Trump Pride and DOJ Prejudice: The Flynn Volume

As Marcy has already reported, the DOJ has formally moved to dismiss the Flynn case. Here is the pleading they filed. (Marcy also addressed here) Trump is, of course, calling the DOJ who just did his command influence bidding “scum” and accusing them of “treason”.

Let’s start with a little Q and A:

Q: Can DOJ do that?

A: Sure, but it is bizarre beyond belief.

Q: Does this mean the case is over?

A: No. As I have repeatedly said, the plea has been accepted, after full allocution, not just once (Judge Contreras), but twice (Judge Sullivan) and, arguably thrice (also Judge Sullivan). There is a technical difference between a plea being entered and a plea being accepted. The Flynn plea was very much accepted. Multiple times.

Q: So, what does that mean?

A: It means that there was a formal finding of guilt entered by the court.

Q: So is that finding of guilt gone now?

A: No. The DOJ can file whatever it wants, the final decision still remains with Judge Emmet Sullivan.

Q: Does that mean “Flynn is an innocent man” as Trump is bellowing?

A: No. Flynn has sworn to his guilt under oath and penalty of perjury multiple times, and the court accepted his sworn guilt.

Q: So, what happens now?

A: Yeah, I don’t know the answer to that. We shall have to await Judge Sullivan entering in with his thoughts. I have no idea where Judge Sullivan will go. For the sake of the rule of law, and, frankly, legal sanity, I hope Judge Sullivan takes this as the full on broadside to law and intelligence that it really is. As I importune relentlessly, courts and law are a function of men and women. They are us. They speak and act for us. Judge Emmet Sullivan is not a man that will take this affront to justice lightly. Nor should he. It is absurd, the court should treat it that way, and, if anything, sanctions ought be imposed on Powell and Flynn.

Okay, where does that leave things? Now that is not a very easy question to answer. Here are a few thoughts though. The first one is “prejudice”. It is absolutely critical whether a dismissal request by the DOJ (or any prosecutor for that matter) is “with prejudice” or “without prejudice”. Here, Tim Shea, and it is crystal clear that means Bill Barr, demands that any dismissal be “with prejudice”. That means that no case based on these facts could ever be brought again. It is a pardon by a corrupt DOJ, without Trump ever having to even issue a pardon. Anybody, including the national press, that describes it differently is straight up lying.

The statute of limitations on a 18 USC §1001 charge for false statements is (as pretty much any charge possible against Flynn save for an ongoing conspiracy allegation) is five years, which is the general statute in federal criminal law. But, you see, that exceeds the time of Trump and Barr if Trump is not reelected. And therein lies the problem and why Mr. Barr and his lackeys Shea and Jensen, are apoplectic to make any dismissal “with prejudice”. Does this ever occur in real criminal justice life? No. Hell no. Of course not, in fact it is always “without prejudice”. Always, unless the government is caught by incontrovertible facts beyond dispute, and even then they usually demur to “without prejudice” dismissal.

But, wait, there’s more, I have other questions! Let’s talk about “materiality” for a moment. It is replete in the position taken by Bill Barr, through his cutout, Tim Shea. To be kind to Mr. Shea, he is an eggplant installed by Trump and Barr. And, here, the eggplant has signed this pleading on his own. Normally any such pleading would be signed by underlings, including career prosecutors. But not here. Why? That is not clear, but apparently no career track lawyer in DOJ would undersign this garbage. So there is that.

Back to “materiality”: Peruse pages 12-20 of the DOJ motion. Good grief, law review articles will spend hundreds of pages in the future laughing at the arguments Tim Shea has signed off on. Because, presumably nobody but a Trump/Barr appointed toady would even touch that. Yes, it is truly that absurd.

Okay, a parting shot: Normally, when a client puts an attorney’s work in dispute through claims of malpractice, all attorney/client privilege is waived. That is generally how it works. And if Flynn and his Fox News addled lawyer Sid Powell have not accused Rob Kelner and Covington & Burling of malpractice, then there has never been such an accusation. Privilege is waived.

While I thought Judge Sullivan should have disregarded the nonsense, denied all the the Powell crazy (arguably unethical conduct) and just sentenced Flynn. Marcy was right, and I underestimated just how sick the DOJ could be under Barr.

Well, here we are. Flynn and Powell have waived privilege. The DOJ under Barr and, here, Shea, is corrupt beyond comprehension.

But the irreducible minimum is that Judge Emmet Sullivan is the one with jurisdiction and control of this case. Not Trump. Not Barr. An honest and good judge, and one that has proven that over decades. Sidney Powell was right about one, and only one, thing: The Stevens case is a template for the court to find the truth.

Emmet Sullivan is a judge that can appoint an honest and independent special prosecutor to make sure real justice is done. Trump and Barr cannot fire the truth if Judge Sullivan seeks the truth and justice. And he should, for all of us. Judge Sullivan is a lion of justice that has done this before, and he should again.

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106 replies
  1. Peterr says:

    Q: Will Shea have to stand before Sullivan in person when Sullivan eventually brings the parties before him once more?

    Also, I’m confused by your paragraph about Covington & Burling. I think there may be a couple of typos there or a missing/misplaced “not” or something else, ’cause I can’t follow it.

