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Monday, August 31, 2020

Flynn Petition For Mandamus Denied

It comes as no surprise that the Obama judges on the DC Circuit have denied the petition for mandamus in the Flynn case and sent the case back to Sullivan for further abusive political proceedings and delays. What comes as somewhat of a surprise is that they did so without spelling out virtually anything in the way of guidelines for how Sullivan may conduct a hearing. Specifically, the per curiam opinion allows Sullivan's appointment of an "amicus" to stand and states only:

For the foregoing reasons, the Petition for a writ of mandamus is denied. As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

This is no more than a fig leaf, a brief nod to rule of law while providing free rein to Sullivan to conduct a virtually unfettered political inquisition in a case that DoJ declines to prosecute. While Sullivan will ultimately be denied his wish to prosecute--with the assistance of a rabid "amicus", a friend of Sullivan but no friend of justice--the abuse will continue.

Strikingly, the opinion, in declining to remove Sullivan for bias, refuses to discuss the issue of Sullivan's claims that Flynn has committed perjury by withdrawing his plea--an extraordinarily tendentious claim that would prevent virtually any defendant from fighting back against an overbearing government that had coerced a guilty plea.

Overall, the opinion of the Obama judges is remarkably shallow, given the extremely serious Separation of Powers issues that are involved in this case. In essence, the Obama judges simply sidestep those issues, claiming that the only consideration that matters is that a final order must first be entered by Sullivan. The claim is that that will be time enough for the Executive to protect its interests and Constitutional rights on appeal. That would amount to an intolerable claim of judicial supremacy--except that we know that such a claim would only be made against Republican administrations by Democrat judges. The lack of principle in this is breathtaking--it's about the election, and that's it. If you want to make yourself stupider, I'm sure there will be no lack of blogs and articles dissecting this travesty of legality.

In the circumstances, my view is that DoJ has no choice but to appeal to the SCOTUS in order to defend the Executive's constitutional status as an independent branch of government with its own proper powers. Whether DoJ appeals or not, however, make no mistake about this: This is a victory for Obama, through his judges. Flynn will remain muzzled throughout the election campaign and a powerful voice of criticism against Obama will be silenced for the time. It's a shameful defeat--even though I very much doubt it will ultimately stand--for our constitutional order. My personal hope is that DoJ will appeal, simply to force Chief Justice Roberts to declare himself.

In what follows, I will quote extensively from the dissenting opinions of Judges Henderson and Rao. The two judges split the dissent. Henderson dealt with the issue of Sullivan's outrageous bias, while Rao dealt with the harm to the Executive. What I've done is to delete references for the sake of readability. I believe their opinions are clear enough to be read with profit by non-lawyers. You can access the full opinion here. Both opinions are outstanding. Henderson's moral outrage at justice denied is moving. Rao's powerful defense of the Constitution shames the Obama judges--if they were capable of shame. The excerpts follow:

=========================


HENDERSON:

Because I believe the trial judge’s conduct patently draws his impartiality into question—and because I believe § 455(a) has teeth—I dissent and write separately to explain why the trial judge is disqualified from further participation in this case.

From early on in this case, the trial judge has demonstrated a pattern of conduct that, taken together, raises serious concerns about the appearance of impartiality. At Flynn’s plea hearing, the trial judge asked whether Flynn could be guilty of treason and noted his “disgust” and “disdain” for Flynn’s actions. [Note: This comment by Sullivan exhibited shocking ignorance of basic constitutional law.] When, over two years later, the government moved to dismiss the charges against Flynn, the trial judge encouraged the general public to participate as amici, and appointed an amicus, not to assist the judge with a complex area of law but instead to “present arguments in opposition to the government’s Motion to Dismiss." And his choice was not just any amicus; the day before his appointment, amicus penned an op-ed in The Washington Post suggesting that the trial judge could—and strongly implying that he should—deny the government’s motion.

...

And his earlier sua sponte appointment of amicus to oppose the government’s motion to dismiss, although apparently allowed, is further indication that he has from the outset appeared to view his role in adjudicating the government’s motion to dismiss as one that requires outside support—as if he were a priori antagonistic to the relief both bona fide parties seek. Even more telling of apparent partiality, the trial judge ordered amicus to opine on whether Flynn had committed perjury and should be held in criminal contempt. That direction indicates that, even if compelled to grant the motion to dismiss, the trial judge intends to pursue Flynn on his own.

