Wednesday, October 7, 2020

Sidney Powell Demands That Sullivan Recuse From The Flynn Case

As she promised at the last hearing, Sidney Powell has filed a motion today in which she demands that Sullivan recuse himself from any further involvement in the Michael Flynn case:


There's not much point going through the details at this time. We've seen most of Sullivan's antics described before--beginning with his outrageously ignorant claim that Flynn had somehow committed "treason," the only criminal offense that is actually defined in the Constitution:

Section 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Even the Team Mueller attorneys were stunned when Sullivan made that incredible assertion in open court.

There is one issue that Powell notes that I do want to draw attention, further down. First, however, to give some idea of the red meant that Powell's motion contains, here is an excerpt from the table of contents:

2. Judge Sullivan’s Prejudicial Statements and Conduct Have Become Increasingly Shrill, Unprecedented, and Prejudicial—and Apparently Influenced by Extra-Judicial Sources

a. His false and defamatory comments at the December 18, 2018 hearing echoed those of Rachel Maddow.

b. Judge Sullivan issued an order inviting anyone to participate as amicus after receiving an email from Robbins Russell firm on behalf of Former Watergate Prosecutors.

c. Judge Sullivan read John Gleeson’s WaPo op-ed and adopted the procedure recommended therein to delay and derail the government’s motion to dismiss.

d. Judge Sullivan’s ex parte involvement of his personal counsel Beth Wilkinson.

e. Judge Sullivan has flouted his own standards of justice by refusing to enforce his Brady order and obstinately ignoring the merit of the shocking new evidence produced by the government.

In discussing these matters Powell pulls no punches at all. It makes for refreshing reading. The picture that emerges is of a federal judge who gets his marching orders for handling a case from watching Rachel Maddow and perusing op-eds. Not a flattering picture, certainly a grossly improper unjudicial one, and illustrated in lurid but accurate prose by Powell. Not to put too fine a point on it, the details read like something out of Alice in Wonderland.

Powell also highlights what was painfully obvious all along--Sullivan's personal "antipathy" toward Powell herself:

4. The Court’s Bias and Rancor Was Palpable at the September 29,2020, Hearing.

The hearing on the Government’s Motion to Dismiss marked the first time a federal judge has presided over a hearing regarding a defendant against whom he personally litigated to prolong his prosecution—not to mention defying the writ of mandamus issued by an appellate court. His antipathy for defense counsel Sidney Powell was evident as he grasped at straws in his attempt to create a false narrative of the case itself, conjure up the political bias he and his amicus claim motivated the dismissal motion, and manufacturing non-existent ethical issues. 

Powell then illustrates the personal attacks launched against her by Sullivan--attacks which were clearly premised on the notion that the President and the Attorney General are so corrupt that communicating with them somehow becomes an ethical violatin. I well recall how stunned I was when Sullivan initiated these wild attacks, and added the bizarre and utterly irrelevant rationale that he wanted to bring these matters to the attention of the "public"--as if an ethical violation is somehow defined by public opinion:

First the court insinuated Ms. Powell had committed an ethical violation by writing a letter to the Attorney General on June 6, 2019, requesting an independent review of the Flynn file. The court expressly stated he wanted to bring this to the attention of the public—that it had been “under the radar screen.”6 


The second aggressive attack and outside the bounds of the motion to dismiss was to question Ms. Powell about communications with the President. Judge Sullivan demanded an answer as if communicating with the President in itself was some kind of violation of ethics or of law, when, in fact, it is neither.7 


In this instance, and throughout the hearing, Judge Sullivan’s remarks reflected his personal view that both the President and Attorney General Barr are corrupt and simply protected a friend of the President—never mind the hundreds of pages of newly-disclosed evidence, the three IG Reports of the agents’ lies under oath, their assorted misconduct concocting the “case” against Flynn, or their terminations for cause. 

With that introduction, Powell proceeds to illustrate Sullivan's "grasp[ing] at straws", by  providing six examples, six "straws". I want to call attention to one of those straws in particular, because I suspect that it's an issue that will come up again. 

e. Straw #5: Dismissal without prejudiceevincing his political interest in prosecution by a new attorney general.

This judge asked whether he could dismiss the case without prejudice, thereby permitting a future attorney general or a future administration to reopen the prosecution of General Flynn. Hr’g Tr. 09-29-20 at 76. He also wanted to know if a new attorney general could pursue General Flynn for uncharged conduct. Id. The court pushed this issue despite well-knowing the purpose of Rule 48(a) to foreclose prosecutorial harassment and the government’s unequivocal motion to dismiss with prejudice. Rinaldi v. United States, 434 U.S. 22 (1977).

