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  • Seth Barrett Tillman: Questions Looking for Answers: Judge Sullivan and General Flynn

    Posted by Jonathan on May 14th, 2020 (All posts by )

    Motion practice query. Where a judge appoints an amicus to represent a party or continue a litigation or prosecution because of an absence of adversity, then do not the parties first get notice and an opportunity to be heard to contest the appointment? Or does the court act on its own, make the appointment, and then allow the parties to make objections after-the-fact?
    If the court had prior contacts with the amicus—eg, a beauty contest or competition for the starring amicus role—do the parties get to see the records of those contacts between the court and the amicus?
    Who, if anyone, has oversight over Amicus (Inquisitor) Gleeson? Is it DOJ? Can DOJ assert authority over Gleeson or “his” case, like in a qui tam matter? Does Gleeson take an oath of office to support the Constitution? Is Gleeson subject to the ethical guidance which applies to federal prosecutors or the other policies of the DOJ?
    [. . .]

    Read the whole thing.

    From the comments:

    The jurisdiction of federal courts is of course limited to “cases and controversies.” If the US wants to dismiss, and the defendant wants to dismiss, where is the case or controversy? If the court has no subject matter jurisdiction, the case ends right there.


    20 Responses to “Seth Barrett Tillman: Questions Looking for Answers: Judge Sullivan and General Flynn

    1. Grurray Says:

      Among other things, the judge is trying to prevent the precedent that perjury can’t be prosecuted for statements made to the FBI not material to the original investigation. That would be a huge restriction on the FBI’s power to extort guilty pleas.

    2. Anonymous Says:

      I understand that the charge was “lying to the FBI”, not perjury which requires being under oath. However, point taken. The precedent would certainly have a bearing on the FBI play book.


    3. Subotai Bahadur Says:

      The argument could be made, and would be accepted by many rational Americans, that at certain levels of politics the law, judicial procedure, or the Constitution are completely over-ridden by considerations of political power. Every time something like this comes up; the law, judicial procedure, and the Constitution become ever closer to being moot.

      Subotai Bahadur

    4. Mike K Says:

      Sullivan may get a lot more reaction than he anticipated. DC is a bubble and I suspect he has not idea of the sh*tstorm coming his way.

    5. Kirk Says:

      I think that the idiocracy is either operating in a total state of obliviousness, or they are deliberately trying to provoke violent revolution, apparently thinking that they will somehow come out on top in the chaos.

      This thing with Flynn is completely over the top–What on God’s green earth can he possibly know or have done that Obama would take the risk of issuing his little “instructional leak” to Judge Sullivan, and then have Sullivan follow his commands up to the letter…?

      At this point, the transparency is manifest. What remains opaque is the motive–Does Obama think he can regain power and authority, somehow? Is he this frightened of the things Flynn might do or could do, inside the Trump administration? What skeletons are buried that motivate him and his cabal?

      I’m pretty sure that if Trump had been left alone, then this would have been a routine transition and the norms of not looking back at the previous administration would have been followed. Now? I’m not so sure–What Obama is doing will incite reaction and likely, prosecution. Which then beggars the question–Why? Why has Obama and his clique chosen this course of action, and where the hell will it end?

    6. Christopher B Says:

      IANAL but a point about ‘cases and controversies’ – Remember that Flynn has already entered a guilty plea which is what Sullivan is trying to leverage into the perjury charge. This whole mess has been going on in what is essentially the sentencing phase of a trial, and if I remember the timeline correctly, largely after Sullivan effectively rejected the ‘no jail time’ recommendation before the Mueller clown show fell apart and Flynn stopped cooperating, which prompted Mueller’s allies at DOJ to reverse course this January and changed the recommendation.

      Effectively, there hasn’t been a case or controversy in front of Sullivan for some time.

    7. Grurray Says:

      I understand that the charge was “lying to the FBI”, not perjury which requires being under oath

      That’s a good point. Pedantic, but good. Testimony under oath and an interview with the FBI are effectively the same in terms of the punishments for any falsehoods. However, they also both require materiality.

      According to the law, perjury does require a “false material declaration”, and similarly, a statement to the FBI requires it be “materially false” and involve a “material fact”.

