Flynn Steps in It 2.0: Emmet Sullivan Will Make Sidney Powell Explain Why She Asked to Declassify Totally Irrelevant Secrets

Back when Mike Flynn got cute in his sentencing memo, I warned that his false allegations about the circumstances of his investigation might backfire. It did. It led Judge Emmet Sullivan to order the release of his 302, showing how damning his lies were.

Flynn may have just done it again.

As I noted, in the joint status report submitted last week in the Mike Flynn case, his lawyers claimed they could not attend hearings on September 4, 5, 9, or 10, which were the dates the government suggested for a status conference.

The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

In response, Emmet Sullivan scheduled a status conference for September 10, a date Flynn’s lawyers had said they could not attend.

The fact that this hearing remains scheduled on September 10 may suggest Flynn’s lawyers were not telling the truth about their ability to attend a hearing on that date, in an attempt to forestall the status conference for 30 days as they had requested to do in the status report.

They were definitely lying about their ability to attend a hearing on September 5, because they did attend one, a sealed ex parte hearing before Sullivan where they discussed their demand that they all receive security clearances so they could review a bunch of evidence that doesn’t help their client.

As noted, in response, Judge Sullivan issued an order saying that before he’ll rule on whether they get security clearances, he will first rule on the Brady motion full of demands to see information that is not helpful to their client.

In response to Flynn’s motion that had basically said Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens, literally invoking the Senator whose prosecution has led Judge Sullivan to distrust government claims to have complied with discovery obligations 21 times, Sullivan instead said “Fawaz Yunis.”

Fawaz Yunis is one of the first terrorists the US prosecuted in the US. In preparation for his trial, he demanded a bunch of transcripts of conversations an informant had with him, some of which a judge later characterized as “trivia.” Nevertheless the judge ordered the government turn over those transcripts. The government appealed, which led to the DC Circuit decision governing the Classified Information Procedures Act in DC that the government cited in the status report.

A defendant and his/her cleared counsel in a criminal prosecution may only obtain access to classified U.S. government information when such classified material is deemed both “relevant” and “helpful to the defense.” See United States v. Yunis, 867 F.2d 617, 623-24 (D.C. Cir. 1989).

The DC Circuit reviewed the transcripts in question and reversed the District Court’s decision, finding that it had abused its discretion in the CIPA process by ordering the disclosure of the transcripts to the defendant.

[T]he District Court abused its discretion in ordering the disclosure of classified information to a defendant where the statements in question were no more than theoretically relevant and were not helpful to the presentation of the defense or essential to the fair resolution of the cause.

In reaching that decision, the Circuit also noted the importance of protecting sources and methods regarding,

the time, place, and nature of the government’s ability to intercept the conversations at all. Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.

This is trouble for Flynn’s latest attempt to (as all the DC lawyers I know continue to joke) snatch defeat from the jaws of victory on his defense.

That’s true, first of all, for the one classified item that Flynn might make a sound argument he should be able to obtain: the transcripts of his calls with Sergey Kislyak. The Yunis decision is directly on point to whether a defendant can get transcripts made in the course of national security investigations, and the DC Circuit upheld the principle that the government’s interests in hiding (say, from Russia) details of how it collects on Russian diplomats can limit discovery to Flynn in the interests of protecting the ability to wiretap Russian diplomats in the future.

The best thing that can happen for Flynn is that Emmet Sullivan — who has already asked whether Mueller considered charging Flynn with treason — will review the transcript and see for himself how damning Flynn’s comments were (though, given that at sentencing Sullivan said he has reviewed a lot of classified information in this case, he may already have seen it). If Sullivan reviews the transcript and believes it does nothing but make Flynn look more guilty, then Flynn is not going to get the transcript, and Sullivan may grow even more appalled by Flynn’s conduct.

Then there are the Strzok-Page texts Flynn has demanded. If Sullivan has to review those, he’ll have a sense of what Peter Strzok was looking at to make him so concerned about Trump’s ties to Russia. He’ll also see that Strzok was pursuing a range of counterintelligence cases, not a single-minded “coup” against first candidate and then President Trump. He’ll even see how aggressively Strzok pursued the guy who leaked details about Carter Page’s FISA order. Any derogatory bits about Strzok from these texts have already been released publicly; anything additional Sullivan would see would be other counterintelligence cases or derogatory information about Flynn and his buddies.

Worse still are the other completely unrelated things Sidney Powell demanded in her “Brady motion.” Using public evidence, I was able to show most of the demands were crap. In one case, Powell demanded the declassification of a memo that shows National Security Advisor Mike Flynn oversaw the NSA slow-walking a response to FISA. In another, Powell made a false claim that, if true, would mean her client had broken the law for 30 years as an intelligence officer.

Now Powell is going to have to make the case that this stuff is relevant, which is going to be very difficult for her to do.

And Emmet Sullivan is happy to sanction any lawyers who play games in his courtroom, whether they’re prosecutors or defense attorneys or Fox pundits.

124 replies
  1. joel fisher says:

    Do I remember correctly that the government was recommending leniency in its original sentencing memorandum? Long years of service to the country, no priors, etc. And that in response Flynn’s lawyers started yapping that even more leniency was appropriate because, duh, the General was actually innocent? And that then Sullivan started to get a little testy? Lawyers should all remember the handy phrase: “The defendant chooses to associate himself with the views expressed by the government.”