But it is the trial judge’s conduct since the government’s May 2020 motion to dismiss, weighed in light of his earlier conduct, that delivers the coup de grâce to the last shred of the trial judge’s appearance of impartiality. In other words, if there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone. Granted, the panel majority opinion resisted Flynn’s request that a different judge be assigned to this case. That decision rested primarily on the fact that Flynn’s request centered on the trial judge’s in-court statements, which are almost always insufficient on their own to warrant reassignment, and the fact that the trial judge was simply directed to grant the government’s motion to dismiss. But the trial judge’s “extreme” conduct throughout this case, culminating in his decision to ignore the writ and instead seek en banc review, demonstrates a “clear inability to render fair judgment.”

...

Lest we forget, at the center of this case is Michael Flynn—a criminal defendant whom the government no longer seeks to prosecute but who waits in limbo for his case to be resolved. The trial judge has delayed his consideration of the government’s unopposed motion to dismiss with little regard for the time Flynn has spent, and continues to spend, under the weight of now-abandoned criminal charges while the trial judge appears to continue the fight to preserve an improper role. Notwithstanding the trial judge’s counsel’s blasé representation during oral argument, it is intolerable for criminal charges to hang for months over the head of an individual whom the government no longer wishes to prosecute.


RAO:

Mandamus is appropriate in this case. First, the Executive Branch has a clear and indisputable right to control the initiation and dismissal of prosecutions. The “leave of court” authority under Rule 48(a) is narrow and does not permit a district court to countermand the Executive’s decision to dismiss a prosecution. Fundamental principles of separation of powers require that individuals be prosecuted only by democratically accountable prosecutors, not by district judges with life tenure. The district court’s actions here exceed the proper judicial role and impair the Executive’s performance of its prosecutorial functions.

Second, the Executive Branch has no adequate alternative remedy to mandamus. Even if the district court ultimately grants the motion to dismiss, that would not alleviate the harms resulting from the supervision and inquisition delineated by the district court in its orders and briefing. As we have previously recognized, such an infringement upon the Executive’s charging authority “inflicts an ‘irreparable injury’” for which an appeal is not an adequate alternative remedy. Forestalling such irreparable harm to the Executive Branch makes mandamus appropriate here because the district court has adopted a flawed view of its authority in a manner that infringes on the exclusive constitutional powers of a separate and independent branch of government.

In denying the writ of mandamus, the majority relies only on its determination that Flynn and the Executive Branch have adequate alternative remedies, namely the eventual grant of the motion, the possibility of appeal, or even a writ of mandamus at some unspecified later time. The majority does not explain how these remedies would repair unlawful incursions on the Executive Branch. Instead, the majority dodges the constitutional questions by simply asserting a truism applicable to every mandamus case—a party could wait for an appeal or even a later mandamus petition. The ordinary availability of appeal does not relieve this court of its duty to examine the specific factual context of each mandamus petition and the precise irreparable harm alleged. We have no metric for judging the adequacy of alternative remedies without assessing the underlying harm—our cases demonstrate that the mandamus inquiry is holistic and its three prongs intertwined.

Nevertheless, the majority remains content with prospective remedies and sidesteps harms to the Executive. Our mandamus inquiry requires more than this piecemeal approach, particularly when grave separation of powers concerns are at stake. Judicial encroachments on the executive power cannot be remedied simply by requiring the Executive to submit to a district court’s supervision and then seek appeal. Mandamus is appropriate here.

...

... Here, clear legal error infects the proceedings below, which are shot through
with improper judicial efforts to superintend the Executive Branch’s prosecuting decisions. The harms are far from speculative, as the majority concludes, but instead are clearly laid out in the actions and representations of the district court. Such interference with the Executive Branch’s decision making is a judicial usurpation of power as well as an abuse of discretion under Rule 48(a).

...

By contrast, the Article III judicial power includes no authority to initiate, pursue, or oversee decisions to prosecute. As the Supreme Court recently admonished, “courts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them.” [Rao is quoting Justice Ginsburg.] The judicial power includes the ability to adjudicate guilt and issue a sentence upon conviction. That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them.”). The Article III courts have no power to make prosecutorial decisions. And for good reason. Lacking in political accountability to the people, judges have no mandate to pursue justice by choosing whom to prosecute.

...