Judge Sullivan himself noted in United States v. Pitts, 331 F.R.D. 199, 202 (D.D.C. 2019), “the principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection.” Again, this court shut down defense counsel’s discussion of Pitts. Hr’g Tr. 09-29-20 at 145. It could not be more obvious even to the untrained observer that this judge, amicus Gleeson, Ms. Wilkinson, and those politically aligned with them, are delaying, posturing, and briefing this case as a political tool hoping that Democrats will win the election and a Democratic administration will continue the political persecution of General Flynn. That is the very abuse a Rule 48(a) dismissal is to prevent.

I was shocked when the government lawyer--I forget which one now--responded to Sullivan's question by stating that, while they were asking for dismissal with prejudice (meaning that Flynn cannot be prosecuted again on these matters), they might accept dismissal without prejudice (meaning a Biden administration could reopen the case).

Powell points out that Sullivan himself understands the purpose Rule 48, which governs such motions. The purpose is precisely to scrutinize possible abuses of dismissal without prejudice! I'm not sure whether this issue has ever been litigated but, as Powell says, this contemplated action by Sullivan evinces a strong personal interest in having Flynn prosecuted--despite an overwhelming showing of government misconduct from the very inception of an investigation against Flynn. This smacks of injecting a judge's own views into a decision that should be left to the executive and the executive alone.

I'm glad that Powell raises this issue, and if Sullivan goes down that road I very much hope that both Powell and DoJ will appeal. It seems clearly abusive and a clear infringement on executive functions that steps well outside the bounds of permissible judicial discretion.


  1. Mark - What are the possible paths?

    My Guess:

    1. Sullivan recuses himself
    2. Sullivan dismisses the case with prejudice
    3. Sullivan dismisses the case without prejudice

    1. Well, #1 is out.

      My guess he'll give #3 a try.

    2. How about - he rejects recusal, rejects plea withdrawal, sets sentencing date.

      Sullivan has demonstrated that he is on a mission. He may well take it into his head that the mission is too important to try to limp home and then it's "throttle forward, push the nose over, keep the target center a hands width above the nose".

    3. Probably #3 but it will be futile for a future administration. No witnesses.

      Rob S

  2. Sidney Powell is going out of her way to express her utter disdain for Sullivan. She is not going to stop and any attempt by Sullivan to hold her in contempt would responded to with a "bring it on, asshole" attitude.

  3. Is there some sort of time limit where Sullivan has to respond? Or is it pretty much open ended?

    1. I'm sure there is, but I don't know. I'm guessing--and strictly a WAG here--that he'll first dismiss without prejudice, thus theoretically making the motion to recuse moot.

    2. My guess is she hopes the Supreme Court will step in and say get on with it fool.

      Rob S

  4. This, all of this, Sullivan, the Russian Hoax, the continual harassment of Trump by NY AG, the resisters in the administration, Congress, the judiciary, and the military, the setting up of Flynn, George P, Page, the magical new info on Manafort, the ridiculous raid and trial on Stone, etc, etc, etc, makes it appear there is a Director.

    Maybe. Obama? Good suspect. Very good suspect. Problem is the grandness and complexity of this. It goes against common sense.

    But, if we have a situation in which fellow travelers are in the various powers of government no matter how powerful or small, no real Director is needed. It moves on it’s own. It is organic with leaders and cogs taking whatever advantage they can.

    Our government has been for a long time in lock stop in a march in one direction no matter what party was in power. In other words, it is a government only responsible and beholden to itself.

    Trump has changed that, for now. I see that the GOP is awakening to this, just not enough or fast enough for my tastes. Too many of the GOP are fellow travelers in varying degrees to make this change lasting as of now, but that appears to be changing.

    Flynn is just one part. A US lawyer saying it’s ok if Sullivan dismisses without prejudice is an example of the varying degree traveler. The lawyer knows full well what that means and is saying, in effect, that the US can get Flynn later when a more supportive administration is in place. Even the “might” acceptance is revealing to the inner thinking of this lawyer. Worse, I guarantee you that this was discussed with other DoJ lawyers for this even to be a possible acceptable outcome.

    - TexasDude

    1. That's the beauty of conquering the culture first, be it corporate, institutional, or societal. A nudge here, a nudge there (as Cass Suskind would say) and pretty soon you have definite drift. Add a generation of college graduates (by definition destined to be the decision makers) here and another generation there and, to paraphrase Robert Byrd, pretty soon you've got real inertia. Add acceleration provided by a society whose most existential concern is how to spend leisure time and possesses the wealth to turn virtue seeking into a fetish, then finding the "opposite but equal force” to return it all to ”rest” moves from the realm of political arithmetic to that of calculus.