    • Margeretwalker says:

      I am not a lawyer, but Flynn was a target of the Obama administration, which fired him for his disagreement on their Iran policy. The recent IG report on Comey shows lying, leaking and an obvious political agenda bias against the incoming Trump administation. In fact, Comey bragged about getting in to talk to Flynn during the transition period and convincing him not to have a lawyer present. Strzik, the FBI agent present, did not think Flynn was lying.
      So, there is plenty of reason to dismiss this case and hold the prosecution in contempt.
      Talking to the russians is not treason, especially when Flynn was going to be in position to talk with them in the new administration unless you want to hold Hillary to that standard for commissioning the false Steele Dossier from Russian sources?
      Justice seems to be evading our corrupt intel organizations and the Mueller probe was a fraud created by Comey, as he admits, from the start. Let the defendant see the evidence against him. Give his lawyer security clearance, so we can see what the dear spooks cooked up against this medaled war hero. What are you smarmy, cynical D.C. lawyers worried about? The rights of citizens?

      • Rayne says:

        What a nice crop of spin you’re growing here, Margeretwalker.

        — Flynn had a history of problematic behavior while in the military; he was lucky he was able to retire under Obama’s administration.
        — Funny how Comey’s “obvious political agenda bias” encouraged him to do considerable damage to the Clinton campaign the last week before the 2016 election.
        — “Talking to the russians is not treason” is a bunch of crap; ‘treason’ has a specific legal meaning not applicable at all in this case, and Flynn didn’t just say Hi/Hello/Merry Christmas to the Russians. He undermined the policies of still-president Obama and discussed sanctions when he could and should have said, “Call me after January 21, 2017.”

        I’m not going to waste my time with the rest of your little rant. The penultimate sentence is a kicker, though — clearly you know jack shit about this site and its contributors.

        Welcome to emptywheel, by the way.

  2. pdaly says:

    “Flynn Steps In It 2.0”

    Things could get messy. Perhaps a potty trowel from TheTentLab called “The Deuce of Spades” will help him now?

  3. Yogarhythms says:

    Stepping in it. Is a fine art. MF only curates the finest of fine.
    OT area man has thought to have animus in AL now hawking $$$ “Weather Sharpie”

  4. Vicks says:

    Sounds like this ambitious nutter decided she’d had enough being a simple soldier fighting the deep state on TV and decided to become the heroine of her own movie.
    What do I know ?
    I have lost count of the things I judged too outrageous or stupid to work.
    I never really considered how much can be gained by the calculated efforts of a person with no shame or honor.
    On a related note,
    Is it odd that Sidney Powell does not have a Wikipedia page?

    • P J Evans says:

      She probably isn’t well-enough known for that. Yet. (She might have an entry at Conservapedia, assuming it still exists.)

    • CatinMA says:

      Her real target audience is the source of pardons in the White House. And whether her client goes down or not, I’m sure she would appreciate a cushy think tank position or maybe a Trump judgeship appointment or something else where her demonstrated lack of shame or honor would be appreciated.

      • bmaz says:

        You know this how? Have a personal feed to Sid Powell in order to know this definitively? There are numerous extremely experienced criminal defense attys I talk to that have no clue what she is really doing.

        The thought that this is all about a “pardon” is nuts though, and almost nobody who states that in a knee jerk fashion really understands the implications a pardon would bring in terms of potential obstruction considerations and the removal of 5th Amendment silence for Flynn. Let’s try to have a fuller discussion, mkay?

  5. Peterr says:

    This is trouble for Flynn’s latest attempt to (as all the DC lawyers I know continue to joke) snatch defeat from the jaws of victory on his defense.

    After reading this, I read the rest of the post imagining Flynn flying down a ski jump, heading for “the agony of defeat.”*

    * For you youngsters, start this video at about the 0:40 mark. Before there was ESPN, there was ABC’s “Wide World of Sports.”

    • P J Evans says:

      We watched that program a lot – it had some interesting and then-not-usual sports coverage. The opening sequence with the skier falling and sliding downhill – ouch! (I don’t think I ever saw it in color, though.)

    • Eureka says:

      Of course this made me think of Howard Cosell, and then recall his long-standing criticism of former players taking over the booth (with some irony, following a season where Tony Romo emerged as everybody’s favorite color commentator).

      The agony of the defeat of ABC Sports

      No. What bothers me is not ESPN, but rather corporate America. That’s right, you heard me: this notion that somehow everything has to be branded, has to be shiny and modern,and no one can wear yellow jackets in the broadcast booth.  That ESPN is somehow “hipper” than ABC Sports and that “hipper” means “better.” It doesn’t.

      There should still be a place for plain ol’ quality sports coverage on TV, a place where no one sits in the “Budweiser Hot Seat” or gives a reality show to Barry Bonds, a place where graphics do not look like Arkanoid screens and Joe Morgan does not get paid for nattering away during baseball games.  A place where no one ever, ever allows Bryan Adams to record a theme song for anything.

  6. orionATL says:

    let me suggest that Flynn and his new, and apparently more ethically free-feeling and unambiguously partisan, lawyers have only one objective – to mine all the classified data they can in any way connected (helpful to his defense or not) to his work while associated with either the Trump campaign or as nat’l security advisor – in order to get this to the White House some way or another, e.g., thru a congressional demand to the doj or thru attny gen Burr. in this interpretation of Flynn’s eccentric defense he may be sacrificing himself (potential longer sentence) for some hidden goal – maybe an already promised pardon via helping or maybe thru graymail. can a defendant or his lawyer summarize or provide copies to directly to a president or one of his legal deputies of the classified data Flynn has demanded?

    • Americana says:

      If your guess is true, I don’t think Gen. Flynn knows he’s the sacrificial goat. I think Gen. Flynn was misled by Powell regarding the likelihood of his plea deal being dismissed if she could prove the FISA warrants were corruptly secured. This is Sidney Powell’s attempt to test out a defense that might come into play should there be an impeachment. Flynn isn’t aware he’s being treated as a test case. Flynn’s just been listening to what’s been said about the FISA warrants and all the claimed misbehavior by the FBI under Comey and Flynn thinks he’s got a snowball’s chance. Flynn’s impressed by Sidney Powell’s legal resumé and he’s willing to take a chance on her and the other conservative machinations he’s seen working in the background. SAD.

