Matt Taibbi On The Flynn Case And The Debacle Of Progressive Fascism

Progressive Fascism? Of course! Surely you recall the New Deal love affair with Mussolini? Oh, you didn't learn about that in your government school? Well, whatever. The Left has long had a thing for authoritiarianism, whereby the better class of people--somehow always themselves--would exert expert rule over the masses. Their vision is almost like a Revolt Against The Masses.

Matt Taibbi is disillusioned with his Progressive friends and their abandonment of civil liberties:

Democrats Have Abandoned Civil Liberties

The Blue Party’s Trump-era Embrace of Authoritarianism Isn’t Just Wrong, it’s a Fatal Political Mistake

Taibbi frames this issue in the context of the Flynn case, and it makes for a read that I heartily recommend, although it's easy to tire of Lefty schadenfreude. Nevertheless, Taibbi is a good writer and gets some excellent licks in. Here are two samples to whet your appetite:

Emmet G. Sullivan, the judge in the case of former Trump National Security Adviser Michael Flynn, is refusing to let William Barr’s Justice Department drop the charge. He’s even thinking of adding more, appointing a retired judge to ask “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” 

Pundits are cheering. A trio of former law enforcement and judicial officials saluted Sullivan in the Washington Post, chirping, “The Flynn case isn’t over until a judge says it’s over.” Yuppie icon Jeffrey Toobin of CNN and the New Yorker, one of the #Resistance crowd’s favored legal authorities, described Sullivan’s appointment of Judge John Gleeson as “brilliant.” MSNBC legal analyst Glenn Kirschner said Americans owe Sullivan a “debt of gratitude.” 

One had to search far and wide to find a non-conservative legal analyst willing to say the obvious, i.e. that Sullivan’s decision was the kind of thing one would expect from a judge in Belarus. 

How We Know The Flynn FD-302 Is SUPER Important

Undercover Huber's has been collating what we know about negotiations between Flynn's original legal team from Covington and Team Mueller. It's not stuff we didn't know already, but it's nicely arranged to make the main point: Team Mueller knew that if they wanted a chance to squeeze Flynn to force him to lie about Trump it was essential that neither Flynn nor his lawyers should EVER see the FD-302(s) summarizing the FBI interview of Flynn. That "(s)", of course, is very important, because any halfway competent attorney would quickly recognize at a glance that the FD-302 dated February 19, 2017, couldn't possibly be original, and would also demand to see the interview notes.

That's the reason Team Mueller had to threaten both Flynn (prosecution of his son if he doesn't plead) and his lawyers (fact witnesses of the FARA filing for Flynn). They needed Flynn to plead and for his lawyers to forego all discovery, and they needed that ASAP. The original Team Mueller lie--that the FD-302 contained their whole Russia Hoax strategy--wasn't working, so they had to turn to outright threats that were legally dubious to begin with.

The SCO claimed they couldn’t turn over the FD-302 because it would “reveal” parts of their overall Russia interference investigation. But even the edited version of the Jan 24, 2017 interview shows Flynn wasn’t asked about Russian interference or anything remotely like Collusion.

And we now know that the FBI itself wanted to close its Crossfire Razor investigation of Flynn for potential links to Russian interference long before that Jan 24, 2017 interview. 

And that investigation of Flynn should never have been opened in the first place, given its laughably weak predicate lacking any articulable factual basis for believing he could have been colluding or conspiring with Russia. 

We also now know that the Dec 29 Flynn-Kislyak call changed nothing with regards to any Collusion. And the FBI never opened a Logan Act criminal probe (which would also have been ridiculous). 

And in the Mueller report, the SCO itself admits Flynn merely asked Russia not to “escalate” in response to Obama’s sanctions or only respond “reciprocally”. There’s nothing wrong with that. What should he have said, go ahead nuclear armed Russia, please escalate?

Red State has a nice readable formatting of Undercover Huber's entire twitter thread, with some extra explanation: Undercover Huber Chronicles the Extraordinary Actions Taken by Team Mueller to Avoid Turning Over Flynn’s Original 302.

Who thinks Sullivan and his behind the scenes handlers like Gleeson don't understand all of this? What does this tell you about the degree to which Dems have corrupted the Judicial Branch?

