Is it OK if I say: I was right?
As recently as this morning there were people I regard as smart lawyers suggesting that Sullivan would hold his hearing and get the Flynn case over with. That that's what the DC Circuit told him to do:
On the upside, there are two points. First, the majority makes it very clear they expect Judge Sullivan to now act promptly on the motion to dismiss. They order him to act "with dispatch." /14
Second, they drop an important footnote about how Judge Sullivan's lawyer swore up & down at the oral argument that he was clearly, absolutely, positively, certainly, definitely not going to hold an evidentiary hearing on the motion. This is plainly a signal to Judge Sullivan./15
It's a signal that the Court of Appeals expects him to hold a dignified hearing, w/o witnesses or any other factual development of the record, & to make a prompt ruling. Subtext: grant the motion to dismiss & put this case to bed ASAP. /16
Who really thought Sullivan would do that? It remains to be seen whether he'll go ahead with an "evidentiary hearing." As for holding any sort of a hearing any time soon, much less "with dispatch", think again:
Flynn update -
Judge Sullivan has effectively pushed back the resolution of the Flynn case until after the election.
Ordered a status report (with briefing schedule) by September 21. This will include a proposed oral argument date.
11:59 AM · Sep 1, 2020·
Perhaps more disturbing, Leslie McAdoo Gordon points out that DoJ may have really dropped the ball on this, meaning, they may not have standing to even appeal to SCOTUS:
Flynn has the right to petition for certiorari by the Supreme Court. I think DOJ likely can't as it didn't petition for mandamus or formally join Flynn's. The deadline for that is 90 days from today. The case will go back to Sullivan in the meantime, however, in about 14 days./20
Never underestimate the evil of liberals. I assume that Barr is totally p*ssed at this point. It'll be interesting to see whether he can actually DO something about this.
Earlier I suggested that what was going on was a move to prevent Flynn from being used as a witness of any sort before the election. I still regard that as a possibility, especially given the transparent outrageousness of what's going on here.
UPDATE: Yesterday I stated that IMO Shipwreckedcrew was simply being wrongheaded in maintaining that the the DC Circuit had come to a correct decision--despite ignoring the substantive merits of the petition for mandamus as detailed in the outstanding dissents by Judges Henderson and Rao. Today, SWC has discovered that Judge Sullivan [Is] Playing Games With Calendaring New Proceedings In General Flynn Case. And why would Sullivan do anything else, when the DC Circuit itself played games with its decision--including delaying issuing its decision until the last possible moment?
However, SWC recovers and offers advice on how Flynn and DoJ should proceed.
To start at the end, given that DoJ likely can't appeal at this point, his general advice is that DoJ should be watching Sullivan like a hawk for any sign that he's doing anything "not in conformance" with the DC Circuit's opinion.
Problem: The DC Circuit didn't actually give Sullivan any directions at all. "Dispatch", after all, is one of those things that is largely in the eye of the beholder.
Beyond that, SWC advocates an aggressive approach to force Sullivan's hand. FWIW, here are his suggestions, and I wish them all success:
My view is that Gen. Flynn’s counsel and DOJ should take the position that they are the only two parties, and file a Joint Status Conference for just the two of them — not including amicus counsel.
... Gen. Flynn and DOJ should force the Court to enter Orders directed to amicus counsel in a way that isolates Judge Gleeson as a non-party, or force Judge Sullivan to treat him as a de facto party rather than simply an advisor to the Court.
Further, they should file the Joint Status Report tomorrow, not 3 weeks from now. The Joint Status Report should take the position that briefing is complete, no sur-replies are needed and incorporate all the briefs filed in the Circuit Court.
With regard to the hearing, the Joint Status Report should explicitly state that neither PARTY intends to present evidence outside the written record already made — hell the Joint Status Report could take the position that no hearing is needed and the motion should be resolved on the written submissions.
The Report should force Judge Sullivan to himself state that he intends to conduct an evidentiary hearing – or to concede that he does not intend to do so.
I suspect that Sullivan will have more tricks up his sleeve to continue the rope-a-dope delay tactics. DoJ has no reason to expect any help from the DC Circuit at this point.
