Today in the oral arguments Sidney Powell did a masterful job of exposing what's at stake in the Flynn case at this point. She rebutted the idiotic notion that Gleeson and Sullivan will conduct a simple hearing on July 15. No, she said, the resulting inquiry would go on for "six months or more."
What she's, in effect, saying is that Sullivan plans on transforming Gleeson into a judicially appointed Special Prosecutor. Count on it: among other outrages they will make a play to depose even AG Barr and even President Trump. This will continue through the election, with the object being to force Barr and Durham to back down from prosecutions.
Our constitutional order hangs in the balance. Who will step up?
UPDATE: I've been reading up on the oral arguments--Margot Cleveland makes some good observations. The problem, of course (and not her fault), is that it's difficult to make an overall presentation of oral arguments within a few hours of the event. Will Chamberlain has a periscope tv presentation that covers a lot of ground--if you're really into this. He makes the point that, while all three judges seem to agree that Flynn deserves to have the case dismissed, the problem that arises for Henderson in particular seems to be the notion that no ruling on the motion has been made yet.
I guess I can understand that appellate judges would want to hash that issue out, but it's still a bit shocking to me. There doesn't seem to much doubt that Sullivan is gaming the system. All the judges seemed to agree that Sullivan's personally selected "amicus" submitted an "intemperate" brief. If you as an appellate judge didn't bother reading all the other evidence of Sullivan's prejudice (not to say ignorance)--accusing Flynn of "treason" comes to mind--the appointment of Gleeson should be a clue. Gleeson has made no secret of where he wants to go with this "inquiry" into Executive Branch "motives." In face of this clear attempt to game the system, it seems to me that the government's arguments to bring this miscarriage of justice to an end are totally compelling. Add to that the hardships already inflicted on Flynn, and the dithering about waiting for Sullivan to rule becomes, in my opinion, a deeply unserious position that discredits the judiciary in the eyes of the nation.
It all smacks of the judiciary as a tightly knit club that is more concerned with its own status than it is with rule of law in a truly meaningful sense--which should exclude patent attempts to game the system for blatantly politicial purposes. It's not a good look for a branch of government that talks about doing justice. Hopefully Henderson's closing question to Wall is an indication that these issues concern her, as well. Does Henderson get it, that the best way to preserve the rule of law and to see justice done, as well as to preserve the proper roles of each branch of government, is to allow the DoJ to "self correct" (her words) when there is no longer a conflict between government and the accused?
That answer to that question could be crucial to a normal electoral process and even the future of our constitutional order. Allowing the prosecutorial persecution of a disfavored political opponent was bad enough. Allowing a judge to step in and enforce a continuation of that injustice when the prosecution seeks to right the wrong is IMO far more destructive for the long term.
this blog develops the idea that a theory of man in history can be worked out around the theme that man's self expression in culture and society is motivated by the desire to find meaning in man's existence. i proceed by summarizing seminal works that provide insights into the dynamics of this process, with the view that the culmination of this exploration was reached with god's self revelation in jesus. i'll hopefully also explore the developments that followed this event.
Friday, June 12, 2020
UPDATED: What If Flynn Loses?
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Who will step up?ReplyDelete
The list had better include Mitch, Lindsey, the WSJ, Nat. Review, and the whole Righty/ GOP brass.
If they'll tolerate *this* diarrhea, the coming bloodbath will likely include their pathetic asses.
The Appeals Court hearing, which was broadcast via audio live, will garner national attention and put a spotlight on the entire Judicial Branch (the World is watching). For this reason, Roberts has an extreme stake in the outcome because a runaway train is both unpredictable and potentially catastrophic. The temperature of politics will only increase in the hot summer months upcoming, and the Appeals Court ruling has the potential to be a match that ignites the wildfire. Will Roberts rise to the challenge, or will he stay on the sidelines and watch it burn?ReplyDelete
And as for Wilkinson's argument before the court, it amounted to "Hey Judges, Sullivan is just asking a few questions. What's the big deal. Why not just let him run his own court and wait your turn after a ruling. For crying out loud, whadda yathink this is a federal case or something." Her presentation was so bad it bordered on malpractice.