The majority retreats from any consideration of these bedrock principles by focusing exclusively on the fact that the district court has not yet concluded its proceedings. But we need not reach the end of those proceedings to recognize and provide a remedy for the ongoing harm to the Executive Branch. Whatever the scope of “leave of court” in Rule 48(a), this authority does not encompass the wide-ranging inquiry set in motion by the district court, an inquiry that includes expansive fact finding to probe the internal decision making of the Department. The majority maintains this is merely the “ordinary course.” Yet the following actions and representations demonstrate that the district court’s proceedings are anything but ordinary and the Executive Branch harms far from speculative:

 The district court appointed as amicus John Gleeson, after Gleeson had just written an op-ed arguing the government’s Rule 48(a) motion “reeks of improper political influence” and advocating for the district court to hold “a full, adversarial inquiry,” including “hearings to resolve factual discrepancies.” Gleeson also suggested that the district court “compel the department to reveal ... the actual evidence underlying the prosecution,” and “order[] disclosure of” Executive Branch materials.  
 After granting Gleeson’s motion to hold a proceeding examining, inter alia, “any additional factual development [Gleeson] may need before finalizing [his] argument in opposition to the government’s motion,” the district court established a briefing and hearing schedule.
 Gleeson asked the district court to probe the government’s motives for dismissing the case, affirmatively find the given reasons pretextual, and examine outside evidence—including presidential tweets and DOJ filings in other cases—to determine that the government acted in bad faith. 
 Gleeson also asked the court to consider the “background of a severe breakdown in the traditional independence of the Justice Department from the President” and to find that “[e]verything about this is irregular.” 
In response to the petition for mandamus, the district judge asserted that he must resolve several factual questions and “inquir[e] into the facts set forth in, and surrounding, the government’s filing,” and determine whether these facts “provide reason to question the presumption of regularity that ordinarily attaches to prosecutorial decisions.” 
 The district judge further maintained that he will require additional information about why “[t]he motion did not explain the absence of any line prosecutors, including those who had previously prosecuted the case ... [or] contain any declarations or affidavits from witnesses with personal knowledge supporting the government’s new factual representations”; why “the motion does not mention Mr. Flynn’s March 2017 false statements to DOJ relating to his work for Turkey, which ... were relevant conduct for his guilty plea”; and why “the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn’s false statements.” 
The district judge also suggested that he will make “[a] finding” regarding whether “the Government’s later efforts to terminate the prosecution were ... tainted with impropriety” and that he “can—and arguably must” “question the bona fides of the government’s motions.” 
The district judge will use the proceedings to determine “unanswered questions of fact”; to “resolve some of the factual and legal questions that remain outstanding”; “to inquire whether the government maintains its factual representations that Mr. Flynn is guilty as to those false statements”; and to “illuminat[e] the full circumstances surrounding the proposed dismissal and the government’s current position on Mr. Flynn’s conduct.” 
 In his petition for rehearing en banc, the district judge asserted he has the authority to “develop[] [his] own record of the prosecution’s charging decisions” and “confront[] government attorneys with their statements during trial that undermine[] their motion to dismiss.” 
The district judge also stated he will use the proceedings to go beyond the four corners of the government’s motion to dismiss because “it is hard to imagine that such ‘malfeasance’ would be apparent on the face of the government’s motion.”

These proceedings and representations make clear the breadth and depth of the district judge’s inquiry, which includes factual development of DOJ’s motives and internal decision making. The district judge has stated that he will look outside the government’s motion to search for evidence that the presumption of regularity has been overcome. But this is to give the government no presumption of regularity at all. As we recently explained in granting a writ of mandamus to former Secretary of State Hillary Clinton, “[t]he mere suspicion of bad faith on the part of the government” cannot overcome the presumption of good faith. The district judge identifies nothing on the face of the government’s motion to dismiss that overcomes the presumption of regularity to which the Executive is entitled. Nor does the district judge offer any evidence of bribery, animus, or other similar reasons for digging into the internal workings of the Executive Branch.

49 comments:

  1. Will Chamberlain:

    Having read through the opinion, the majority is remarkably flippant about the separation of powers concerns that DOJ articulated, and the bias of Judge Sullivan more broadly

    I could see this going up to the Supreme Court as a result of the separation of powers concerns

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  2. Isn’t this the same court that just gave Hillary a free pass vis-a-vis her email deposition?

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    1. Yes. In fact, RAO in her dissent quotes that decision--see my last paragraph.

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  3. This is the Dred Scott case of this century.
    When whites learn, that we have here is a court upholding a black judge's jihad vs. a white war hero, many such whites will "take note".
    If Barr hopes to avoid civil war, he'd better get moving ASAP, e.g. with a press conf. announcing major payback.