Barr didn't screw up, he acted within the law. It was our judiciary who has acted outside the law. They don't even car that they look like corrupt fools.ReplyDelete
I think DoJ did screw up by not formally joining with Flynn's petition. For whatever reason they seem to have wanted to maintain a certain distance. I get it, but it left an opening for unscrupulous shenanigans.Delete
I think the result would not have changed. You knew the liberals would be against Flynn from the beginning.Delete
"I still regard that as a *possibility*."ReplyDelete
What other possibilities could account, for the extraordinary lengths into which Sully has been pushed/ bribed?
get his phone records. See if he received a call from Obama.Delete
Mark -- On August 12 I commented in reply to your post (https://meaninginhistory.blogspot.com/2020/08/link-for-tomorrows-flynn-hearing.html) the following. I stand by it, especially ##7, 8 and 9.ReplyDelete
1. DOJ has 100% right to dismiss. This prosecution will be dismissed. Eventually. The current proceedings are all political and all about delay. There are no (zero) substantive issues.
2. To get a mandamus, DOJ and Sidney need a majority of the 10 judge en banc court. That's 6 judges. There are only three Republican-appointed judges on the panel. And Griffith is suspect. There simply can't and won't be six votes for mandamus. Since mandamus is a discretionary remedy, denying it will do little or no violence to the Court's 'reputation' or jurisprudence. Even though Judge Rao will write a scathing dissent, joined by Judge Henderson. I doubt any other judge joins. But it doesn't matter.
3. The majority will send the case back to 'Judge' Sullivan for a hearing on the Government's motion to dismiss, perhaps with instructions articulating the narrow basis of a district judge's scope of inquiry on a hearing on a prosecution's motion to dismiss a criminal case.
4. There will be no need to rule on whether 'Judge' Sullivan is a party or has standing, or violated the applicable rules relating to asking for an en banc hearing. Nor will the Court necessarily rule on the appointment of Gleeson, etc. They're all moot.
5. 'Judge' Sullivan will not be disqualified.
6. By its actions in ##3, 4 and 5 above the Court will do as little violence to 'Judge' Sullivan's reputation as possible (under the circumstances). It will have simply ordered him to hold the hearing.
7. It may take a few weeks for the en banc Court to issue its opinion (with dissent). 'Judge' Sullivan will take a week or two to set down a hearing date and order the parties to submit briefs. The foregoing process could take a month to six weeks and by then we'll be in late September. 'Judge' Sullivan will then take a couple weeks to rule.
8. If 'Judge' Sullivan can he will find ways to push this out beyond November 3 and, if necessary, the Court of Appeals will cooperate. Ultimately granting the Government's motion to dismiss is political dynamite...for two reasons. One, it contributes further to the utter destruction of the Russia Collusion hoax and two, it frees Flynn to campaign for Trump without the shadow of a guilty plea to felony charges.
9. But the Dem judges are playing with fire here, hoping they can somehow minimize the damage to Biden's campaign by punting. Its a dicey game because one could argue that taking the hit now (during the August so-called doldrums) is a better bet than taking it later during the heat of the campaign.
They will use every trick in the book to push beyond November 3.
Flynn is not under a gag rule, so I say go campaign.Delete
this is all good info for Durham about what jurisdictions to file contested cases in, assuming a choice...ReplyDelete
"opening for unscrupulous shenanigans", which should've (must've?) been utterly expected.ReplyDelete
I presume that DOJ didn't joint the petition so as to avoid irritating Sullivan & the other judges on the DC trial & appellate courts. Flynn has only 1 case. The DOJ likely has and will continue to have several cases.ReplyDelete
I sure would hope Barr and his DOJ are not somehow under the impression that Dem-dominated courts will treat them more fairly if only DOJ grovels enough in front of them. If they are, God help us all.Delete
Sometimes perception is more significant than reality. For example, if DOJ appears weak (rather than actually being weak), it can inflame increased criminality because the bad guys don't fear rule-of-law consequences (e.g. see Portland rioters being released on recognizance and no charges filed by local prosecutors). That is Barr's dilemma. He has been cucked by both Sullivan and the Appeals Court, and he will appear weak until he steps up and actually fights back. And hiding in the closet is not fighting back.ReplyDelete
To me, Sullivan and the appeals court are the same thing...there's one force behind both. Barr would be wasting his time getting to engaged with Flynn case at this point- he can't win more than getting a dismissal, and he's got bigger fish to fry! Best thing DOJ and Flynn can do now is file a one-pager with Sullivan very quickly (instead of 9/2?), just saying no issues, no case, no scheduling needed, just waiting on court for Rule 40 "leave of court" ruling.Delete
It is disheartening to see an innocent man being treated this way. I was thinking the same things along the lines of what shipwreckedcrew suggested--both Flynn and the DOJ should argue there is nothing left to file/argue and they are ready to proceed right now.ReplyDelete
Sullivan's order does not require them to take three weeks, only sets that as a deadline. Of course, Sullivan will probably just sit there for a full three weeks to give his amicus time to file on the last day...nothing requires Sullivan to respond quickly to a Flynn/DOJ prompting for it.
