June 24, 2020

"Appeals court orders judge to grant DOJ motion to dismiss Flynn case."

The Washington Examiner reports.

From the opinion (which you can read in full at the link):
Although Rule 48 requires “leave of court” before dismissing charges, “decisions to dismiss pending criminal charges no less than decisions to initiate charges and to identify which charges to bring lie squarely within the ken of prosecutorial discretion."... "To that end, the Supreme Court has declined to construe Rule 48(a)’s ‘leave of court’ requirement to confer any substantial role for courts in the determination whether to dismiss charges."... More specifically, “[t]he principal object of the ‘leave of court' requirement is to protect a defendant against prosecutorial harassment when the Government moves to dismiss an indictment over the defendant’s objection.”... Rule 48 thus “gives no power to a district court to deny a prosecutor’s motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority."

91 comments:

Michael K said...

Hidden Brady violations keep trickling out. Better get out of town before the FBI is completely destroyed.

Quaestor said...

Unfortunately, Emmett Sullivan is effectively immune to impeachment.

FleetUSA said...

Yeah, now sue Covington.

wendybar said...

Good. It was a joke anyways. I hope the frog march the Obama administration out of their houses at 4 in the morning with Fox News there to report it to the world like Obama had done to Stone. They are the most corrupt administration in my lifetime, probably for America's lifetime.....

Wince said...

Don't worry, Deep State.

You'll have your chance to be heard if Flynn sues your asses.

Marshall Rose said...

One tiny victory for the rule of law.

gspencer said...

"Judge Robert Wilkins, an Obama appointee, dissented"

The left does command and usually get blind obedience.

BarrySanders20 said...

Arrogant black Democrat judge gets his ass handed to him by the Man. Time to tear down some statutes of Learned Hand or some such other characters of judicial yesteryear.

tim in vermont said...

This is why Biden says that the nation can’t survive four more years of Trump. There is a threat that the rule of men like Biden and Romney and the rest of the looters of Ukraine will be replaced again by the rule of law.

gspencer said...

"Yeah, now sue Covington"

There should be little doubt that a draft of a complaint already sits on Sidney's hard drive.

rehajm said...

Recent history gives me the feeling this isn't over, that some corrupt body will step forward and claim authority that supersedes the courts.

Sebastian said...

“[t]he principal object of the ‘leave of court' requirement is to protect a defendant against prosecutorial harassment"

Right. Which progs normally would support. Except here: they were eager to harass Flynn a little more.

Rules are tools.

TreeJoe said...

But the media told me the judge took extraordinary steps to pursue and prosecute Flynn and that's a good thing!!!

Leland said...

Congratulations to Flynn, but this is a sad and pathetic day for our government for ever letting this happen and then continue on like it did. There won't be justice until those who carried out this fraud are punished.

iowan2 said...

Talking head speculation Sullivan could seek an en banc hearing.

Prove me wrong. Sullivan had no evidence that would have allowed him to deny the motion to dismiss.

If he demands en banc, Sullivan will carry out what the Democrat leadership has predicted for 3+ years, President Trump would do, refuse to follow a judges ruling.

traditionalguy said...

The Federal Bureau of Cover-Ups loses another round. B2 is dropping bombs. And they are on target.

traditionalguy said...

The Federal Bureau of Cover-Ups loses another round. B2 is dropping bombs. And they are on target.

Mattman26 said...

It's a pretty fine read. Most of the pages are the dissent, but most of the majority is a point-by-point refutation of the dissent. My favorite so far:

"Fifth, the dissent minimizes the import of the district court’s orders, claiming that we are granting mandamus 'before the district court has acted.' ... Yet the district court has acted here. It has ordered briefing and scheduled a hearing in order to provide a court-appointed amicus the opportunity 'to present arguments in opposition to the government’s Motion to Dismiss.' In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges."

Boom.

victoria said...

I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful


vicki from Pasadena

Kevin said...

Why is this news?