      • bmaz says:

        You “think Gen. Flynn was misled by Powell”. What a load of utter crap. Everything in this comment by you is complete bullshit. Don’t garbage us with that bunk. Your stream of consciousness nonsense making proclamations about things you do not have the slightest clue about is maddening.

  7. orionATL says:

    another objective of this eccentric, apparently non-logical defense might be to provoke judge Sullivan into a decision that would be appealable up thru the court system taking months – it’s only 16 months to mid-november 2020 – for a ruling.

    another might be provoking a judicial decision that could be called unfair by dear prez thus providing the basis for a more politically defensible pardon (or more sensibly, commutation) focusing on unfairness rather than on Flynn’s behavior as charged. can a president commute the charging of a person as opposed to a sentence handed down?

  8. orionATL says:

    in any event, i think it is reasonable to conclude that with his change and deliberate choice of a highly partisan lawyer that Flynn’s defense has become a budding propaganda campaign masquerading as a law suit. in such a situation, an ordinarily damning FBI 302 report of any fbi interogation is simply an item to be ignored or explained away as an injustice or as the result of misconduct of an investigation.

    all of the possibilities discussed above place increased importance on a clear view of the arguments, documents, and procedures at Court which emptywheel is illuminating.

    • orionATL says:

      it is interesting that three pominent players in the Trump drama in which the star himself is involved in manipulation and avoidance of American law, including constitutional, campaign, and tax law, have themselves been revealed as shady, lawless types:

      – general michael flynn who was engaged in advising the Turkish government without publicly revealing his association and who also attended meetings on kidnapping a politically prominent Turkish citizen living in the u.s..

      – michael Cohen Trump’s fixer-intimidater lawyer who was involved with a relative in a taxi medallion scheme and in campaign law evasion.

      – paul manafort who was involved in tax fraud schemes related to money he had earned advising Russian supporting Ukrainian politicians and was, like Flynn, an unregistered agent of a foreign government.

      i think I have read here somewhere something along the line of Trump having had a habit of hiring folks with shady backgrounds because it made them easier to control.

      I would add I suspect that it is even more important to him that these men were completely amenable to Trump’s own shady style of doing business – private or government.

      – flynn with respect to contacting the Russian government on the sanctions relief promised in the subrosa russo-american treaty negotiated around the trump tower meeting of 6/09/16 in contradiction of existing american policy.

      – cohen with paying off and threatening Trump paramours to keep their stories from affecting the 2016 election, and possibly blackmailing James Falwell, jr. into supporting Trump for president.

      – manafort for contacting the Russian gru (military intelligence hacking) thru a Russian intermediary with Trump campaign polling data onnthree critical states.

      thus all three were critical to Trump’s narrow, illegitimate electoral victory.

      • Tom says:

        I would include Bill Barr in that particular Rogues Gallery. He hasn’t been charged with anything criminal but he exhibits the same moral crassness and shallowness of character as Flynn, Manafort, and Cohen (though Cohen now seems repentant).

        Barr doesn’t seem to mind letting the public know that he can afford to spend $30,000–the equivalent of a year’s income for some families–on a Christmas party at the Trump International Shithole Hotel. No doubt the money will make a nice little stocking stuffer for the President. Barr has apparently given no thought to how much good that same $30,000 might do if given to a charity. As for moral character, it’s hard to imagine Barr ever giving anything in the way of a commencement address. What would he say? “Distinguished graduates! As you leave these hallowed halls of learning, just remember that it doesn’t really matter what you do with your life because you’re all going to die anyway.”

  9. earlofhuntingdon says:

    Only in ‘Murika. A “power outage” is the claimed reason why the IT system federal courts use to process job applications, OSCAR, lost them for the three months between June 7 and Aug 31, 2019.

    “Who the fuck runs their IT?” is a good way of asking how that could possibly be an adequate explanation. I have better back-up for a home PC.

    Affected applicants – aspiring court clerks and staff attorneys – should reapply and, “will receive instructions early next week.” One question: If their applications were lost, how will the federal courts know whom to contact?

      • earlofhuntingdon says:

        When I checked, that comment was at the top of Mike’s twtr feed. I liked the whole thing.

        I agree, this looks like a programmatic purge of the candidate pool, implies one for existing staff, and the setting of new, undisclosed, and probably illegal hiring criteria.

        It is consistent with this regime’s vetting of government contractors’ social media for negative comments about el Presidente; the extraordinarily partisan filtering of nominees for federal court appointments; the use of political commissars to vet funding, work, and public statements at federal agencies; and the purging (through relocation and re-assignment) of federal researchers and other fact-based professionals at federal agencies.

        BushCheney were infamous for this, too. But this is their program on steroids, a bag full of speed, and a stunning vindictiveness.

        • Rayne says:

          I don’t think the average American Joe/Josephine realizes we will have to clean house again if we take back the White House. The government is now partially occupied by white nationalists. One need only look at what’s happening in DHS/ICE/USCIS to see evidence of the problem.

        • Watson says:

          Speaking of Trump’s ‘extraordinarily partisan filtering of nominees for federal court appointments’, even if progressives gain control of the White House and Congress, they will be obstructed by right wing judges for decades. An appropriate response would be to enact jurisdiction-stripping, as was done during Reconstruction.

          • P J Evans says:

            I wonder how many of them would resign rather than face that possibility, should the Ds take the Senate and the WH next year. Even the possibility of being investigated for perjury or corruption might be enough.

          • earlofhuntingdon says:

            A better bet would be to enlarge the federal courts – most are swamped now – and nominate new judges with different backgrounds. That evens out the votes, while adding desperately needed new experience.

            The courts need judges experienced in criminal defense and plaintiffs’ work, and those with senior leadership experience at the ACLU, NAACP, and EFF. They need judges with science, technology, and Ag backgrounds; and tax, consumer, and administrative law backgrounds.

