Bill Barr Not Only Overrode Emmet Sullivan’s Brady Ruling, He Explicitly Pre-Empted Sullivan’s Covington Review

In a post last Monday, I laid out four different ways that Billy Barr was pursuing to guarantee that Mike Flynn would be excused for calling up the country that had just attacked us in 2016 and asking them not to worry about the sanctions imposed as a result. In it, I described how, in the wake of Emmet Sullivan’s decision that a bunch of files Flynn had demanded neither counted as Brady material nor merited dismissal, Barr had asked St. Louis US Attorney Jeffrey Jensen to review the files at issue in Sullivan’s ruling.

Approximately the week before Flynn filed his motion to dismiss, Barr appointed the St. Louis US Attorney, Jeffrey Jensen, to review Flynn’s prosecution.

It’s hard to overstate how abusive this was, on Barr’s part. When Barr did this, Judge Sullivan had already ruled there was no reason to dismiss the prosecution, and ruled that the items now being produced were not discoverable under Brady. What the review has done, thus far, has been to provide Flynn with documents that someone — presumably Derek Harvey — had reviewed, so he can obtain stuff even Judge Sullivan ruled he was never entitled to receive.

Moreover, Barr did this even though he had already appointed John Durham to review what has come to incorporate Flynn’s prosecution under a criminal standard. Durham could obtain all this evidence himself as part of his investigation, but he can only do something with it if it is evidence of a crime. Effectively, Barr has asked two different prosecutors to review this prosecution, the latter effort of which came after a judge had already ruled against it.

That said, given the prospect that litigation over Covington’s supposed incompetence may be highly damning to Flynn’s reputation, the Jensen review provides Barr with another option. He can use it as an excuse to order prosecutors to withdraw their opposition to Flynn’s motion to dismiss. It’s unclear whether Jensen has found anything to merit that yet, and Jensen appears to be engaging in analysis that might undercut where Barr wants to go with this (though given how closely Deputy Attorney General Jeffrey Rosen’s office is involved in this, I doubt that will happen). That said, Barr’s treatment of the Mueller Report proves that he has no compunction about claiming that a prosecutor’s conclusions say one thing when in fact they say something very different. And so at any moment, Barr may order prosecutors to effectively wipe away the prosecution of General Flynn.

In it, I underestimated Barr’s brazenness. He went further than ordering prosecutors to withdraw their opposition to Flynn’s motion to dismiss. He affirmatively moved to withdraw the case, with prejudice. Notably (given Barr’s past misrepresentation of what prosecutors have said), DOJ did not include anything in writing from Jensen’s review. While Jensen has issued a short statement in support of the dismissal, neither the public nor Sullivan have seen the so-called analysis Jensen purportedly did in this review.

Still, I was totally correct that “at any moment” Barr might order prosecutors to “effectively wipe away the prosecutor of General Flynn.”

The post laid out some key issues of timing, however. Of particular note, on Friday, prosecutors would have submitted a filing explaining what they planned to do with the 600 pages they had received from Covington & Burling elaborating on documents already public that show Flynn didn’t fully disclose things he later admitted to under oath. Given what was already public — which showed that even Flynn’s sworn declaration in his motion to dismiss did not accurately present Covington’s representation — those documents, if made public, would likely be very damning to Flynn.

But since Flynn filed this motion, Covington has turned over 500 additional pages of evidence to prove their competence, as well as 100 pages of sworn declarations. Sidney Powell has made aggressive claims that damage Covington’s reputation, they appear to have gotten paid nothing for representing Flynn, and Judge Emmet Sullivan showed some interest in putting everyone under oath to fight this out. So it’s possible that this will lead to a spectacular hearing where very reputable Republican lawyers will have an opportunity to disclose how much Flynn lied to them.


On May 8, the government will provide a status update or proposed briefing schedule on Motion to Withdraw. Most likely, this will be an anodyne filing. But it’s possible we’ll get a summary of what Covington included in the 600 pages they turned over, which may be very damaging to Flynn’s case.

That is, a week ago, I noted that Flynn’s efforts to blow up his prosecution might soon backfire.

I also noted that Barr had two parallel efforts to undo the prosecution of Mike Flynn: Jensen’s, and John Durham’s. John Durham has been reviewing the first six months of the Russian investigation for a year already. He has had access to this information for that entire time. But even on top of the Durham review, Barr appointed Jensen.

