Judge Sullivan’s bizarre brief
I have a special interest in the brief Judge Sullivan and his lawyers filed yesterday with the DC District Court. I was curious to see how it jibes with my 3-part analysis of what has been going on with Sullivan regarding Flynn.
The legal issues interest me too, of course. I refer you especially to this article as well as this one. The latter is not primarily about Sullivan’s brief, it’s about a different brief submitted by the DOJ to the same court in order to counter whatever argument Sullivan might make:
In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court [from the DOJ] wasn’t just signed by the line attorney managing the government’s case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ’s entire criminal division; Deputy Solicitors General Jeffrey B. Wall and Eric J. Feigin; assistants to the Solicitor General Frederick Liu and Vivek Suri; Michael R. Sherwin, the acting U.S. Attorney for the District of Columbia; Kenneth C. Kohl, the acting Principal Assistant United States Attorney for D.C.; and Jocelyn S. Ballantine, the line prosecutor handling the Flynn case at trial.
You might also want to look at this twitter thread as well as this, this and this.
You can find Judge Sullivan’s (actually, his lawyers’) response here. Note the beginning of the tome:
The unique facts of this case warrant evaluation by the trial judge before any review by this Court.
It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime.
There it is – again with the guilty plea! Which isn’t especially relevant to the issue at hand that he was asked to address, which is whether Sullivan had the authority to buck the dictates of the DOJ to dismiss the case. That opener does seem to be in line with what I wrote earlier, which is that for some reason Sullivan has not absorbed (or will not accept, or pretends to not absorb or accept) something that has become glaringly obvious about the Flynn case, which is that Flynn’s confession was coerced.
The brief seems to basically lead up to the idea that wouldn’t it be great if Sullivan appointed himself as a sort of Special Prosecutor in order to investigate and ferret out the truth of everything that’s gone on here? The answer should be “no, that’s not your role.”
The bulk of the brief is a lengthy discussion of what happened in the case, with emphasis on that repeated guilty plea and even the inclusion of quite a few of the quotes I used in my posts on the subject. The brief reminds me of a term paper in which the writer has little to say of substance, and instead just shoots the old bull – as Holden Caulfield would say – until he/she reaches the requisite number of pages and turns the paper in with a relieved sigh that at least that’s over.
The following just might be my favorite part:
Mr. Flynn likewise errs in seeking mandamus on the basis that further proceedings in the district court “will subject [DOJ] to sustained assaults on its integrity.” Pet. 28. Judge Sullivan has not disparaged DOJ’s integrity in any way.
Tell me another one, Judge Sullivan. Do you recall, “Arguably, this undermines everything this flag over here stands for. Arguably, you sold your country out”? How about Sullivan’s totally uncalled-for remark, “is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on [Flynn’s] part?” Or Sullivan’s later threat to get Flynn for criminal contempt for perjury for entering a false guilty plea, a judicial action previously unheard of?
Towards the end of the brief you can find this:
For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements. As recently as January of this year, the government maintained those representations. And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government’s prior solemn representations were legally and factually untrue.
It didn’t just tell the court. It described an egregious pattern of repetitive investigatory and prosecutorial malfeasance. But apparently, Sullivan suspects the guilty party is the Barr DOJ:
…the unusual developments in this case provide at least a plausible “reason to question” the “bona fides” of the government’s motion…
Not reason to question the original actions of the government and the resultant coerced guilty plea, but reason to question the government’s recent motion to dismiss. You cannot make this stuff up, although apparently Sullivan (or his lawyers) can.
But it’s the last few pages that are the craziest. That’s where Sullivan basically says he should become the equivalent of a special prosecutor and ferret out the truth, while Flynn waits patiently:
The process Judge Sullivan has established, including the appointment of an amicus, will permit him to fully consider the issues, and will aid this Court as well if further review becomes necessary. The government and Mr. Flynn currently are aligned in support of dismissal, with nobody presenting the other side of the complex and important Rule 48 questions raised by that request.
So: continued anger at, and real or feigned inability to understand, what Flynn’s guilty plea was about and what engendered it; plus remarkable arrogance/hubris. Throw in some ignorance of the law and some tactics that advance anti-Trump politics, and there you have it: Judge Sullivan’s brief.
I’m not going into detail on the brief by the DOJ, but I suggest once again that you read this article by Sean Davis about it. From the article:
“The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” DOJ argued in its brief. Rules of federal criminal procedure, cited by Sullivan in support of his gambit to appoint himself both judge and prosecutor in the inquisition against Flynn, “do[] not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of [those rules] would violate both Article II and Article III” of the constitution, DOJ wrote.
“Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own,” the brief continued. “Instead of inviting further proceedings the court should have granted the government’s motion to dismiss.”…
“The failure to dismiss the indictment was error,” DOJ wrote in its brief. “And the court’s efforts to pursue additional charges of contempt compounded its error.”
