Category: Articles

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 9the 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 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 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.

State of the Bone

We’re back……….

It’s been just about 8 years. So much has transpired in both American political scene, and in the lives of the Patriot Bone family. I’m not going to recap all that here. I’d rather get right back to covering the scene, and maybe a time or two reflect on the events in the 8 year gap.

I will mention a couple of relevant things though, related to the site and me.

First, in case you wonder what you are up against, here it is. I am an Edmund Burke – James Madison – Russell Kirk conservative. I accept as fellow travelers the 3-legged stool crowd

Second, the only personal news from the 8 year gap that you are likely to see here: contributor and dear friend Pete departed us for heaven on August 18, 2018. He was 83, and while his hearing had been fading for years, he was looking pretty good right up until April of that year. I seriously thought he was going to make 90 easy and maybe challenge for 100. But for whatever reason, he faded fast. Not a bad way to go: 83 strong, then check out quickly. I remember telling my friend Martin that at some point it was looking like months, not years. The day came when I told Martin it was now looking like days, not months. And the day came, and I spent the day with him on his last day.

I look forward to seeing him again, same as I do Moses Sands, Richard Lucy, and Bob Chiore. Let’s not dwell on it.

Third, as far as PatriotBone goes, I have one other contributor now, Stella, and she is one phenomenal person, and I hope you will enjoy her. Total mind of her own, and I’m not going to demand that she toe the Burke/Kirk line. She’s not a formulaic conservative, but she is conservative, and like I said, she will contribute to the flavor of Patriot Bone in a way I think you’ll like. I hope to entice a couple of other friends, who are not blogging veterans, to chip in. I’ll not name names here, because like all of us, what we do as outspoken conservatives comes with a cost and a load of caution. As EPU it is not impossible to suss out who I am in the RW, but I’ll not help make it easy. I will recommend that my two friends in question use nom de plumes, just because leftists get personal.

Anyway……. I’m back. It’s on like Donkey Kong.

Overnite Pete: Sandy fallout

So the big hurricane/norther/perfect storm hit Monday, and unlike last year’s storm of the century (Irene), this one packed a large wallop. But soon enough the wind and the tidal surge passed, and now we do have a mess on our hands. The NJ coast, Lower Manhattan, and Staten Island seem to have suffered terribly. Electricity out, plumbing and drinkable water out, gasoline out, tunnels and bridges in and out closed (or monitored by Bloomy for those trying to sneak out without at least 3 to a car).

There was at least a week’s notice that this was coming. I don’t begrudge that the infrastructure took a huge hit. I only partly begrudge ordinary people not planning a little better for food/water/gas shortages. And then that idiot barack strolled around the Jersey shore in his photo-op with FatBoy™ and actually said “if they need something, we figure out a way to say yes”, in association with something he called the “15 minute rule.”

Yeah, right.
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Anybody here too tired to fight 5 more days?

In some degree, we’ve been counting the days to this November the 6th for 4 years. Or perhaps for 24 years. Or perhaps since ObamaCare was passed, or since Porkulus was passed, or since the November 2010 thrashing we gave to the Visigoths. Maybe since Chief Justice Benedict Roberts stole a big one for the Bolshevik team.

Any way you count it, this Tuesday has been circled on the calendar for quite some time. It is the day that the forces of the Constitution are arrayed from one side of the valley to the other, against the forces of Statism. The valley is filled from wall to wall, and there is nobody on the battlefield who has not trained and worked tireless days, weeks, and months, all pointed to this day.

Every helmet and breastplate has been cleaned and polished to a shine, every dent hammered out. Every strap is on tight. Every weapon has been checked and rechecked, every blade honed down to a fine edge.

This is the day we have lived for.
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Overnite Pete: EJ Dionne is an idiot (again)

Yeah I know. I am violating the old adage: no need to point out the astoundingly obvious when the merely obvious will do. Yet, this I could not pass up. Just add this one to the Mount McKinley size pile of bull-hockey from the main-sleaze commie media in their prodigious effort to get the chief commie re-elected so he can continue his work of dismantling the country. You can’t blame commies for agitating and lying for the cause.