Because rulings like this have become so rare.

Yancey Ward said...

What is shocking and disturbing is that this wasn't 3-0. I mean, I know the dissenter was claiming his opinion was that Sullivan hadn't yet made a ruling, so why force the issue now, but I think everyone knows that is just sophistry- he would have written any opinion that allowed Sullivan to continue to torture Flynn regardless.

I am not convinced that Sullivan backs down even now. I half expect that he will refuse to dismiss the case as ordered, and proceed with his inquisition.

rcocean said...

Thank God. Sullivan and Wilkins (both left-wing Democrats) tried to avoid the clear meaning of case law, precedent, and the Law and engage in an attempt to hurt Trump by hurting FLynn.

The Majority opinion does a good job of shooting down the lame Dissent. But it just goes to show how the Liberal (and Moderates like Roberts) will twist the law and obvious meanings of words to justify their politically driven decisions. Something must be done about Judicial Supremacy. Had one more Clinton/Obama judge been on the panel, Flynn would now have to go through several months of Judicial harassment by Sullivan and his wing-man Gleeson.

Big Mike said...

Flynn needs to start by winning a judgement against Covington & Burling for legal malpractice. A half billion or so should inform the DC legal community that when they take on a case they need to be in it to win it, even if they don’t like the politics of the person they’re representing.

rcocean said...

This ruling should have been 3-0. But like the SCOTUS, the liberal/leftist NEVER rule in favor of the law. They always rule based on politics. How many times did the 4 liberals vote as a bloc this year? Sometimes the conservative judges will vote "liberal" based on judicial principles, when have Ginsberg, Breyer, Sotomayor, or Kagan ever voted "Conservative"? I suppose they do so occasionally - when the issue doesn't matter to them.

Yancey Ward said...

Sullivan doesn't have standing to request an en banc hearing, does he? Appeals can only be filed by one or both of the two parties to a case, and Sullivan isn't either one of them.

No, I think Sullivan may well ignore the ruling and proceed with his inquisition, whether or not Flynn shows up for it.

n.n said...

The slowed progression of a liberal authority. A positive development, albeit a temporary remedy in the woke of left-wing violence.

Big Mike said...

One tiny victory for the rule of law.

@Marshall, and a very small victory at that, unless Sullivan is formally reprimanded, Covington & Butling hit hard in the wallet, and members of Mueller’s team punished and disbarred for malicious prosecution.

n.n said...

how the Liberal (and Moderates like Roberts) will twist the law and obvious meanings

Moderates are left of center. A fast and slow monotonic divergence.

Dave Begley said...

Nice way out of this based upon the rules of procedure. I love it!

Mattman26 said...

As to en banc, DC Circuit Rule 35(a) provides that a majority of active judges on the court can (on their own, without a party requesting it) direct en banc consideration.

I'm going to hazard a guess that the court will have no appetite for doing so.

Bruce Hayden said...

“Talking head speculation Sullivan could seek an en banc hearing.”

But will they grant it? The point made by Mattman26 is powerful - that Judge Sullivan had essentially appointed one citizen to prove that another citizen should be priced of his liberty. All that it would take would be one or two Dem appointed judges to see the wisdom, and the danger, there, to either have the petition rejected, or the decision confirmed. And I see little, if any, reason to believe that the Supreme Court would not agree with this panel.

“Prove me wrong. Sullivan had no evidence that would have allowed him to deny the motion to dismiss.”

Of course he doesn’t. That is part of why he wanted to appoint Gleason to build that record. But he could only do so by invading the sanctity of the Executive Branch’s decision process. That is what Gleason wants to do - investigate how the decision to dismiss was made, and what evidence it was based on.

“If he demands en banc, Sullivan will carry out what the Democrat leadership has predicted for 3+ years, President Trump would do, refuse to follow a judges ruling.”