  2. timbo says:

    May Judge Sullivan do so. I am not convinced that he will. The amount of crap that he put up with to get us to this point is unsettling. Hopefully he will force the DOJ and Trump’s hand here. It seems incredible that the DOJ would refuse to back the FBI in any sort of intelligence investigation of this seriousness. Any intelligent service folks who believe that we will be safer by no longer holding government officials to their obligation to not lie during intelligence investigation… smh.

    • earlofhuntingdon says:

      Whatever Sullivan does, he will not casually roll over for Trump and Barr and say, “Please sir, may I have another.” He sees the world around us, how it has visibly decayed under Trump and his courtiers. He sees how Trump has declared war on his political opponents, on women, against people of color, on anyone who says “No” to him, on democracy and the rule of law itself. He will not go gently into that good night.

      • Rugger9 says:

        IIRC Judge Sullivan in particular has developed a fundamental distrust of Government antics over the years and he was the judge for Stevens. Not only did he stop the defense shenanigans similar to the present case but also hammered four prosecutors for withholding exculpatory evidence. That tells me he is fair and pretty incorruptible, which is bad news for Barr and Shea and DJT.

        However, as bmaz notes no one knows until Sullivan rules. And if Barr loses, this will doubtless be appealed to the DC circuit that McConnell has been packing with Federalist Society commissars. That will take time, perhaps all summer into the election where saving the rule of law as well as basic competence in government will rally Americans.

        • glenn says:

          If Barr loses, by which I assume you mean Sullivan sentencing Flynn anyway, how could it be appealed? That would basically have the government [the prosecution] assuming the same role as the defense, wouldn’t it? I’m not any kind of a lawyer, but i simply don’t see what grounds for appeal there would be.

    • readerOfTeaLeaves says:

      This thing is so weird that it’s hard to wonder who, or what, is really being protected here. Either Barr must believe that he has successfully gutted the FBI and intel, or these people are stupidly desperate. I can’t for the life of me fathom what’s going on.

      But to piss off Judge Sullivan by claiming that a guy who pled guilty is innocent seems ludicrously stupid.

      What am I missing here?

  3. 200Toros says:

    Thank you, and Marcy, for explaining how spectacularly awful this situation is. It sounds like not even a first-year law student would be gullible enough to accept Shea’s arguments at face value. Which to me seems to indicate that they don’t care, it doesn’t matter, playing to an audience of one.

    Legal twitter also made the point that this completely obliterates the entire point of a Special Counsel, and that Barr has essentially set up a blueprint for any future president to shut down a SC investigation, or at least render it pointless.

    I SO hope that the good Judge calls BS on this.

    • earlofhuntingdon says:

      Welcome sentiment, but you might want to routinely check the byline as you skim the title. This post, for example, is by bmaz.

      • blueedredcounty says:

        The comment I am reading by 200Toros starts with: “Thank you, and Marcy…” so I think he saw the byline? Or the post has been updated since you posted your response? This is confusing.

      • 200Toros says:

        Yes, the “Thank you, and Marcy,” was referring to bmaz, and Marcy, who both posted excellent articles about this topic in quick succession this afternoon. Perhaps that wasn’t clear. Much appreciation to you both!

  4. TooLoose LeTruck says:

    Boy, you sure knocked this out fast…

    Thank you so much for taking the time to lay all of this out…

    From what little i know about Sullivan, I agree w/ you completely…

    He most likely (I sincerely hope) will not take this lightly and go along quietly… and good for him! As I said earlier, thank god for an independent judiciary…

    • Rugger9 says:

      Contrast how Sullivan has gone about this case with how the Wisconsin Supreme Court handled arguments about reopening this week, or pretty much anything by the Federalist Society judges (i.e. Neema Rao) have argued in court questioning.

      • TooLoose LeTruck says:

        Funny thing…

        Every time I see the name ‘Federalist Society’ in print, in my mind it initially reads ‘FEUDALIST Society’…

        Somehow thtat seems more appropriate…

    • CapeCodFisher says:

      I agree. Great layout. I wonder if Sullivan himself reads any of this and Marcy’s analysis.. Real persuasive. I’m going to look for echos in Sullivan’s ruling.

  5. The Old Redneck says:

    This made me physically ill when I heard this. I really hoped that even Bill Barr’s DOJ wouldn’t stoop to this banana-republic level stuff. As a lawyer who was taught to believe in the rule of law and apolitical application of criminal law, I can’t overstate how awful this really is. Laypeople would be rioting if they really understood it. The only hope now is that Judge Sullivan musters a huge slab of political courage. There is a huge amount at stake for the integrity of the federal judiciary.

    • Rugger9 says:

      I think he is one that would, and Sullivan in his prior Flynn plea hearings laid out the case to say no. The question of prejudice is interesting as well, since with prejudice usually happens in a case where everyone has agreed to an outcome (i.e. a civil case settled out of court). But as bmaz noted above and EW earlier, the fact Flynn’s plea was accepted pushed this over to something like an appellate case where the guilty have to prove innocence (but IANAL).

      The A-C privilege being dropped will be interesting, and whether Covington decides to fight back will also be interesting. Does this mean that Judge Sullivan can subpoena them for questioning from the bench and would he want to?

      • timbo says:

        What would be really, really interesting is to figure out exactly who Shea and Barr (and any intervening parties) have been communicating with with regard to Flynn’s current and former lawyers in this case.