      Digging around a bit, I found that the material language of the latter was added by Congress in a 1996 amendment. There was some prior confusion because of conflicting lower court rulings regarding whether or not you could be charged with lying for denying your own guilt. Thanks to that update you can be, but in the process of sewing up that loophole Congress has fortuitously helped shut down the FBI’s extortion racket.

    8. Mike K Says:

      Maybe Flynn knows who Obama’s father is. This is getting ridiculous.

      No one will ever trust the FBI again. The 302 system will be challenged by defense lawyers. They will need to start video recording all these interviews.

    9. Jonathan Says:

      The FBI’s interview system, if not corrupt in itself, invites corruption and should be updated to modern standards with video recording. Of course then it would lose much of its usefulness as a tool to coerce pleas, which is why the FBI and Justice Dept like things the way they are. Plea bargaining should be eliminated for the same reasons. These reforms would make it more difficult and expensive for the govt to secure convictions, in which case the govt would have to focus its resources on the subset of cases with the strongest evidence, where the govt would be most likely to win at trial. That would probably be a good outcome.

      So far there has been no organized constituency for such reforms. Perhaps things will change.

    10. Kirk Says:

      All y’all need to go do some independent research on the history of the FBI. If I tell you what the facts are, you’ll disbelieve them and discount them. Research independently, and reach your own conclusions.

      The FBI has been corrupt since day one. It was proposed by progressives in an era where it could never have gotten approval through honest means, and then established during a Congressional recess, whereupon the corrupt congress-creatures who’d supported it basically acquiesced to a fait accompli.

      It was used by the Wilson administration as the primary mechanism for the first Red Scare after WWI, which you will no doubt be totally unaware. That history has been whitewashed out of common knowledge, just like most of the Wilsonian BS that totalitarians have studied and copied.

      Hoover was always a mover and shaker behind it all–He custom-designed that organization for his own use, and then managed to stay in charge of it until he dropped dead in the 1970s. Care to point out another single example of any such chicanery in any other US government agency? What did Hoover do, to manage that feat?

      The FBI has been involved to no small degree in both the coup attempts against a sitting president in my lifetime. In the first case, that of Nixon, he did nothing that LBJ and Kennedy hadn’t done, and actually a case can be made that he was more ethical, in that he did not suborn agencies of the Federal government to do his dirty work the way LBJ and Kennedy had.

      The FBI needs to be shut down, the headquarters turned into a museum of their frauds and corrupt acts, and every one of their employees (none of whom have spoken up about the abuses perpetrated by their peers…) barred from employment in any government agency at any level, along with having their pensions cancelled and removed to pay for the indemnities they’ve accrued against innocent Americans they’ve treated like General Flynn.

      There’s no saving this agency. It was born in corruption, progressed in corruption, and has remained a corrupt threat to democratic government right up until this day. Director Wray is a perfect example–What has that man done about the manifest illegalities that went on before his tenure? What agents have been fired, what administrators removed? There is no way that the paltry few such as Strzok can possibly be the only ones engaged in this travesty, and the fact remains: None of them acted. Fire them all, shut the agency down, and do away with the Federal law enforcement function. It’s probably entirely counter to the Constitution, anyway. At least, I can’t find clear authorization for any such agency to even exist.

    11. Jonathan Says:

      The FBI should be reformed. Whether reform means incremental procedural reforms or shutting down the agency entirely is a question that will be decided politically. I’m guessing incremental reform is more likely but maybe I’m wrong.

    12. Mike K Says:

      I think reform of the FBI would be adequate if the top 10% were sent to the Guillotine.

      My daughter has been an FBI agent for close to 20 years. She is a bit of a lefty but announced in September 2016 that she would not vote for Hillary. I think there was an FBI grapevine that knew Hillary was dirty and I think Comey held his mid July presser to avoid an agent revolt. The FBI has to get out of politics and get out of national investigations. They are OK in regional stuff but need to be reined back harshly.

      The CIA is useless and, given the gross abuses we have seen, should be shut down. They employ 20,000 readers of foreign language newspapers and the State Department could use half of them. The Chinese and even the Iranians have destroyed agent networks in their countries. The CIA had ZERO intel from Iraq before the 2003 invasion.

