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Sidney Powell Argues that Judge Sullivan Can’t Appoint an Amicus at Same Time as Applauding the Time He Did Far More

As noted, on Monday, a group of former Watergate prosecutors moved for permission to submit an amicus brief in the Mike Flynn case, noting that DC Circuit precedent permits a judge to appoint an amicus where there are questions about the facts cited to justify overturning a guilty verdict after acceptance. In response, Judge Emmet Sullivan issued an order basically saying there’d be time for amici to weigh in, but not yet.

In response, Flynn’s lawyers argue that Sullivan can’t accept that amicus brief. They says that because amici are allowed on the civil side they are expressly not permitted on the criminal side.

Under the canon of statutory construction expressio unius est exclusio alterius, the express mention of amicus briefs on the civil side must be understood to exclude them on the criminal side. See Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C. Cir. 2014) (“the canon’s relevance and applicability must be assessed within the context of the entire statutory framework” (emphasis added), rather than in isolation or out of context).

They complain that Flynn’s prosecution has already taken three years.

Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family. No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.

Remember: Mueller’s prosecutors obliged Flynn’s request that he move to sentencing quickly in December 2018. Since that time, however, Flynn’s requests account for about 500 of the 512 days since, including the entire period since January 20 so Bill Barr could set up his bureaucratic pardon for Flynn.

But Flynn’s lawyers do make one non-hilarious argument. They note that at the beginning of his involvement in Flynn’s case, Judge Sullivan said that the rules of criminal procedure don’t permit intervention by third parties.

As set out in Exhibit A, this Court, on twenty-four specific occasions has rejected all prior attempts of other parties who have claimed an interest to intervene in this case in any way—as it should have. Exhibit A. Its December 20, 2017, Minute Order stands out. There this Court wrote:

MINUTE ORDER. This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party. The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. The Court recognizes that the movant sincerely believes that he has information to share that bears on this case, and that, understandably, he wishes to be heard. Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option. The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. The movant states that he disagrees with the similar Minute Order issued by Judge Berman Jackson in Criminal Case Number 17-201, but the contrary legal authority on which he relies is neither persuasive nor applicable. Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor. If the individual seeks relief from this Court’s rulings, he must appeal the rulings to the United States Court of Appeals for the District of Columbia Circuit. Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3) (Entered: 12/20/2017).

They quote him disagreeing with Judge Amy Berman Jackson’s treatment of amici, which is important, given that he cited her willingness to let Mike Cernovich intervene in Roger Stone’s challenge to his jury in his order regarding amici yesterday. They also include a list of requests by amici to intervene, which Sullivan refused.

Meanwhile, at almost the same time that this was posted, Sidney Powell posted a screed attacking Barack Obama’s comments on her client, which she has since deleted (Update: she has reposted it with some changes). She accused Obama of erring when he said Flynn had committed perjury (Flynn has given multiple sworn statements that materially conflict, but he has not been charged for them; he was charged with false statements). She may be right on the technicality, but it’s an odd thing to complain about since the key reason she has offered for challenging Flynn’s guilty plea is that he was caught in a “perjury” trap.

More interesting still, considering her response to the Watergate prosecutor motion, is this claim.

On the same day Sidney Powell reminded Sullivan that he has denied amicus after amicus, she also applauded Sullivan for appointing Henry Schuelke to investigate the circumstances of the Ted Stevens prosecution. As she notes, the resulting report led Sullivan to adopt a policy whereby any defendant in his court, even one pleading guilty, gets access to Brady material.

What she doesn’t note is that Emmet Sullivan already ruled in this case that the stuff Flynn was asking for was not Brady material, and thus far there’s no reason to believe the exhibits accompanying DOJ’s latest motion — one of which reflected facts known to Flynn when he pled guilty a second time, and the other of which was deliberative — are Brady (and DOJ did not make that claim, either).

Still, on the day she filed a motion telling Emmet Sullivan he has no authority to approve of amici, she posted something (then deleted it) making it clear she believes Sullivan can go much further and appoint an outside investigator to investigate irregularities in a prosecution.