  6. P J Evans says:

    I’m rooting for Sullivan to do what he can on this. The corruption stinks from the 9th circle below to the innermost ring above.

  7. Peterr says:

    One more question for the whole class: If Barr et al. are brazen enough to have done this today, imagine what they will do in mid-November, regardless of which way the election goes?

    • 200Toros says:

      YES. This goes to the heart of the matter. There is no bottom for these people, they will ALWAYS dig deeper in their pursuit of depravity.

    • earlofhuntingdon says:

      The Goopers know that if they lose the White House and Senate in November – in large part owing to Trump’s priorities and conduct – they might never control either again.

      Demographics are against them, the evidence of their high crimes and misdemeanors is against them, the trail of tears wrought by their neoliberalism is against them, youth (AOC) and the young at heart (Warren) are against them. They will do anything to win.

      • Vinnie Gambone says:

        ” What are you prepared to do about it? ” Sean Connery. Untouchables.

        These are ratfuckers overdosed on viagra and meth. Think not they don’t have their 200/ 100 day calendars filled in.
        They have a well tuned obfuscation apparatus already hitting on all fox cylinders. They will have surprises, and they will have help from the outside. ( I heard China has changed their mind about helping Trump. )

        The biggest challenge in this election is who best solves the problems of getting their base to vote by mail. The district captains, we call them committee people, are going to have spend time knocking on doors and face to face asking voters, ” Have you got your ballot? Anything I can help you with let me know.” I’m scared to death the “mail” is going to sit beside the junk mail and lose its importance in the household machinations. We should start thinking real hard about the new way of voting, and how we can make sure no voter gets intimidated or apathetic, or uses the mail to vote as an excuse not to.
        What other “look alike” bullshit pieces are going to arrive in the box with the ballot? That’s the shit they will pull. People are going to have to be pre-disabused of massed mailed notions. Again, they’ll micro target mass mailings. This election is going to shift back , or at least include. more slot mail. What are the laws/precautions against sending fake ballots, or ballot “tickets.”

        Think not Russia/ Assange/ Stone are not also plotting how to sa-BOT-age this process .

        Time to plan how to help/ nudge people about filling out the ballot, and recruit/ train door knockers to do it. They better find money for door knockers. Street money, yelch. I know, but it will make a difference in this election.
        I can tell you, one of the reasons Trump won Pennsylvania is because the black wards in Philadelphia didn’t turn out. We use to say, you can’t let anybody stay home. Now what do we say?
        There’s going to be problems with the mail in. They’re going to create confusion around them. They’re going to salt the process with cases that will form the basis of rigging complaints to call the results into question later. And what becomes of the privacy of the voting booth when you are filling out the ballot at home. Or at the bar. Or at the Volunteer Fire Company. This process can go haywire a whole lot of ways. We shouldn’t wait to the election deadline to foolproof it.

        In a mail in election even the term “turn out” suddenly has no meaning. The machine is going to have to be re- tooled. The only thing will work is door to door. Hoping someone is thinking about the challenges Mail-in elections presents. Let’s not forget, Trump’s agents targeted people who don’t turn out, those they identified as malcontents who don’t vote. Is there anyone believes Trumpers won’t try to fuck with the election? Think.Who of the people you know are most likely to fail because of being put off by the mail in ballot? What can we do personally to intercede (nag) to make sure that doesn’t happen? We need to start thinking about this. Shit storm gathering on the horizon. This subject perhaps should be a different post, perhaps even on a different site, but a worry just the same.
        I know folks here are smart, and care, except for the parachuters.

        • Eureka says:

          Add to the list of concerns, Vinnie, that Trump just appointed a donor-loyalist to be Postmaster General. [It’s worked at DOJ+, why not elsewhere.]

          Also, Fitton & Judicial Watch just sued three of the collar counties and the PA Dept. of State over “transparency” in removing people from voter rolls. All the shenanigans will be coming hard for SE PA [1/3 of state’s registered voters; ~ 23% of state’s votes per AP analyses recent national elections (in the five immediate counties)].

          The fake mailers will prob. continue to be one of the biggest problems, you’re right (besides the tallying machines not imploding). They’ve already got a good sample on who’ll ‘bite’ at that stuff w/the fake census mailers, too.

          But happy lockdown — cheers!

    • readerOfTeaLeaves says:

      It looks like brazenness, but it smells like desperation.

      FWIW, I’ve been waiting for someone (anyone!) to explain whether Flynn was involved in trying to traffic in nuclear materials, on top of his Russian and Turkish adventures. Sure enough:
      https://www.theatlantic.com/ideas/archive/2020/05/michael-flynn-learned-to-play-by-trumps-rules/611332/

      What’s the reason for all the panic at this moment?
      Because someone(s) appear to be in overdrive in their efforts to claim that black is white, and that guilt is innocence. How scared shitless would Barr and Shea need to be in order to make such obvious asses of themselves?

      They weaken their own position by being such obvious liars.
      Why would they be so stupid?
      And why would they be so stupid *now*?

      • madwand says:

        From the Atlantic article in the post above,

        “The whole process is stunning: Flynn was accused of committing several crimes, admitted to one to try to get himself off easy, agreed to cooperate, reneged on the deal, and is now free, having escaped punishment for both the crime to which he confessed and those on which he avoided prosecution.”

        Pretty stunning indeed, Republicans are shooting the moon and so far succeeding. It seems the thread here is hoping against hope that Sullivan will fight back on a couple of fronts, but what if he doesn’t?