            Cases involving climate crisis issues, frankenfoods, Roundup, Teflon discharges, and fracking-induced groundwater poisoning look different to someone who aced organic and biochemistry than they do to someone who studied John Stuart Mill or Milton Friedman.

            I would look for top students from the law schools at Michigan, North Carolina, Virginia, Berkeley, UCLA, UT Austin, Wisconsin at Madison, Minnesota, Bloomington, Iowa, Nebraska, and Colorado, Vanderbilt and Emory.

            And we should stop the nonsense that personal and political beliefs are not relevant to judging. They are inescapably part of being a judge as they are in being a good reporter.

            • Watson says:

              Good ideas!
              Also, legislatively repeal Marbury vs. Madison, the 1803 case in which the Supreme Court arrogated to itself the right to determine the constitutionality of legislation. The Constitution does not give that power to the Court, an undemocratic institution which has issued many more bad decisions than good ones. The final say on the constitutionality of legislation could be given to the House of Representatives.

              • earlofhuntingdon says:

                Who else would you have interpret the most important law in the country, Trump, McConnell, or Nunes?

              • bmaz says:

                Watson, this is a complete load of nonsense. Of course there ought be a judicial check and balance. Neither the Article I branch, nor the Article II branch, should have unquestionable power. The fact that any sentient human believes what you stated is stunning, and scary.

          • orionATL says:

            Watson –

            personally, my preferred place to start would be impeachment and conviction beginning with bret kavanaugh (for lying about his partisan activity with bush admin) and sam alito (for absolutely refusing to be candid in his questioning by the Senate).

            a better strategy though might be to first start with unquestionably incompetent and partisan choices which McConnell and snake grasslely recently sent to apellate courts.

            • Watson says:

              * Electoral success is our best hope. I assume that the judiciary, and everything else, will go from bad to worse if reactionaries maintain control of the legislature and executive.
              * I agree about impeaching Trump’s judicial appointments. They are the tainted fruit of the poisonous tree of the stolen 2016 election. They should be treated as invalid and annulled.
              * Separation of powers is necessary, but it does not require the undemocratic result reached in Marbury vs. Madison. The rule in the UK is ‘parliamentary sovereignty’, which holds that ‘the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies’.

              • P J Evans says:

                Marbury is settled as precedent. Which other decisions do you want overturned? Brown v Board of Education? Roe v Wade? Obergefell?

                • Watson says:

                  * We should celebrate and protect our good Supreme Court decisions, but we can make good policy without the Court.
                  * And like I said, the Supreme Court is an undemocratic institution which has issued many more bad decisions than good ones. In addition to Marbury vs. Madison, there is a long list of reactionary and racist decisions, just a few of which are Cherokee Nation vs. Georgia, Dred Scott vs. Sandford, Plessy vs. Ferguson, Schechter vs. US, Gregg vs. Georgia, and D.C. vs. Heller.
                  * Unless and until they are impeached, Trump, Cavanaugh, Barr, et al hold power under our duly settled procedures. We are in an emergency which requires us to throw off the ‘dead hand of the past’ and review our procedures. These procedures are not entitled to an ironclad ‘presumption of regularity’; some of them are part of the problem.

                    • Watson says:

                      Marbury vs. Madison was wrongly decided because the Supreme Court, without authorization in the Constitution, gave veto power over governmental policy to itself, an unelected, undemocratic body which has with few exceptions been a staunch defender of the interests and prejudices of the 1%.

                    • bmaz says:

                      “Watson” is so full of shit his eyes are brown. This is complete garbage he is positing. And, note, he did not answer PJ’s challenge.

                    • OldTulsaDude says:

                      I am always amazed at the arrogance of people who make the types of constitutionality claims Watson has made (particularly about “Marbury”) when the claim requires more current knowledge than the knowledge of the trained lawyer and Chief Justice whose ruling occurred 15 years after the ratification of the constitution, when the country was still grappling with determining what had been created.
                      Just a guess, but I’m thinking John Marshall had a better inkling of the constitutional significance in 1803 than Watson does now.

              • earlofhuntingdon says:

                The UK’s “unwritten constitution” is one of the major dysfunctions in its government. It is vehemently pro-establishment. The inability of parliament to function, its present state, is one the reasons the legislature needs oversight of some of its basic acts. Properly cast judicial oversight would accomplish that.

                Impeachment, like major surgery under general anesthetic, is useful and necessary, but only in extremis.

                It is unworkable as a routine feature employed by each new government. Brett Kavanaugh might need to be impeached, for example, but there are so many other revoke and rebuild projects Trump will leave behind, I would never get to it.

                I would, however, increase the S.Ct. members to eleven, and add two progressive new members. For starters, neither would be white male, Catholic, former prosecutors or corporate lawyers, or members of the Federalist Society.

                • orionATL says:

                  yeh, increasing size of s.c. is probably the best strategy and certainly less cumbersome.

                  and the forbidden choices list is right now target.

                  plus, whatever happened to well-known, articulate legal thinkers as choices, e.g. cherminsky ? or passionate first “ten advocates” like Brandeis and black? how about some practicing politicians like s.d. occonor and Earl warren?

                • earlofhuntingdon says:

                  Erwin Chemerinsky (66), currently dean of Berkeley’s law school, and Dawn Johnsen (58) at IU Bloomington.

                  Chemerinsky, at least, is too old for the Supremes, but their type should be very high on the list.

            • Vicki Greenberg says:

              I got the sense Kavanaugh was “managed” and traded his soul to the white dinosaurs for their promise of a seat on the highest court in the land.
              I know I for one would have cut him some slack if he responded to Dr. Ford’s accusations like a fair and impartial judge seeking a seat on the highest court in the land.
              It’s not like he hasn’t had any experience with persuasion and considering the job he was applying for, his lying and victim shaming defies common sense.
              Unless of course that was the part where you give the devil a ride….