Deleting the post isn’t going to help her, though. She’s already hailed that prior instance when Sullivan appointed outside investigators when faced with prosecutors who had failed to heed the authority of his court, in this docket.

This “heads we win, tails we win” perspective infected and corrupted the prosecution of United States Senator Ted Stevens, four Merrill Lynch executives, and untold others across the country. See, e.g., Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order dated April 7, 2009 (“Schuelke Report”), In re Special Proceedings, No. 09-mc00198-EGS, (D.D.C. Nov. 14, 2011);

[snip]

It is well documented that systematic, intentional misconduct has been pervasive in the Department of Justice. See Schuelke Report

[snip]

13 “DOJ assigned a new team of prosecutors after District Judge Emmet G. Sullivan held William Welch, the Chief of the Public Integrity Section, Brenda Morris, his Principal Deputy Chief, and another senior DOJ attorney, in contempt on February 13, 2009, for failing to comply with the Court’s order to provide certain information to Senator Stevens’s attorneys, Williams & Connolly, and to the Court regarding a complaint filed by FBI Agent Chad Joy in December 2008 which “raised serious allegations of prosecutorial and governmental misconduct in the investigation and trial of Senator Stevens.” Stevens, Mem. Op., Oct. 12, 2010, at 2 (Dkt. No. 421); see also id., Mem. Op. & Order, Dec. 19, 2008 (Dkt. No. 255); id., Order, Dec. 22, 2008 (Dkt. No. 256); id., Order, Jan. 14, 2009 (Dkt. No. 261); id., Op. & Order, Jan. 21, 2009 (Dkt. No. 274); Schuelke Report at 32.

The issue here is different: prosecutors before his court — the political appointee, Timothy Shea, by himself — has moved to overturn several decisions Sullivan has already entered, making unsubstantiated claims about “new” information.

But Powell bought off on the principle way back in August. So deleting a post that materially conflicts what she is telling Sullivan as an officer of the court will not change that she has already said the same thing, directly to him, as an officer of the court.

The Ted Stevens OPR Report: The Return of the DOJ Roach Motel

The long awaited, and much anticipated, DOJ Office of Professional Responsibility (OPR) Report on the misconduct in the Ted Stevens Prosecution has just been delivered to Congress, and thereafter immediately released to the public by the Senate Judiciary Committee. I know this will shock one and all but, at least as to real results, it is fairly weak tea.

Legal Times reports:

A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.

DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either prosecutor acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. Bottini and Goeke have the option to appeal the misconduct finding to the Merit System Protection Board.
….
Department officials said Bottini and Goeke failed to disclose information a chief government witness, Bill Allen, provided to investigators and prosecutors at a meeting in 2008, before Stevens was charged. Allen’s credibility was central to the prosecution case that Stevens concealed gifts and other items on U.S. Senate financial disclosure forms.

OPR did not make any professional misconduct findings against any of the other Stevens prosecutors, including William Welch II, Brenda Morris and Edward Sullivan. OPR, however, concluded that Morris, then a supervisor in the Public Integrity Section, exercised poor judgment by failing to supervise “certain aspects of the disclosure process.”

A special counsel who conducted a parallel probe of the Stevens team, after the case was dismissed in April 2009, did not recommend criminal charges against any of the Stevens prosecution team.

However, the lawyer, Henry “Hank” Schuelke III, concluded that Goeke and Bottini committed intentional misconduct in concealing exculpatory information. The two prosecutors dispute that finding.

Yeah, that about sums it up.

Cover letter to the Senate Judiciary Committee

Here are all the relevant documents (note: the pdf on the report itself is huge – 672 pages):

Office of Professional Responsibility Report

Bottini Decision

Bottini Disciplinary Proposal

Bottini Response

Goeke Decision

Goeke Disciplinary Proposal

Goeke Response

Goeke Response Appendix

A little more than two years ago I wrote about the inherent worthlessness of the OPR at DOJ:

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Go back and read that post again, I am too tired to write it again and nothing has changed. What a load of bunk the Stevens OPR Report is. Some harsh words for sure, but, as to actual accountability – a rap on the knuckles with a foam ruler.