I agree that that line of argument is threadbare--it would be an absolute disgrace for the CA to go for judicial solidarity rather than justice now. I was stunned at Henderson's lack of response when Powell brought up the hardships to her client, Flynn. For any thinking person, ruling against Flynn would be a big black eye for the judiciary as an institution.Delete
Thanks for cheering me up, Mark (!)ReplyDelete
Isn't it just wonderful having your country largely run by what is simply the mob in political, judicial & media clothing?
Wilkinson was desperately trying to play Gleeson down. What was the big deal with his “reviewing” the record? Did Sullivan really feel so weak that he needed another judge to review what had transpired? I didn’t hear any mention of Gleeson's public statements that revealed his serious bias, his interest in further prosecuting Flynn, other than an oblique reference to an “intemperate amicus”.ReplyDelete
I believe it was Rao who went after Wilkinson on that--why does a trial judge need an amicus to make a ruling on a motion? If the standard is to review the record?Delete
Did anyone hear anything about prosecutorial misconduct? That seems to have been buried in a case that is now viewed as one “regular order”… aka business as usual, nothing to see here...Delete
Judge Henderson brought up SCO (Van Grack) misconduct at the end.Delete
I seem to recall some earlier posts here that predicted the DC Appeals Court would bring Sullivan to heel to save the embarrassment he has, and apparently will continue to bring upon the court. Today, it seemed these appellate jurists added to the embarrassment with their questions and demeanor. If nothing else, it shows just how deep the DC swamp extends in our federal government, and how important it is to excise this cancer. At this point, Powell and the DOJ are doing more than just defending Flynn; they are defending the republic as it was founded.ReplyDelete
Yes, I was put off by some of it, too. This is not "regular order," not "business as usual" in this country. Why pretend?Delete
Whoever here predicted, the DC Appeals Court would bring Sullivan to heel, it wasn't me.Delete
From when this hearing was first announced, I posted concerns (incl. quotes from readers at CTH) along the lines of:
"I view this as bad news. There is *no reason whatsoever* to argue this. None.
I am beginning to believe that Flynn has the ability to nuke Obama and Clinton. The deep state in Washington DC is keeping him silenced.
This should have been dismissed by Sullivan.
It SURELY should have been dismissed by the DC Circuit....
Powell should just take this to the Supreme Court right away – Oral arguments is just more **games** by DC appeals court...."
Probably, because the D.S./ MSM/ upper-middle class clerisy demand it.
This must be recognized for what it is: an attempt to prolong the attack against a president and administration the Deep State tried to destroy. If the judiciary allows itself to be used for partisan political assaults, yes, our constitutional order is in extreme jeopardy. The precedent set would be heretofore unimaginable.ReplyDelete
On the Update, on "a deeply unserious position that discredits the judiciary in the eyes of the nation.":ReplyDelete
Sorry to keep quoting CTH readers, but some make key points, e.g. today:
"The process is the harm. And Sullivan has forged that process on the Motion. Against the Defendant’s interests. Process is presumptive here. The Process itself is a *presumptive* violation of the standard in Fokker.
That needed to be the argument, *not* what the last District Judge and the Government did early in the case. We are past that point here.
The issue before the Circuit on Mandamus was a narrow one....
Besides Fokker, the process Judge Sullivan has executed was a violation of Flynn’s rights to due process, in that he essentially appointed a prosecutor to present arguments unopposed.... He is using his “process” to run a second, 1-sided trial."
Once the public sees the point of this gambit being process-as-punishment, w/ a 1-sided trial, it'll be Secession Time.
Can Powell submit a supplemental brief, justified by her getting a measly 2 minutes compensation, for Wilkins' hogging so much of her time?ReplyDelete
It could include references, to the risks of ignoring the public's revulsion, at the magnitude of the prosecutorial misconduct.
Another relevant CTH comment:Delete
"Powell should have filed with the Panel, the incredible diatribe that Gleeson filed in the District Court as a supplemental exhibit. That was evidence per se IMO, that Sullivan’s process is *violative* of the Fokker standard, and that a final disposition on the Motion is not necessary for ripeness, “regular order”, or whatever other term you want to give it."
Nope, the case has been deemed "submitted" to the court. The 2 minutes at the end was rebuttal time.Delete
"It all smacks of the judiciary as a tightly knit club that is more concerned with its own status than it is with rule of law"ReplyDelete
"Circuit court judges are so allergic to anything looking like an interlocutory ruling or criticism of a colleague on the district court bench that the human and financial interests of regular people and businesses seem never to be taken into consideration."