Interesting thought but I don’t really agree. Petitioning for an en banc hearing is an integral part of the appeals (and, in this case, Mandamus) process. The petition for Writ of Mandamus was to the DC Circuit, and not to this panel. The use of panels is just an efficiency measure that is justified by making en banc hearings unnecessary.

tim in vermont said...

Ha! Looks like Joe Biden was behind the whole frame up of Flynn using the Logan Act, notes that until now never saw the light of day for some reason reveal, kept hidden as a man was being trundled off to prison.

https://twitter.com/HansMahncke/status/1275804998857875459

Maybe the only true think Schumer ever said in public was about how those spies have “six ways from Sunday” to get you.

MayBee said...

Sean Davis has a photo of Strozk's hand written notes after talking to Biden and Obama about Flynn. They bring up the Logan act. They are hard to read, but Biden is def talking on the notes.

May be an interesting thing to ask somebody.

JAORE said...

The left has claimedd a lot of scalps (not PC? Tough.) The Nobel Peace Prize. It's a joke.

Acceptance of media statements of facts, based on unnamed sources with "knowledge of and similar BS, gone. Likely for good.

Idea that words mean what they are commonly thought to mean? It is to laugh.

Courts thought of as enforcers of blind justice? Only to the truly blind.

Women's rights being more than access to abortion? Not a chance.

Public schools as teachers of knowledge or critical thinking without politics? Feh.

You should all be so proud.

Mark said...

“[t]he principal object of the ‘leave of court' requirement is to protect a defendant against prosecutorial harassment when the Government moves to dismiss an indictment over the defendant’s objection.”

Obviously.

Speaking of qualified immunity -- it is time to abolish qualified immunity for judges.

Wa St Blogger said...

I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful

What is awful is that we can predict a legal outcome based on who appointed a Judge. That pretty much destroys any concept of judicial impartiality.

We have no rule of law, we have no justice. The courts are just another extension of power.

A civil society can only exist if the people have trust in the institutions to be fair. I don't think that trust exists any more.

Michael The Magnificent said...

Those lefties, once they have their teeth in, don't want to give up that pound of right-wing flesh.

What a disgrace.

Mark said...

Sullivan doesn't have standing to request an en banc hearing, does he? Appeals can only be filed by one or both of the two parties to a case, and Sullivan isn't either one of them.

This is not the criminal case before the court of appeals. It is a mandamus case, and in such cases, the judge IS the respondent. He IS a party.

But I do not believe that he has either standing nor would an attempted appeal be entertained. By doing so, he would necessarily be stating that he is an adversarial party against the petitioner who is the defendant in the criminal case. That would create an insurmountable conflict of interest that would prohibit any further involvement by him in the criminal case.

Sprezzatura said...

“Flynn needs to start by winning a judgement against Covington & Burling for legal malpractice.”

They didn’t have the power to run an internal Justice Department whitewash operation. W/o the current hack-law and hack-order system of hack-justice, Flynn would still be in trouble, like normal non-hack-sponsored citizens.

https://www.lawfareblog.com/justice-departments-faulty-arguments-flynn-case

Unknown said...

Blogger gspencer said...

"Judge Robert Wilkins, an Obama appointee, dissented"

The left does command and usually get blind obedience.

6/24/20, 9:40 AM"

Obama continues to spread his feces everywhere he touched.

Richard said...

Judge Sullivan: Better a 100 innocent men go to jail than one guilty man goes free.

Drago said...

tim in vermont: "This is why Biden says that the nation can’t survive four more years of Trump. There is a threat that the rule of men like Biden and Romney and the rest of the looters of Ukraine will be replaced again by the rule of law."

They know that if Trump is reelected we are going to get a much closer look at how US Foreign Assistance dollars are funneled back to specific people in power in the US as "donations" to Foundations and Groups made by the Foreign Assistance recipients.

tim in vermont said...