              • Vicki Greenberg says:

                I got the sense Kavanaugh was “managed” and traded his soul to the white dinosaurs for their promise of a seat on the highest court in the land.
                I know I for one would have cut him some slack if he responded to Dr. Ford’s accusations like a fair and impartial judge (seeking a seat on the highest court in the land.)
                It’s not like he hasn’t had any experience with persuasion and considering the job he was applying for, his lying and victim shaming defies common sense.
                Unless of course that was the part where he gave the devil a ride….

                • bmaz says:

                  You going to be Vicks or Vicki Greenberg. Either is fine, but please pick one so that people here know who they are dealing with.

                  • P J Evans says:

                    I have to be careful or I’ll be “P J Evans sees spam” – it’s someone I have to be elseweb sometimes. The browser saves names and emails, and it’s easy to get the wrong one.

              • P J Evans says:

                Someone certainly wanted him on the court enough to make sure his lies weren’t called out. (He isn’t the first on that court, just the most recent example.)

                • Vicks says:

                  Seems like a lot of work to cover up lies.
                  What do I know though?
                  I can’t seem to get into the habit of factoring in that nothing is off the the first time I process this stuff.

  10. NorskieFlamethrower says:

    Can anyone out there tell me that the government can be forced to snatch Flynn’s pension and benefits in the event of a pardon (preemptive or not)? I am still convinced the bastard is gunna skate. As a vet, I am more angry about this than the Dumpster getting pardoned by Pence. Keep the faith, all they got is our money.

  11. sherry says:

    I am so darned confused. Are they really arguing now that Flynn, when he testified under oath to this same judge that he was in fact guilty, that he was not coerced, is now saying he lied under oath to the Judge?

  12. Watson says:

    @ bmaz at 5:31 pm:

    Our Supreme Court jurisprudence has been made largely by people like Taney, McReynolds, and Scalia. I believe that our duty is to escape that legacy, not to accept it.
    I don’t believe that 30 years from now we should still need permission to pass legislation from the likes of Cavanaugh and Gorsuch, or that we should limit our aspirations to what we think the current court will approve.
    I intervened in this thread in response to suggestions that there are problems with our federal court system. I’d be interested in your opinion as to whether there are such problems, and if so, what if anything can be done about them.

    • P J Evans says:

      Did you fail US history? Marbury isn’t required for passing legislation. It’s needed when the legislature passes laws that violate the Constitution – like laws that make religious discrimination legal.

    • orionATL says:

      – bmaz at 5:31

      Watson answered p.j. at 4:36pm. did you miss that?

      I thought Watson’s comment was radical enough to be really interesting and provoke more reasoned commentary than “full of shit…”. not everyone is a practicing defense attorney with a lifetime investment in the current system.

      marbury vs Madison may be the “rule of law” case as it is traditionally referred to, but then maybe not. it is worth discussing. the supreme Court is not above being the recipient of hard questioning:

      • bmaz says:

        No, Watson was full of shit. He offers no argument. His argument is the complete crap that the “Unitary Executive” is built on. Only the ignorant, that think there should never, ever, be any ability to challenge as out of control the Article II executive branch, should ever bite on this idiocy. No checks and balancers. No primacy of the Article I branch as the Founders intended. Nothing but unlimited Article II Executive Branch unchained from any semblance of checks and balances. In the hands of a mentally unstable asshole like Donald Trump. Brilliant plan. Watson is full of shit, and in an extremely dangerous way.

        • orionATL says:

          thanks, bmaz.

          chemerinsky is supportive of marbury as a defense lawyer, as I think most who bother to ponder these matters of the supreme court’s place in our politics are. but sometimes it is useful to hear out other views in detail.

          when the Congress and the executive working together from a very narrow view of what our society should be act to stuff the supreme Court with supporters of that stringent, restrictive view, then, de facto, we have a unitary executive.

          • orionATL says:

            and I will add that since January 2017 we have had a unitary executive operating the white House. he has operated with exceptional, but not complete, judicial impunity. the lower courts have held our unitary exec back a bit on immigration and environment, but not much. the judicial appellate system, however, thanks to Senate majority leader mcconnell and Senate judiciary committee chair snake grassley, has been set up to allow our unitary exec (actually our “president imperator”, which, not to be too subtle about it, is a covertly polite name for our overtly fascist leader)to thwart the rule of law.

            I must say though that ducking around and under “the rule of law” has been the play of presidents probably since Washington, but universally since the 2nd roosevelt, i.e., in the years of our enduring “national security” threats (as if that hadn’t been an issue since 1789).

        • Watson says:

          * My position doesn’t involve the executive (Article 2), unitary or otherwise. The US president has taken or been given so much power over the years that they were calling it an ‘imperial presidency’ long before Cheney revived the ‘unitary executive’ theory. And IMHO the elected congress would be a much better bet to restrain the president than the unelected courts.
          * I’m recommending that the legislature (Article 1) rather than the judiciary (Article 3) should have the final say on constitutionality. The Constitution left the subject open, and Chief Justice Marshall darted through that opening in Marbury.
          * I’m still interested to know if you have any suggestions to improve our judicial system. It’s not broke, no fixes needed?

          • bmaz says:

            Of course your “position” involves the Article II branch. To say it doesn’t is simply disingenuous. You don’t want the Supreme Court to be able to review law. Far more law is made by agencies and executive branch subdivisions than by Congress. So, yeah it is involved.

            And your “position” that Congress blithely polices itself without review by Article III courts is just asinine. Congress knows even less about “Constitutionality” than you seem to. This is truly crackpot level nonsense.

            • Watson says:

              Point taken. The executive branch does make law.
              I think we agree that the executive branch needs to be restrained. I believe that the elected congress is better suited to that task than the unelected courts.