In his interview the other day, Barr bragged about why he had done so. He had to “move quickly,” the Attorney General admitted, because of the motions that were filed in this case.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

Except Barr didn’t allow those pleadings to play out.

Indeed, Barr acted on Thursday to prevent the ethical consequence of Flynn’s motion to dismiss based off a claim Covington was incompetent to occur, the public disclosure of those filings showing Covington’s representation of Flynn.

Billy Barr took a breathtaking step on Thursday to pre-empt Sullivan’s review of whether Covington really provided Flynn incompetent representation, or instead advised him wisely to dodge the accountability of his secret work for a frenemy government.

As such, DOJ has overridden the authority of an Article III judge at least twice: Sullivan’s previous ruling on Brady, and his upcoming review of Flynn’s claim that his lawyers were incompetent.

Barr said he was tasking Jensen to do more.

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well.

Given Barr’s unbridled efforts to excuse Flynn’s actions secretly working with foreign governments to undermine the stated policy of the United States, I suspect he may ask Jensen to invent some excuse to back out of the government appeal in Flynn’s partner, Bijan Kian’s case.

Update: I also predicted the tie between the dangers of the motion to withdraw and the Jensen review in February, when it became public.

Back in June, it seems clear, Bill Barr told Sidney Powell it would be safe to blow up Mike Flynn’s plea deal, perhaps believing that things he saw on Fox News — including a bunch of hoaxes that Sara Carter had started, and which FBI had already investigated multiple times. Powell proceeded to make Flynn’s legal woes worse and worse and worse. Alarmingly, she had Mike Flynn submit a sworn statement that radically conflicts with other sworn statements he already made. In other words, based on Bill Barr apparent reassurances that Flynn should pursue an absolutely insane legal strategy, Flynn turned his probation sentence into additional perjury exposure.

And so now Bill Barr is sending off his minions to try to undo the damage that Flynn and Powell created for themselves by trying to suggest that multiple lies to the FBI somehow amounted to an ambush because Flynn was so sure the FBI was on his side that he lied convincingly.

In the wake of Bill Barr’s intervention last week, Flynn moved to withdraw all his pending motions, without prejudice, including the motion to withdraw his guilty pleas. Given that, as part of that motion, Flynn submitted a sworn filing that materially conflicts with other sworn statements Flynn has made before this and Judge Contreras’ court, as well as before a grand jury, and given that Barr went out and admitted on TV that those filings were the reason he acted in such an unprecedented fashion to pre-empt an Article III judge’s decision, it seems that Barr’s actions actually don’t affect that motion to withdraw. Sullivan could reject that, since parts of it are unaffected by Barr’s actions.

Unlike Barr, Judge Sullivan is not predictable. So I’m not predicting that will happen. But among the many pending requests before Sullivan is a request to unring yet another Flynn statement that might be a material lie, one he does not have to accept.

102 replies
  1. misteranderson says:

    This is a remarkable technique that Barr & Trump use: release documents, declare they say something they do not(e.g. Mueller exonerated Trump), media goes with it & they win the news cycle.

  2. Socalscribe says:

    Any insight as to why Shea signed the motion with another US attorney’s bar number?

    This entire stunt is so transparently sloppy, corrupt and cavalier.

    • vvv says:

      My sorta educated guess is because speed and availability – they wanted it now and couldn’t find someone quick enough to sign.
      I do not think it is invalidating and as long as they seek leave to amend it should stand as their pleading, before hopefully being denied, and with sanctions, even.

      • bmaz says:

        Yeah, that is probably right. This is not unheard of. But, Jesus, what a conspicuous case to do it on. It is bonkers.

        • vvv says:

          I was just coming back here to note that you answered below – yep, bonkers.

          I just passed on to responding to the kenny kong 3:27 CST post because, well, you. ;-D

  3. Leroy says:

    At this point, I think I see what is brewing. They are not trying to just whitewash what happened in 2016. Thats not how they roll. They are going for revenge. I would expect them to actually start bringing charges and arrests of the entire upper echelon of the Obama administration. That includes subpoenas in the senate against Biden. They know what will happen if Trump loses and they cannot allow that to happen. People need to expand their ideas of how far down the bad road they will go. Think night of the long knives type stuff..