UPDATED: The Flynn Case: Unmasking, Pen Registers, Tech Cuts

There continues to be an enormous amount of confusion swirling around the leak of Michael Flynn's telephone conversation with Russian Ambassador Kislyak to David Ignatius of the Washington Post. A lot of people have been twisting themselves into conceptual pretzels. All sorts of theories to explain why Flynn was or, as it happens, was not "unmasked" have been advanced--few of which show any understanding or even awareness of FISA procedures and rules. I'll state the bottom line first: With regard to the Flynn/KIslyak conversation itself, "unmasking" is basically irrelevant because there was no need to unmask Flynn's identity in that conversation--for reasons that will be explained. On the other hand, the massive and quite unprecedented amount of "unmasking" that went on in the Obama administration does point to a very serious problem. What it indicates is that high Obama officials, usually political appointees, were combing through intelligence reports in an attempt to find derogatory information on political opponents. 

To understand "unmasking" it may be helpful to get down to a procedural level. How does that occur, and why? The circumstances in which unmasking is requested by a government official near the top of the food chain would normally be something like this. The official receives an intelligence "product" of some sort in which identifying information regarding a US Person (USPER) "minimized"--in other words it is redacted to hide the identity of the USPER because the person who prepared the document judged the USPER's identity to be irrelevant for official government purposes. The official receiving the "product" may disagree--perhaps knowing more about the context of the report--than the lower level preparer. So the official submits a request to unmask the USPER's name. That should be done for an articulable reason, not simply out of curiousity.

The real problem arises when unmasking is not done for articulable official purposes but instead for personal or political reasons--usually as a prelude to leaking the USPER's name to the outside world, which is a crime. A few instances of unmasking by a given official may not be overly troubling, but when unmasking appears to be a pattern of behavior suspicions can arise that the unmasking official is actively seeking information to leak for political purposes. The suspicion arises because it would be unusual to be second guessing the preparers of intelligence documents on such a regular basis. That seems to have been the case with Samantha Power. The problem isn't with the unmasking per se so much as with the use that the unmasked information is put to. In the case of Flynn, of course, it was part of an elaborate frame job. The fact that in administrations prior to the Obama administration unmasking was so rare speaks volumes about the mindset in the Obama administration. However, the difficulty for the investigator of unmasking is to link specific unmaskings to specific leaks by specific individuals. Were you wondering what's taking Durham's investigation so long? If you reflect on the above you'll have some idea. There's a lot of digging involved, and especially with so much activity as we've seen.

As if all this weren't complicated enough, uninformed opinions are regularly advanced to "explain" all this. Dan Bongino and sundance have each came up with what they think is the answer to what should be a non-question: How did the FBI know about Flynn's conversation with Kislyak. It may not surprise you to learn that Bongino and sundance have each came up with different answers. Bongino thinks it came from an illegal use of emergency FISA powers by Obama himself. Sundance thinks it came from a pen register on Flynn's phone.

Me? My answer has always been: it came from a "tech cut". Remember tech cuts? I wrote about them in What does "CR cuts" Mean? 

COVID19: NY Deaths, US Funding Of Chinese Gain Of Function Madness

Two interesting articles. The first reports that New York has been less than transparent in reporting nursing home and adult care residence deaths. We all know by now how horrible the situation of those facilities has been in Blue States like NY in which the governors forced nursing homes to take Covid19 patients: the disease swept through those facilities like the Grim Reaper. Now it turns out that in NY, if you caught Covid19 in a nursing home but died in a hospital then that death didn't go down as a nursing home death. In other words, the carnage in nursing homes and adult care residences has been even worse than thought:

New York Admits Knowingly Undercounting Nursing Home Deaths After Quietly Changing Reporting Rules

The second article provides detail on US funding--courtesy of Anthony Fauci--of Chinese "gain of function" bat virus research at their now notorious Wuhan lab. "Gain of function" means, making viruses more dangerous in one way or another--more deadly, more infectious, etc. This type of research was banned in the US in 2014 due to biosafety concerns at our own labs. Fauci was among the those doctors and scientists who thought this type of research was fun--they would claim that it could serve to help develop vaccines. At any rate, Fauci's solution for the US ban on GOF research or tinkering with viruses was to outsource the work to the tune of $3.7 million dollars to China--with all its known biosafety issues at their research labs. Not to put too fine a point on it, Fauci paid China to develop Covid19 and export it to the world. Unless you're one of those terminally naive people who are convinced that the Wuhan virus is a natural development.

Why US outsourced bat virus research to Wuhan Lab- US-funded $3.7 million approved by Dr Anthony Fauci

A Covid19 Breakthrough?

Trump will be giving an address soon, and there's speculation that it could concern developments that are described in this story at FoxNews:

California biopharmaceutical company claims coronavirus antibody breakthrough

The important thing about the claims being made for this breakthrough is that this is not just some super accurate antibody test--it's a cure. That's the claim:

A California-based biopharmaceutical company claims to have discovered an antibody that could shield the human body from the coronavirus and flush it out of a person’s system within four days, Fox News has exclusively learned. 