“When, like many other defendants, petitioner pleaded guilty but later asserted his innocence, he did not expose himself to prosecution for criminal contempt of court,” Francisco and the other DOJ attorneys noted. “The court lacks authority to bring its own prosecution of petitioner, for two independent reasons.”
“First, any false statements in this context are not contempt under 18 U.S.C. § 401,” the continued. “Second, even if petitioner’s conduct were punishable as contempt, the authority to prosecute him would lie with the Executive, not the court.”
The DOJ attorneys cited precedent after precedent, including Supreme Court decisions, that require Sullivan to dismiss Flynn’s case rather than mounting his own personal prosecution against Flynn.
“The district court plans to subject the Executive’s prosecutorial decision to extensive judicial inquiry, scrutiny, oversight, and involvement,” DOJ wrote. “Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”
Lawyers can argue almost anything, as Sullivan’s brief demonstrates. But some arguments are extraordinarily weak, as is Sullivan’s. That doesn’t mean that some judge can’t find for them, if the end justifies the means.
[ADDENDUM: Here’s another good article to read about Sullivan’s brief.]
Sullivan is compromised and is flailing to cover his backside.
Because he’s failed in his mission.
In doing so, he is exposing even more of his weak flanks (both o them, and front, and back, and top and bottom).
But this is what obedience (actually, more like servitude in the judge’s case) compels. And he’s in it up to his eyeballs (if a commentator toward the very, very end of the Undercover Huber link can be believed).
In the end, he and his “legal team” are going to throw anything and everything they can think of—non-sensical, unrelated, scurrilous, ridiculous, absurd, dangerous—against the wall, hoping that something (anything!) might stick, hoping to confound and confuse the justice system so as to eke out ever more “valuable” time, even postponing any decision indefinitely, thus keeping Flynn in limbo…but most importantly for Sullivan, postponing his own day of reckoning.
For he knows that the MSCM will champion his “heroism” to the skies.
But it will not work; which means that he’ll either decide to fall on his sword…or he’ll be made to do so.
The Justice system must understand his desperate tactics and his despicable goals, and nip it in the bud.
If it can.
Sullivan: an Obama judge.
It must suck to be a lawyer and pretend that the judge is listening dispassionately to the evidence and weighing things up carefully.
When, actually, the judge is a total hack.
Isn’t this precisely the pre-determined conclusion and rationalised SWJ sophistry that Robert Barnes cited that’s taught throughout “law” indoctrination schools today?
Didn’t Barnes tell us that such indoctrinated law clerks school their elder “Judges” to carry out their machinations, destroying the Rule of Law?
How can America Liberty co-exist, given the vast corruption of American legal culture? Is not the Gen. Flynn case under Sullivan a synecdoche for the status of American decline?
What is the next step, I wonder? When would the District Court typically respond to a Writ of Mandamus?
Given the horsepower that has been brought to bear by the DOJ and other amici (together with the legal gravitas of Judge Sullivan’s response), I would hope this would be moved quickly.
Is anyone surprised that a lawyer of Wilkinson’s pedigree accepted this assignment?
“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime.”
This is just preposterous. Have any of the lawyers who drafted Sullivan’s brief ever set foot in a criminal court? I work in a state appellate court that hears hundreds of criminal appeals each year, and it’s not just usual, but absolutely routine for defendants to have second thoughts after they enter guilty pleas and to try to get out of them. Maybe it happens in half the appeals we see from guilty pleas? I haven’t counted, but it’s a whole heck of a lot of them.
Now, it is not at all routine for a court to GRANT a motion to withdraw a guilty plea. The motions are so common that they are governed by well-established law with a very high standard. The defendant is not going to be allowed to withdraw the plea unless there is strong evidence that the plea was not “knowing, intelligent and voluntary” or there is “evidence of innocence, fraud or mistake in the inducement” (which amounts, in practice, to another way of saying the same thing.) Of course, there almost never is such evidence. The key element is voluntariness: did the defendant know what he or she was doing in pleading guilty, and freely choose to do it? If there’s proof that the choice wasn’t free, it isn’t a voluntary plea.
I promise you that if a trial court judge in this state found out that a plea agreement included a side deal that, if the defendant pleaded guilty, the prosecution would not prosecute his son for an obscure crime that nobody ever gets prosecuted for — and, worse, that this deal was not disclosed to the judge who was asked to approve the agreement — that judge would be gunning for bear. That’s a textbook example of coercion, and that is not a voluntary plea, and that defendant’s motion to withdraw the plea is almost certainly going to be granted — or if not, the appellate court is almost certainly going to reverse the denial.