  8. BobCon says:

    So if Sullivan looks at what DOJ handed him and laughs, I assume Flynn appeals. Or does the guilty plea have something that prohibits it?

    • earlofhuntingdon says:

      Appeals are inevitable, presumably to the Supremes, unless Trump issues a pardon after the November election. But Flynn would be appealing as a convicted felon.

  9. Silly but True says:

    In the May 2 Flynn post, I noted: “That’s not the only option.

    The DoJ can also withdraw case…”

    To which bmaz replied “lol! That’s not happening.”

    We can probably revisit that topic and why it was inevitable the moment Durham was appointed, much less Jensen.

    Yes. It is true the matter is before the court and Sullivan has a say. The history of the purpose of that say was primarily to protect defendants — and that precedent is not so easily handwaved away. Yes, Sullivan may choose to make an atypical case out of this atypical case. But those screaming for Sullivan to take an active hand should beware of what they wish for: it would be Van Grack who would most likely be the one playing the Nicholas Marsh role this time around.

    Silly but True

    • bmaz says:

      We do not need to “revisit” squat. Did I think DOJ would actually go this far? No. Was I wrong to say that the final word is in Judge Sullivan’s hands? No. You are still completely full of it. And I have no idea in the world what you are blathering about with regard to Van Grack. Are you suggesting he is going to be covertly killed?? What the hell is wrong with you? Your comment is sick, and in a bad way.

      • Silly but True says:

        Marsh absolutely was not “covertly killed.”

        That’s just some stupid and silly conspiracy theory never entertained by anyone of reasonable mind.

        Silly but True

          • Silly but True says:

            No. Quut being a lunatic. The Stevens case _is_ the model to use.

            Marsh was the DoJ subject-matter expert but junior prosecutor of the team; Marsh was primarily responsible for prosecuting & managing the indictments. He also was one in position to decide to handle all discovery requests item by separate item; the issue which ultimately doomed Stevens case for DoJ. But Marsh was not the lead prosecutor. In same way that Van Grack was the accomplished FARA prosecutor. But was not the one incharge of the case. In Steven’s case, Marsh became the effective scapegoat.

            With dismissal of Flynn prosecution, that failure isn’t going to fall on Mueller’s head. It will be Van Grack to bear any ramifications of decisions to piecemeal each Brady evidence issue.

            • bmaz says:

              You are completely full of it. Oh, you mean the Stevens case I specifically referred to in the penultimate paragraph of the post? That case? That template?

              You are a crank. If you think people here don’t know who Marsh is, you are horribly mistaken.

              And, if you think the Flynn case is already the subject of a “dismissal”, please tell Judge Sullivan that he no longer has jurisdiction. Further, Mueller, and his “head” do not have squat to do with anything. And, no there will be no “piecemeal” stringing out of “Brady evidence issues”. You bandy about things and terms you appear to have no real clue about.

                • bmaz says:

                  Lol, did I think DOJ would take this action? No. Did I “blow” this post? No. And you can’t point to any problem. Thanks for parachuting in!

              • Silly but True says:

                You already stated you thought Marsh was “covertly killed” — a lunatic fringe conspiracy theory to end all lunatic fringe conspiracy theories.

                And you so wrongly called — 180 degree opposite — the outcome here.

                So forgive me if I think you’re the one full of it.

                If you’d quit hyperventilating, you could start to begin to actually understand the similarities of Flynn case to Stevens case rather than just tossing out buzzwords.

                Silly but True

                • bmaz says:

                  Listen jackass, I most certainly did NOT say that, it was you who put that Marsh garbage in play and I was laughing at you.

                  And, no, the Stevens case is not particularly similar to this Flynn one in the least. But you don’t have to take my word for it, no less than Judge Sullivan has said so. In writing.

                  Oh, and by the way, those “buzzwords” are law, a subject you are clearly not very well versed in.

                  • Silly but True says:

                    Well, it’s at least glad to see you’re backpedaling on your Marsh comments? That’s fine. At least we know then you’re just posting crap instead of actually believing it.

                    I would not be so quick to hang your hat on Sullivan doing anything substantially in opposition to the DoJ’s request.

                    Jensen was appointed as Asst. U.S. Att’y in Clinton administration by in 1999 after a 10-year career as a FBI Special Agent, where he then went to serve another 10 years in that capacity.

                    If you’d stop hyperventilating a second to look at his view of things, you could probably begin to understand that he’s more a career institutional federal lawman by decades than any Trump flack.

                    Silly But True

                    [FYI, you are going into time out. There’s a way to have a disagreement with contributors/moderators and this isn’t it./~Rayne]

                    • bmaz says:

                      Also, too, what do you think adding your “Silly” handle as a signature line to every comment adds?

                      Do you think people here are so stupid that they can’t read your handle on the front end?

                      What kind of pretentious jackass are you?

  10. OldTulsaDude says:

    “I underestimated just how sick the DOJ could be under Barr.”

    In 2016, I underestimated – and I guess I still do – just how sick this whole country is. It’s reaching a point where I’m not sure it is repairable.

  11. Savage Librarian says:

    Thanks, bmaz. I appreciate the clarity you provided. But one thing my mind can’t quite understand is the concept of privilege being waived. I don’t grasp what this means and what results will incur. I know that it has to do with Covington & Burling, their reputation, and Flynn and Powell’s questionable accusations. But I don’t understand the concept, implications and ramifications of “Privilege is waived.”