It seems from FBI notes that Comey told Biden and Obama that the call “seemed legit” after interviewing Flynn, and undeterred, Obama said he should "look into it” further and Biden suggested the risible Logan Act angle. “Will nobody rid me of this meddlesome man?” Then Comey does an about face and the agents who interviewed Flynn lose their original notes of the interview, and also do an about face and turn on Flynn. Mueller puts on the thumb screws by threatening to bring Flynn’s family into it, and Flynn then throws in what looks like a losing hand before his son gets financially wiped out the way he was.

Meanwhile Flynn’s lawyers were connected to the Democrats, same as Lanny Davis was Cohen’s lawyer.

This is so brazen. Imagine if it were Trump for just a second, Trump who was impeached for daring to ask for a couple documents abut Biden’s and Romney’s people’s looting of Ukraine.

This is way worse than any statue toppling, but in and of itself America could handle it, but billionaires who want to get rid of Trump own the media, and people who think of themselves as “revolutionaries” do their bidding.

Francisco D said...

victoria said...I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful

Are you related to Inga?

It takes 5 seconds to find the info you are lacking. The judges were appointed by Bush, Obama and Trump. The dissenting Obama judge focused on the fact that Sullivan has yet to rule, not the merits of the case.

Please stay in California. We get too many of you idiot transplants here in Arizona..

Drago said...

victoria: "I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful"

I suspect that the dissenting judge would be an obama appointee and would not actually address any of the dozens of salient points of law and would instead go on to draw weird racial connections.......


......and that's EXACTLY what happened!!

Good old victoria from Pasadena. She was really hoping that dems could flout the law and just throw political opponents in jail anyway with the help of deep staters and corrupt Soviet-type Judges and juries made up of open partisan democrats just to show those Trumpers!

The bad news in many cases that is exactly what they have done.

Lucien said...

Pretty great result for Sidney Powell: start out with your client facing sentencing and end up getting the government to surrender -- how much better could it get?

Bruce Hayden said...

“Sullivan doesn't have standing to request an en banc hearing, does he? Appeals can only be filed by one or both of the two parties to a case, and Sullivan isn't either one of them.”

Good point. He really isn’t a formal party here.

“No, I think Sullivan may well ignore the ruling and proceed with his inquisition, whether or not Flynn shows up for it.”

Reminds me of my travails in traffic court in Phoenix. AZ has Justice of the Peace courts to hear minor infractions like traffic cases. JPs don’t have to be attorneys, and most often aren’t. That can be critical when dealing with legal arguments, as was the case for me.

The charge was exiting the freeway somewhere besides a designated exit. I had crossed the white line, but was technically in the area that people use when they break down. And was ready to cross the line onto the frontage road. If the cop had just waited a minute longer, he would have had me. But he didn’t, and I was cited essentially for being in the process of exiting the highway, which was true, but also not illegal. As most law school grads probably realize by now, we are talking an inchoate crime here, such as attempt, conspiracy, etc. Under AZ law at the time, inchoate crimes are charged one level below the underlying crime. Thus attempted first degree murder is the equivalent to second degree murder in effect. Inchoate versions of the Lowest level felonies are treated as the highest level misdemeanors, and the inchoate versions of the lowest level of misdemeanors are treated as civil infractions. But what about inchoate versions of civil infractions, such as speeding or running stop signs? They aren’t covered by the criminal code. And that makes sense - a lot of civil infractions are strict liability crimes. Imagine trying someone for attempted speeding or conspiracy to run a stop sign.

So, at trial, the police told the judge that I was exiting the freeway. I countered with my point about inchoate civil infractions not being illegal. I lost. I appealed, and the appeal was heard by a district court judge, who was a lawyer and had graduated from LS. He saw my point immediately, from my brief, before I could verbally make my argument, and in a terse note, remanded the case for dismissal (which is essentially what the panel did here). The Justice Court took this as an invitation to retry the case. This time, before a different JP, I made sure to develop a bullet proof record, getting the officer to admit that motorists routinely cross the white line for any number of legitimate reasons, and are never cited, that he could not definitively prove that the definition of “highway” stopped at the white line, etc. It went back up on appeal, to the same judge, and he asked me just one question: Was this the same case he had remanded the year before. I said “yes”, and he exploded, and used a lot of less than decorous language as he typed out a five page order excoriating the Justice Court for wasting his time. Remand from a district court judge means that he is ordering them to dismiss the case, and not retry it.