Would the Amicus be subject to cross examination?Delete
He's not a witness.Delete
re: new FBI reforms announced by Barr: apparently the solution to corruption in the government is more government jobs.ReplyDelete
Funny how that works, eh?Delete
For "rope-a-dope" to be an actual thing there must be a dope.ReplyDelete
If Flynn has anything to say he should spit it out. I give it an 50/50 chance that Sullivan rejects the change of plea and sets a sentencing date the 4th week of October. No street racer ever got a greener light that what the Curcuit just gave Sullivan. Their message was clearly, "Git 'er done."
"No street racer ever got a greener light".Delete
If this isn't the greatest judicial victory in DS history, what is?
If there is a gag order why not ask for immediate dismissal to free Flynn up to talk?ReplyDelete
That's what DoJ did, and what Sullivan's delaying.Delete
If Flynn is not under a formal gag order, I wonder how his campaigning would affect things now that he has been sent this far back down the rabbit hole? What can Sullivan do? Wouldn’t it publicly indicate bias on his part? (Far too much of that has been indicated so far.) Just tossing thoughts around...ReplyDelete
Because Flynn's guilty plea hasn't been dismissed. You would have a guy campaigning for Trump who pled guilty to a felony and whose case was ongoing. That would simply draw attention away from the President.Delete
When it comes to Flynn, then, I’d say that his having been martyred by the malice of Sullivan, rubber-stamped by the appeals court, and what his lawyer Sidney Powell has said publicly, and will continue to say, will make him a very good silent campaigner for President Trump and what he stands for. He is the one-man symbol of the dreadful damage Barack Obama and his cohorts could and did intentionally wreak on an American citizen who had the goods on them..Delete
I'm not a lawyer, but since nothing about this has anything to do with the rule of law I'll put my two cents in.ReplyDelete
If Flynn has anything worth saying he should go ahead and spit it out. I see a 50/50 chance that the change of plea will be rejected, and a sentencing date set for the fourth week of October. The Appellate has given Sullivan the green light and the only thing to stop him is a failure of nerve, which he has no ways exhibited.
Fantastic article in "The Federalist" by Margot Cleveland where she spells things out very clearly. It's pure political...ReplyDelete
Yes, they were smart. Making this a counter-intel op changed the dynamic tremendously. Of course, having a significant amount of the judiciary either in league or unwilling to oppose helps a lot.ReplyDelete
Sullivan does pretty much have an unlimited green light from the Ct. App., as a practical matter. As long as he gives good pretexts for all his delays, and in the end grants the dismissal, there's nothing to appeal under this latest order. Flynn won't appeal a grant of dismissal! Best Flynn and DOJ can do is assert themselves at each stage and create a bad enough record that even Sullivan decides he's had enough. Very sad state of affairs!ReplyDelete
Certainly the Appellate viciously excoriated Sullivan for his altogether inadequate "pretext" for dismissing the DoJ from prosecutorial duties in the Flynn case and appointing his own (not). No doubt when they hear Flynn's appeal next year they will again find his pretext adequate, and when/if it gets on the SCOTUS calendar for, maybe, 2023 or '24 Robert's will tut-tut but feel it necessary to acquiesce.Delete
Flynn would be well served to get his name on the list for one of those celebrity How to Survive Prison seminars that are so popular these days.
"So long as ...the illusion of legitimacy stands—so long as the Right obeys while the Left disobeys and commands—there is no end to what the Left can do...."
Angelo M. Codevilla
The drip drip of evidence and Brady material proves Flynn's innocence and he should be a free man. SCO was going to go after his son. Flynn didn't lie about sanctions, there were non, just expulsions. Sullivan is doing someone else's bidding. He and his son have a history with the law... Our judicial branch is corrupt.ReplyDelete
Yeah, the judicial branch is corrupt, mostly from blackmailable judges put on the bench, precisely because their blackmailability made them quite controllable.Delete
Their not being blackmailed. They are pulling their oar with a will. They are stifling truth with "both hands", as the Bible would say.Delete
DOJ and Flynn file Motion:
"Flynn - status report and motion to expedite"
>> https://www.scribd.com/document/474841632/Flynn-status-report-and-motion-to-expedite <<