Month: May 2020

The Curious Matter of Judge Sullivan, His Lawyer, and the Appeals Court

Maybe you thought the General Michael Flynn case couldn’t get any stranger.  Now this: Judge Emmet Sullivan, upon being ordered by the DC Court of Appeals to respond to the defense team’s petition for writ of mandabus, has hired a high-powered lawyer of his own.

When was that last time you heard of a judge getting a lawyer in a matter over which he was presiding?  I’ve never heard of such a thing.

Let us take a look at what is in the bushes here.

Recap of May 2020 Events

First, a recap of the most recent events in the prosecution of Michael Flynn by the Mueller Special Counsel’s Office. Only the very most recent, because this case has truly been a freak show for three years.

  • in the week prior to May 7: document dumps produced evidence of gross FBI misconduct in targeting Flynn in a perjury trap with no investigative purpose, and of Flynn’s original counsel, Covington & Burling, making a secret side deal that the government would not prosecute Flynn’s son in exchange for Flynn’s guilty plea.
  • May 7: the prosecution submitted a motion to dismiss the case with prejudice, meaning they could never bring charges again. The motion stated that the government had no original predicate to interview Flynn, and that any false statement  he might have made was not material to any investigation, and therefore no crime.
  • May 12: rather than dismissing the case, Judge Sullivan declared he would be accepting amicus briefs from third parties as late as June 10, and outlined a schedule that would  include hearings in July.
  • May 13: Sullivan appointed retired judge John Gleeson to be amicus curiae  “to present arguments in opposition to the government’s motion to dismiss”, as well as explore whether Flynn should be charged with perjury.  Gleeson had written an Op-Ed May 11 in the Washington Post critical of the government’s decision to drop the case.
  • May 19: Flynn’s team filed a petition for a Writ of Mandamus with the DC Court of Appeals, requesting the higher Court to direct Sullivan to dismiss the case.
  • May 22: the DC Court instructed Sullivan to respond to the petition for writ of mandamus within 10 days.
  • May 24. news came indirectly that Judge Sullivan had hired  his own high-powered lawyer, Beth Wilkinson.

And that was the very brief version.

What does Judge Sullivan need a high-powered lawyer for?  I believe it is simply for counsel on how to craft the response, which is highly interesting, since one would assume that an experienced federal judge would know.  I suspect he knows he has painted himself into quite a corner, and is looking for anything with a parachute. He has not merely mis-stepped, he has moved into the area of misconduct. Let us now deconstruct. I’d like to work from end to beginning on this one.

A Writ of Mandamus

(h/t The Federalist article relied on heavily here)

Start with the May 22 initial response from the Appeals Court. A writ of mandamus is an order from a higher court to a lower court to conduct itself according to the law.  It is considered a fairly extraordinary measure, and is rarely granted (most such petitions are just Hail Marys). Three conditions must be satisfied: (1) the petitioner has no other means of having this putative wrong made right, (2) petitioner shows a clear and indisputable right to the writ, and (3) (the wild card) the higher court in its discretion agrees the writ is appropriate.

Most petitions are rejected out of hand, with no detailed response. Otherwise, the appellate court may order or invite the trial judge to respond to matters addressed in the petition. Alternatively, the appellate court may assign an amicus curiae to do so.

In this case, the DC Court of Appeals ordered (not invited) Judge Sullivan (not a proxy in the form of an amicus curiae) to respond in 10 days.  They have ordered him to personally and publicly defend his decision.  Their order specifically cited a recent case in that court, United States v. Fokker Services, a decision which held that the Executive branch has primacy over charging decisions (in that case the government and defendant had made a deferred prosecution agreement, and the judge deemed the decision too lenient and denied the motion to defer prosecution).  The DC Court in citing this in their order for Sullivan’s response does not bode well for him.

This Petition for Writ of Mandamus

High-powered attorney Sidney Powell asked for three things from the Court of Appeals (honestly, it was enjoyable reading):

  • grant the Justice Department’s Motion to Dismiss;
  • vacate its order appointing amicus curiae; and
  • reassign the case to another district judge as to any further proceedings.

Her rationale (in very brief) was that: the Constitution and many precedents place the power to prosecute solely on the Executive Branch; appointing an amicus curiae to argue against the prosecution’s motion to dismiss was in effect acting as prosecution, again usurping Executive Branch authority; that that amicus briefs have no place in criminal trial courts; and that Sullivan had committed numerous acts (which were enumerated) casting doubt on his objectivity in the case, not the least being selecting that particular retired judge — Gleeson, who was clearly not objective on the maatter —  as amicus curiae.

The Government’s Motion to Dismiss

In the case of Flynn, the government’s motion to dismiss could have been a 3-page document. It was a 108-page monstrosity that went to exceptional detail about government misconduct. It actually had screen shots of Bill Priestap’s hand-written note questioning whether the aim of a Flynn interview was to get an admission or  get him to lie so they could prosecute him or get him fired; it showed texts between Peter Strzok and Lisa Page as they continuously re-edited Form FB-302 interview notes in order to incriminate Flynn; it discussed Crossfire Hurricane, the January 4 FBI “closing document” indicating there was no derogatory information on Flynn and recommending any investigation be closed;

Sullivan read all of this, or should have. Yet instead of granting the prosection’s motion to dismiss, he has instead chosen to further drag this out, further denying decent treatment of the accused.