    • blueedredcounty says:

      I am not a lawyer, but I think bmaz’s response will be that Covington could not say anything to defend themselves unless the client waives their privilege to the confidentiality of their communications with their then-counsel.

      By claiming the legal representation was deficient (i.e., malpractice of law), I believe bmaz’s post was this (typically) automatically waives the client-attorney confidentiality privilege. Which makes sense, because there’s no way to verify the Flynn/Powell claim of malpractice without being able to see the information presented to Covington, and what their corresponding guidance was.

      At this point, it amounts to an unsubstantiated claim. And given how all these people are liars, it would seem to be prudent to require them to put up or shut up.

    • bmaz says:

      Yes SL, Blueredcounty has it pretty much right. Not going to say that there can’t be complications and nuances, of course there can!

      But, as a general rule, whether via civil suit, bar complaint or whatever, a client waives the atty/client privilege when they accuse their lawyer of malpractice. Flynn and Powell have certainly done that as to Kelner, Covington et. al. Nobody, much less Judge Sullivan, should deign to let them hide behind privilege at this point.

  12. foggycoast says:

    in all the understandable and justifiable outrage i have not noticed a good speculation as to why. trump can alway pardon flynn so there would not seem to be a legal urgency for him. why would the doj do this now? is this some diversion, “hey look over there”? is it an attempt to set some precedent? is flynn threatening to reveal something unless he is set free now? or is this simply barr’s attempt to undermine rule of law?

    • drouse says:

      Actually, it fits perfectly with this administration’s M.O. Whenever they start getting hammered in the press on something, it seems like they ask themselves what is the most outrageous act that can elicit howls from the other side and change the conversation. I guess we can count ourselves lucky in that this time it didn’t involve gratuitous cruelty toward some large group of innocents.

    • Jack Ryan says:

      Many people forget that acceptance of a pardon basically means you can’t assert the 5th if called before Congress to testify about what went down. And, since he has essentially waived privilege, I’d expect the House to go after those legal records almost immediately. So Trump was trying to avoid having to issue a pardon before the election even though there was no way Flynn wasn’t being sentenced before the election. So, they’re trying a legit Hail Mary. I hope Sullivan makes them choke on it.

      • Rugger9 says:

        Well, Jerry Nadler is “outraged” and threatened to haul Barr before his committee (like it will do anything other than generate more gaslighting) but the demand for records might put some teeth into the threat. I had noted Flynn’s prospective release from criminal liability as well in an earlier thread, in a discussion about what the Army might do, and I would expect Flynn to be subpoena bait as well. The question is whether Flynn would lie to Congress which creates another crime.

        Did Judge Sullivan have a timeline for the ruling or was that scheduled for today’s hearing?

        • bmaz says:

          Without a full pardon, the Army is free to do what you contemplated. Doubt they will, but who knows anymore.

    • taluslope says:

      Why now DOJ? Excellent question because nothing matters in the end as Trump will pardon his entire universe.

      But Trump’s universe is uno so perhaps all the rats do actually have need to fear and are jumping ship as fast as they can, taking whatever is not bolted down with them.

    • The Old Redneck says:

      I heard a CBS interview this morning in which Barr said “History is written by the winners” and gave a greasy little chuckle. Then he said the FBI set a “perjury trap” for Flynn. All he needs to do next time is refer to our “dear leader.”
      Naturally, CBS’s reporter gave him a pass on all of it.

      • Alan Charbonneau says:

        Everyone gets a pass these days — where is the 21st century version of Sam Donaldson, with a “hold on mr president” approach?

  13. PeterS says:

    I could barely believe this news when I saw it, but I’m trying hard to see if there is any valid legal principle at play.

    Putting Flynn (and the Turkey connection) to one side, we have a situation something a little like the following. 

    A law enforcement agency legitimately investigates whether a crime has been committed; during the investigation Mr X is interviewed and lies; at the end of the process the agency decides that there isn’t a reasonable prospect of a conviction at trial.

    So what factors are considered when deciding whether to prosecute Mr X’s clear offence of lying to the law enforcement agency? I assume lawyers here can think of analogous situations

    • The Old Redneck says:

      Materiality, mostly. If they interview someone and they lie about things that don’t matter, it would be silly to prosecute for that. In this case, the lies were material, despite the pathetic revisionist history taking place now. That’s why this is so upsetting. In the long run, you’re asking for big trouble if you decide it’s okay for people to lie to the FBI when interviewed. It will make the FBI’s job a lot more difficult – particularly when dealing with well-connected suspects.

    • vvv says:

      Wikipedia is OK on this, search: 18 U.S. Code § 1001, which entry states, “Pursuant to the decision in United States v. Gaudin, the jury is to decide whether the false statements made were material, since materiality is an element of the offense.”

      • vvv says:

        As to “materiality”, Wiki says, “Materiality is the significance of facts to the matter at hand.”
        IOW, the analysis goes to whether his lies (the “facts” lied about) related to something important to (having “significance”), in this case, the investigation (“the matter at hand”).

  14. harpie says:

    TRUMP TweetweetWEETS TODAY:

    1] tweet: realDonaldTrump/status/1258716204832825344
    7:11 AM · May 8, 2020

    I will be interviewed on @foxandfriends at 8:00 A.M. Enjoy!