              • P J Evans says:

                The courts are there to check the legislative as well as the executive branch. Someone has to do it, and in a three-branch system it’s supposed to be two branches checking the third for each branch.

              • earlofhuntingdon says:

                Unlike the more conservative legal structure in the UK (which has made recent strides in separating the Supreme Court from the House of Lords), the US system posits three co-equal branches of government.

                Each has a principal sphere of responsibility. Each has some authority over the other two, in order to restrict overreach, self-dealing, and corruption. A rare honesty in constitution making, especially for the 18th century.

                The current American political situation amply demonstrates that one branch’s oversight may be insufficient to restrain the excesses of another.

                Usually missing from that discussion is the fourth branch. For some, it is the press. (Its failings are another discussion.) To me, though, it is the people. The current situation amply demonstrate what happens when even three branches are left to their own devices, without proper checks and balances from the people.

                To your point, when bailing water in a squall, when it is already up the gunwales, I rarely stop to ask whether my shipmate was elected or appointed. I just hope she keeps bailing.

        • joel fisher says:

          I agree with everything you just said with the exception of “only the ignorant”. Put 5 stone evil, un-ignorant GOP assholes on the Supreme Court (how many are there right now?) and Marbury might be toast if it meant support for a GOP Nazi in the White House. Put a Democrat in the White House and Marbury becomes holy writ.

          • bmaz says:

            Maybe, who knows anymore. It is not the right position though, and it certainly does not comport with current Constitutional law and precedent. But point taken.

      • earlofhuntingdon says:

        Chemerinsky’s view of the S.Ct. is about its often reflexive conservatism, and the way that has often supported concentrations of power. That is a function of the cultural and political processes that identify, filter, nominate, and confirm its members.

        That is what needs significant and generational correction, because protections, like the body’s immune defenses, break down in the face of its attackers’ persistence and creativity.

        He is not arguing against checks and balances, but for accountability. Trump’s massive weaknesses demonstrate the Founders’ recognition that those are the foundation of a government instituted and run by the ambitious, powerful and often self-seeking people who gain political office.

        Focusing on reinventing fundamental principles such as Marbury is a shiny object that distracts from using those checks and balances to force accountability. It distracts from the agency, the organizing needed to make that happen in the face of the concentrated power of individual and corporate wealth which opposes it.

        • earlofhuntingdon says:

          An example of the power of the filtering process and the frailty of those who oppose it.

          Dawn Johnsen twisted in the wind for months, and was then forced to withdraw her nomination to lead the OLC because she was not one of the boys, and threatened to upset the secretive authoritarian applecart OLC has created.

          The S.Ct. has no Merrick Garland sitting on it. It has a FedSoc instead of a liberal majority because of the power of entrenched interests and the inability of progressives to overcome it.

          Those are systemic ills that require persistent, systemic responses. For starters, it requires putting a progressive in the White House – not some aging status quo kindaguy – and retaking the Senate. That’s a lot of work. Buckle up.

        • earlofhuntingdon says:

          Steven Greenhouse,

          From 2005 to 2018, the Roberts court issued 73 5-to-4 decisions benefiting big GOP donor interests: letting corporations spend unlimited money in elections, hobbling pollution regulations, enabling attacks on minority voting rights; hobbling labor unions.

          • orionATL says:


            large corporations and their spawn – their blood kin – the super wealthy, are the source of unbalanced, unfair, and fundamentally uncaring government today.

            they and their gaggle of the very rich are coming to recognize the danger of our recognzing it, the danger that their game of playing the middle and lower classes off against each other thru race and immigration and the calumny of “unwillingness to work hard” in order to maintain control of government powers to serve their interests at will is endangered.

            that is why within the last month the the business round table, freghtened by senator warren’s perception and proposals has publicly cried “uncle” and conceeded what we all understood, that the goal of American corporations can not be to “maximize shareholder value”, i.e., corporate profits and management salaries. but that cry comes too late and promises nothing.

            recall this is the same business round table that was first organized as a group of elite corporate leaders in the 1970’s for the explicit purpose of fighting government regulation that protected citizens and opened up economic opportunity for working people:

            from miss wiki:

            “… The Business Roundtable played a key role in defeating an anti-trust bill in 1975 and a Ralph Nader plan for a consumer protection agency in 1977. It also helped dilute the Humphrey-Hawkins Full Employment Act. But the Roundtable’s most significant victory was in blocking labor law reform that sought to strengthen labor law to make it more difficult for companies to intimidate workers who wanted to form unions. The AFL-CIO produced a bill in 1977 that passed the House. But the Roundtable voted to oppose the bill, and through its aggressive lobbying, it prevented the bill’s Senate supporters from rounding up the 60 votes in the Senate necessary to withstand a filibuster..”

            this is the same government round table whose political activity lead directly to the Koch brothers octopus and then the avalance of decades of open political bribery (said former president Carter) by corporatations and their rich-boy spawn.

            bribery legalized by our supreme court:

            from america blog

            “…Supreme Court: Money is free speech, provided you have money to start with

            4/2/14 12:37pm by John Aravosis…

            The Supreme Court today struck down a federal law that limits the aggregate amount an individual can give to candidates, political parties and polical action committees (PACs) in one election cycle.

            That amount was $123,200, and included a separate cap on giving to candidates of $48,600 per cycle.

            Thanks to the McCutcheon v. FEC ruling, those limits are now gone.

            Many are comparing today’s ruling to the infamous, and disastrous, Citizens United decision of 2010.

            What the court left in place was the $2,600 per candidate limit that any one individual can give any particular candidate during an election cycle.

            The court ruled 5-4, with all the court’s conservatives backing the striking down of the campaign finance limits.  Clarence Thomas, of course, was upset with the court’s decision. Even though he supported it, he thinks all limits should be done away with…”

            so, as earl says, it’s come time to evaluate and change.