    One option is described by You Know Who, raising the prospect, that the DOJ simply refuse further case engagement completely, to put Sullivan in a very odd position, of holding hearings where no prosecution shows up.

    Can anyone think of other (less "nuclear") options?

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    1. I'll say this ...

      I don't know what all the reasons may have been for Barr/Durham taking so long--IMO--to get off the mark on the Flynn case. That disappointed me. That's part of why we're where we are.

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    2. Were Barr to get Henderson and Rao, to open up on the Circus at such a press conf., would that be more, or less, "nuclear", than the DOJ simply boycotting the case?

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  4. I must wonder if, by trying to hold Flynn hostage 'til the election, the Left/ DS is bucking to provoke civil war sooner rather than later?

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    1. Really? The Flynn case provokes a civil war?

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    2. By itself, of course, this Flynn case does no more so, than the Dred case could do so *by itself* in 1857.
      But, just as the Dred case was a major step toward CW 1.0, this is a big step toward CW 2.0.

      Most wars have immediate, but also (often multiple) secondary, causes, the weight of which are hard judge in real time.
      Who dared guess, that the Dems would split 3-ways, so that Lincoln would win an EV landslide, tho getting under 40% of the 1860 popular vote?

      In the 1850's, news traveled slowly enough, that it took 2 1/2 years before John Brown could line up his ducks, to seek to avenge the Dred decision.

      Whereas, the current speed of news-travel makes likely, a far-quicker road for inciting events to produce major blowback.
      Just these past *few* months, the list of super-famous (literal or *figurative*) martyrs, to resistance to antiFa/ BLM, contains D. Dorn, C. Hinnant, K. Ritterhouse, and J. Gibson.
      Obviously, these cases are quite different, esp. between that of Dorn, and that of Hinnant.)
      But, they all constitute fuel onto the pyre, of white fear of antiFa/ BLM, quite analogous to the North's determination to stop Rebel secession.

      Indeed, the Yanks' drive owed *only* to [long-range] Principle.
      No sane Yank believed, that the Rebs would ever seek to enslave (white) Yanks.
      Whereas, whites' drive now owes very much, to fears of (slow-motion) *ongoing* genocide by antiFa/ BLM.

      No one *should've* expected SCOTUS to see the ultimate upshot of the Dred ruling, esp. the speed with which this upshot emerged.
      Whereas, the *brutally* obvious tension in the US now *should've* gotten the Circus/ DS, to see the fire with which they're playing.
      So, yeah, it's quite possible, that these brats arebucking to provoke civil war, sooner rather than later.

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    3. I agree that the Flynn case may have a place in the history books, but I cannot agree that it rises to the level of the Dred Scott case.

      It's too abstract for most people.

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    4. Too abstract, maybe, but Dred was a nobody until he brought a case, whereas Flynn was a *nat'l* figure before a case was brought vs. him.

      And, the case brought vs. Flynn is renowned, to c. 1/2 of the country, as a travesty of justice, analogous to the Dreyfus Case in 1890's France.
      So, if there ever was an abstract case which still could (and already, to some degree, *is*) make nat'l impact, it's the Flynn case.

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  5. Not what I expected - a very short sighted decision.

    This shows how we have two standards of law.

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  6. I think SWC has been and continues to be simply wrongheaded on this one. Margot gets it:

    Margot Cleveland
    @ProfMJCleveland

    D.C. Circuit's en banc decision was unfortunately predictable. And notwithstanding concurrence trying to say, nothing political here, it was all political as proven by majority's refusal to hold Sullivan disqualified. Read Henderson's dissent.

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  7. Mind numbing stuff. Judicial branch appears untouchable protecting their own. Not a good sign for the future.

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    1. Congress can stop this BS if it had the balls. The Legislature can limit the power of any court. It can even repeal the entire federal judicial system except the Supreme Court.

      Rob S

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  8. Leftwing activists posing as judges. This is among the many reasons that it's absolutely crucial Trump win re-election: judicial appointments.

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    1. Now we need more-- the judges take an oath-- it needs to be enforced. Otherwise the courts will be merely political. As they have become.

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  9. Ridiculous that the court didn't reassign the case to another judge. Henderson's footnote 8 nails it: "That my colleagues can find no instance in which a trial judge to whom a writ of mandamus is directed asserts authority to appeal that writ is all that need be said to demonstrate how far afield from the appearance of impartiality he has moved. Would the majority give the same yawn if I petitioned the United States
    Supreme Court for certiorari review of its opinion herein? Of course not."