Later Friday, Sorrento Therapeutics will announce their discovery of the STI-1499 antibody, which the San Diego company said can provide "100% inhibition" of COVID-19, adding that a treatment could be available months before a vaccine hits the market. 

"We want to emphasize there is a cure. There is a solution that works 100 percent," Dr. Henry Ji, founder and CEO of Sorrento Therapeutics, told Fox News. "If we have the neutralizing antibody in your body, you don't need the social distancing. You can open up a society without fear."

To see why this would be so important, today Steve Sailer explains the possible, perhaps even likely pitfalls, of pursuing 'herd immunity':

How Exactly Is Herd Immunity Supposed to Work?

Treatments based on these types of synthetic antibodies seem clearly preferable.

Many companies have been pursuing this type of research, and their have been concerns about long term use. These are the claims that Sorrento Therapeutics is making:

... the researchers at Sorrento found that there was one particular antibody that showed to be 100 percent effective in blocking COVID-19 from infecting health cells — STI-1499. 

"When the antibody prevents a virus from entering a human cell, the virus cannot survive," Dr. Ji said. "If they cannot get into the cell, they cannot replicate. So it means that if we prevent the virus from getting the cell, the virus eventually dies out. The body clears out that virus." 

"This puts its arms around the virus. It wraps around the virus and moves them out of the body." 

Dr. Ji pointed out that the antibody can be used as preventative therapy since there are no side effects, and that it can be more effective than any vaccine that may be developed.

Stay tuned, I guess.

Today's Must Read: The other secrets inside Grenell’s satchel

Thomas Lifson at American Thinker has a terrific summary of J. E. Dyer's most recent article. Here's a link to the original Dyer article, which is lengthy. I had considered doing a post on it, but quickly realized it'd be difficult cutting much: Beyond Biden, Brennan, and Clapper: How Grenell’s satchel tells us this is on the right track.

Lifson's summary offers a more gradual entry into the full article--I recommend both: The other secrets inside Grenell’s satchel are the key to the biggest political scandal in US history.

To give you a taste, here are two Adam Housely tweets that Dyer quotes:

Adam Housley
@adamhousley 

Ooooooh brother. Massive surveillance...that’s what’s been found. “MASSIVE” is the way it was sent to me. 

10:09 PM · May 11, 2020

Adam Housley
@adamhousley 

As I’m told the list Grenell brought over is much larger than anything involving Flynn. “The exact tasking flow is hard to discern because the stuff was flying everywhere.” 

1:54 PM · May 12, 2020

BONUS SECOND MUST READ:

WaPo's new mantra is Just Don't Report

Is Sullivan's Game To Delay Team Mueller Indictments By Durham?

Yesterday I quoted a lawyer son to the effect that Sullivan's perjury/contempt gambit in the Flynn case doesn't make a lot of legal sense--More On Perjury And Contempt:

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. ...

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.

My expressed view was that all of this is essentially a delaying tactic by Sullivan--he's stalling--to which my son responds:

Makes sense. At this point Sullivan is just making the law up as he goes along—and entering long briefing schedules—just to drag it out.

That much is perfectly clear, and as I keep saying: every lawyer and judge in the land can recognize this.

The question then becomes--to what purpose is this delay, the stalling tactics that make a mockery of justice (which is denied when delayed) and the federal courts? This means that Sullivan is in some sense a co-conspirator in the big picture conspiracy, but what exactly is his game?

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.

On Legal Horse Manure And Underhanded Politicking From The Bench

Shipwreckedcrew (22 years as a federal prosecutor) has written another RedState article: Recent Decisions of The Court of Appeals for DC Circuit Show Sullivan Must Dismiss Flynn Case. Read it all if you can't get enough of lengthy discussions on minor legal procedural issues. Here's the part I liked a lot:

I’m seeing a lot of online “lawyering” on the legal question(s) before Judge Sullivan, with many focusing on the orders today with regard to accepting amicus curiae briefs, and later appointing retired federal Judge John Gleeson to serve as a “Friend of the Court” and offer a brief against the DOJ motion to dismiss the Flynn case. 

Notwithstanding all the online punditry, the issue before the Court as posed by the DOJ motion is very simple.  The fact that Judge Sullivan is accepting amicus briefs and claims he needs a “Friend of the Court” to brief the opposing view on a minor point of procedural law is a transparent revelation of his duplicitous motives.  To suggest that he needs “advice” on whether Gen. Flynn should be held in contempt of court for perjury simply ignores his own 33 years experience as a federal judge — signaling that in all that time he’s never figured out misconduct would be considered sufficient to cite a party before his court for contempt. 