  13. orionATL says:

    well, well. there was more under the surface and professor Ito has resigned from the mit media lab and from the University:

    this is a personal tragedy. evidently prof Ito focused too much on fund raising for his lab and too little on the personal qualities of who gave. folks like Epstein don’t do charity for charitable reasons. just as with David Koch, they are looking for social acceptability as cover for their self-centered anti-social behavior.

    • earlofhuntingdon says:

      By all accounts, Ito focused on the money without regard to the character of who gave it or why they did so. Normal behavior for corporations and large charities, but abbie normal given the avowed purposes of his organization. But he did much more than that.

      He actively conspired to hide the criminal character of at least one giver – Epstein – from his own organization so that he could take his money.

      More than enough reason to resign. More than enough reason for the august NYT to kick him out. Failure to do that means his patrons own his behavior themselves.

      • orionATL says:

        yes. absolutely.

        I did not include his slyness, but that was incorporated in my “personal tragedy” phrase. ito lost his ethical bearings in the pursuit of his dream. (uness there were more personal reasons for hiding the info.)

        • PSWebster says:

          Focus on Flynn please. All this Epstein shite is a red herring. Let it go. Same with Weinstein.

          Do not talk about this shit anymore. Por favor.

          • bmaz says:

            We will talk about whatever we want to talk about. If you are not a principal here, you do not get to limit discussion points. And certainly not with people that have been with us from the start.

          • Rayne says:

            PSWebster, your unwanted policing of content has the same effect as the secret conspiracy between technology leaders to silence discussion about corrupt influences.

            Knock it off. Moderators here will step in as necessary.

      • earlofhuntingdon says:

        Per the MacArthur Foundation, Sept. 7th:

        The recent reports of Ito’s behavior in the New Yorker, if true, would not be in keeping with the values of MacArthur. Most importantly, our hearts go out to the girls and women who survived the abuse of Jeffrey Epstein.”

        Better PR writers – and possibly more responsive staff – than MIT or the NYT. But I would not have excepted from concern those girls and women who did not survive “the abuse of Jeffrey Epstein.” And a few minutes later:

        “The MacArthur Foundation today accepted the resignation of Joi Ito as a member of our board and our affiliate @LeverforChange, effective immediately. We thank Ito for his service.”

  14. Eureka says:

    Wild is right: the scripted points are nearly one-to-one counters to the OIG reports (the earlier ones, not the pair this week) and other “crisis PR” debacles created by the Trump admin’s court stances and other maltreatment of migrant children.

    Ken Klippenstein: “Child migrant detention facility propaganda film script got leaked to me and it’s wild. “We see exteriors of Homestead. It is a former military base but we shoot it to capture as much beauty as possible.” For @tytinvestigates: [screenshots of the script and link to tyt]”

    From the script:

    “We hear the jovial chaos of morning… Our cameras capture tight shots of toothpaste going on brushes held by tiny hands.”

    ETA: I wonder whose “full-quiver” home they are going to go to to capture this audio to splice in. or how confusing to the children to be treated well as a warm up such that they would produce casual utterances for this film. Then ‘back to business.’

  15. earlofhuntingdon says:

    Donald Trump will host leaders of the Taliban at his presidential retreat in Maryland’s Camp David, but only after he appoints Marcy Wheeler as his official biographer.

    I can imagine Trump thinking he could get along – despot to despot – with the Taliban’s leaders for a day or two. He would control the venue and could talk as little as he wanted. Everyone would enjoy the McDonald’s, the weekend football, the autumn woods, maybe even a round of golf cart golf. But even John Bolton would see the idea as ill-conceived.

    I have a harder time imagining the Taliban’s leaders laying down their weapons, abandoning their strongholds, traveling to the US on US aircraft and submitting to US jurisdiction, and negotiating with a seemingly manic depressive. He can’t count beyond the number of his fingers, never reads, is ignorant of their aims and purposes, and never keeps a promise.

    But I can imagine an unsigned press release from Elaine’s Chao’s former assistant, now at NOAA, confirming that that was exactly the plan, until Donald canceled it.

    • orionATL says:

      I dunno.

      q. do the Taliban play golf ?

      a. yes. with the butt of their rifles. they can shoot 72 in 3 holes.

    • orionATL says:

      everybody knows the day the u.s. pulls out, the american-backed government will collapse entirely out of fear and the drug-money bankrolled religious savages will rampage. so much for the pompously named “operation enduring freedom”.

      how do you get the u.s out of this mess? slowly now.

      or better still by going in 2001 if really necessary (it wasn’t), changing the gov, and then getting out fast, leaving the natives to continue fighting it out with each other as they have been doing for the last thousands years.

    • Vicks says:

      It’s so nuts, I’ll leave the imagining in DJT’s head until I hear more.
      Pompeo drawing the short straw and making the rounds to sell it on tv isn’t helping.
      Looks like the taliban made a threatening tweet?
      Good grief, what if Trump canceling an imaginary meeting offends a real enemy?

    • P J Evans says:

      And he has a campaign rally scheduled for Monday at Fayetteville, NC. Which tells you how real those talks are.

      • Vicks says:

        LOL who’s campaign?
        Tomorrow night is SUPPOSED to be a rally for the republican candidate Bishop.
        Was it Trump’s last rally that people were said to have left early?
        Someone made the comment that now the the Mueller investigation is over Trump doesn’t really have an A-list enemy to rally his people around.
        I don’t know about anyone else, but there are a lot of reasons that thought makes me uncomfortable.

    • Watson says:

      It appears that the US wants a political settlement in Afghanistan. I wonder how different it might be from the outcome that Russia reached with the fundie separatists in Chechnya, where the Kadyrov family was in effect granted an hereditary caliphate in return for giving up terrorism and accepting Russian sovereignty.

