Shipwreckedcrew makes some good points about the potential for a 2-1 ruling that, while seeming to favor Flynn, ends up opening things up for the assault on Barr and Trump that Sullivan has in mind--we're talking wheels within wheels here:
Will expand on hearing later after I have some time to digest notes, and hopefully a transcript appears quickly. But I do have an odd thought that I would not have had before the hearing ... the outcome might end up going someplace here beyond this panel.
And this is not necessarily good for Gen. Flynn. I think its possible that the Panel rules 2-1 for Flynn, and Judge Henderson writes an opinion that sends the matter back to Judge Sullivan but with some very limiting instructions on what "standard" he can apply...
And that "standard" dramatically narrows the scope of his intended inquiry. BUT, by issuing such a "standard", Judge Henderson would create an opportunity for the full court to step in and take the matter en banc to consider whether they all agree on her standard.
The en banc court, dominated by Dem. appointees, could then create a much more favorable standard to Judge Sullivan's intentions, and allow much broader inquiry into the DOJ decision-making behind making the motion.
That decision would then be subject to potential appeal to SCOTUS. I'm not sure they would take it up. SCOTUS might look at it and think "We need to see how this standard plays out in district courts before we decide whether it is, in fact, a "separation of powers" problem.
Which means that Sullivan would have the ability to conduct the hearing in the manner he wants to conduct it -- and at the end of the day I think he ends up granting the motion to dismiss, but only after conducting the spectacle DOJ is trying to avoid.
However ...
Shipwreckedcrew had this very interesting exchange with Gary Wheeler:
Gary Wheeler:
Judge Henderson is the swing vote. Early on, she indicated that she was inclined to wait (deny the writ) and see what Judge Sullivan does. But her last question to the Government lawyer about the executive branch self-correcting should give Flynn some hope.
shipwreckedcrew:
The fact that she [threw] it in at the very end with a question to Wall is very significant IMO. Its a basis for her to stake out Art II separation of powers basis to grant writ without even touching the "standard" from "leave of court."
Gary Wheeler:
Wall stuck the landing.
Deputy Solicitor General Jeffrey Wall did an amazing job, and he focused his argument, it’s about the legitimacy of the court. This may not be noticed at this level, but it will be at the Supreme Court. My guess is it’s headed there.
ReplyDeleteI was disappointed how ideological Judge Wilkins was, and his attempt to make it about race.
Judge Rao brought up the excellent point of who is the Amici representing
Judge Wilkins is an Obama appointee. I wish things were way less cut and dried, but we should never hope for anything other than rank ideology from them. I assumed going in that he'd play to the type, so I wasn't at all disappointed.
DeleteThe en banc court, dominated by Dem. appointees, could then create a much more favorable standard, or could take forever doing *anything* at all.
ReplyDeleteSidney must go straight to the Supremes, hammering away at how the Republic is being gravely damaged:
justice delayed is justice denied, this after an orgy of prosecutorial malpractice.
No way she can go to SCOTUS now - the game has to be played by the rules. Mandamus will probably be denied,* we'll all have to wait till after 7/16, and if Sullivan doesn't grant leave of court (I think he won't, but who knows) then probably Judges Henderson and Rao will step in and attempt to shut the circus down.
DeleteHopefully.
Then Sullivan can request a DC en banc hearing or he can appeal straight to SCOTUS.
Either way it buys time for the resistance goons to keep working their foul manipulation of the voters and the system.
These people are mobsters, they have a lot to lose, and they're not giving an inch at any step along the way.
*Judge Henderson may see the light and grant mandamus, but I'm thinking that's at best 50/50.
If Roberts would make this go like that, he may be fleeing DC for his life, before any such mid-July maneuvers.
DeleteThis is why I say this is about Barr and Trump at this point, and about the election.
Delete1) Hans Mahncke makes a good point on the twitter that Sullivan could just spout off about what a bad and guilty person Flynn is but then say his hands are tied so he has no choice but to dismiss. At this point, I'd take that.
Delete2) "...it's about Barr and Trump and the election." Boy oh boy, and how!
"Sullivan is saying that he needs to ask Flynn if he understands that if there is a dismissal, he has no plea agreement, and the DOJ--headed by AG Barr or someone else--can again charge him for the FARA crimes, and he's made a 'confession' in the form of the factual statement."
ReplyDeletehttps://twitter.com/shipwreckedcrew/status/1271506153554337792
Nothing prevented Sullivan from doing that. Surely he is not now suggesting that was the reason for all of this.