I’m not going to do it as part of this story, but I’m certain some enterprising researcher is going to turn up a stat in the next couple days that reveals how many times in his career Judge Sullivan has already issued Orders to “Show Cause Re Contempt” in the tens of thousands of cases he has presided over in his more than three decades as a trial court judge.  To suggest he needs “advice” on this question is transparent horse manure.

Sounds absolutely on the money to me, and every judge and lawyer in the land knows this. This tells us about all we need to know re the desperation that the Deep State is feeling. They know beyond a doubt--and especially after Grenell's document releases--that Barr and Durham are serious. Sullivan's lawless ploys are about distraction and delay--not about any hope of ultimately winning on the legal issues. Again, signs of desperation.

Immigration And The War On The Elderly

This is true. There's a big election issue in the offing here.

Note it's Johan Giesecke, Sweden's former chief epidemiologist, who broaches the migrant issue: "'[M]any of the people working in nursing homes are from other countries, they're refugees or asylum seekers.'"

[He] "then suggested that many of them might not understand Swedish..." https://t.co/ioL3HWriOl

— Mickey Kaus (@kausmickey) May 14, 2020

You may be onto something. There are apparently lots of informal migrant eldercare-givers in Germany but mainly employed by families. Nursing homes may be more regulated. Also the migrants may be from different places (eg Eastern Europe) than Sweden's https://t.co/3mwqBv7UlN https://t.co/zHQuiHtw6K

— Mickey Kaus (@kausmickey) May 14, 2020

UPDATED: Margot Cleveland Sides With Tolman: Barr Should Go For Writ Of Mandamus

Margot Cleveland has a fine article today explaining why seeking a Writ of Mandamus is the appropriate step that AG Barr should now take in the Flynn case. You'll recall that yesterday I cited the view of former US Attorney Brett Tolman--when asked what should come next Tolman immediately suggest applying for a Writ of Mandamus. Mandamus is simply Latin for "we order", and here is the Wikipedia explanation of what such a writ means:

In the context of mandamus from a United States Court of Appeals to a United States District Court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment.

Here's the link to the full article by Cleveland:

The Constitution Requires Judge Emmet Sullivan’s Lawless Amicus Order Against Michael Flynn Be Overturned

The U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. That’s what Michael Flynn judge Emmet Sullivan decided to do.

The key to understanding this issue is Cleveland's characterization of Sullivan's latest order as "lawless." A "lawless order" issued by a lower court would seem to be just the sort of "unusual circumstance" in which the rememdy of mandamus would be appropriate. Just why does Cleveland regard Sullivan's order as lawless? I have characterized Sullivan's action in appointing a non-party to present opposing views to the government's discretionary act of dismissing the prosecution of Flynn as a usurpation by a judge of exclusive Executive Branch power and authority. In addition, numerous commenters have pointed to Sullivan's unhinged bias against Flynn--unhinged enough that he was led to display his ignorance of the US Constitution in open court. These are the details that Cleveland delves into.

Jonathan Turley Takes Sullivan To Task

Jonathan Turley is a professor at the George Washington Law School. He's a liberal who is increasingly finding himself at odds with other liberals, who seem to care little for the rule of law, for whom ethics is merely a means to an end. Power.

Tonight Turley expressed his disquiet with Sullivan's moves in the Flynn case, in which Sullivan has exhibited a Captain Ahab like fixation on "getting" Flynn. Professor Turley:

Judge Sullivan has now appointed a retired judge to look into “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” Thus, the court is not only considering denying an uncontested motion for dismissal but [is also] considering a new charge based on Flynn's effort to withdraw his plea.

Consider the implications for many cases where defendants seek to withdraw pleas due to prosecutorial abuse. It would create a threat of a judicial charge even when prosecutors agree with defendants. 

Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason. He is now allowing third parties to make arguments in a criminal case on an unopposed motion. In addition, he is exploring a charge that he might be able to bring against Flynn.

These extraordinary moves by the court are increasingly discomforting. This is a single charge where significant jail time was neither warranted nor expected. The Court's effort to import arguments and explore new charges could be raised on appeal given the prior record.

[T]here comes a point where the Court appears too invested in the punishment of a defendant and too active in creating alternatives to dismissal. As a criminal defense attorney, I find these moves unnerving, particularly when prosecutorial abuse has been raised by DOJ and others.