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    1. Rao is about twice as smart as any of the Obama judges. They must hate her.

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  10. As bad as this decision is in regard to the continued persecution of Mike Flynn, this ruling is really about throwing down the gauntlet in front of Bill Barr. This is a Churchill moment and the Appeals Court is saying "come out and fight or you have no balls."

    How Barr responds will now define his second legacy at DOJ. The Appeals Court is brazenly playing IN-YOUR-FACE politics with the Judiciary, and if it is allowed to stand unchallenged, the integrity of both parties will be effectively destroyed.

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    1. "the integrity of both parties will be effectively destroyed", enough so that enough folks conclude, as Franco did in 1936, that it's about time for us to start throwing down new gauntlets?

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    2. There’s probably only so much Barr can do now, and I definitely think his legacy is going to be determined by a whole lot more than just whatever those actions turn out to be. But I do think the moment he decided (and maybe it was the right decision, I don't know - but I sure didn’t like it) to allow DOJ to go the minimal route of saying they were dropping the prosecution basically because of technicalities & prosecutorial discretion, the door opened a lot wider to this abuse.

      The AG knows as well or better than anyone that Flynn never did discuss sanctions, as charged, and that when SCO & DOJ charged him with that, they knew full well it was absolute bs. He knows it was a frame up, plain and simple, but he allowed his underlings to keep that “frame Flynn” malfeasance and a whole lot more away from the judicial record.

      I don't know what would've happened if he'd made DOJ come right out and spill the beans consistent with the whole truth, but I have to think it would've been much, much harder for this clown show to continue if he had.

      I’m a huge fan of maximum transparency and in the idea that the American people can handle the truth as long as we’re given it good and hard. This fiasco makes me believe in that more strongly than ever.

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    3. Brad, I agree that DoJ, i.e., Barr, should have adopted a much more aggressive posture in the Flynn dismissal. While the motion was totally adequate they should have been trumpeting the injustice.

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  11. I feel for Flynn, but seems to me that this is good for the thinking people in our nation. It helps us clearly see the damage the termites have done inside the walls of our nation.

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  12. So that mug Sullivan can stretch this out to infinity. What a pack of jackals. And Sullivan, how did a venal clown like him get on the bench?

    What, exactly, are Barr's options?

    Going to the SC is a losing gambit. Roberts has no integrity at all. Take a stand?

    Not a chance.

    We have been looking for the silver lining every step along the way here. It's time to admit defeat.

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    1. I disagree. Depending upon what Sullivan now elects to do, Barr’s taking it to the SCOTUS on separation of powers could be a great move. Roberts would be on the spot on a very substantive and timely issue… and one that would draw a great deal of public attention...

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    2. Bebe, it goes without saying I hope you're right. I just have no faith in Roberts at all. Whatever he is using as a legal gauge, it isn't the Constitution.

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    3. What if, instead of seeking dismissal in a hopelessly corrupt appellate system, Powell/ DoJ push for the District circus to start ASAP, and push a witness list starting with, say, Strzok, Page and Priestap, and maybe SparkleFarts?
      Could Sullivan gin up ways to block/ delay appearance of names on such a list, at least up into Nov.?
      Likewise, could he easily sabotage any Discovery bids?
      Either way, could she get some Fox folks (e.g. Maria) to give any press confs. blanket coverage, esp. if Barr joined her there?

      Separately, any chance that SparkleFarts/ DS maneuvered for Rao & Henderson to be on the small panel, knowing that they'd vote the way they did, and ensuring that the circus would stretch this long?
      (Assuming that Sidney would've raced straight to SCOTUS, were he bid for Mandamus to have been outright denied?)

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    4. Or (admittedly a drastic move), TJT fires Wray, and tries toinstall Flynn as head of FBI.
      Wouldn't that put Sully, Mitch etc. on the spot?

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    5. Typo alert: "were THE bid for Mandamus"....

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  13. The only silver lining is the possibility that Barr will in the “exercise of his judgment” on Durham, Jensen et al come down much harder on the entire group
    of thugs who perpetrated the coup attempt, unmasking, illegal surveillance etc.
    For example, if Brennan is off the hook in a strict legal sense, unindicted co-conspirator would be welcome.

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  14. Why is Flynn prohibited from speaking?
    AFAIK, he's not under any gag order.

    If he's careful with his words, wouldn't he be able to help Trump, and get some sympathy votes?