The “under oath” thing is a red herring. Whether or not a defendant is sworn before he or she enters a plea, everybody involved is representing to the court that they are telling the truth, and the judge asks every defendant — at least in my state — whether they were pressured or coerced into pleading guilty and whether they were offered anything (other than the sentencing deal) in exchange for entering the agreement. For counsel on both sides to stand by silently when the defendant is asked those questions, KNOWING that the answers aren’t true and that the defendant is giving them only because of coercion, is an astonishing ethical violation. In any court with the sense that God gave a cabbage, it would not be the defendant who was held responsible.
I would not want to be an attorney on either side in that scenario. For counsel, as officers of the court, to misrepresent a plea agreement to the judge who’s being asked to approve the deal is a serious fraud upon the court. That judge would be giving serious thought to a disciplinary referral for the prosecutor and maybe for defense counsel too. And, for defense counsel to agree to a side deal like that is almost certainly ineffective assistance of counsel — although it’s true that, in this case, information that would have assisted in the defense was concealed from defendant’s counsel, so that the attorney may have made the strategic call that this was the best deal possible.
Of course, I’m describing what typically happens in lowly criminal cases involving ordinary defendants, where scummy federal politics and deep-state plots to take down Presidents are not often found. Basic principles of due process and fairness like the ones I just described do, in fact, abide in many criminal courts, but they have nothing to do with what happened to Flynn — and apparently, nothing to do with Sullivan’s brief, either.
Mrs Whatsit:
That statement you cited did seem really really odd to me.
But I wonder if the word “repeatedly” made it more true and less absurd in their eyes. And perhaps also that it wasn’t appeal time yet, because the case wasn’t over?
I agree with your analysis, though. Sullivan’s claim is so strange, even as an argument, when in this case the court now is aware of the once-secret side deal.
Hearing set for Jan. 12.
So Sullivan gets the “TRAITOR” Flynn to twist in the wind for another week and a half.
(But hold on. What happens if the mob burns down the courthouse first?)
https://twitter.com/Techno_Fog/status/1267952516186148866
Barry Meislin:
I assume you mean June rather than January.
Yes, June. Thanks for correcting.
Jacobson’s article at Legal Insurrection was less optimistic. Though he doesn’t think Sullivan will prevail in the end, the takes seriously the idea that the “wait until I’ve ruled” part of the argument might work to delay mandamus.
My theory, which has no evidence behind it, is that Sullivan was influenced in this case by ex parte communications with someone who soured Sullivan’s attitude towards Flynn.
If his real reason for his behavior were, say, that someone like Eric Holder or Susan Rice told him what a pill Flynn is, and someone told him about or he read Gleeson’s theories, which appeared in WaPoop conveniently as this was blowing up, and Sullivan thought, nothing ventured, nothing gained, he really couldn’t put that in his brief, could he? But he can’t take on the Fokker case or the Federal Criminal Rules directly, because there is no argument in his favor.
So he and his lawyers just went with Gleeson’s theories. Sullivan wants to ask more questions. The brief wasn’t intended to persuade the DC Circuit. It was intended to put people off the scent.
As I said before, you can make a mistake by lying, you can make a mistake by telling the truth, but you can rarely make a mistake by changing the subject.
Pure fantasy on my part, but it would explain a lot of what Neo is finding inexplicable.
I wonder who paid for that brief?
This is the “Resistance” that considers itself above the elected president. That is all that matters. I am reading a new biography of Napoleon. He was more humble than these people.
It’s not just bizarre, it’s insanely bizzaro. Sullivan and his legal team come across as duplicitous, and pathetic. Keep flogging that dead horse Sullivan.
It’s all about the delay.
When this is finally decided…I’m going to go with about September until Sullivan complies with the DOJ desire to drop the charges…it will be spun as all those bad whites against a black judge & there’ll be more excuses to riot.
Any pretext to keep the fires burning until November.
How to explain the “inexplicable”. The “bizarre”….
And then it occurred to me: the Samson Option.
It has become Sullivan’s strategy, which is part of (or perhaps, representative of, symbolic of) the grander Leftist strategy—even if, as is likely, not all of them have consciously articulated it or adopted it…or even know what it is…though one could, I suppose, easily mistake it for total nihilism.
(Or, perhaps, “applied” nihilism? That is, as opposed to “theoretical” or “philosophical” nihilism…).
Whatever. (It’s also entirely likely that they haven’t really thought out the true implications of it. One, after all, shouldn’t think too far ahead….)
Why, if the Constitution, the Law, and procedure is so crystal clear on this issue, and so clearly on the side of the government and Flynn’s lawyers arguments–making this a “slam dunk”–didn’t the court immediately act on the writ of mandamus to force Sullivan to drop the case and have an end to this, rather than accepting amicus breifs from all and sundry, and scheduling arguments that will obviously drag out this case?