      Watched the Netflix movie "First They Killed My Father" the other day. Other than a few minutes at the beginning and end blaming everything on the U.S. (a functional Unified Field Theory for American leftists and media, but I repeat myself) it was riveting. The Left's boogeyman is Nazis, Hitler, Fascism, For me it is the Khmer Rouge, the logical last stop of Socialism. Stalin, Mao, Pol Pot were not anomalies, they are features. Fascism is not anathema to Socialism, it is intrinsic.

      Hard to imagine an outcome that doesn’t involve a great deal of bloodletting, sooner or later.
      Tom S.

    2. "For me it is the Khmer Rouge...."
      Sadly, I'll bet most Americans know virtually nothing of Mad Max's orgies in 1793-94.
      "bloodletting, sooner or later", unless wise statecraft moves to split the US into at least two parts.

  5. Typo: "becomes an ethical violatiOn."

    If we see dismissal without prejudice, would that suffice, for Flynn to be unleashed into the DJT campaign trail (to tee off vs. the DS cabal), w/o sabotaging any appeal of such a Without Prejudice ruling?
    If so, I presume that Sydney could delay appealing such a Without Prejudice ruling until after the election, w/o any SOL-type penalty.
    If so, I'd lean toward accepting a "deal", which expedited a (temp.) Without Prejudice ruling.
    If Flynn is officially exonerated (even if not completely), it could still be occasion, for DJT to hold a mass celebratory rally at, say, the W.H. or the Pentagon.

    1. Thinking more of this, I lean more toward a deal w/
      a (temp.) Without Prejudice ruling, and a huge party celebrating Vindication.
      For the Dems to make a stink vs. this, would raise a question they'd rather duck:
      "Do you mean, that a Biden DoJ would *actually* renew these charges, these based on laughable evidence?
      (A DJT win obviously brings case staying dropped.)

  6. One problem with the dismissal without prejudice by Sullivan- it's not really provided for in the Fed R Crim Procedure...not that it will stop him... Rule 48 (a) states when the Government can dismiss a case, and that's the leave of court standard, and Rule 48 (b) state when the Court may dismiss a case, and it only allows the Court to dismiss for unnecessary delay in 3 circumstances N/A here. Also, there's no motion filed for a dismissal w/out prejudice, so it's not really on the table. Sullivan's done worse, so he could try it, but eventually it would seem to fail on appeals. Sullivan is no jurist, and doesn't seem to really understand law outside the partisan use of it (seen by how he's flip flopped on issues without seeming to understand why people bring it up), but at some point his street smarts have to kick in and let him realize he's now set up to be a punching bag in the S. Ct. if he doesn't get out.

    1. I agree, but he raised the issue and Weissmann and others have urged it.

      BTW, there are new docs--notes--re Flynn. I've read them but it'll take a while to write something. Interesting to see James Baker talking about a "predication problem" re the Flynn interview. That's what I was saying many moons ago. It's not just a little problem.

    2. "Sullivan is no jurist, and doesn't seem to really understand law...."

      If I were a person (lawyer or defendant) that had ever lost a case with Sullivan presiding I would be very interested in these proceedings and going over my files/court records with a fine tooth comb. I very much doubt this is the first case that he has taken a "personal" interest in.
      Tom S.

    3. "let him realize he's now set up to be a punching bag...."
      He could care less about his rep in legal circles; that ship sailed long ago.
      He cares only to stay in good, w/ SparkleFarts & the DS.


    Not on topic but would add mandatory retirement NLT 81st b'day or 31st anniversary of swearing in, whichever comes first, for all Federal judges. When the Constitution was written "for life" meant, generally, 60's or maybe 70's. Modern medicine makes the Ginsburg Stunt of attempting to game the political system more likely.
    Tom S.

  8. After reading Powell's latest submission to the court, of the one page handwritten note from the meeting on James Baker's office the day after the Flynn interview, Judge Sullivan might do well to look at Powell's motion to remove him, AND GRANT IT, as it would be the cleanest and most expedient way for Sullivan to extricate himself from a case that is growing uglier by the day.

  9. Breaking:

    Original draft of Flynn 302 was deleted from FBI document system.

    >> <<

    MW: can you comment on this?

    Does this make any sense at all? The whole point of a document retention system is supposed to be so things can't be deleted, so you always have a verifiable trail of provenance for a document from draft, through all revisions, and the final version, including who accessed it when, and what the edits were.

    1. Sentinel is after my time. This may be the reason we have not seen any Pientka 302--he may have had a lot to say about this process and could be a key witness.

      Ultimately, all government business like this is on the honor system. It does usually work--overwhelmingly. But the mere possibility of abuse--and this case is an instance IMO of a very clear abuse--constitutes a powerful argument for recording formal interviews like the Flynn interview.

      As for the audit trail, I don't believe that could have been deleted. The draft may be delete-able, but we should know who did that. That should be provided to Powell.

      I'd very much like to see this case go up on appeal for a really thorough review.