Lefties.
    Who can he use, to thread the needle?

    1. While the Floyd uproar gives him some (brief?) momentum, the riots raise the stakes of his Veep pick, by boosting white fears of PoCs/ Hard Lefties.
      Now the NYT is starting to (subtly?) tee off *vs. Slavs*, see Sailer's recent post on the Sunday column by Jennifer Senior.

  7. Re polling:

    1. That's a pretty good article on the leading edge of the polling problem. In election surveys, the closer to polling actual voters (registered and voted in the last election/last federal election) the better the results. But that is much vastly expensive than just polling adults, which includes aliens, those not-registered, and those registered but haven't voted recently.

      So there's a whole range of cost considerations that goes into conducting a poll--why spend money for precision when you know the answer you want is cheaper? It serves The Narrative.

      The next piece is weighting by party affiliation or independent. Another area polling can be skewed in the desired direction.

      Another curveball polling can't uncover is crossover voting-Dems who vote Rep, and vice versa. In 2016, there was roughly 200 "Obama 2012" counties who flipped to "Trump 2016," versus roughly 5 "Romney 2012" who flipped to "Clinton 2016."

      Polling, at the end of the day, is about averages--where the middle falls. It can't detect the outliers that flip a close election--if only because they're polling the national popular vote total--which is not how a president is elected--rather than polling 50 statewide elections.

  8. Cassander has left a new comment on your post "Shipwreckedcrew On DoJ's Flynn Brief Part 1":

    Slightly off thread, but

    The continuing efforts of the Resistance to bend our country to their progressive (and authoritarian) goals will ultimately backfire, regardless of short-term successes.

    If the Left succeeds in reducing the effectiveness or authority of police powers in a particular location, law-abiding, crime will rise and peace-loving citizens will simply leave and move to locations where the police have sufficient authority to maintain peace and law and order. The result?

    If the Left succeeds in reversing decades of due process protections to allow women to prevail in workplace sexual harassment and abuse cases, the inevitable result will be fewer women in sensitive (and remunerative) positions in the workplace.

    If the Left succeeds in raising taxes in Blue states to provide transfer (welfare) payments deemed by taxpayers to be excessive and detrimental, taxpayers will leave and move to other states, reducing the tax base and the availability of revenue sources for transfer payments.

    If the Deep State succeeds in destroying the Trump presidency through illegitimate means...

  9. On the wrong thread, but some have wanted to know how to access audio live streaming of oral arguments in the Flynn case.

    Here is the Circuit Court page that provides access. The Flynn oral arguments are to begin at 9:30 am EDT tomorrow: