Thursday, July 30, 2020

FOUR UPDATES: Flynn Case: There WILL Be En Banc Review

Below is Techno Fog's tweet. We'll undoubtedly be getting analysis later. Here's my take for now.

Obviously this is all about politics. Duh! It's all about delay. Duh!

But delay of what?

Delay to prevent Michael Flynn being free to participate very vocally in the Trump campaign? Maybe.

Or could it be ... or could it also be ...

Delay to prevent Michael Flynn being used as a witness in the expected developments of the Durham investigations--expected by Labor Day? A witness under investigation for false statements isn't a very useful witness--even when DoJ has moved to drop the prosecution.

What will AG Barr do to deal with this? We're gonna find out soon enough. It's hard to believe he hasn't been thinking ahead on how to deal with this development.

UPDATE 1: I hadn't read Lee Smith's new article before dashing off this post, so I didn't have Susan Rice in mind. However, reading Smith's article, it dovetails nicely:

What Does Susan Rice Bring to a Biden Ticket?
Obama’s National Security Advisor is on the short list, but why?
Nominating Rice as Biden’s VP would virtually ensure her immunity, protecting her from investigation or prosecution during the campaign. In February, Barr issued a memo stating that no investigation of a presidential or vice presidential candidate can be undertaken without his written approval. Because it is nearly inconceivable that Barr would expose himself to this type of scrutiny or risk compromising the election, Rice would be safe. Crucially, it would also cut off the investigation at the rung below her, thereby insulating Obama and Biden.

So, Keep Flynn quiet before the election--no "lock 'em up"--and keep Obama, Biden, Rice safe. Make's sense. And hope for a miracle in November--if Dems beliefe in miracles.

There's also the unmasking angle that plays into both Flynn and Rice. Barr is definitely definitely doing a deep dive into the unmasking.

UPDATE 2: Obama Today:

"Bull Connor might be gone, but today we witness with our own eyes, police officers kneeling on the necks of Black Americans. George Wallace may be gone, but we can witness our federal government sending agents to use tear gas and batons against peaceful demonstrators."

 And there are still Republicans who think that by joining in the false accusations of "murder" against Derek Chauvin they would somehow buy immunity from sleazy vilification?

UPDATE 3: Shipwreckedcrew finds Lee Smith's hypothesis plausible:

And that brings us back to the merits of picking Rice.  Yes, she doesn’t offer much by way of electoral politics, and its an unknown on how she will impact voters as a candidate herself.  But if there is a real fear in the Biden camp for what Durham might do, Rice is as close as they can come to an “inoculation” to keep him at bay.

UPDATE 4: Devin Nunes weighs in--very worthwhile:


  1. Silver lining -- keeping the case alive for th en banc hearing is an opportunity for DOJ to release yet more of Jensen's embarrassing exculpatory material to Flynn's attorney!

  2. Great point about Flynn maybe being useful as a witness. I never thought about it. To that end, I don't know how any grand or petit jury wouldn't be able to make sense of how he came to be under investigation for false statements, IF enough of the whole story were explained to them and IF DOJ were willing to admit it was they who railroaded Flynn into the wholly baseless guilty plea. From there he should be an even stronger witness, not weaker.

    In any case, Barr is infinitely more in the know and more competent on these things than I, and so I have to think you're right that whatever his plans are, they're probably real solid, and he definitely isn't surprised or caught off guard by today's news.

  3. Ugh; this is embarrassing for the Judiciary branch IMO. Politicizing this branch was the last thing that should have happened. Bad for our country. Yes, I knew it would further sideline Flynn and that's the ultimate motivation. I'm just as confident AG Barr and Jensen have additional material to share as EZ suggests. This is such a crime.

  4. One time that I hate being right.

    I agree with the confidence expressed in Barr. But if this ends up going to the Supremes, then we have to cross our fingers and wonder which Roberts will show up.

    Until recently I was one of those with fingers crossed, hoping the right outcome would prevail. I finally realized that for the Dems it's all hands, open warfare, reputations and rule of law be d*mned.

    As I said before, they really think they can put Humpty back together again.

  5. Speculative theory du jour: majority of Appeals Court agrees with the original 3 judge panel ruling, but votes with minority of court to rehear en banc, precisely so the majority of the Appeals Court can kick Sullivan in the teeth, and no lower court will ever try this stunt in the future.

    IOW, it the Appeals court's way of "affirmatively" re-affirming the 3 judge panel's ruling, and putting a dagger through other specious arguments Sullivan has brought up since then.

    It the one way the Appellate Court unambiguously re-establishes the rules such that no lower court can possibly make the mistakes Sullivan did.

    1. Nice, but ... No.

    2. I presume you to mean
      "It IS the one way the Appellate Court".

      If the point is to kick Sullivan in the teeth, why would the hearing not be scheduled sooner than 11 Aug.?
      If the point is to kick Sullivan in the teeth, why shouldn't the en banc announce a ruling within a week of the hearing?

      I'll bet much will hinge, on which judges exoect DJT to win in Nov.
      As Churchill would say, it's a drama never surpassed.

    3. Typo alert: "which judges exPect DJT..."

    4. More:

      if an en banc hearing denies other dilatory options for Sullivan after the en banc ruling, it could help explain why a majority of the Appellate Court voted for en banc rehearing, even if they oppose his arguments to deny the Mandamus. Don't know if this is true or not, but it would help explain the otherwise inexplicable.

    5. Or maybe they're just a bunch of obedient Democrat hack judges who know the order from on high is to keep Flynn shut up and seen as a traitorous liar until election day at least, longer if possible.

      Or does the history of this case suggest otherwise?

    6. Another wrinkle on EZ's theory, from "berniekopell" (from the site I shouldn't name):

      "While public perception should not be a consideration of the merits, the full Court may want to set some rules down for further litigants. This gives them that opportunity, albeit at the expense of more delay and Flynn’s pocketbook....

      In Cheney, the Supremes reversed a DC Circuit panel, for refusing to grant mandamus. Part of the Cheney opinion involved the Supremes saying, that mandamus was appropriate when there were serious *separation of powers* issues involved, that could be put on a “collision course” — and that such a collision course should be avoided.
      That is exactly what the DOJ argued is happening here — a trial judge is taking on the role of prosecutor, that interferes with the executive branch constitutional authority to prosecute — or not..

      Keep the faith. But there will be more delay. Oral arguments will give us some clues about who is leaning where.
      For those that listen in, I’d pay particular attention, to what questions Judge *Garland* asks and has to say."

    7. My guess is, that the DS will be able to press the en banc, to refrain from doing what berniekopell expects.
      But, I can see why, left to its own devices, the Court would quite like to sort out such major issues as “collision courses”/ separation of powers, in what is already likely the most famous case in its recent history.

    8. The DS *must* prevail here, as any folks really in the know will see, that failure here will dramatize impotence of their most desperate (domestic) effort *ever*.
      This ruling will be a huge Tell, on where the wind is really blowing.
      If the DS prevails here, our hopes for DJT will be still alive, only because we expect Durham to make huge waves.
      But, that'll be harder, if the DS is still riding high, from its show of power over this Court.

    9. Who is berniekopell? The only one I’ve ever heard of is an actor who played supporting roles in a number of TV series. ???

    10. It appears to be the handle of a commenter at CTH. Don't tell aNanyMouse I named that site.

    11. (Heavy….) Lips sealed.

  6. Antifa thwarted from burning down judiciary in Portland. One World Oligarchy determines to burn Sect. III to the ground in D.C.
    The D.C. Curcuit has heard its master's voice. If they intended to let thejudgement stand they would have left it alone.
    This is truely an existential election.

  7. We've witnessed Obama's DOJ, FBI, CIA, State Department, Treasury (IRS), etc. be corrupted. Now we see the courts are also corrupted. We see how deeply entrenched the Deep State is and the power it still wields. Hopefully AG Barr has a response to this chicanery that makes an embarrassment of this court.

    Are we headed into a perfect storm in November? Mail in voter fraud; undetermined election outcomes and challenges; unknown chaos yet to be sown by the democratic party.

    Each day that passes it appears that the democratic political party wants a second civil war.


    1. This is the fruit of 8 years of Obama--Duh! We've got a lot of 'Obama judges.' Especially on the expanded DC circuit. It's what the American people voted for. Whether they know it or not.

    2. Look at who the establishment Republicans ran against Obama. They were not real inspiring vote getters. What, if any, inspirational leadership McCain had went with him after he was elected into the club. Romney never had it.

      After Trump, the choice Republicans make will be instructive. While Pence is establishment, he may garner the support needed; but there are others that are making their reputations now: Hawley, Cotton, Don Jr.; and Cruz is still a good bet. They have learned to fight back against the donkeys and media, but would likely be more restrained on Twitter or whatever the media platform is in the future. I see Romney following in JEBs footsteps...


  8. I’m surprised.

    I agree with the embarrassing to the judiciary.

  9. "[N]o war ever posed a greater threat to our security. If you are awaiting a finding of 'clear and present danger,' then I can only say that the danger has never been more clear and its presence has never been more imminent ... For we are opposed around the world by a monolithic and ruthless conspiracy that relies primarily on covert means for expanding its sphere of influence—on infiltration instead of invasion, on subversion instead of elections, on intimidation instead of free choice, on guerrillas by night instead of armies by day ... Its preparations are concealed, not published. Its mistakes are buried, not headlined. Its dissenters are silenced, not praised. No expenditure is questioned, no rumor is printed, no secret is revealed."
    ― President John F. Kennedy on the threat of Communism


    My next prediction: The Court of Appeals will send the case back to "Judge" Sullivan for a "hearing" on the motion to dismiss because the mandamus was premature. This process will eat up a couple of months, probably more.

    cf. Jarndyce v. Jarndyce

    I've offered this observation to this blog and to the ether before, but why not say it again? We have one shot, and one shot only: Trump must win in November and carry both Houses. This won't return us to normalcy, but the alternative, at this point, is unthinkable.

    1. I agree--FWIW at this point. I thought even Obama judges had more self respect than this.

      It seems beyond argument that at this point this is all about delay--to pretend it's about the law is delusional, given the unquestionable facts. And your scenario makes the most sense that I can think of to delay this further.

    2. Well, as long as Cassander and mistcr are looking so good right now (and they really are, btw), and since I'm in no way above grabbing on onto others’ coattails, let me throw in a tiny sample of what I've been saying about Flynn and these god-forsaken Dem judges.

      7/20: "My position through this whole thing has been that as long as the courts keep screwing Flynn, I'm going to keep assuming they'll keep right on screwing him - no matter how strong the case is not to.

      IOW, until they break this streak, I'm betting on the streak to continue.

      As for why? - there are many good arguments out there for why Flynn's ‘guilt’ is critical to entire justification of all the hoax investigations & actions that have come before. With the stakes so high, what's a little judicial corruption among (deep state/swampy) friends?”

      7/28: "As for no judges asking for an en banc hearing, it was never necessary for any of them to do so, knowing that if their Democrat masters wanted the en banc, they'd just have Sullivan petition it himself, as did in fact happen. They could then easily reason along narrow procedural lines and keep the charade going another month or even more. Sullivan could then make some outlandish decision against Flynn, and it would be right back to more appeals and more tick-tock-Nov 3."


      I assume Cassander and mister would go right along with me in saying we’d be much happier right now writing that our cynicism got the best of us, that there really were still some Dem judges with some identifiable quantum of self-respect, and that hooray hooray, General Flynn was free at last. Sadly, cynicism toward Dem behavior, courts included, is just too safe a play anymore.

    3. I would indeed.

      It bothers me deeply to hear us saying 'Trump must win or the republic will fail.' Or that it all comes down to Barr and Durham.

      Really? Three men?! And one of them The Donald?

      Contrary to what many say, I no longer think the founders would be appalled. I think they would just recognize that our nation has run its course.

    4. “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” (John Adams, October 11, 1798.)

    5. @Brad

      You assume correctly.

      I feel terrible for Flynn but am certain if he loses in the courts of Sullivan, Appeals and SC, Trump will pardon him. But Flynn, an innocent man, deserves exoneration not a pardon.

      Abuse of criminal process is a terrible thing and it takes an extraordinary and permanent toll on the wrongly accused and his family. There is no justification.

      The ongoing assault against Flynn, Trump and our country is appalling. I watch each day’s news and can’t imagine that an overwhelming majority of Americans aren’t equally appalled. But the lies and deceptions of the Left, the Dems, the Deep State, and the MSM are seductive and the outcome in November, which should be a landslide, is at best uncertain.

      I’m retired and I suppose, if we lose this thing, I will turn off the news one day and run out the string. I do feel terrible for my children and grandchildren.

    6. "I do feel terrible for my children and grandchildren."
      And for the human race. If they win, these bastards likely will cover for the ChiComs, Iran, and other monsters, to continue to spread pestilence and terror.

    7. Just to lighten things up a bit, I’ll go devil's advocate again by bringing up what everyone here already knows and I’m sure several have said before this latest ruling, which is that it's still possible they could just say Sullivan should have a chance to rule and then hem him in very tightly, maybe by giving a nod to DOJ by saying that of course a charging decision is theirs alone but that the "by leave of court" stipulation can't be treated as surplusage. IOW, "You can decide this, Judge Sullivan, but either decide it right or we'll decide it right for you."

      I'm still riding my cynic's position on this all the way to 11/3, but hoping like mad that position dies a fiery, soon to come death.

      (@mistcr - sorry about the "mister" typo!)

    8. A similar theory, from a Jacobson's site commenter
      georgfelis | July 30, 2020 at 1:51 pm:

      "If they simply deny the petition, they lose the opportunity to *grandstand*.
      – The Obama judges are drooling over the possibility, of putting a Trump administration official in jail for anything they possibly can, and are willing to warp the facts to fit their arguments.
      – The self-important judges are looking at the possibility, of writing a Very Important Decision that will be studied by lawyers *for decades*.
      – The sane judges may be going along with this, just so they can put nails in the coffin lid once and for all. (Darnit, we set a precedent, and it should stick)
      – And the Never-Trumpers are more than happy, to see this abomination drag on through the election season...."

    9. @Brad, no prob whatsoever, common mistake..

      Running with your devil's advocate idea for a moment, it would seem to me that the right to a speedy trial, and all that implies regarding injury to the accused, should supersede any judicial claim to injured dignity on mere procedural grounds.

      I'll be sticking with my cynicism for now.

  11. After Trump, soon or later, it will not matter.

    Too many Rs and Ds are invested in a post-constitutional America.

  12. Thanks for the update. I'm impressed with the quick analysis. Especially when it all fits together. Now, let us wait and see if Rice is the VP pick. She is a target rich unindicted felon.


  13. The solution to the Susan Rice issue is to indict her BEFORE she is named to the Biden ticket!

  14. "...Barr issued a memo stating that no investigation of a presidential or vice presidential candidate can be undertaken without his written approval." Depends on what the meaning of "is" is. Rice has been under investigation for months, if she is ever going to be, so is that to be terminated? If that's true then the entire Ukraine/Burmisa/CCP look into the Bidens is also in hiatus? That may true but I've seen no indication of it.

    1. Well no, actually they couldn't investigate Candidate Rice, just like they refused to investigate Candidate Trump in 2016.

      Oh wait ... never mind :)

  15. RFK might be gone, but democrats still illegally spy on Americans. See I can do that too. Funny, how the two men Obama brought up are both democrats.

    Rob S

  16. They don't have to indict her. Just refer to Rice, Obama and Biden as un-indicted co-conspirators.

    Rob S

  17. I just updated again--Shipwreckedcrew finds Smith's hypothesis plausible.

  18. Updated with video of Devin Nunes--but what would he know compared to commenters at CTH?

  19. "one of the sleaziest and most dishonest figures in the history of American politics"

    That was Tucker Carlson today describing Obama.

  20. It's curious that Obama would highlight two stalwart Democrats from over half a century ago: 4-time elected Governor George Wallace, and Bull Connor, Democratic National Committeeman, who served as Birmingham's Public Safety Commissioner for over two decades.

    I wonder how many media reports included those relevant details?

  21. So the corrupt liberals on the D.C. Circuit want the parties to be prepared to argue that there is "no other adequate means to attain the relief desired."

    This is just an excuse for the liberals on the COA to say that Flynn can have Sullivan decide whether or not to sign the order to dismiss the case after having an outsider litigate the case on behalf of Sullivan.

    The best response to this bullshit would be to say, "There is already an adequate remedy and that remedy has already been granted. The Federal Government dropped the prosecution, and neither Sullivan nor the COA has jurisdiction in this case; so "F" you and the horse you rode in one."

    Is it possible that the DOJ could submit a document that states that Flynn is not only not guilty, but is actually innocent?

    1. I'm not sure about DoJ making such a declaration, but I've wondered whether it might not be time to refuse to participate in any further proceedings.

    2. I was wondering if Barr is indignant enough to simply make a public statement to that effect, plus maybe a private message that all the judges participating in the ongoing conspiracy to deprive
      Flynn of his rights are included in Durham's investigation. We're playing hardball now, right?

    3. This is the point where Mueller would leak to the press that charges against the judges' children are imminent, right?

  22. The scent of judicial impropriety is strong.

    1. Strzok, Page and Pientka can lie.

      Comey and McCabe can lie.

      Brennan and Clapper and Rice can lie.

      Schiff and Nadler can lie.

      Mueller and Weissmann can lie.

      Clinton (both) and Obama can lie.

      Why not seven Obama and Clinton appointed judges?

      At this stage the unthinkable is hardly unthinkable.

      Not having lived through the runup to a revolution during my lifetime, I'm not sure what to be looking for.

      But a corrupt judiciary can't be a good sign.

    2. Very true. The difference we're seeing now is that rather than dealing on a more or less abstract level, these judges are getting down to the nitty gritty factual level. They've embraced the idea of being essentially hanging judges. We all know that sooner or later Flynn will be exonerated, but these judges are perfectly OK with screwing an innocent man around--that's beyond any doubt--for purely political reasons. That, I think, is a telltale sign that you've stepped off a theoretical cliff and are now in revolutionary freefall.

    3. As you know, I've been hoping and saying that a decisive win for Trump and the GOP in November will give him and them the mandate they need to govern and eliminate the distraction of impeachment and Pelosi and Schumer, etc. This, combined with some irrefutable prosecutions from Durham, would be very good.

      But I'm concerned that the Radical Left and the Deep State is past the point of return. We've got: Rioting and arson with no intervention by Dem mayors and governors. Defunding police. Racial TNT. A continuing coup attempt in the House. Election gaming leading to tampering. Judicial corruption...

      Not a good place to be.

    4. It is the Left that introduced the tactic of judicial activism because the Constitution is not amenable to their agenda.

  23. "a telltale sign that you've... are now in revolutionary freefall."

    That, and Cancel Culture, the jihad vs. Sandmann's "punchable face", the 'yes or no" ambushes of Barr from the House, "silence is violence", "believe all women", "white fragility", ....

  24. Today, the WSJ Editorial Board urged President Trump to pardon General Flynn immediately, without waiting for the DC Court of Appeals to rule. IMO, this is so wrongheaded, it beggars belief.

    One of the conditions for a pardon (as I understand them) is that the defendant must admit guilt. Flynn must not do this for several reasons:
    - he's innocent and deserves exoneration;
    - by pleading guilty, he proves Sullivan's point and may leave himself open to separate perjury charges, based on his repudiation of his prior guilty pleas;
    - removes the chance that the reason the Appeals Court decided to hear this case en banc was to slap down Sullivan unequivocally, providing a warning to any other judges planning a similar stunt and go farther than the panel did and remove Sullivan from the case due to his obvious bias against Flynn;
    - waste of Sydney Powell's herculean efforts and the contributions made to his legal defense fund;
    - severe loss of reputation for Flynn, Powell, AG Barr/USA Jensen/DOJ (non-Mueller team), the Solicitor General's Office and President Trump.
    - Sullivan and the Black Hats of the Deep State win.

    Here's the link to the WSJ editorial (sorry it's behind the WSJ paywall):

    1. Totally agree, Anne--this is too important for the country to give in like that. Stupid.

    2. Kim Strassel also recently wrote calling for a pardon. It's frustratingly ignorant. But beyond that, how many of those self-regarding, self-appointed arbiters of justice calling on POTUS to pardon Flynn have actually asked Flynn what he wants? None.

  25. One final point: if Flynn is pardoned, he loses the remedy of suing the daylights out of Covington & Burleigh. I can't imagine him losing that suit, which will not only make him whole, pay Sydney's bill but, hopefully, receive punitive damages for C&B's multiple instances of egregious malpractice.

    1. It could well be that the DC Circuit is hoping that they can, by this move, "force" Trump to pardon Flynn. With people like Barr advising Trump, it's hard to see that happening. A pardon would also destroy Flynn's value as a witness--that's super important.

    2. " I can't imagine him losing that suit", unless Biden wins, in which case most judges will slobber all over the Dems in every way that matters, lest the DS tee off on them & their families.
      I'll say it again, (the stakes) of this election has no precedent.

    3. I’ve read all the comments.

      My 2c

      It makes no sense to pardon Flynn now...for all the reasons given. It will make no sense to pardon Flynn ever...until he has lost and run out of appeals.

      Sure it would be nice to have an exonerated Flynn on the campaign trail this Fall, but not a pardoned Flynn. That would reek of Trumpian obstruction of justice.

      I haven’t read the WSJ Ed bd article or Kim Strassel (yet) but it makes no sense.

      Lastly, I doubt Flynn, an innocent man, would accept a pardon. Why should he?

  26. You're probably all over this already, but just in case not...

    ShipWreckedCrew at RedState:

    "DC Circuit Directs Gen. Flynn, DOJ, and Judge Sullivan To Be Prepared To Answer Questions Regarding Judge Sullivan’s Bias and Lack of Impartiality"