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Flynn’s lawyer means business — 20 Comments

  1. can’t wait for Manju to justify Herr Müllers teutonic nazi Gestapo techniques. Imagine to squeeze an innocent person to get them to perjure themself to achieve a political end. Uncle Adolf would be proud of his nephew.

  2. The government can lie when striking plea deals and talking with criminal defendants. There is SCOTUS precedent on this.

  3. can’t wait for Manju to

    He’s gotta earn his piece-rate. In any case, we’ve learned in the last couple of years (if we didn’t know already) that Democrats have no procedural principles. They’re not going to like it when that bites them on the ass.

  4. Cornhead:

    Doesn’t it matter that in the case of Flynn the government knew he had committed no crime?

  5. About that last sentence of the blockquote: When are we going to see people face consequences for document destruction, er misplacement?

  6. Cornhead on September 12, 2019 at 6:38 pm said:
    The government can lie when striking plea deals and talking with criminal defendants. There is SCOTUS precedent on this.
    * * *
    There shouldn’t be.
    If we can’t lie to the government, the government should not be allowed to lie to us.
    (And yes, I do know the story of the hostage negotiator, and I argue that the situations in which prosecutors and cops and government officials routinely lie to the public is not analogous.)

  7. The government (including police) can lie, but they can’t withhold exculpatory evidence. There is a profound difference between the two.

  8. Michael Towns:

    But can they lie to someone they know is innocent? Apparently, they knew Flynn to be innocent.

    I’d like that question answered.

  9. Neo, I think the answer to your question is YES, as long as they lie isn’t tied to a specific behavior of malfeasance, like deliberately refusing to turn over exculpatory evidence. (I’m not always right, but I think I am here.)

    The best analogy I have is that of police detective conduct during an interrogation. Yes, they can lie to your face all day in the hope that you will voluntarily confess to committing a crime. It’s not illegal for cops to “trick” suspects this way, as long as the cops aren’t crossing the line into illegal *behavior or actions*. (I won’t delve into the argument that telling someone a verbal lie *is* a behavior; I’m talking about substantive actions that involve false testimony, withholding evidence, etc. There is a fine distinction here.)

  10. MIchael Towns:

    I know they can lie to suspects. But Flynn wasn’t actually a suspect. They knew he was innocent.

  11. When the gov’t, er, the individuals getting paychecks from the gov’t, fail to produce requested documents. Or when those responsible “lose” them. Those individuals should be prosecuted for obstruction of justice / destruction of evidence.
    They aren’t, So far. But should be. At least they should be publicly named, shamed, and probably fired. Or at least get an official bad report in their record.

    The gov’t Deep State treatment of Flynn was disgraceful, and hugely effective.
    Powell is right, the entire prosecution team should be fired.

    The anti-Trump folk still control most of the hiring inside the gov’t, so most pro-Trump applicants fail to get on any shortlist for most spots. Even political appointment spots.

    Pence is NOT helping here as much as Trump, and Reps, need. I like Mike, but he’s closer to a GOPe than most that Trump work with.

    Christopher Wray might be protecting McCabe, whether to protect “his” FBI or for other reasons. He has not been any big win for Trump. Jeff Sessions was a small loss for Trump. Personnel is policy; and Trump dumping Bolton in a vulgar way is also a small loss for Trump, in what should have been a small gain, in getting an advisor more on board the “no war” ideas that Trump now has.

    If McCabe gets indicted, I’ll agree that Barr was a big win for Trump — but not before. I’m still patiently hopeful.

    Truly hope Powell and Judge Sullivan refuse to accept FBI / gov’t bad and illegal behavior, nor their juvenile excuses for illegal actions.

  12. Michael, in re lies vs behavior: my gleaning from the discussion here, and from Powell’s very lengthy and specific list, is that, while LEOs are not legally permitted to withhold exculpatory evidence when asked for it, maybe they can fudge things if the defense doesn’t know there is anything to ask for.
    That is, are they supposed to tell the defendant or “person of interest” that they have exculpatory evidence absent any indication that the defense already knows it exists?
    Can the defense just make a blanket request for everything, even if they don’t know something specific to ask for?

  13. In re the Process Crimes debate:

    https://libertyunyielding.com/2019/09/12/the-flynn-brady-request-a-reminder-of-how-this-whole-thing-could-have-been-avoided/

    The Flynn Brady request: A reminder of how this whole thing could have been avoided
    By J.E. Dyer September 12,

    The case to be argued here is a very simple one. Nothing that has happened since 12 January 2017, when David Ignatius’s Washington Post article about the Flynn contacts with Russian Ambassador Sergey Kislyak burst forth upon us, had to happen. None of it had to happen at all.

    The reason is equally simple. Michael Flynn didn’t do anything wrong in his December 2016 discussions with the Russian ambassador about the sanctions imposed on Russia.

    That’s it. There’s nothing more to it than that.

    The Obama Department of Justice, the FBI, and the media tried to create the impression that Flynn had done something wrong. This was a move in bad faith, and frankly should have been recognized as such, for starters because it obviously involved a criminal leak from inside the Obama administration to the media – yet even with that leak, it carried no substance that indicated wrongdoing.