Sullivan’s Situation

Sullivan’s acts beginning on May 7 were far outside of any precedent.  Not immediately granting the prosecution’s motion to dismiss is a violation of the Separation of Powers doctrine, with recent precedents including not only Fokker, but a 9-0 Supreme Court decision handed down May 7, the exact date of this case’s motion to dismiss. Authored by Justice Ginsberg, it slapped down the 9th Circuit Court of Appeals for violation of a basic legal tenet called the “party presentation principle”.  In short, the court has to adjudicate the case in front of it, not the case it wishes it had.

There is another principle not so far mentioned in this column (but discussed at length by Powell in the petition). Due process. The entire judicial system in America has as a bedrock principle that the defendant has rights against being overpowered by the government (prosecution), and the judiciary is the primary protector of those rights. Because of due process, there are any number of rules (Miranda rights, chain of evidence, trial jury of peers, effective defense, discovery, Brady rules, speedy trial, freedom from double jeopardy,and many others). Were the judiciary to wrongly impose on the prosecution, that is bad. Were they to needlessly persecute the accused, that is a travesty which must not be borne.

Sullivan has been ordered to defend his actions in writing.  There’s not much of a  way to pretty this up.  He stepped way out of line, not only in sitting on the motion to dismiss, but in taking the role of a prosecutor. In addition, said some very intemperate things on the record: straight up accused Flynn of treason — yes, a trial judge said that to the defendant on a “lying to FBI on whether he discussed sanctions with Russian US Ambassador Kislyak” charge; and said “can’t hide my disgust, my disdain”;

No wonder he brought in Beth Wilkinson.  He’s OJ, except the gloves do indeed fit. He had better come up with something amazing.

He Could Punt

I have seen this mentioned only by Andrew McCarthy (although that’s pretty good chops right there ) . Judge Sullivan could, between now and June 1, grant the government’s motion to dismiss.  It’s not particularly a glamourouse move, does not save face, but it would probably help him escape from possible misconduct proceedings.

VeepStakes for Joe Biden

It seems the prevailing discussion on the Democrat side is that Joe should strongly consider picking an American Black, preferably female. But things that resonate within the party and the media may not necessarily resonate in America.

I view the VP pick this way. Joe Biden is underwater, I don’t care what RCP says. He is likely to lose, and may lose really, really big. As such, you want your VP pick to give you a boost, not merely shore up previously safe demographics. Ideally you would want the pick to help you steal crossover votes or a demographic or a state or two.

Things other than source state or race can be much bigger in a general election. Personality, resume, some particular specialty or calling card that can appeal across party lines. For the Democrats, that might be a big name sports figure (AJ Foyt, Dale Jr, Danica Patrick, Terry Bradshaw, Michael Jordan) or impressive military hero (John Glenn, pre-scandal David Petraeus, Michael Flynn if they had not tried to ruin him), or a notably centrist or crossover politician (Joe Lieberman, Joe Manchin, pre-2000 Al Gore before we knew he was nuts).

I would say go for some kind of very, very positive and vibrant persona, male of female, of any race, that does not sound like a socialist, free of scandal, and who does not have a specific record of making headlines pissing off undecideds in battleground states, and who might geographically help tip a significant state or several. If that person happens to be black, or a woman, so much the better.

To get back to the main topic, yes they are hemmoraging black votes, but in the search for meaningful battleground votes, there are more meaningful votes to be harvested by picking for personality and lack of socialist bona fides.

The payoff here? Stacey Abrams is actively and shamelessly lobbying for the job. Others prominently mentioned are Kamala Harris and Susan Rice. Outside the black female crowd, Amy Klobuchar seems to be a hot name, Andrew Cuomo and Michelle Obama also getting some mentions. Each of those is a terribly flawed candidate.

I can’t think of anybody, a single person, who makes a good pick. Fortunately, it’s not my job to help them.

Very Late Night COVID-19 joke

his is an original spin on a very old joke. I made it up myself, and you are required to laugh. The ending will surprise you, especially if you know the old joke.

A man walks into a grocery store, during these Corona Virus times, with a dog closely following:
The grocery store manager immediately heads his way:
Manager:You can’t have a dog in here unless he’s your seeing-eye dog. You’re not blind.
Man: Sir, I am in an awful bind. We’re out of toilet paper in my house, and I’ve got to get some.
Manager: We have only a few packages and they are reserved for the elderly. And you still can’t have that dog in here.
Man: OK listen, this is a talking dog.
Manager: Yeah?
Man: Oh yeah. If I can prove it, could I get one of those reserved packages of toilet paper?
Manager stares at him for a few moments. Then his good humor suprisingly gets the better of him. He waves his arm: Well, this I gotta see. Sure, let’s see your talking dog, and you better not be yanking my chain.
The man, suddenly energized, turns to his dog, who sits, expectant and alert: OK Max, what does sandpaper feel like?
Max: Ruff!!
Man: What’s that thing on the top of a house?
Max: Roof!
Manager, his humor evaporated, grabs the man by the arm and shouts: OK pal, we’re done here.
Man: Wait, wait, please I beg you, one more chance! Max, who’s the all-time home run leader?
Max pauses, cocks his head, seemingly indecisive. Even the manager freezes in strange anticipation. Suddenly Max blurts out: Ruth!!!