Running out the clock is Emmett’s strategy.
Hold the ball. Call time out. Have the referees review the video replay.
If the Deep State still leads the game on November 3rd, Sullivan gets the prize in the bottom of the Crackerjack box.
It seems so obvious that Sullivan is wrong here that I’m tempted to play Devil’s Advocate, just to see if there’s any counter-argument. So I’ll ask this: A judge can accept or reject a plea agreement, which is a situation where both the prosecutor and the defendant are by definition in agreement, why can’t a judge accept or reject a decision to drop a case entirely (which is arguably an extreme form of a plea agreement)?
Of course Sullivan doesn’t make this argument as far as I know (I haven’t read much of his lawyer’s brief), but it did strike me that when Margot Cleveland argues that “there is no longer a live ‘case or controversy’ in the Flynn case,” that she is begging the question.
Needless to say, the evidence is overwhelming that this case should never have been brought. I’m just trying to figure out where a judge’s authority begins and ends, and the example of rejecting a plea agreement makes this situation somewhat ambiguous to me.
FYI Neo:
https://www.nysun.com/editorials/state-is-set-for-a-showdown-over-general-flynn/91154/
“…this case should never have been brought….”
The point was to get Flynn into the maw of the system.
Once there he would never get out, could never get out. While the MSCM and the Democratic Party (that tag team of national and personal destruction) would ensure that his reputation was destroyed, family ruined, etc. All in a good day’s work….
The planners of this obscenely criminal conspiracy (one of many conspiracies, as it’s turning out—or rather, part of an elaborate Unicorn(?) tapestry of conspiracy) never imagined in their wildest, most savage dreams (and they were/are breathtakingly, savage) that Flynn would be able to extricate himself from the ingenious, foolproof, iron trap they had set (so meticulously, so cunningly, so perfectly); never dreamed that he would be able to fire his first “legal defense” team and then hire a defense lawyer who actually had his interests at heart (and most importantly, who was not compromised by Mueller and his thugs).
In short, they never thought (clever, imaginative, evil geniuses that they were) that things would ever arrive at the current impasse.
The new lawyer, Sidney Powell, was “uncompromised”—because they couldn’t “get to her” like they did to Flynn’s first “defenders” (Covington, etc.), who were ingeniously threatened with wrongdoing and thus totally intimidated by the Mueller gang to ensure that they would “conclude” that not only could they not defend their client faithfully but also that they could neither inform him of their compromised, corrupted status nor remove themselves from the case, as decency, integrity—as well as the law—would have dictated (but since we’re talking about Mueller here, “decency”, “legality” and “integrity” are absolute non seqiturs).
Indeed, Mueller and his gang (and most importantly, those who had planned the conspiracy and depended on its success) were home free.
And so, none of us are supposed to “be here”. Not Flynn (according to the elaborate plot, he’s already been neutralized, out of the picture). Not Powell (who?). Not Sullivan (he’s already supposed to have fulfilled his responsibilities). Certainly not any of the exculpatory Brady material (that Mueller no doubt rues not destroying), which somehow (i.e., because of Powell’s extraordinary abilities and acumen “magically” appeared.
So what to do, as the plot has taken a most unanticipated (and for the conspirators, most disturbing) twist….
So how do they neutralize Flynn now?
The answer is…it depends on the only one left standing between utter disaster and the hoped-for actualization of the original plan of Flynn’s neutralization.
And he’s giving it his best shot.
Could it be that this action by the judges of the D.C. Circuit court–which will further draw out this case and leave Gen. Flynn in legal Limbo–is actually an instance of judicial activism, part of the effort by the generally leftist courts in this country to try to wrest more than an equal share of power from the Executive and Legislative branches?
I think the higher federal courts are trying to reign in the activist lower district court judges. SCOTUS has already signaled that it is ready to severely limit nationwide injunctions if the district judges don’t show more restraint. I think the outcome here will be part of that effort, but we’ll see.
Perhaps it would have been better if they just told us if Sullivans briefs were tighty whitey or boxers?
Update on the Circuit Court Flynn hearing re: Writ of Mandamus: https://twitter.com/Techno_Fog/status/1268613220874571778
“New 6/4/2020 Order – time allotments for the June 12 Flynn hearing:
Each party (Flynn, the DOJ, Judge Sullivan) will have 15 minutes for argument.”
“The Writ of Mandamus is from The DOJ/Flynn (including the Flynn Legal Team) to force (ask) Sullivan to dismiss the case (which should have happened already). THE DOJ and FLYNN Legal team are on the same side (each gets 15 Minutes=30) Sullivan gets 15.”
Has the Court already decided, then? That’s barely enough for a bag of popcorn. But at least Sullivan gets his 15 Minutes of Fame