Even if all shipwreck is saying in that interesting thread is true, that doesn't explain the Amicus.
DeleteWall was OK, but weak when replying to Henderson's laughable B.S. about how Sullivan "is an old hand, an excellent trial judge...".
ReplyDeleteWall needed to (delicately) refer to the *elephant* in the room, that c 1/2 of the (knowledgeable part of the) country, sees Sullivan as an utter shill for those gunning for Flynn, and would see any slobbering all over Sullivan to be a *dagger* in the cred of the judicial system.
I'll now wager, that these judges know damn well these key truths, so that such words from Wall would've been aimed more for the "swing" segments of the public.
Now it seems fairly clear, that most of judiciary could care less about its rep with the public, at whom they mostly sneer at as "Deplorable rubes".
It seems to me if fool Sullivan wants to find out if there was any funny business in decision to drop the case, the only person he needs to talk to is Mr Jenson.
ReplyDeleteRob S
That's the key point: DOJ only acted to dismiss the charges after Jensen, an a US Attorney not in DOJ HQ, or involved in the case otherwise, made an independent evaluation and recommended to Barr the charges be dropped, for MULTIPLE good reasons.
DeleteThe idea that this is Barr putting his finger on the scales of justice is just hogwash.
Flynn should not have pleaded guilty to anything.
ReplyDelete* Yes, I know about saving his son, selling his house, employing a conflicted law firm, etc.
Flynn was a fool to plead guilty to anything.
I'm with ya on that. Pleading guilty was one of several big mistakes he made. The most serious. He did great harm not only to himself but to the country. Yes, it was all a terrible injustice, but he shouldn't have pleaded guilty.
DeleteThat is how our system of "justice" works. Squeeze you dry and then toss the defendant a bone.
DeleteRob S
I've been on the "how could he plead guilty without seeing the evidence against him?" bandwagon from the start, but I'm really switching over to holding back now until he's finally free to talk. I have a feeling they put him behind the eight ball even more than we've imagined.
DeleteEither way, can't wait to hear his story.
Flynn allowed his Covington attorneys scammed their way into forcing Flynn to deplete all his financial resources. That combined with the prosecutors threatening to prosecute his son weighed heavily into his decision to plead guilty.
DeleteFlynn was very naive about the fact that the goal of some attorneys is to maximize billings; even more so when your attorneys work for a firm with close ties to the Obamas and Clintons.
I think Sullivan is trying to protect the Obama administration and the Covington law firm from what will be huge law suits for his corrupt prosecution. Those claims will be stronger if the case is dismissed than if Trump pardons Flynn.
Had Flynn pleaded not guilty, getting discovery would have been somewhat easier.
I know this comment will not sit well with many attorneys, but sometimes it might be a wise decision to not rush into hiring an attorney. Forcing the government to deal with you at the beginning rather than a lawyer can have some advantages. Do a couple weeks of reading the statute you are accused of violating and the case law associated with those statutes could yield big benefits for a smart individual, and I don't think anyone can question the intelligence of Gen. Flynn.
Flynn thought he could trust his lawyers; and, he was wrong.
Brad Crawford, because his attorneys told him the prosecutors would prosecute his son if he didn't plead guilty to plead guilty. His Covington attorneys did nothing to obtain the evidence before telling him to plead. Not demanding to get a copy of the original 302 before pleading was, at a minimum, legal malpractice. This fact alone supports my contention that the Covington attorneys were cooperating with the prosecutors to obtain a conviction against Flynn. Had they demanded to see the original 302, the prosecutors would have dropped the charges.
DeleteThe Covington attorneys knew the Logan Act was unconstitutional and had never been successfully used to convict anyone in the 200+ years since it was enacted.
And, Wall might have added, while the judicial system operates on the ASSumption that Sullivan "is an old hand, an excellent trial judge...", the outside society is crumbling.
ReplyDeleteThe Elites are getting ever-more Marie Antoinette- esque,
e.g. when the Seattle mayor pontificates about a Summer of Love, while the PD Chief there publicly beefs, vs. the mayor's giving up the pct. station.
Napolitano was just on Fox, urging this Chief to *defy* the mayor's stance on the Autonomous Zone, in favor of the Chief's sworn duty to the Const. (e.g. to protect lives and property), to the point of **arresting** the mayor.
It's all getting really Kafkaesque.
Obama and the left want a perjury charge so Flynn would be radioactive to Durham, Trump and the media
ReplyDeleteMakes sense, but Barr won't give it to them.
Delete