    13. miguel cervantes Says:

      one could go farther back the original brigade landing was supposed to be at Trinidad, the vendee of the the Cuban underground, of course under pressure from jfk, they switched the site to playa giron, fidel’s summer retreat, with one road in or our, no one in the top planning stages, knew that fundamental fact, and quelle surprise,it didn’t show up in the taylor report or other inquests,

      another interesting factoid, that surfaced this week was from a document, where a certain Saudi diplomat in washington which had contact with certain other officials, in the Islamic affairs ministry of the los angeles, who in turn were in contact with two of the hijackers was ‘inadvertently’ unmasked, now he was too junior in the totem poll, to be the decision maker, of course the 9/11 commission investigators didn’t press to interview him too closely, that along with the 28 pages, makes that document very dubious indeed, I have a character like effendi al jarrah in the novella I’ve been working on,

    14. miguel cervantes Says:

      the context of that story,

    15. David Foster Says:

      Miguel Cervantes…”one could go farther back the original brigade landing was supposed to be at Trinidad, the vendee of the the Cuban underground, of course under pressure from jfk, they switched the site to playa giron, fidel’s summer retreat, with one road in or out”

      Another interesting thing I learned about this debacle: This CIA knew that the Cuban government had some T-33 jets, but discounted their importance because they were just ‘training planes’….that may have been their designation, but T-33s were often armed for a ground-attack role or just for the training mission. Even for an unarmed airplane, it would not have been all that difficult for a good mechanic to add a couple of machine guns. In any event, the T-33s made short work of the WWII prop planes that the US had supplied to the invaders.

    16. Mike K Says:

      No surprise the Cuba policy and the CIA Cuba intell was useless.

      A Cuban spy was running our policy desk.

      The Timmerman book has a lot to say about Ana Montes who is serving 25 years for espionage on behalf of Cuba. She had a long career and, according to Timmerman, was virtually the director of US policy toward Cuba for nearly 20 years. She caused terrible damage to our attempts to spy on Cuba and may have insinuated herself with members of Congress, some of whom are conspicuous in their opposition to US policy. Scott Carmichael, the DIA counterintelligence agent who caught her, has written a book about her career. According to Carmichael and Timmerman, her analyses, written by a Cuban spy, are still being used for policy!

    17. Anonymous Says:

      “ IANAL but a point about ‘cases and controversies’ – Remember that Flynn has already entered a guilty plea which is what Sullivan is trying to leverage into the perjury charge. This whole mess has been going on in what is essentially the sentencing phase of a trial, and if I remember the timeline correctly, largely after Sullivan effectively rejected the ‘no jail time’ recommendation before the Mueller clown show fell apart and Flynn stopped cooperating, which prompted Mueller’s allies at DOJ to reverse course this January and changed the recommendation.”

      “Effectively, there hasn’t been a case or controversy in front of Sullivan for some time.”

      Not sure if that is quite right for several reasons. First, until the government’s motion to dismiss, there was arguably the issue of sentencing. But also, the judge’s failure to require Flynn to admit to materiality (which would have been ludicrous on its face because the materiality that would probably been asserted was the Russian collusion (hoax), which was the justification that the prosecution gave at one point for not turning over the transcripts of his call with the Russian Ambassador – Flynn couldn’t know materiality because the Mueller prosecutors were hiding it – probably because they knew that their entire premise was false) technically left open that element of the crime.

      Flynn could make an argument that he wasn’t lying from the earlier 302s, but that element had been settled with his admission in open court that he had lied. Similarly, he could make an plausible argument that his false statements had been made willingly and knowingly. But again, that had been settled with an admission in court. But there is nothing in the record supporting materiality of his supposed false statements, one of the required elements in his case. Thus, you could argue that there was a remaining case or controversy until the government admitted that there was no materiality, in its motion to dismiss. No materiality means that both sides agree that there was no crime, and, thus no case or controversy.

      Judge Sullivan no doubt knows this, but is apparently loathe to do the right thing, or what appears to be such by most here, which is to dismiss the case. You can argue motivation. I won’t. He doesn’t seem to Ike it. So, I see him flailing around trying to maintain control over the case. I don’t see how possible perjury by Flynn before him can really prevent him from from dismissing the §1001 (lying to federal official) charge. He can find anyone making a false statement under oath before him in contempt. They don’t have to be a criminal defendant. They could be a party in a civil suit, or even a fact or expert witness.