    • BroD says:

      Not revenge. This crew is on track to lose the Presidency, the Senate and more House seats. To say that they will not accept that graciously is a gross understatement–if they can’t have their way, they’re going to tear this building down. They’re planting explosives wherever that can throughout the institutions of American Democracy: this is just one example.

    • Rugger9 says:

      That it is revenge is the gist of DJT’s comment about “just beginning” with Flynn’s case rug being pulled out from under Judge Sullivan, except that Judge Sullivan has a couple of large weights sitting on the rug keeping it in place.

      AG Barr went on a magical mystery tour around Europe earlier this year looking for dirt on the Bidens. It was unusual for several reasons not least of whoch was that he did it himself instead of sending a deputy like most Cabinet officials would do. It is clear that DJT sees Joe Biden as a political threat (he should, and Biden doesn’t even have to do or say anything) and is now setting up the rat fornications to come out, including criminal charges on Hunter and Joe, followed by OANN and Faux loudly screeching about how corrupt the Ds are. It would have happened to any D candidate at this point, and Tara Reade (as well as “Victim #2” whose story fell apart within 48 hours when it was proved Joe Biden wasn’t at the event in question) just happening to suddenly come forward with a planted story (several outlets have debunked it thoroughly) while demanding Joe resign makes it clear DJT is terrified of losing and bigly.

      • subtropolis says:

        I cannot recall where I read this, but Barr explained his journeys by saying that he needed to reassure/persuade foreign governments to be candid about their own Intel with Durham. It does kinda make sense that they’d be less than forthcoming without the personal intervention of the US AG.

        Still, I hope none of them were entirely willing to play Barr’s game.

      • Fenix says:

        (Apologies for not knowing how to properly quote people here)

        May 10, 2020 at 2:02 am
        “Think night of the long knives type stuff..”

        May 10 2020 at 4:33 pm
        “except that Judge Sullivan has a couple of large weights sitting on the rug keeping it in place.”

        I know this sounds over the top & I realize no one can truly predict what comes next, but would they… kill Judge Sullivan to remove this obstacle? Desperation breeds desperate measures

    • BDog says:

      Night of the Long Knives involved a lot of murdering. Trump’s guys are bad news but maybe we should dial back the Nazi comparisons.

  4. Ollie says:

    What an excellent report. Q: Has Judge Sullivan made any public comment? Is he allowed to? Trump and Barr are eliminating reality. I recall, recently, Barr stating…w/a smirk…that the ‘winner’ is the one who writes the history’ or something close to that.

    Is our democracy gone yet? It sure seems like it: people forced to go back to work and Spkr McConnell is rushing thru protections for companies if all their peeps die. Stock Market is gaining and 29M folks out of work and how many of those are now w/o medical insurance.
    Well. You keep us informed as usual Marcy. Thank you

    • emptywheel says:

      Sullivan will speak publicly when he issues an order responding to both DOJ’s motion and Flynn’s several motions. There’s no schedule to do so, and I expect him to take his own sweet time and do a lot of legal research first.

      He does have authority to reject all the motions in front of him, and some good reason to do it. Or, he might just hold a hearing to figure out how all this came about.

      Since this really is unprecedented, though, I expect if he doesn’t anything less than what DOJ wants, DOJ will launch a mandamus action against him. to get an Appellate court to do what Flynn wants.

      • ernesto1581 says:

        A little explanation of your remark re: DOJ launching a mandamus action, please?

        Overview from law.cornell is:
        “A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”

        With what authority and in what way would DOJ structure such an order to remedy? What would Barr need to put together up front? Or is that a dumb question? Would the intent of a mandamus action against Sullivan be analogous to that of a SLAPP suit?

        • emptywheel says:

          bmaz or others might explain this better than me. But if a judge totally abuses his discretion, one of the two sides can ask the appellate court to tell them to do their job.

          If Sullivan were to totally reject the motion to dismiss (rather than to just grant it without prejudice, meaning a future DOJ can refile the charges), I expect DOJ would ask for a writ of mandamus from the DC Circuit, since usually motions to dismiss put the defendant’s rights at the forefront. I DC Circuit would not play ball with that (at least not the full circuit). So this would be a way for the Republicans on SCOTUS to endorse Barr’s ability to politicize DOJ.