Milo Minderbinder said...

Sidney Powell's work in this case (which I believe was done gratis to Gen. Flynn) was relentless and brilliant, and in the very best traditions of the legal profession. Let's not forget her contribution here, not the least of which was forcing DOJ and the FBI to cough up some real jewels.

tim in vermont said...

BTW, Biden denied on national television that he knew anything about the Flynn investigation, and yet the notes are out now, and he was at the meeting.

I am sure it will be proven false though by the mere fact that the New York Times, (Just threaten to cancel and they will offer you a steep discount, BTW) and the WaPo won’t see fit to print anything about this documented lie by Biden.

Howard said...

Who cares? There's bigger hunks of lard to fry.

Wilbur said...

Vicki, I realize this may rock your world, but just try to look at this realistically.

Just how can a judge refuse the prosecution's request to dismiss charges? Carry it out: Say the judge orders the prosecution to, well, prosecute. So the prosecutor shows up and does nothing, even stands mute. Is the judge going to hold him or her in contempt? Or is the judge going to pick the jury himself, make his own opening statement, calls his own witnesses?

The stupidity of the Left is boggling. And Congress should impeach this judge. Duh.

Skeptical Voter said...

No real harm to Judge Sullivan here. He'll still be invited to all the right cocktail parties in the Swamp.

Bay Area Guy said...

Hammer drops hard on Deep State, and weasel Judge Sullivan.

The dissent is a pathetic temper tantrum. Doesn't under Executive Authority under Art. 2.

hombre said...

Of course we know without looking that the Obot Judge dissented. We keep getting previews of life under the Dems after the 2020 election. Chilling.

gilbar said...

Yancey Ward said...
Sullivan doesn't have standing to request an en banc hearing, does he?


What are You TALKING about?
Sullivan appointed himself as Judge, Jury, Executioner, Prosecuting Attorney, Defense Attorney, Media Star, Final Arbiter.... And GOD

according to Sullivan,) there has NEVER been a person (or deity) with greater standing than Sullivan

iowan2 said...

I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful

vicki must be a leftist, attack the character, not the substance. Please explain what part of the law they got wrong.
The Executive Branch has total discretion as to prosecution of criminal cases. The Executive Branch, when learning of previously unknown evidence finds the Defendant was always innocent, and no charges should have ever been brought, sought to have the guilty plea set aside. Do you have anything that would have allowed the judge to refuse the Executive power to drop the case?

clint said...

@victoria said... "I suspect that those 2 judges are Trump appointees. Guess what, they were." 6/24/20, 9:56 AM

I believe you are mistaken.

Only Judge Naomi Rao, who wrote the opinion, was appointed by President Trump. Judge Robert Wilkins, the dissenter, was appointed by President Obama and Judge Karen Henderson was appointed by President George H. W. Bush way, way back in 1990.

hombre said...

victoria said...
“I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful.”

Yes, we are so much better off with Democrat appointees like this one who in the face of indisputable evidence of FBI misconduct votes to continue the prosecution. May you be on the receiving end of police corruption some time, Victoria.

iowan2 said...

Petitioning for an en banc hearing is an integral part of the appeals (and, in this case, Mandamus) process

Yes I understand the process is there to utilize. Well within his power to ask. But, he has no evidence that would allow him the motion to dismiss the case against Flynn. Sullivan is refusing to accept a courts ruling...without legal grounds.

Mike Sylwester said...

Can a judge in Hawaii issue an injunction that will allow Judge Sullivan to try Flynn for perjury?