He has a lengthy thread on all this here:
I suppose that was "bad form" on Powell's part to raise such a consideration.Delete
"Bad form" on Powell's part, even if 1/2 of the country is outright convinced of this guy's hopeless corruption?Delete
Again, shades of Marie Antoinette.
I think hardship on a defendant whose case has been pushed into unnecessary delay by the trial judge after being dropped by the prosecution is a reasonable consideration - especially when the request for dismissal has been handed over to an “intemperate amicus” by the trial judge. As Powell said, everyone else but defendant’s legal representative is being paid by the government.ReplyDelete
Who is Ron Coleman and what credentials give anonymous CTH commenters the clout to question or even overrule Sidney Powell’s actions?
Sometimes I feel as though I fell through the rabbit hole...
Ron Coleman is a prominent attorney, not an anon CTH commenter. I thought that portion of Powell's argument was very powerful.Delete
Had never heard of Ron Coleman. My comment about anonymous CTH commenters referred to other quotes up the thread. They have no names; we have no idea who they are and what makes them authorities… My own observation at CTH was that only a very few identified themselves as being lawyers. The others are just commenters.Delete
Cut off my comment too soon. I agree that that part of Sidney Powell’s argument was powerful. I don’t believe a judge like Sullivan should be allowed to callously run over a defendant like Flynn with spiked shoes after the prosecutors have moved to dismiss their case.Delete
Re the CTH commenters, I agree. I've asked aNanyMouse to knock it off, but he seems to think those comments are more incisive than I think they are.Delete
I believe Coleman was agreeing with Powell.Delete
If the CTH stuff really irritates you, I'll be happy to outright stop sending quotes from them.Delete
Few if any of those comments add anything to what commenters here are saying.Delete
There will be a compromise ruling that saves face for all involved.ReplyDelete
Margot Cleveland’s observation includes a potential compromise sounds the most plausible. Basically kick it back to Judge Sullivan and have him decide on Rule 48. Appeals courts seem to want to do minimal work, and avoid controversy. And if they force an appeal by siding with Judge Sullivan, it’s a guaranteed Supreme Court decision, with a high potential of embarrassing the court of appeals.
If Sullivan were interested in a compromise he wouldn't have let Gleeson file that humongous and outrageous brief. I agree with Mirengoff on that score:Delete
"Judge Henderson seemed quite unwilling to treat Sullivan as an out of control judge. ... Instead, she did her best to signal to Sullivan that he needs, in effect, to control himself when he rules on the motion to dismiss.
"I doubt that Sullivan will heed her signal. He appears to be on a mission to nail Michael Flynn and to thumb his nose at Attorney General Barr.
"Based on what I heard this morning, he will probably have that opportunity. For a while longer, anyway."
Excerpts from Scott Johnson at PowerLine:ReplyDelete
The argument is worth hearing out to listen in to a master appellate advocate — Deputy Solicitor General Jeffrey Wall — at work. Wall argued on behalf of the United States (i.e., the government). He was the best lawyer in the courtroom and I thought he had the better of the argument. Based on the oral argument, however, I would guess that the panel’s ruling will go against Flynn and the government.
I take it from the involvement of the Office of Solicitor General that the government will seek review in the Supreme Court in that event. As the site of the office states up front: “The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court.” It is time for adult supervision from the judicial branch. Whether the Supreme Court would provide it is another question.
Wall was brilliant.
And this, with which I wholeheartedly agree:
UPDATE: My friend Howard Root writes to add another point that I should have made regarding Judge Wilkins, who in my view disgraced himself in this hearing. Howard writes: “I just lost it when Wilkins stretched to use a race hypothetical this morning in the Flynn mandamus hearing. It was so tortured for him to get there that he obviously spent considerable time coming up with the question and wanted to make it about race.” What sense did that make? For the likes of Judge Wilkins, it’s all about race all the time.
His getting it into a question the first time was so awkward it made one cringe. Then he dragged it back in a couple more times. He already has a history of obsession with race, but dragging it in here made him look foolish.
A real bruiser of an article on John Gleeson. Rogue judge.ReplyDelete