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.