Drago said...

adSs: "They didn’t have the power to run an internal Justice Department whitewash operation. W/o the current hack-law and hack-order system of hack-justice, Flynn would still be in trouble, like normal non-hack-sponsored citizens."

adSs still believes all the already disproven collusion/hoax dossier lies and he/she/xe isn't going to let those comforting lies go away anytime soon.....

Readering said...

I understand that any active judge on the court can seek en banc review.

Mike Sylwester said...

The fundamental situation was that during 2016 the FBI's leadership tried to frame Lieutenant General Michael Flynn, the former director of the Defense Intelligence Agency, as a witting agent of Russian Intelligence.

On those grounds, the FBI's leadership prevented Flynn from serving as the USA's National Security Advisor.

The FBI's leadership did not inform President Trump that his National Security Advisor was a witting agent of Russian Intelligence. Rather, the FBI's leadership simply removed Flynn from that position by devious means.

Of course, former President Obama was well informed about this situation.

Drago said...

As Tim in Vermont and MayBee have noted, here is the text of the handwritten note Strzok made after meeting in the White House with Biden and obambi:

According to Strzok's notes detailing the January 5 meeting, Joe Biden ("VP") explicitly mentioned using the Logan Act to go after Flynn, and Obama explicitly directed James Comey ("D") and Sally Yates ("DAG") to investigate Flynn and use "the right people" to go after him.

Well well well well.....isn't that so very, very interesting? Gee, I wonder how it is such an important piece of evidence was "misplaced" for 3+ years............

I'm sure adSs will be ALL OVER this one......

LOL

h said...

Vice President Biden announced today that under his Presidential administration, Flynn will be charged with something else.

Dust Bunny Queen said...

If the Prosecution in ANY case decides that they want to withdraw the prosecution.....the judge can't decide to then be the prosecutor himself.

Sullivan didn't want to accept the DOJ's decision to stop prosecution and then put HIMSELF into the position of being both Judge and Prosecutor. Kangaroo Court much?

Clark said...

"I suspect that those 2 judges are Trump appointees." OK. "Guess what, they were." That is not true.

Breezy said...

So who was Sullivan colluding with through all of this? He couldn't have done this of his own volition, could he?

Doug said...

That sound you heard is a domino falling. The next one will sound like rolling thunder.

Drago said...

Breezy: "So who was Sullivan colluding with through all of this? He couldn't have done this of his own volition, could he?"

No one directly.

But Sullivan's extreme, illegal and unethical actions were dialed up "to 11" the moment AFTER obama's phone call with donors was "leaked" (wink wink) and in which obama told the donors that Flynn was absolutely guilty and needed to go to jail.

Sullivan received that message loud and clear and then immediately moved to create his own prosecution team with brand new charges against Flynn.

And with the release of the handwritten Strzok notes from discussions with Comey about the January 5, 2017 meeting in the oval office where obama and biden plotted with the FBI to bring down Flynn using the BS Logan Act, we see why obama felt compelled to issue this indirect public directive to Sullivan.

This is not the first time obama has done this.

Remember during the Hillary email "investigation" (which we now know was faked and never investigated by Strzok and Comey), obama stated publicly that Hillary was innocent and never knowingly transmitted classified info across her private server (a server obama himself sent communications across....illegally). That message was received loud and clear.

Similar to obama's public pronouncements about the tea party groups which fired up his IRS team to begin open harassment of those tea party groups.....even to the point of a very strange handoff of millions of IRS records from the IRS to the Mueller's FBI.....but not transmitted normally across the wire.

Oh no. For some odd reasons, these records were loaded up on CD's and delivered by hand to Mueller.

Gee, nothing strange about that at all.

"Not a smidgen of corruption"

Drago said...

Clark: ""I suspect that those 2 judges are Trump appointees." OK. "Guess what, they were." That is not true."

I was wondering if victoria would be smart enough to pick up on her mistake.

Surprise! She was not!

Unexpectedly.

But I guarantee you, before this is through victoria and Inga will have that Bush appointee not only be a Trump appointee, but a hawaiian shirt wearing russian spying boogaloo-er.