    2] tweet: realDonaldTrump/status/1258717838849847298
    7:18 AM · May 8, 2020

    Yesterday was a BIG day for Justice in the USA. Congratulations to General Flynn, and many others. I do believe there is MUCH more to come! Dirty Cops and Crooked Politicians do not go well together!

    […to which Marcy responds:] https://twitter.com/emptywheel/status/1258721470429245443
    7:32 AM · May 8, 2020
    One thing that got released yesterday makes Trump’s knowledge of what Flynn did far clearer. It’s clear this is about payback for remaining silent.

    3] tweet: realDonaldTrump/status/1258720717258006530
    7:29 AM · May 8, 2020

    DRAIN THE SWAMP!

    • harpie says:

      Here’s Aaron Rupar with a thread of video clips from the Fox/Trump “public therapy session”:

      https://twitter.com/atrupar/status/1258730916081471496
      8:10 AM · May 8, 2020

      Trump called in to Fox & Friends and is in the process of having one of his public therapy sessions [VIDEO]

      Second clip:
      https://twitter.com/atrupar/status/1258733166065528838

      Trump is ramping up his vaguely threatening, show trial rhetoric toward Obama:
      “What you’ve seen so far is incredible, especially as it relates to President Obama, because if anyone thinks that he and sleepy Joe Biden didn’t know what was going on, they have another thing coming” [VIDEO]

      • harpie says:

        Clips 4 and 5:
        4]

        Trump lies and says FBI Director Christopher Wray was “appointed by Rod Rosenstein” (he was nominated by Trump). He then adds that “in theory, I’m chief law enforcement officer.” [VIDEO]

        5]

        TRUMP: “I learned a lot from Richard Nixon — don’t fire people. I learned a lot. I study history … of course there was one big difference: Number one he may have been guilty and number two he had tapes all over the place.” [VIDEO]

        • P J Evans says:

          They have no idea what that would do to the public mood. I suspect it would make the Women’s March in Jan 2017 look small (and tame).

        • TooLoose LeTruck says:

          I came to that same conclusion earlier today…

          The constant, incessant name calling – ‘human scum’… ‘dirty rats’… the non-stop promises of ‘more to come’…

          I’m furious right now, and sick to my stomach at what I’m watching…

          I expect something akin to the way the Clinton email investigation got re-opened at the last minute, right before the election back in 2016… it worked then, why not go back and do it again?

  15. Jenny says:

    Barr’s response with interview on CBS.

    Talking Points Memo on Twitter: 7:00 PM · May 7, 2020
    https://twitter.com/TPM/status/1258532162682236929

    AG Bill Barr speaks to CBS about Flynn.

    CBS: When history looks back on this decision, how do you think it will be written?

    Barr: Well, history is written by the winners, so it largely depends on who’s writing the history.

    • Raven Eye says:

      Barr’s remark may say more about his perception of his place in history than what will actually remain in history’s settling ponds. Some sinks to the bottom, some is the scum on the surface, and then there is that ill-defined gooey stuff in the middle.

      I’d expect the real story will be found in the research papers, textbooks, and lecture notes that come out of this mess.

  16. Philip S. Webster says:

    Thanks, BMAZ. I needed that. I wasn’t sure about it going back to Sullivan until your explication which was concise and thorough.We still gotta a chance to bounce this with Sullivan.

    Hang in there you all. Stay Safe.

    • bmaz says:

      Yeah. And I have no idea what Sullivan will do, just that the ball is still in his court. So to speak. We’ll see.

      I can’t imagine Sullivan is overly moved by that 20 pages of junk Shea motion. I’d think it would seriously piss him off. In every big federal courthouse, there is a public cafeteria, and a private dining room for judges, and that is the case at E. Barrett Prettyman.. That is where judges historically talk amongst themselves, and their discussions are pretty frank. Other people “can” get in there if specifically invited by a judge, but it is not particularly common. Would love to be a fly at a table with Sullivan about now.

      It will be fascinating to see what he does. Not suggesting he will, but this thing could be strung out until the next of never if he desired it be. In fact the safe bet is against that, but who knows at this point.

  17. sand says:

    I really appreciate anything that the judiciary does to stand up for itself in the phase of this administration. I would hope to see Sullivan sentence Flynn as he deems appropriate while offering his point of view on the Trump/Barr definition of justice. Once Flynn’s been turned over to the bureau of prisons, couldn’t the DOJ just order his release anyway, regardless of the sentence? Either way, I hope Sullivan does everything he can to make sure that justice is determined by the judiciary and not political appointees.

    I have not commented in a while, but this Flynn thing is the first non-COVID-19 thing that got me upset in a little while. I hope all mods and commenters are well or at least tolerably well during this public health crisis. Stay well.

    • readerOfTeaLeaves says:

      Or, to put it differently, Barr is appointed by a man who recommends drinking bleach as a prescription for COVID19, who recommended raking forests in order to avoid massive wildfires, and who evidently made his so-called fortune by laundering money for the Russian mob.

      So sure, a man like that would have secrets he’d want to keep hidden. He’d also likely be incapable of dealing with reality. Or consequences. So spin! spin! spin!!