      But he is treading on very dangerous ground. The plea bargain system, which results is better than 95% of the guilty pleas that judges like him see, is indirectly, at least, built on everyone lying to the judges trying the defendant. The most obvious lie here was Flynn’s admission that he lied in the interview. But he also stipulated that there were no side deals and that the prosecutors were not applying pressure to him. But we all know that the big reason that he lead guilty to lying to Strzok and Pientka was that the prosecutors were treating to prosecute his son for the same bogus FARA violations that they had asserted against him, and that they would drop prosecution of his son, if he plead out. That was both a side deal, denied by him, that the prosecution demanded that he deny verbally and in writing, as well as coercion. There is very definitely a wink, wink, nod, nod thing going on. The prosecutors leverage the defendant however they can, then draft a written plea agreement In which the defendant expressly denies that they were leveraged, and that there were any side deals.

    18. Bruce Hayden Says:

      Sorry. The Long rambling “Anonymous” comment was by me. I got faked out by not finding the place to put in my name and email address. I figured that maybe your system would ask me for those items after I posted the comment. Nope.

      Also, rereading that comment, I noted some garbled or substituted words. I apologize. As Dr K knows from my posts at Althouse, this is a common occurrence, mostly generated by the Apple Spellcheck on the iPad I am using, and my failure to always proofread what I just posted.

    19. Bruce Hayden Says:

      I am not as sanguine as others here that the FBI is going to give up their usage of their archaic FD 302 system anytime soon. They use it heavily, and it’s use is apparently ingrained into their agents. This was very likely why Comey had a laptop waiting for him in his chauffeured company car, for when he left the WH after meeting Trump – so that he could immediately fill out 302s memorializing his discussions with POTUS.

      As a side note. Most written documents are inadmissible in court as hearsay (FRE (Federal Rules of Evidence) 803), in order to directly prove the matter asserted. There are several exceptions, specified in FRE 803 (declarant available) and FRE 804 (declarant unavailable). Most relevant to FD 302s is FRE 803(5) “Recorded Recollection”, which requires that to be admissible under this exception, a record has to be one that:
      (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
      (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
      (C) accurately reflects the witness’s knowledge.

      That means that near contemporaneously recorded 302s can typically be admitted as direct evidence into the record as FRE 803(5) exceptions to the Hearsay Rule. The FBI’s 302 system was designed with this in mind, and is very likely why the agency requires that they be filed within 5 days. Peintka, the FBI agent taking notes, filed the original 302s from the Flynn interview the same day of the interview. But, of course, those weren’t the 302s submitted as Brady evidence to Covington as Flynn’s attorneys. Those appear to have been from Strzok’s exit interview six months later (after having been fired for cause). Nor were they the version submitted to Flynn’s replacement attorneys late last year, the ones that had been edited by Strzok, with significant input from Lisa Page, and ultimately approved by her boss, DD McCabe, several weeks later. Neither of these versions should have been admissible under FRE 803(5) as direct evidence (but could, for example, be admitted to show prosecutorial misconduct) because they weren’t recorded nearly contemporaneously to the interview. The prosecutors denied the existence of Pientka’s original 302s (despite testimony by D Comey and DAG Yates under oath to the contrary – she apparently saw them the next day) until those prosecutors were yanked from the case (and lead prosecutor Van Grack from all cases) and substitute counsel moved to dismiss.

      The problem for defense counsel questioning why the FBI doesn’t videotape interviews is that lawyers (including prosecutors) essentially get to put on the cases they want to, as long as they stay within the rules. They may question why the FBI doesn’t videotape, but the prosecutors are going to just respond that long standing FBI policy is to use 302s instead, that is all they have here, and they are admissible, as direct evidence, by meeting the FRE 803(5) exception to hearsay.

      But one thing competent defense counsel should now be doing is checking the dates on any 302s provided them by federal prosecutors. It doesn’t appear that Flynn’s original counsel (Covington) did that. Replacement counsel (Powell) did. Later filed 302s should be ignored as potential evidence if dated and filed more than 5 days after an interview, because they would be in violation of FBI rules, and presumably not admissible as direct evidence under FRE 803(5), as not being sufficiently contemporaneous.

    20. Bruce Hayden Says:

      Whoops again. Should have been:

      “As a side note. Most written documents are inadmissible in court as hearsay (Federal Rules of Evidence (FRE) 802), in order to directly prove the matter asserted.”

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