        • ernesto1581 says:

          Sullivan rejects completely –> DOJ goes to DC Circuit which likely kicks the motion to SCOTUS.
          Does DOJ even wait for DC Circuit finding and go for cert using SCOTUS Rule 11 (a writ for cert on a case pending prior judgement)? Or does DOJ go straight to Rules 17 & 20 (petition for extraordinary writ in aid of Court’s appellate jurisdiction), thereby cutting DC Circuit out of the play? Finding four justices to cert wouldn’t seem like such a heavy lift, at this point. Is this even a thing?
          And having succeeded in one of these actions, does DOJ also push SCOTUS to squeeze in an extraordinary session in June, rather than wait for October?

          Sullivan grants motion “without prejudice,” Flynn walks away. Then what? Is that enough for Barr? Or does he attempt to get the dismissal amended to “with prejudice” in order to seal the whole thing in lead? Is that even possible?

          (Have I ever said “thank you” to you and your co-conspirators for this excellent site? Thank you!)

        • bmaz says:

          Thing is, that is entirely within Sullivan’s judicial discretion. Grounds for appeal after sentencing, but not interlocutory mandamus.

        • earlofhuntingdon says:

          Barr would be requesting the DC Circuit to order Sullivan to dismiss with prejudice, on the basis that Sullivan’s refusal, were he to issue one, was a gross abuse of discretion requiring that it be overturned “in the interests of justice.” Hypocrisy is the neocon’s defining trait.

          A panel of the DC Circuit, filled with Trump judges, might agree. That would be appealed to the full bench, which probably would not, as EW points out. That tee’s up an appeal to the S.Ct., which would probably take the case. Trump’s majority would agree with Barr, that’s why it’s there. Protecting the president is Job #1. Such a decision would elicit howls of protest and eloquent dissents by the liberals, which will be as useful after the fact as their dissents in Bush v. Gore.

          The neocon majority cares only about winning. What’s at stake is not Trump — he’s a tantrum or double cheeseburger away from leaving the White House — but the neocon project they’ve been devoted to since 1980. To them, it’s life or death in America. They need to avoid now the possibility that someone like AOC might one day be president.

        • The Old Redneck says:

          Technically speaking, it would not be a writ of mandamus. That kind of writ is used to compel a government official in the executive branch to do something they have a clear legal duty to do. Mandamus is not used a vehicle to overturn a trial court judge. Instead (assuming Sullivan denies the motion to dismiss), it would be a “regular” appeal to the DC circuit.
          I don’t know of any mechanism that would allow the appeals court to just pass it on to the Supremes. I think they’d have to rule on the merits and let it go up in the usual way. The Supremes could decline to hear it, though that seems unlikely in the current environment.
          We’d all like Sullivan to deny the motion. Anything else would be a travesty given what’s happened. But he will really have to summon some major stones to keep the case when both parties before him want it to go away. Judges are supposed to be “umpires,” so to speak. He’d have to stick his neck out pretty far, probably basing his decision in preserving the integrity of the judicial system and the policy of punishing perjury.

        • earlofhuntingdon says:

          Judge Sullivan would have no problem finding stones large enough to make a thorough and well-researched ruling. He can only point a path for the full DC Circuit. And the Supremes will do what they’re gonna do.

          One of the great prizes the neocons are going all Pavlov’s dogs over is how they will pack the court if Trump remains in office. Probably two more seats. It would be a majority even court packing would find hard to undo. It’s one reason Kentuckians would be doing the nation a great favor if they vote McConnell out. It’s not as if he or his wife has been doing them any great favors.

        • BobCon says:

          One thing to consider is the Supreme Court will only be in session for 6-7 more weeks until October.

          Time has been on Trump’s side because the Supreme Court’s conservatives have been able to stall a lot at will. Time is running out and they are going to have limited bandwidth to deal with all of Trump’s craziness that comes up. They may still throw a wrench into any lower court Flynn decision, but they may have other priorities.

        • earlofhuntingdon says:

          If Trump loses in November, the volume of lame duck business will exceed the volume of all else, barring the recriminations.

          One of many items Republicans will obsess over will be making sure that the WH nominates and the Senate confirms every possible judicial nominee, until the second before Trump’s successor takes office.

        • posaune says:

          Sorry for the OT here. I’m curious about all the road projects all over the US. EVERYWHERE, almost every state. While I think these projects have propped up some jobs, they are also using a LOT of concrete. Huge amounts. Makes me wonder if Elaine Chou is sourcing the concrete from her family business. I’d love to see someone dig into that.