      And Judge Sullivan is expected to give a ‘pass’ to this absurdity? Just… wow…

        • AndTheSlithyToves says:

          IMHO, Trump & Co. know all about the ecosystems of Transnational Crime Syndicates–rivers of blood money.

  18. harpie says:

    O/T I had been wondering who took the video of the murder of Ahmaud Arbery in Georgia:
    It is A TROPHY VIDEO.

    https://twitter.com/nycsouthpaw/status/1258771520815497216
    10:51 AM · May 8, 2020

    “Reynolds confirmed the harrowing video capturing Ahmaud Arbery’s death on Feb. 23 was made by William Bryan, who had helped Greg and Travis McMichael pursue the 25-year-old as he ran through the Satilla Shores community just south of Brunswick.” [link]

    Links to:
    GBI says more arrests possible in Brunswick area shooting
    Atlanta Journal Constitution
    5/8/20

    • Rayne says:

      Which means this was planned, premeditated murder.

      I just want to barf thinking about this horror and the two months of outrage it took to get this far.

      • harpie says:

        Here is TRUMP this morning furthering a conspiracy theory about why the murder happened:

        https://twitter.com/atrupar/status/1258742029795954688
        8:54 AM · May 8, 2020

        Trump on Ahmaud Arbery: “I looked at picture of that young man. He was in a tuxedo … I will say that looks like a really good young guy. It’s a really disturbing situation to me … it could be something we didn’t see on tape.” [VIDEO]

        • earlofhuntingdon says:

          Ahmaud Arbery was gunned down in broad daylight in a small town in coastal Georgia. His crime was jogging while black, and failing to stop when a couple of armed, fat, unshaven, and unidentified white guys shouted that they wanted him to stop so that they could “question him.” Hardly an invitation to a friendly chat, more a prelude to being railroaded and beaten senseless. As it happens, it was a prelude to murder.

          Those who shot him asserted implausible reasons for it. One was that Arbery “looked like” an alleged neighborhood burglar. Not much of a description to go by really, insufficient to meet a probable cause standard, let alone the standard required for a citizen’s arrest, which is that the crime be committed in front of the citizen. In fact, the description was pretty much, “Young black man.”

          Coastal Georgia is not Faulkner’s Yoknapatawpha county, but Arbery’s murder confirms his observation that, “The past is never dead, it’s not even past.” If Jim Crow were really past, would those two shooters still be free while Mr. Arbery lies dead?

          • earlofhuntingdon says:

            Further evidence that the demise of Jim Crow is greatly exaggerated is that these two bozos – and a third, apparently, who followed them while filming their crime – thought their implausible stories would get them off, even when they knew that third bozo had the damn thing on film. (And why the film, to make postcards, to share with friends around a campfire, or for a promotion at the local lodge?)

            • blueedredcounty says:

              The campfire at the local lodge = the burning cross at the center of the KKK meeting.

              Why wouldn’t they think they were entitled to behave this way? Their friends/former co-workers told them their actions were perfectly legal.

            • earlofhuntingdon says:

              Their president certainly says there are good people on both sides of every controversy. But what his words do is excuse wrongful behavior he likes, coming from those who support him, not to describe reality.

        • Ginevra diBenci says:

          Trump says it out loud: If only young black men would wear tuxes all the time, racist white guys could tell which ones are “good.”

      • harpie says:

        This is via Justin Hendrix:
        https://twitter.com/justinhendrix/status/1258749747373973504
        9:25 AM · May 8, 2020 [Read his thread]

        https://twitter.com/jduffyrice/status/1258747160541233154
        9:14 AM · May 8, 2020

        Friend just sent me this. [screenshot]

        The screenshot is of a Face Book page:

        Justice for Gregory and Travis McMichael 18K Members
        These 2 God fearing men were only trying to protect their neighborhood. This area has had a string of break-ins and this man fit the description and did not comply with simple commands. Our hearts go out to the McMichael family in their time of need. Amen.

        Group created on July 23, 2017. Name recently [?]

        • P J Evans says:

          They’ll get justice – but they may be looking at federal charges. And they’re less likely to get off, seeing as there’s video of them committing a crime.

          Also, the son has a full beard now – the kind that requires several months to grow.

        • Rayne says:

          The more I think about this case, the more I think there could be serial murders. I hope somebody is combing through the state looking for shootings of black people over time which haven’t been solved.

          That these assholes and their accessories had two months to hide evidence will always gnaw at me.

          • earlofhuntingdon says:

            The accessory thing caught my eye, too. The photographer, for example. It’s hard to believe he just happened to think it a grand idea, on the spur of the moment, to follow his two armed companions-in-a-truck on a hunt for a “young black man” and film the whole thing. Strikes me as a way of doing things, because the odds that the film would provide hard evidence that the two white guys were defensibly upholding the law seem poor.

            • Rayne says:

              Yes. Practiced. As if this was the norm, to hunt and document.

              Which means there’s more than one case like this. The idea is just so repugnant.

        • vvv says:

          Current CNN headline:
          “Men accused of killing Ahmaud Arbery thought he was a burglary suspect. But no burglaries were reported in the month before the shooting”

          • earlofhuntingdon says:

            There is the slight problem that, “burglary suspect” is not a description, and burglary is not a capital crime, let alone suspected burglary. It still boils down to a “young black man.”

