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.

UPDATED: Sullivan Wants To See Flynn In Jail

Sullivan Appoints Gotti Prosecutor To Argue That Flynn Should Be Jailed For Contempt (Perjury)

OK, I get this. It's possible that Sullivan did, in fact, back off from the Amicus Brief gambit, and decided on this perjury gambit instead. I had been having trouble understanding why he dismissed Powell's motion--objecting to Amicus Briefs--as "moot" if it was a simple scheduling matter. This move places Sullivan on firmer ground. If AG Barr has stymied efforts to railroad Flynn on a false "1001" charge, Flynn will find another way to jail Flynn and smear him before the public.

I warned quite a while ago that pleading guilty when you actually believe you're NOT guilty--under oath--is possible perjury and is very inadvisable. No matter what. However, the factual situation in the Flynn case isn't simple. Flynn was being told by his lawyers, basically, that he was guilty under the law as it's interpreted and that he should plead. They urged him strongly to accept the "deal." He had no access to the facts of the case--the recording of his conversation with Kislyak, and was falsely told that the agents supported the Team Mueller position. And Team Mueller was threatening to prosecute Flynn's son unless Flynn pled guilty. Pretty much overnight.

Powell is well up to arguing these facts and IMO has a good chance of winning--on appeal (I assume Flynn has no chance with Sullivan).

In the current circumstances, in which Sullivan turns a blind eye to clear government crimnality and is instead intent on jailing the victim, what Sullivan is doing seems incredibly abusive to me. It's true that you shouldn't plead guilty when you don't think you're guilty, but the real world of human beings--especially for non-lawyers in a high pressure legal environment--is a helluva lot more complicated than that. That's true for many "1001 False Statements" prosecutions--I've written about the iniquity of these prosecutions repeatedly, citing Ruth Bader Ginsburg's views. It's also true for more than a few instances of perjury.

The law is not supposed to be like a rack--on which people who haven't actually committed a real non-process crime and who were investigated on false pretenses, in order to frame them on a process crime, are broken. Nothing could be more obvious than that Sullivan has no interest in this case except to see Flynn in jail, disgraced as a liar and perjurer if he can't be convicted for a crime he didn't commit. All for purely political reasons.

Welcome to the world of Liberalism.

ADDENDUM: I believe this would be Criminal Contempt. That means that Trump could pardon Flynn for the contempt. That, perhaps, is what Sullivan is aiming for--to force Flynn to accept a pardon that will leave him forever smeared as a perjurer.

UPDATE 1: Paul Mirengoff:

Before becoming a judge, Gleeson was an Assistant United States Attorney for the Eastern District of New York. In that capacity, he worked closely with Andrew Weissman, perhaps the most hardcore Trump hater on Robert Mueller’s defunct team of Trump haters.

Sullivan plainly has it in for Michael Flynn. In addition, he wants to show William Barr who’s the boss.

UPDATE 2: Yeah, weird:

Joel B. Pollak
@joelpollak

The idea that @GenFlynn would be found in criminal contempt for a “lie” in which he a) asked the court to find him guilty and punish him, and b) allowed him to help the government in a major investigation, runs against the interests of liberty, public policy, & plain common sense

8:21 PM · May 13, 2020 

The McCabe Test For Bill Barr

The NYT is reporting today that prosecutors are nearing a decision on whether to indict Andrew McCabe, former Deputy Director of the FBI: Prosecutors Near Decision on Whether to Indict Andrew McCabe. According to the article there has been turmoil in the DC US Attorney's office surrounding the case. Two prosecutors have left the case and the case itself has dragged on without a decision for so long that the Grand Jury has expired. One assumes that this is connected to the Swamp Creature Jesse Liu--US Attorney for DC. Liu was responsible for the coverups in the Awan Brothers and James Wolfe cases. In an unusual move, the Deputy AG, Jeffrey Rosen is now involved in the decision. At CTH, sundance is framing this all as "a moment where we can determine the intents and motivation of U.S. Attorney General Bill Barr." Sundance doesn't say it in so many words, but I have to assume he means: If McCabe is not prosecuted, that means that Barr's "intents and motivation" are corrupt--he's covering up to protect the reputation of DoJ and the FBI. It's part of the "two-tiered justice system" in DC. Here's the link to CTH: Bill Barr’s Test – U.S. Attorney Jessie Liu Punts McCabe Indictment Decision Back to Main Justice.

There's a lot wrong with sundance's reporting here. You can start with his acceptance of the NYT headline. Anyone would be forgiven for thinking that if McCabe isn't indicted at this juncture he's home free. Nothing could be further from the truth.