        • P J Evans says:

          California has been working on highway projects (repairs and improvements) for several years, going back before 2017. I don’t think concrete is the problem, though there have been problems with Chinese-source steel (which I don’t think Chao was involved with).

        • vvv says:

          I believe that the Supremes could issue a “writ of certiorari”, sometimes done on petition but also sometimes sua sponte.

        • timbo says:

          Seems like that would be a bit premature in this particular case, although the DOJ is now implying that Flynn’s Constitutional rights may have been abused by earlier DOJ behavior. An interesting problem for the Federal courts to ponder but hopefully they won’t want to tackle this without a good an long record of things proceeding up through the normal channels, etc.

        • Rugger9 says:

          If all that were before Sullivan were the briefs from both parties you might be correct. However, we also have several sworn statements to the court under penalty of perjury by Flynn in his earlier hearings, and we also know that Shea’s argument is a legal house of cards (and if I were Sullivan I would sanction Shea for using someone else’s license number – that’s fraud but IOKIYAR). The statements by Flynn are the reason Sullivan would reject this because of the fraud upon the court.

          18 USC 1001 also applies.

        • timbo says:

          Hence the issue of “competent representation” by the earlier defense lawyers that Sullivan might be interested in exploring further. The thing is that Barr has decided to ignore that part of the issue and instead place the blame on his own organization here before the court. And the problem with that is how do you get a grand jury to look into any of the substance of gobbledy-gook that he and Shea have handed to the Court in a steaming pile?

        • Marinela says:

          Now is becoming clear to me why Barr forced the prosecutor to step down.

          After Sullivan rules, what’s left of DOJ prosecutor (Barr’s eggplants) is going to have easier time to “undo” what Sullivan rules. This is so crocked.

          Aside from stepping down, what other option was available for Brandon Van G. if he didn’t want to sign the motion to dismiss the case, but he still wants to keep his job.

          When institutions fail, and get politicized, there is immense pressure on one single person to do heroic acts, in this case we expect a single Judge to stand against an entire corrupted apparatus, or a prosecutor to loose his job because everybody else is corrupt.

          We should not be in situations when people need to stick their neck out for the rule or law to prevail.
          Our democracy is way too fragile if this is the case.

        • vvv says:

          Pretty sure SLAPP is by state law. IME, it’s a suit by one private party against another involving
          abuse of process through a lawsuit to discourage/prevent other lawful actions, like when a corporation tries to silence a whistle blower by filing a specious libel or slander suit

        • vvv says:

          … if you are ht tps://, that’ll work.

          where I am, it’s 735 ILCS 110/, called, Citizen Participation Act.

  5. Rick Ryan says:

    I have a couple of questions as a non-lawyer. As I understand it, the government’s withdrawal would (or does) render the dispute with Covington irrelevant (since the case it concerns is closed), so the documents they provided would not be made public at this time. But does that legally end the dispute between Covington and Flynn? Or does that dispute “spin off” somehow (into civil litigation?)?

    It’s my understanding that formal accusations of inadeqate representation have some legal weight, and it seems to me the firm suffered reputational damage due to Flynn’s accusation of incompetence (hypothetically, anyway). So if the government’s withdrawal would also end that specific dispute, could (and would) Covington sue for damages? And if so, who would be the defendant? Flynn, Powell, and/or Shea?

    I don’t particularly hope that that ongoing litigation between Covington and Flynn(‘s collaborators) would lead to significant public disclosures, much less anything game-changing in the larger scheme, I’m just curious how this works. It seems like something that might happen somewhat regularly (a firm being accused of incompetent representation in a case, then that case being closed before the incompetence dispute is resolved). But I did some googling and wasn’t able to find any info on the procedures of how this works.

    • earlofhuntingdon says:

      Flynn, rather, his patrons would settle it. Not disclosing information is an important goal. Covington is a big DC firm that represents a lot of corporations and high-powered individuals — the only ones who can afford its fees. It has a lot of juice, but also a lot at stake. It would accept a settlement if Flynn withdrew his allegations of negligent representation. Given his and Trump’s need to avoid disclosure, he’d do it.

      • vvv says:

        I’ve been called overly aggressive, and professional liability carriers and CLE mavens decry the practice, but I’d want to sue for those fees, if possible. Or perhaps just sue for costs, if that is all that’s contractually available.