            Even if that were a valid description sufficient to identify a specific person – it is not, not in south Georgia or anywhere on the planet – a citizen can only base an “arrest” on the behavior s/he witnesses first hand. Jogging down a quiet road in a small town, in jogging clothes, in broad daylight is not suspect behavior. Which leaves us with “young black man” being the only information that mattered.

    • harpie says:

      1] From the AJC article linked above:

      […] “We are going to ask the question why the DA did not conclude that Mr. Arbery was wrongfully killed,” said Charles Steele, president of the Southern Christian Leadership Conference. “The video was circulating within the law enforcement agencies before it surfaced in the public.”

      After Glynn County police chose not to charge the McMichaels, Brunswick Judicial Circuit District Attorney Jackie Johnson recused herself because [The father] Greg McMichael had worked as an investigator with her office.

      The case was then assigned to Waycross Judicial Circuit District Attorney George Barnhill. He would later recuse himself, but not before telling Glynn police he did not see sufficient probable cause to charge the McMichaels. […]

      2] https://twitter.com/jduffyrice/status/1258414240450457606
      11:11 AM · May 7, 2020

      DA that charged this black woman for felony voter fraud and took her to trial TWICE is the same DA that chose NOT to arrest the McMichaels for murdering Ahmaud Arbery, despite seeing the video of his death. [NYT]

      I wrote about this a few years ago, and despite not writing many articles lately i’m going to write something over the next few days about this guy. but these two things are not unrelated.

    • harpie says:

      [There’s a comment in moderation before this]

      https://twitter.com/jelani9/status/1258764316624539650
      10:22 AM · May 8, 2020

      There are many more questions than answers re #AhmaudArbery. The video, which looks like a lynching, was, strangely enough, released by a local attorney in an attempt to *defuse* the situation. (Police and prosecutors had the video from the outset.)

      In the police report McMichael says he has surveillance video Arbery committing a burglary. Yet DA Barnhill makes no mention of any video in his letter defending the McMichaels, nor has anyone else publicly.

      The account McMichael gave police in the report is widely at odds with what the video from the chase reveals. [MORE]

      • P J Evans says:

        What I read is that the McMichaels claimed a handgun had been stolen from their pickup truck at some point. But they didn’t have a date, they didn’t report it, and apparently there wasn’t any damage to the truck. Which makes it much more like, “here’s a black guy in _our_ neighborhood, let’s chase him down”.

      • harpie says:

        Here’s the NYT article referred to in the Duffy Rice tweet:

        How to Punish Voters
        The prosecution of individual voters for fraud is a trend that seems intended to intimidate.
        https://www.nytimes.com/2018/10/31/opinion/election-voting-rights-fraud-prosecutions.html
        Oct. 31, 2018 [Ms. Duffy Rice is a lawyer and a criminal justice reporter.]

        Georgia Secretary of State Brian Kemp, the chief elections official in the state, is a pioneer of present-day voter suppression. […]

        In a particularly disturbing case, Olivia Pearson, a grandmother and lifelong resident of Coffee County, Ga., found herself on trial this year on charges of felony voter fraud. […]

        Almost four years later, Ms. Pearson received a letter from District Attorney George Barnhill’s office, informing her that she was facing felony charges for improperly assisting Ms. Robinson. The city councilwoman and community leader was arrested and booked. She had never been in trouble with the law, but now she found herself facing up to 15 years in prison. […]

        Barnhill is one of the DA’s involved in this case.

    • harpie says:

      From AJC article, linked above:

      “We are going to ask the question why the DA did not conclude that Mr. Arbery was wrongfully killed,” said Charles Steele, president of the Southern Christian Leadership Conference. “The video was circulating within the law enforcement agencies before it surfaced in the public.”

      1] After Glynn County police chose not to charge the McMichaels, Brunswick Judicial Circuit District Attorney Jackie Johnson recused herself because [The father] Greg McMichael had worked as an investigator with her office.

      2] The case was then assigned to Waycross Judicial Circuit District Attorney George Barnhill. He would later recuse himself, but not before telling Glynn police he did not see sufficient probable cause to charge the McMichaels. […] [numbers added]

      https://twitter.com/jduffyrice/status/1258414240450457606
      11:11 AM · May 7, 2020

      The DA [George Barnhill] that charged this black woman for felony voter fraud and took her to trial TWICE is the same DA that chose NOT to arrest the McMichaels for murdering Ahmaud Arbery, despite seeing the video of his death. [NYT]

      I wrote about this a few years ago, and despite not writing many articles lately i’m going to write something over the next few days about this guy. but these two things are not unrelated.

  19. Chris.EL says:

    What if the ratters [RFers] have some sort of strong arm tactics to deploy on Sullivan to sway his decision…

    perhaps postponing any final word may be a way to go?

    Six months??? No, til end January.

    just a thought. Leave’ em hangin’ !!! HA!

  20. Eureka says:

    Buckets, bmaz!

    That’s short for merci beaucoup, you here and Marcy elsewhere hit it out of the park on this one with super clear presentations of what has come to pass…

  21. mospeck says:

    >Q: Can DOJ do that? A: Sure, but it is bizarre beyond belief.

    Yea bmaz, but how bizarre?

    (a guy and his pal got stopped by a cop for having some pot, and his friend got beat up. Then he wrote a song about it. Unfortunately he died at 41 of demyelinating polyneuropathy, a kind of super MS. Just bad luck, but Marcy seems to be saying that we’re all in for some of that right now)

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