The near-magical moment broken, the angry grocery store manager hustles the man out the door and hurls him out onto the sidewalk with his dog.

The man gets up, dusts himself off slowly, glaring at Max.
Max, quizzically: What? I did good in there.


Man: HANK AARON. YOU MORON. HANK AARON.

[note: in the Unum house we do not count the Roid King. Leave it alone]

Michael Flynn Vindicated: Now Time for Justice

While the technicalities will drag on for a bit while Trump-hating judge Sullivan makes his Hail-Mary play out of resuscitating a prosecution where both parties are no longer at odds, the miracle has happened. The media covers it about like you would expect – both happy to continue to besmirch an obviously innocent man because he plays for the #OrangeManBad team, and remarkably, impposibly uninterested in reviewing for accuracy a waterfall of facts

Just when we think the Swamp is indomitable, unmovable, untouchable, a rolling and unstoppable mass which destroys all that does not please or conform to it, along comes another force of nature, one lawyer with a yard of guts — who knew the law, knew she was in the right, and would not bow, would not stop, and would not shut up. Sidney Powell, if there is any justice, history will speak well of her. She saw the weaknesses in the Mueller prosecution’s case (not really hard) and exploited them with precision and force (that was hard).

In the end, Powell’s pincer movement with USA Jeff Jensen (probably not coordinated because the Good Team, when they do it right, can ) exposed long-hidden documents that not only vindicated Flynn but exposed or fleshed out very likely criminal acts by a veritable role call of bad actors: not only the known suspects like McCabe, Comey, Strzok, Page, and so on, but also Flynn’s original counsel, Covington & Burling.

Flynn’s original counsel withheld evidence from him, and persuaded him to plead guilty to a charge the government had no chance of proving, but unearthed documents show they made a side deal with prosecution that Flynn’s son would not be prosecuted (not illegal but unsavory and reeks of not acting in the interest of their client) but that this side deal was hidden from the judge (very illegal).

Jensen’s digging, at the behest of Attorney General Barr, as well as tireless efforts by other heroes like acting DNI Grinell (wow, this dude deserves his own story), Judicial Watch, Sara Carter, John Solomon, Dan Bongino, and Sean Hannity, also revealed documents showing positively that there was no predicate for questioning Flynn, and that known actors deliberately set out to entrap Flynn in a perjury trap in order to ruin him and possibly flip him against President Trump. When he failed to lie to FBI agents in an ambush interview in which they took pains to keep him from having White House counsel present and keep him even from thinking he was under investigation, Strzok and Page altered Form FB-302 to invent a lying-to-FBI crime.

In vindicating Flynn, Powell’s briefs to the court actually incriminated, specifically, Comey (4th amendment violation for investigating Flynn when no predicate was established), Strzok & Page (altering FB-302) , Kelner and Anthony (former counsel), Van Grack (prosecutor), (the latter three for making a side deal and hiding it from the court)(Van Grack also for failing to provide Brady material and lying to the judge about it). The evidence uncovered also TENDS to incriminate several others.

The vindication reveals crimes committed, and hints very strongly at other crimes committed. Time to go get them. And in spite the knock on on AG Barr that at heart he is still a Swamp Dweller, there is much to indicate that he can and will, having put his hands on the tail of this alligator, hold on until he has subdued them.

At the end of this will be prosecutions against a role call of top Obama intel officials and their co-conspirators for not only the Flynn prosecution but the crimes involved in the FISA warrants against Carter Page and the whole Mueller investigation. I believe that federal convictions will be handed to Comey, McCabe, Brennan (the real ringleader) Nellie Ohr, Strzok, Page, Van Grack, and some others. I believe that some guilty persons will walk: Barack Obama, Susan Rice, Clapper, Yovanovich, and Yates. With any luck they will be damaged goods before it is over. I believe that if Republicans take back the House in 2020, that Adam Schiff will be expelled from Congress.

Fast-moving World

So much has gone on since my last post (March 5 or so). In that time..,, well the Trump impeachment sham was over in January, and we wondered what would be the next Democrat shenanigan. Well, witness the shutdown of America because of the Covid-19 virus. Also, Biden has more or less officially become the Democrat nominee. And boy, have the lights gone out in that house… man it is sad to see.

I’ll wrap this up here, because I want Covid, and the New Resistance, to get its own article. I just want to note that in the lockdown, much of America went idle. Some pockets of America went in to super-hyperdrive. I was among the latter, and life has been so busy, and I am talking about working 14 hours a day, 7 days a week, I just simply could not divert much time to narrating this crazy, pivotal, super-interesting time. Doing real good to keep clothes and dishes and myself all washed, and the yard more-or-less mowed and acceptably groomed.

So much to comment on, and no ability to do it. My own special hell.