        • earlofhuntingdon says:

          In the normal world, you might well sue or be sued regarding unpaid legal fees. But Inside the Beltway, it would be a sign that you got duped – never a good marketing strategy for practitioners who think they’re the best in the business.

          The bigger issue, I think, is that insider’s never wash their laundry in public, on pain of losing insider status. Everyone wants to keep this quiet. Payments and withdrawals of allegations might occur, but in the context of a quiet, make this go away deal.

  6. Rapier says:

    Very meta but should always be in mind.

    ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do”

    • vvv says:

      Knew I’d heard that before:
      ht tps://

      • TooLoose LeTruck says:

        ‘We’re an empire now, and when we act, we create our own reality…

        I remember that… I was actually thinking about it just the other day…

        And how’s that worked out for them, 20 years after going into both Afghanistan and Iraq, deliberately keeping the expenses off the books, and getting lord how many people killed in those two countries?

        I’m gonna hate the GOP the rest of my life…

  7. Pat McDowell says:

    Could Judge Sullivan call Bill Barr to explain himself under oath? Reasonably he should be able to charge him with contempt of court and jail Barr. Could that ever happen?

    • TimH says:

      That is a very interesting question. If so, can Judge Sullivan ensure that the hearing isn’t in camera?

    • Rugger9 says:

      I think he’d start with Shea since Shea signed the withdrawal motion. I’m pretty sure Flynn and Powell will not be too anxious to name-drop Barr into being called as a witness. Even though it’s pretty obvious who is calling the shots the evidence linkages are not direct enough yet.

  8. foggycoast says:

    marcy certainly paints a damning portrait of barr and his henchmen. this is all political, not judicial, and the deck is stacked. given the doj abuse and the timing of all this in relation to the upcoming election, does it make political sense to initiate impeachment proceeding against barr. i suspect he is arrogant enough to actually testify under oath.

      • OldTulsaDude says:

        It’s not arrogance when you know there can be no repercussions for your actions – but it is chutzpah to openly relish your corruption.

      • foggycoast says:

        fine. that’s how to end up in jail instead of just thrown out of the job. because that trial will likely happen after the election when hopefully the dems control.

    • timbo says:

      Hmm. I doubt it. If that was the case, we’d have had a real impeachment trial in the Senate of Trump. This is the thing none of these folk really want to do—testify under oath in a Federal Court.

  9. Zinsky says:

    It may be too late, the letter may not reach him or he may not read it but I am going to send Judge Sullivan a letter tomorrow, urging him to “stand his ground” and send this habitual liar (Flynn) to prison. Call me a fool, but I have always believed that the pen is mightier than the sword and I will not succumb to these frothy right-wing reptiles without unsheathing mine!

    • bmaz says:

      NO! It is not too late. Send the letter! I would suggest sending it electronically AND in hard copy.

    • subtropolis says:

      Should Sullivan not immediately send his ass to prison, keep in mind that he may be purposefully dragging this out until, oh, say … next February. Between Shea’s bizarre arguments, the Covington accusation, and the incorrect bar ID under Shea’s name, it seems that Sullivan would be justified in requiring more time.

    • bmaz says:

      It is not impossible that it was a mere clerical error. But, if so, it displays the recklessness and sloppiness of the Barr DOJ. You are signing a critical pleading, bound to be seen by the entire world. Did you really sign? Are you a member of the freeaking bar it is bing filed in? Are you doing it under the Bar Number of someone no longer even in the DOJ?

      But there are easy ways around any issue if you care to do it right. If nothing else, sign with notice to the court of pending certification. This shit happens in federal court all the time. It is harder on private attorneys, it is butt naked easy for federal DOJ attys who need not be a member of the local bar, but must certify to the court. Shea and Barr did not even do that.

        • bmaz says:

          Again, lawyers use prior pleading templates all the time. Sometimes you get caught up in the necessity to get something filed and an error happens. It happens regularly, and is just an honest oversight trying to get something out and filed.

          This seems different though. All I know is, that if I did that, I would get crucified and keelhauled.

      • Peterr says:

        Barr appears to have studied law at the Leona Helmsley School of Law, where the first thing that students are taught is that rules are for the little people.

    • harpie says:

      So, it’s Jesse Liu‘s number.

      She declined to comment on Saturday.

      The official said Shea was part of a team who wrote the document, and declined to explain why the career prosecutor, Jocelyn Ballantine, who signed several other recent filings in the Flynn case, didn’t sign it.

