More On Perjury And Contempt

Here is more evidence that Sullivan isn't doing any of this because he thinks he's found a winning issue and will be able to jail Flynn. A lawyer son wrote to me, pointing out that Sullivan is opening up a huge can of worms, a battle that he can't possibly win in the long run. Which means he's probably only looking to the short term--initiating delaying tactics to somehow help the Obamagate plotters outlast the Barr/Durham posse. Every judge in the land, every lawyer in the land, knows this is what's going on, even if they won't say so. So:

By the way, on all that Flynn stuff with Judge Sullivan thinking of bringing contempt charges ... I don't think Sullivan thought the contempt charges through. I think any contempt arising from "perjury" involving the guilty plea would have to fall under indirect criminal contempt. Direct contempt is meant to be an immediate punishment for actions that are making it impossible for the court to function (e.g., when the defendant spits in the prosecutor's face or starts screaming at the judge). Although Sullivan is apparently thinking of holding Flynn in contempt for making false statements at his plea--which would have been "in the presence of the court"--Sullivan did nothing at the time about it. So, in order to hold him in criminal contempt at this late remove, it would have to be indirect criminal contempt.

And indirect criminal contempt is a new criminal charge, which means Flynn would have a right to counsel, discovery, a trial, a right to confront witnesses, etc. Sullivan would actually be creating a huge problem because he would, in effect, be asking the government to prove Flynn knew he didn't make material false statements to the FBI but decided to plead guilty anyway. And so Flynn would certainly have the right to explain that he felt forced to plead guilty because of the threat to indict his son. (This is very different from the ordinary indirect criminal contempt charge, which revolves around rather simple, ancillary matters, such as, e.g., whether the defendant violated the court's order by having contact with the victim or complaining witness.)

Besides, for a statement to be perjury, I am 99% sure the defendant has to make a false statement of fact, not a false legal conclusion--and materiality is a legal conclusion. I'm sure Flynn admitted to making conflicting statements to federal investigators, but it's not perjury for him to believe at the time of the plea that his statements were material.

Surprised? Doug Collins Says Mueller Won't Testify Next Wednesday

Appearing on Fox News Rep. Doug Collins had a lot to say about Jerry Nadler's contempt theatrics, emphasizing the point that Jonathan Turley made--that treating the subpoena power itself with such contempt undermines the authority and credibility of the House. However, for me the interesting part came during the last two minutes of the interview when Collins was asked a number of direct questions.

The first question was, yes or no, will Mueller testify to the House next Wednesday? His answer: No. Maybe yes or maybe no, or a flat no? His answer: I would say a flat no. This doesn't come as a surprise. The GOP Reps would be well prepared for Mueller and I don't think he'd want to--or even be able to truthfully--answer those questions.

Collins closed by stating that the real story coming up is the IG report, which will leave little to hide behind.

A Cure For Your Contempt Ailment?

Is this you? You know Jerry Nadler's a clown, you know the contempt vote against AG Barr is a joke, but you still can't stop reading about it?

A cure for what ails you just might be Jonathan Turley's article today: Dems' Contempt Case Against Barr Is Unbelievably Weak.

Here's who Jonathan Turley is:

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and represented the House of Representatives in its successful challenge to executive actions under the Affordable Care Act.

He's also a super liberal, who nevertheless testified in favor of Barr's confirmation as AG because he regards Barr as a terrific lawyer and a man who would bring much needed integrity to the government's top legal position. Turley is one of those strange liberals who cares about the integrity of our institutions and the rule of law. Go figure, eh?

The House Judiciary Committee is voting to hold Attorney General William Barr in contempt of Congress and to secure a vote of the entire House of Representatives in order to send the matter to federal court. The problem is that the contempt action against Barr is long on action and short on contempt. Indeed, with a superficial charge, the House could seriously undermine its credibility in the ongoing conflicts with the White House. ... 

As someone who has represented the House of Representatives, my concern is that this one violates a legal version of the Hippocratic oath to “first do no harm.” This could do great harm, not to Barr, but to the House. ... 

House Judiciary Chairman Jerrold Nadler ... raised three often repeated complaints against Barr in that he failed to release an unredacted report by special counsel Robert Mueller, allegedly lied twice to Congress, and refused to appear before the committee. Yet, notably, the only claim the committee seeks to put before a federal court is the redaction of the report. That seems rather curious since, if Barr lied or refused a subpoena as House leaders claim, it normally would be an easy case of contempt. The reason for this move is that House Democrats know both claims would not withstand even a cursory judicial review.

With that introduction, Turley turns to the claims of "false statements" and shows exactly how frivolous they are and why House Democrats don't dare bring them before a court. He then turns to Barr's supposed "failure to appear," and draws the same conclusion: it's all in bad faith. "The Democrats wanted to manufacture a conflict ..."