      • orionATL says:

        a political settlement is probably the only road out of those mountains, unless you want to bomb away until you’ve killed all the people, camels, and horses, as in Yemen.

        but Trump is an imposter at negotiating, as we see in n. korea with nuclear weaponry and China with trade. so I see no reason to trust what he might say is happening in a negotiation with the Taliban. and in fact I have not read what we or they might be getting and giving.

        what Trump wants I suspect is a hollow promise to both Americans and afghans. then he will brag about ending a war. that would be his style of empty accomplishments accompanied by empty self-praise.

        i read that the Afghan government would like there to be negotiations between the u.s. and Taliban, but not much has been happening in the last few years.

      • Vicks says:

        I saw Pompeo on several shows I recorded this am.
        On “Meet the Press” Pompeo said “in the last 10 days we have killed a thousand Taliban” I re-wound to be sure I heard right and just checked the internet version (he starts sounding like we are in the middle of a war not peace talks at about 2:40)
        I went back 2 weeks looking for this news and found nothing….
        What the hell is going on?

        • earlofhuntingdon says:

          This regime, like its leader, seems to just make shit up. After Pence, Pompeo is probably also Trump’s biggest sycophant.

          This regime also seems to constantly push the envelope on how much of it they can get others to swallow before they puke. Like progressive waterboarding.

  16. manqueman says:

    1. Regardless of a judge’s biases, it’s virtually never a good idea to disrespect them by, say, treating them like garbage or imbeciles.
    2. That said, Flynn is such a piece of garbage that he managed to make Obama fire him — if memory serves, just about the only high appointee Obama shit canned — and then show up at the RNC convention to essentially act as the Mini Me of a man historically unfit and unqualified to be POTUS.
    3. Did I say POS? The kind of psychopath that (like Donnie) when caught dead to rights still keeps on denying.

    • Pragmatic Progressive says:

      Hi EW, I just wanted to point out that your screenshot shows that Judge Sullivan specifically scheduled the hearing “sua sponte” which would typically be translated from Latin (as it is used here) to mean “on his own.”

      Judge Sullivan was more than fair; he scheduled Flynn’s hearing on the final day proposed by the Government after Flynn’s attempt to delay was denied.

      Because this case is so politically charged, I am inclined to bet Flynn will get more leniency than he otherwise would. That said, I would be surprised if he gets all the bail conditions he originally requested.

        • bmaz says:

          Also, too, it is not a question of probation conditions at this point, it is a question of incarceration sentence.

      • bmaz says:

        What screenshot? And, no, it was not sua sponte as Sullivan affirmatively asked for dates. Sua sponte is when a court enters an order without input from the parties.

  17. earlofhuntingdon says:

    Per Kyle Griffin, (h/t Ed Walker) Unlike the passive feel-good stories that inevitably end the nightly news, this one highlights agency, and invites similar conduct from others across all walks of life:

    In the wake of Hurricane Dorian, Hampton University, a historically black university in Virginia, will open its doors to students from the University of the Bahamas, offering a semester of free room, board and tuition to students affected.

    Hampton’s board and faculty understand the importance of meeting immediate needs and avoiding the exceptional disruptions that can follow even short-term interruptions in health and education. These students are the Bahamas’ future. Let’s hope US immigration services respond with a now-unfamiliar flexibility to make this happen.

    I hope others replicate this generous response, especially those universities with endowments ten or a hundred times the size of Hampton’s. After all, according to Craig Wilder’s Ebony and Ivy, they were probably funded or founded in order to provide colonial managers for the Caribbean slave economy.

    • Eureka says:

      Thanks for sharing this great story. Tho my feel-good just dropped when you reminded of the need for gov cooperation to make it happen.

  18. PSWebster says:

    Really looking forward to the Judge’s dance with Flynn manana. Have been waiting patiently. He should rip them both up based upon all the apparent facts.

    EW: great work of course again again again…can’t do it 20 times.

  19. margaretwalker says:

    PSWebster, The Judge was dancing with Sidney Powell. She has a book about deceitful prosecutors called “License to Lie” and Emmett Sullivan was the judge who threw the book at Federal Prosecutors in the Ted Stevens case, when they withheld evidence in order to get a conviction, in that narration.
    There are many similarities to the Stevens case and Flynn’s, including the involvement of the unscrupulous Weissman, who actually ran the Mueller probe and the use of strong arm tactics and with holding exculpatory evidence. That is considered unethical prosecution, for those among you who support the persecution of this administration.
    Sullivan, will hopefully take aim and bat that creep out of the legal world, once he rules on the Brady evidence in Flynn’s case.

    • Rayne says:

      I hope you don’t have money riding on the outcome because Flynn hasn’t withdrawn his plea and a sentencing date has been set for December 18.

    • bmaz says:

      Hi there Margaret. I am not quite sure how you slipped in here, but thesis not a Fox News chat forum. There are few, if any, similarities between the Flynn and Stevens cases, and Judge Sullivan has already dispatched with Powell’s crazed insistence that there is such a link when he summarily applied the Yunis standard. Sullivan and Powell have nothing in common; he is a seasoned federal judge and she is a gadabout kook.

      And you are flat out lying when you say Andrew Weismann was involved in the Stevens case, he was not, and certainly not from Judge Sullivan in that case. Flynn is not going to be exonerated. In fact even Sid Powell admitted that he had no intention to seek withdrawal of his plea, which is a dead giveaway that even she realizes it is the best deal he could ever hope get. There is zero chance Sullivan would ever allow withdrawal even if it was requested.

      This is the wrong place to jump in and start regurgitating Fox News lies and bullshit, especially when you do not even have enough of a grasp on the facts to do so competently. I am also going post this response on your comment on the other thread so that our readers understand what nonsense and bullshit you have dumped here.

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