      People close to the DC US attorney’s office said the mistake isn’t one trial lawyers in that office would likely make. And they pointed to the fact that no other lawyer in that office signed the dismissal request as a possible indicator the document was prepared elsewhere, perhaps at the Justice Department headquarters, where Attorney General William Barr was closely managing the Flynn review.

  10. The Old Redneck says:

    Here’s another interesting issue I haven’t seen discussed yet.
    Assume Sullivan denies the motion to dismiss. In general, a party can only take an appeal from a final order.
    In other words, the trial judge has to be done with the case before it goes up on appeal. That prevents piecemeal appeals that would make a case last forever.
    There are some exceptions to the finality rule. If this case doesn’t fit into any of them, then no one would be able to appeal a denial of the motion to dismiss right away. They’ll have to wait until after sentencing, when Sullivan’s work would be complete. And the people calling the shots could be different by the time that happens.
    So the key question is: can you immediately appeal a denial of a motion to dismiss with prejudice in a federal criminal case? I don’t know the answer to that one, but would like to know. There could be a lot riding on it.

    • bmaz says:

      At this point, who knows? Nothing is normal here. But, normally, the “appeal” would only be heard after sentencing. The defendant can certainly make a motion for continued release during the appellate phase, but that is up to judicial discretion. I’d think that such a motion would be granted fairly easily. But the time thing you raise is key. This process can take a good long while. We just have no idea how Sullivan will react and order.

    • Speck says:

      When I read the transcript of Flynn’s sentencing hearing from Dec. 2018,
      Judge Sullivan told Flynn that “It could be said that you sold your
      Country out”.
      Any bearing in this mishagus?

      • bmaz says:

        Probably not, no. That was the one thing Sullivan did that was not wise or proper. Excepting that extremely brief thing though, reading that transcript is pretty sobering, no? It is almost impossible to see Flynn’s position now vis a vis then.

  11. Kenny Kong says:

    Judge Sullivan has been asked by the DOJ to dismiss the case against Flynn under Fed. Rule of Criminal Procedure 48 (a), as Flynn has not been sentenced, the Judge has to first agree to wipe Flynn’s guilty plea clean. This is difficult to achieve procedurally.

    DOJ’s basis is that the interview with General Flynn on Jan 24, 2017 was not conducted with a legitimate investigative basis.

    If Judge Sullivan allows the case to continue, the likely outcomes are as follows:
    1) the prosecution would likely not call witnesses to the stand.
    2) even with prosecution witnesses, it is hard to prove beyond a reasonable doubt to the jurors.
    3) Trump will likely pardon Flynn in the fullness of time even if the case is to be continued.

    It is true the case is in the hands of Judge Sullivan. But in the best case scenario, Flynn will still win.

    • bmaz says:

      Uh, WHAT “witness stand”???

      Let’s be crystal clear, there is a fully accepted guilty plea on record, that has been allocuted to at least twice fully in open court. There is NO “prosecution witnesses” scenario as you infer. Nobody has to “prove” squat. Flynn already admitted it under oath.

      • Kenny Kong says:

        Your lack of understanding of court proceedings is understandable. I also sense anger in your tone, typical of many amateur chess players that I defeated.

        Do not let your anger cloud your analytical thinking. Foul language has no place in a healthy discussion.

        • bmaz says:

          Yeah? Well here you go Mr. Oh So Sensitive Kong: Can you explain why an accepted (twice!) plea of guilt is invalid? No, of course you can’t, because you don’t seem to have any particularized knowledge of criminal law, nor criminal plea status.

          Go check out Rule 11 of the FRCrP jackass. Learn how it is applied in actual courts of law. Lol, and then come back with your “amateur chess victories” nonsense. Thanks for playing, even if your entry is nuts and inauspicious!

        • P J Evans says:

          Oh, sweet summer child!
          You’re arguing with a practicing lawyer about how courts work?

      • The Old Redneck says:

        Sorry guys, bmaz is right. There’s no need for a trial when the defendant has admitted committing the crime in court. This is basic stuff. And it’s also why dropping the charges at this point is completely bonkers.