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  15. Flaunting the fruits of their March through the institutions. We're being played for fools. It only gets worse from here. Bend over (or grab a gun).

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    1. If no major response from Barr etc., w/in the next week or so, you're likely right.

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    2. Is my "firing squad" comment still censored?

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  16. Until today, this election was extremely important for conservatives. It is now existential.

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  17. Barr is not a coward, and he is not stupid, and he is not powerless. Rather, I think he's playing to win via his patience and determination to fight on his terms. He is obviously not yet ready to play his hand.

    But there is also great danger and cost in the ongoing delay. The Deep State will endlessly ramp up the violence in the run-up to the election, and that means more destruction and needless loss of innocent lives. IOW, the price of delay is non-trivial.

    And, of course, there is always the possibility that Durham's investigation will be a dud and no one of significance will face any real accountability for the attempted coup against a duly elected president. If that happens, what comes after will be blood on Barr's hands.

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    1. Whoa Anom; before go there with Barr and blood on his hands let’s wait to read wait SWC has to say.

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    2. Another option for Barr would be to release all of the evidence (of the frame job vs. Flynn), if this wouldn't sabotage Durham's cases.

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  18. Like you, I try really hard not to armchair quarterback Bill Barr, since I'll probably be wrong. And I'm still totally open to the possibility that he held back in the Flynn case because he's got bigger fish to fry and needed to make that call. But, yeah, it sure doesn't taste real good at the moment, that's for sure.

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  19. Death by a thousand cuts, I feel, is apt and crosses current events.

    TexasDude

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  20. I look for Barr to stay whatever course he's on, and not get distracted by what hopefully is a side show in the circus. The whole Flynn case is truly unjust, illegal, and political, and Sidney Powell and DOJ have taken the steps now to demonstrate that and put it in the casebooks for all time. This is a very important result, and it also cost whoever's pulling the strings some serious chips that won't be available some other time. These factors don't help Flynn in the present, but do help expose the depth of the corruption. DOJ and Flynn can go back to Sullivan now, and they know the type of record they must create, and if they do so, Sullivan will finally be in somewhat of a corner. Involving the S. Ct. at this time would be an adventure in folly, given the time it will sidetrack everything, and it likely being an extension of the oddities the mind of Roberts can concoct!

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    1. Interesting point re cashing in chips. This transparent judicial persecution of an innocent man for political reasons exposes Obama judges in ways different than the usual obstruction. That's why I repeatedly used the term 'Obama judges'. Wonder what Roberts is thinking this morning. Maybe Thomas and Alito had some choice words for him.

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    2. "Maybe Thomas and Alito had some choice words for him."
      If he's marching to the DS tune, he may've laughed in their faces.

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  21. Today Sullivan issued a Minute Order directing the "parties" to file a joint status report by Sept. 21. The joint status report must propose a briefing schedule for: (1) DOJ & Flynn to submit sur-reply briefs; & (2) DOJ, Flynn, & Gleeson to file reply briefs to non-court-appointed amici. The "parties" must also supply 3 proposed dates & times for oral argument.

    SWC sensibly says Flynn & DOJ should: (1) file their own status report because they're the only parties; (2) file their JSR TOMORROW; (3) say no other briefing is necessary; and (4) offer Sept. 22, 23, or 24 as proposed oral argument dates. This will force Sullivan to either conform with the Ct App's order to move with "dispatch" or intentionally slow-walk the case, which might give grounds for DOJ to file its own mandamus petition.

    Here's a link to SWC's article: https://www.redstate.com/shipwreckedcrew/2020/09/01/judge-sullivan-playing-games-with-calendaring-new-proceedings-in-general-flynn-case/

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    1. Yeah, I just did a new post on that. As I maintained yesterday, SWC has been simply wrongheaded on this--and I usually like him.

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    2. Sorry the post wasn't up when I wrote my comment. I hear you but hope Powell & DOJ get more aggressive with Sullivan. Powell would, but DOJ proably won't. DOJ has many other battles in the DC trial & appellate courts. It doesn't want to burn bridges with the other judges.

      On a different note, I greatly appreciate you and your thoughts. Your topics are timely and thoughts are well-framed. 3 cheers to you!

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  22. "This transparent judicial persecution of an innocent man for political reasons *exposes* Obama judges in ways different than the usual obstruction."

    Exposes Obama judges, to *which sorts* of folks who really matter?
    Wavering never-Trumpers?
    GOPe types (e.g. Andy McC?)?
    Swing types (esp. Senators, DS etc. career types)?

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