Ted Stevens lost his Senate seat these twits get an unpaid vacation.

The OPR is STILL The Roach Motel.

The Full Text of the Schuelke Report on DOJ Misconduct

Earlier this morning, we posted A Primer On Why Schuelke Report Of DOJ Misconduct Is Important that laid out all the legal and procedural background underlying the Schuelke Report into prosecutorial misconduct in the Ted Stevens criminal case.

The full 500 page report has now been released, and is titled:

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009

I wanted to get the post framework and document link up so everybody could read along and digest the report together. Consider this a working thread to put thoughts, key quotes – whatever – into as we chew on the report. Then after having been through it, Marcy and I will; later do smaller stories on specific angles raised.

We know the irreducible minimum found:

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness

You would think the involved attorneys would be ducking and apologizing for their ethical lapses that terminated the career of the powerful chairman of the Appropriations Committee on the US Senate. You would, of course, be wrong.

The mouthpiece for Brenda Morris, Chuck Rosenburg, is already clucking:

Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.

Um, no, Ms. Morris does not smell like a rose here Chuck. Edward Sullivan, one of the AUSAs had this statement by his lawyer already this morning:

Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section

Well, yeah, sure, you betcha Ed Sullivan. I guess that is why as late as yesterday you were personally in the DC Circuit Court of Appeals trying to have the whole matter both stayed and sealed and were arguing you would be harmed if it wasn’t. Today, Edward Sullivan is suddenly a spring flower of purity.

So, yes, all these spring flowers in bloom must be operating off some pretty fertilizer, and the manure is indeed rather deep. So, let us dive in and see what we find. Put your thought, comments and opinions in comment as we work. See you there!

A Primer On Why Schuelke Report Of DOJ Misconduct Is Important

Yesterday morning, the District of Columbia Court of Appeals entered its per curiam order denying a DOJ prosecutor’s motion for stay of the release of the Schuelke Report on prosecutorial misconduct in the Ted Stevens criminal case. As a result, barring unforeseen Supreme Court intervention, later this morning the full 500 page plus Schuelke Report will be released by Judge Emmet Sullivan of the DC District Court. What follows is a recap of the events leading up to this momentous occasion, as well as an explanation of why it is so important.

The existence of rampant prosecutorial misconduct in the Department of Justice case against Alaska Senator Ted Stevens was crystal clear before the jury convicted him in late October 2008 on seven counts of false statements in relation to an ethics investigation of gifts he received while in office. The trial judge, Emmet Sullivan of the District of Columbia District Court, could well have dismissed the case before it ever went to the jury for verdict but, as federal courts of all varieties are wont to do, he gave the DOJ the benefit of the doubt. It, as is all too often the case these days, proved to be a bridge too far for the ethically challenged DOJ.

Within a week of the ill be gotten verdict obtained by the DOJ in the criminal case, Ted Stevens had lost his reelection bid, after serving in the Senate for 40 years (the longest term in history). Before Stevens was sentenced, an FBI agent by the name of Chad Joy filed a whistleblower affidavit alleging even deeper and additional prosecutorial misconduct, and, based on the totality of the misconduct, Judge Emmet Sullivan, on April 7, 2009, upon request by newly sworn in Attorney General Eric Holder, dismissed with prejudice all charges and convictions against Ted Stevens.

But Emmet Sullivan did not stop with mere dismissal, he set out to leave a mark for the outrageous unethical conduct that had stained his courtroom and the prosecution of a sitting United States Senator:

Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

On August 9, 2010, Ted Stevens died in a small plane crash in Alaska, never having seen the results of Henry Schuelke’s special prosecutor investigation into the misconduct during the Stevens criminal case. And lo, all these years later, we finally sit on the cusp of seeing the full Schuelke report in all its gory glory.

On November 21, 2011, Judge Sullivan issued a scathing order in relation to his receipt of Henry Schuelke’s full report, and how it would be reviewed and scheduled for release to the public. Actually, scathing is a bit of an understatement. The order makes clear not only is Schuelke’s report far beyond damning, but Judge Sullivan’s level of anger at the misconduct of the DOJ has Read more