Just watch and see.....

Michael K said...

May you be on the receiving end of police corruption some time, Victoria.

It's kind of interesting to see the lemming like behavior of Democrats. I can understand the uniform voting in Congress because Pelosi has her hand on the money spigot from Silicon Valley. It is still so odd to see allegedly free Democrats march along like soldiers in the culture wars. No sign of thought.

My former Bernie bro daughter is now thinking of getting out of LA because of the insanity. She has a daughter of her own now and Idaho is looking better and better. Not Vicki, though. The old party line is good enough for her.

Iman said...

Sullivan ordered to dismiss charges, Patterico, teh Dispatch and teh Bulschiffwark hardest hit!

http://patterico.com/2020/06/24/corruption-wins-for-now/

Iman said...

Wendybar @ 9:34AM... you go, girl!!! πŸ‘πŸ‘πŸ‘πŸ‘πŸ‘

narciso said...

yes he used the community resource service, to incite the removal of the police chief in sanford, to force the appointment of a special prosecutor,

The Godfather said...

Technical point: Because this is a mandamus proceeding Judge Sullivan IS a party and was represented before the Circuit Court. He can’t “appeal”, but he could move for reconsideration en banc. I assume that’s why the dissenting judge wrote such a long opinion, and why the majority refuted that opinion. Sullivan could, I suppose, seek certiorari in the Supreme Court.

If Sullivan does anything other than dismiss the case against Flynn, he will make himself look worse than he does now.

effinayright said...

victoria said...
I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful
******************

A BRILLIANT legal analysis!

A DEVASTATING fisking of the appeals court's reasoning!

SNORT

Louie the Looper said...

Can’t Judge Sullivan still cite Flynn for criminal contempt of court or something for falsely swearing that he was guilty of a crime when he knew he was not guilty of that crime. That will show them!

Ralph L said...

That would create an insurmountable conflict of interest that would prohibit any further involvement by him in the criminal case.

Didn't Sullivan cross that threshold when he accused Flynn of treason?

Bruce Hayden said...

“Can’t Judge Sullivan still cite Flynn for criminal contempt of court or something for falsely swearing that he was guilty of a crime when he knew he was not guilty of that crime. That will show them!”

Possibly. But that would open anyone making a plea to prosecution if they find that they want to withdraw their plea, for cause, as here. Keep in mind that Flynn had no real way to have known what exactly he said to the Russian Ambassador, because the transcript for the call was (intentionally and in violation of DOJ policy) never shown to him. The two agents interviewing him, as well as the Mueller prosecutors who charged Flynn, all knew, because they had all seen the transcript. And, of course, those prosecutors assured the judge that Flynn had lied to the FBI agents (he likely didn’t) and that his lying was material (the DOJ has presented evidence that it wasn’t material, and there is no evidence in the record that it was). So, why would the prosecutors be even more vulnerable here to contempt, who knew that it was a bogus charge, and further forced Flynn to assert that there were no side deals, when they had explicitly structured the plea deal around side deals?

Going back to my first point though, it would be horrible precedent and would make plea deals much riskier for defendants, forcing more of them to go to trial, thus straining the resources of the Judicial system.

DEEBEE said...

No need to look at the content of the opinion, let’s just applaud

PJ said...

Following up on Bruce Hayden, it is not uncommon for a defendant who wishes to take advantage of a favorable plea deal (or, as asserted in Flynn’s case, who has to accept a plea offer in order to avoid some unwanted collateral action threatened by the prosecution) to be required to admit the truth of facts that are not within the defendant’s personal knowledge. This happens whenever the elements of the crime include facts outside the defendant’s personal knowledge and the government insists on an admission of guilt in exchange for the plea deal (that is, the offer is not available if the defendant enters an “Alford” plea, in which the facts establishing guilt need not be admitted). The defendant has to guess at the likelihood that the government might be unable to prove those facts if forced to do so at a trial.