    For whatever reason, the incoming Trump administration began to scramble to disavow the claims made in Ignatius’s article. I suspect this was because the career politicos on the team weren’t in a mindset of expecting to be broadsided with bad-faith moves.

    What the Trump team might better have done, in hindsight, was say that it had every right to hold discussions with the Russian ambassador – which it did; and that nothing the Trump team said to anyone had undermined the sanctions policy being pursued by the Obama administration – which was true.

    The Russians then decided not to retaliate against the sanctions imposed by the Obama administration.

    Let that sink in, if you need time to.

    Notice that Trump didn’t indicate any intention to soften the sanctions in his tweet at the time (again, see p. 172 per citation above). The FBI (which had the contents of the phone calls at its fingertips) has never alleged that Flynn conveyed such an offer to Kislyak. Nor did Ignatius, recipient of a criminal leak on the phone calls, make any specific suggestion in that regard.

    The only things alleged are that Flynn spoke to Kislyak about the sanctions (the initial Ignatius nugget), and the Russians – first Putin, then Kislyak – stated that Putin would not escalate with a retaliation against the sanctions imposed by Obama (FBI records, the Mueller report).

    There is no universe in which that outcome equates to undercutting either the Obama policy or the interests of the United States.

    The DOJ approach after the first broadside was to turn the discussion away from the Flynn phone calls themselves – because they were a dead end, since he did nothing wrong – to a set of elliptical insinuations that he lied about them to other members of the administration, and then eventually to the FBI. This wasn’t about national security or diplomatic protocol at all. It was about sowing seeds of confusion and discord in the Trump team.

    An appropriate answer for Team Trump was to say to all comers: “Of course we’ve talked to the Russian ambassador. That’s what incoming transition teams do. Obama is still the president, and the Russians know current policy is not our call. We have no intention of undermining Obama. We’ll let you know after 20 January if there will be any change in U.S. policy.”

    Lesson: don’t let the media or your political opponents put you on the spot through convoluted narratives and bad logic. Easy to say; harder, of course, to execute under pressure.


    Nothing is owed to traffickers in guilt-tripping and innuendo; don’t make payments on false debts.

    The Trump administration and the nation have paid dearly for being caught in that false-debt trap for the last two-and-a-half years. Trump’s evident recognition that his attackers don’t deal in good faith is to his credit.

  14. Maybe Flynn wasn’t formally a ‘suspect’ but he was absolutely a ‘person of interest.’ I don’t have DOJ or FBI regulations at hand to see where the dividing line is, but I am 99% certain that officials can lie to you with no repercussions. Happens every day in prosecutions (and everyone is presumed “innocent”).

  15. Michael Towns:

    No, he was not a person of interest in the sense that the FBI knew at the time that he was not guilty. I don’t have time to find the source for that at the moment, but I believe that is part of some recent things that have been learned.

  16. I think we are talking in circles, so I apologize. I know that the FBI targeted Flynn for the purpose of catching *him* in a lie or process crime, at least. So yes, they were bad actors and they knew he was innocent.

    However, what I’m trying to convey (and not doing a good job of) is that police and prosecutors can lie to people — as long as that lie is not accompanied by actions (such as withholding evidence, etc.) Now, often the two go together, but I’m just suggesting that I do not think it’s illegal for agents to tell lies to innocent people. Happens all the time. I’m not justifying it, though.

  17. Michael Towns:

    It’s not illegal for agents to lie to innocent people. But I believe it may be illegal for agents to lie to people they know are innocent. I see a large distinction between the two situations, but I don’t know what the law has to say about it.

    Also, as far as I know, it is not a crime to lie to prosecutors or police. However, it’s a crime to lie to the FBI.

    So there are two big differences between the ordinary situation of police lying to someone they at least think might be guilty, and FBI officers lying to a person they know is not guilty, in order to trap him in a falsehood that then they can label a crime and prosecute him for.

    Very very different situation, as I see it.

  18. Margot Cleveland addresses some of the legal questions in her recent post.

    https://thefederalist.com/2019/09/12/sidney-powells-latest-motion-michael-flynns-case-russiagate-bombshell/

    In her Motion to Compel, Powell catalogued 40 categories of evidence the government has refused to turn over. She seeks a court order requiring federal prosecutors to provide the withheld evidence under Brady and its progeny. Brady and its offshoots require prosecutors to disclose material exculpatory and impeachment evidence to the defense team. And, as Judge Sullivan made clear during Tuesday’s hearing, that duty exists even though Flynn had already pleaded guilty and even though he had agreed that the government would not be required to provide him with further evidence.

    Powell will have a chance in her reply brief to detail how each piece of evidence sought is either exculpatory or serves as impeachment evidence. Here there’s an interesting twist: Powell seems poised to also argue that the 40 pieces of evidence requested are exculpatory (and thus Brady material), because they will show that “the entire prosecution should be dismissed for egregious government misconduct and long-time suppression of Brady material.”

    The law is clear that, in extreme cases, a court can dismiss criminal charges based on egregious prosecutorial misconduct. What is unclear, however, is whether Brady requires the government to disclose evidence unrelated to the charged offense that points to broader prosecutorial or government misconduct. That is an issue of first impression that Judge Sullivan will have to address.

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