But I do find it disappointing that they are so stupid. Just once could we get an evil but brilliant adversary? Perhaps we could meet the Kleptocrats halfway: give us an adversary that can button his fly without a government-issued manual.
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Gutless Call: Far Worse Than We Thought

The stories, both official and unofficial, from sources inside and outside the administration, continue to evolve. The facts, even as we know them today, are incomplete and contradictory. But wind the clock back, if you will, to the first several days after the 9/11 terrorist attack on the Benghazi consulate that resulted in the murders of 4 American citizens, including Ambassador Stevens. From the very beginning there was the stench of incompetence at the top, of being lied to, and worst of all, of a creepy sense that there was no real concern for the lives lost, no righteous anger, and no sense of retribution.

In the immediate aftermath we heard the administration line that it was a spontaneous mob gone wild, and we knew instinctively that was too pat, and contradicted facts which were already becoming known. The whereabouts of the ambassador were unknown for several hours, and the battle was known to have gone on for hours at at least two sites. We watched Obama’s pitifully inadequate statement just before he jaunted off to Vegas for scheduled campaign activities.

We saw several embassies attacked in the following days, and the black Al Qaeda flag raised over at least two portions of sovereign American soil, while no saber-rattling proceeded from an administration that seemed bent on excusing the terrorists. We saw our UN Ambassador and our President peddle known lies to the UN, blaming an obscure video for inciting the Muslim mobs. We got word of a multi-million dollar ad that supposedly ran in Pakistan in which both the President and Secretary of state denounced the video.

Americans were bitterly angry at such cowtowing, lying, and blame-shifting. Obama’s poll numbers in the upcoming election immediately began to crumble.

Boy, weren’t those the good old days for the Obamanistas. It’s a ton worse now.
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Overnite Pete: final debate notes

Yeah, I’ve been gone awhile. Deal with it. And don’t hold back on the tuna.

OK now, Bambi says he’s kept faith with the troops. Which is, of course: why no in-theater troops can seem to get any absentee ballots; why the ROE keep getting our young patriots killed; why active-duty military would have missed paychecks in the early 2009 government shutdown since Resident Bambi marked troops as “non-essential government personnel”; all those Navy corpse-men; 104 rounds of golf, 1700 troops killed (h/t EPU); and I could go on awhile.

Yeah, you regular troop-hugging dandy you.
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The Next Freshman Class – With Your Shield, Or On It

The incoming bunch of House and Senate freshmen better have a whole new way of thinking. It’s not that the much-heralded Class of the 2010 Mandate didn’t do enough. It’s that they didn’t do anything.

Mandate for change
Never in the history of this Republic has a mid-term election brought such a smack-down to the ruling party as that in 2010. The 63-person swing in the House and 7-person swing in the Senate was both retribution (for Porkulus, for ObamaCare, for not even addressing the economy, for the Gulf drilling moratorium, and for the attempts on card check and Cap-and-Trade energy tax) and mandate (stop the spending, stop the regulatory bloom, stop the debt spike, and generally hold the line until we could get a new president and a two-house majority in 2012 and repeal BambiCare). From top to bottom, from governor down to dog catcher, Americans rejected the Democrat agenda in toto. Lock, stock, and two smoking barrels. Republicans had firm control of the House at 242-193, and near-parity in the Senate, 47-53.

Same old Vichy Republicans
What we got for our trouble came a little short of what we call “representation.” Read more

Not my president, 11 of 50: 104 golf rounds, 1700 casualties

The office requires that the president play many roles, wear many hats. He must be accessible to the public and to members of Congress; he must conduct affairs with foreign governments and foreign dignitaries; he may need to make public appearances and keep up certain traditions.

Wartime, or any time when American soldiers are in battle and experiencing many casualties, constrains a president’s behavior somewhat. His commander-in-chief role becomes more prominent. Some of the light-hearted presidential perquisites must be put aside. This is not difficult to understand.
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