“Materiality” is arguably such a fact in the Flynn case. As I understand Flynn’s position, other than relying on the government’s representations about the provenance and scope of the FBI’s investigation, Flynn had no way to form a belief one way or the other about whether any false statement he may have uttered was “material” to an FBI investigation. And it turned out that the government was not sharing all the information on that point that Flynn had a right to expect it to share. So the Justice Department, through a combination of deceit and threat, induced Flynn to admit a fact of which he had no personal knowledge. And for that, another guy from the government is now talking about holding Flynn in contempt for perjury

Drago said...

Ralph L: "Didn't Sullivan cross that threshold when he accused Flynn of treason?"

Yep.

And lets not fool ourselves. This issue is so important to the left (keeping Flynn quiet about what he knows of the obama admin spying on domestic political opponents and frame up of Trump) that I have to believe the lefties on the appellate court will go Full Corruption and demand an en banc hearing where they will try and keep the frame up going.

Narayanan said...

Barr is trying to keep Deep State skeletons from coming out ;

I want more skeletons to come out - they are everywhere in the FBI DOJ and Judiciary

J Sullivan >>> go for it -

Rule of Law is inside joke

Drago said...

By the way, another reason the dems are so desperate to keep the charade going past November is that Judge Sullivan is sitting on a lot of documentation that right now is under seal and is rumored to be highly exculpatory and was delayed in its delivery to the court for months if not years.

If the Flynn case is formally dismissed all that information can be made public.....and the democrat/marxists wish to avoid that at all costs prior to November.

Gospace said...

clint said...
@victoria said... "I suspect that those 2 judges are Trump appointees. Guess what, they were." 6/24/20, 9:56 AM

I believe you are mistaken.

Only Judge Naomi Rao, who wrote the opinion, was appointed by President Trump. Judge Robert Wilkins, the dissenter, was appointed by President Obama and Judge Karen Henderson was appointed by President George H. W. Bush way, way back in 1990


Neomi Jehangir Rao, first generation female American born to Indian-born Parsi immigrant parents.
Judge Karen LeCraft Henderson , white American female born in Ohio.
Judge Robert Leon Wilkins, black male born in Indiana.

In oppression poker a minority female and a white female trump a black male.

Birkel said...

If Sullivan asked for a reconsideration if the Circuit Court opinion I would imagine Sydney Powell will immediately file a writ of very to the Supreme Court.

Then we can let that little Ken B, CJ Roberts, do his worst.

Greg the class traitor said...

victoria blathers stupidly...
I suspect that those 2 judges are Trump appointees. Guess what, they were. Kissing the bosses butt. Keeping the rest of us "in line". How biased. How awful

No, Henderson was appointed by Bush, Roa was appointed by Trump, abd Wilkins was appointed by Obama.

Apparently cops framing an innocent man, and judges trying to screw over an innocent man, are all perfectly good for "Vicki from Pasadena"

It must be really unpleasant being such a vile person

Aurora said...

Ann, you have the best commenters on the internet. They have me laughing out loud. I hope you appreciate them!

Nichevo said...


Neomi Jehangir Rao, first generation female American born to Indian-born Parsi immigrant parents.


1. By first generation American you mean first generation to be born here? I thought the first generation was the first one to become a citizen either by birth or naturalization.

2. If your grandfather came over on the boat but your grandmother was born here, let's say her ancestors were immigrants, are you then a 2nd or 3rd Generation, or a 4th generation, or a third and a halfth generation, American?

hstad said...

Nichevo said..."First Generation..."6/25/20, 6:31 AM

You're correct! First Generation American are born in their immigrant country (departing to America) while 2nd Generation is born in the USA.

However, I'm not exactly clear in the statement of "...Neomi Jehangir Rao, first generation female American born to Indian-born Parsi immigrant parents..." which country Judge Rao is born in - it doesn't say? But I cheated and looked up Wiki - Rao born in Detroit, MI. Therefore, Rao would be second generation.