        • Rugger9 says:

          But fortuitous in a way, since it really exposed the rank corruption of the DO”J” under AG Barr and because of the timing means that Judge Sullivan doesn’t have to accept the argument. One wonders why Barr didn’t do this earlier with Flynn (i.e. when he became AG in FEB 2019) when he pleaded with Sullivan in November 2019 and January 2020, since those are key to why Sullivan will say no, or when Flynn swapped over to Powell in June 2019 and started to push back (IIRC with DJT’s twitter support). If Barr had done this in June or when Flynn filed his counter attack in July (IIRC) there would have been some uproar but not the detail or the track record of illegality and imperial overreach we know about now.

          I sense something else is important here that we are missing with respect to the timing. It could be to distract from COVID news but I think shoes are about to drop. It’s not like Judge Sullivan didn’t make his sentiments clear in late 2019 from the bench.

        • P J Evans says:

          It needs to be done before the conventions, I think, so that Trmp can have Flynn as a speaker telling lies about how great Russia and Turkey are as allies.

        • Joe Student says:

          I wonder if this rush has anything to do with Judge Reggie Walton’s in-camera review of the Mueller report.

        • earlofhuntingdon says:

          I suspect even the well-practiced Bill Barr is discovering how exhausting it is to provide cover for Donald Trump. Every time he turns around, Trump leaves shit for someone to pick up, much of it probably criminal or so problematic, the ordinary CEO or politician would be thrown out with a big, STFU paycheck.

    • earlofhuntingdon says:

      There’s a reason why those who pick up the Enquirer while in the check-out line and those who watch Faux Noise are among the least well-informed citizens. Your comment just spouts jargon from Law & Order. Among the litany of things you miss is that Barr’s exercise is intended to avoid the need for Trump to issue a pardon. So, in the fullness of time, please stop.

      Something else to consider is that Barr – as GHW Bush’s former consigliere and as a former telecomms general counsel – wants to defang the federal agency that could cause his clients the most trouble, were it in the hands of a Democratic administration. He is proverbially telling the Coast Guard to stand down and opening all the sea cocks on the ship of state before he abandons it in a few months, after which, he hopes the relevant statutes of limitation will have run.

  12. Mike Adamson says:

    IANAL and so there is lots I don’t know but Barr’s move suggests to me that something else is indeed to drop. Why not let the case play out and then issue a pardon?

    • earlofhuntingdon says:

      One reason is to avoid relying on an unreliable Trump to do it. That avoids Trump having to choose between a relatively nuanced commutation – which saves Flynn from prison time but preserves his legal jeopardy and his legal rationale for not speaking. The alternative is a more straightforward pardon. (Trump does not do nuance.) The pardon does not, however, preserve Flynn’s jeopardy, which means he could be compelled to give testimony.

      Another reason is to avoid Trump having to take responsibility for protecting himself (and an underling). He hates responsibility, and cannot imagine considering the interests of anyone but himself.

      No, Barr has nicely threaded the needle in protecting Trump, in distracting from his responsibility for all this, and in getting Flynn off the sword he haplessly fell on. The latter keeps him quiet. In doing that, though, Barr has defenestrated justice, the law, and the DoJ, none of which matters to him.

  13. chetnolian says:

    I leave it to US nationals to speculate on what happens next, and some of the suggestions here are somewhat apocalyptic but this is sounding more and more to an overseas lawyer like Brazilian political justice. And if that sounds like an insult to the current US administrative and legal system, I can only respond “If the cap fits, wear it.”.

    For all its faults, we overseas liberals used to admire the steady, if sometimes plodding, certainty of the US legal system and the US could truthfully describe itself as “The Land of the Free” (though it might be a bit difficult to be a foreigner). No more. This is truly very scary. Having said that, some of us are old enough to remember John Sirica, and how one stubborn judge can derail a concerted Administration plan.

  14. PeterS says:

    I am a humble foreigner but I’m always trying to learn more about your wonderful country. This week I am learning about your legal system. 

    It seems that an investigation without a charge at the end isn’t a proper investigation. So the law enforcement agencies should only investigate people they’ve already decided to charge. Therefore getting new information by interviewing people isn’t really necessary. Which also means that lying to the agencies during interviews isn’t a problem because the interviews weren’t needed in the first place. 

    Please forgive me if I have got some facts wrong.

    I am so happy to find that your legal system is like mine at home. In my republic we have lots of bananas. 

    • harpie says:


      A beautiful bunch o’ ripe banana
      Daylight come and me wan’ go home
      Hide the deadly black tarantula
      Daylight come and me wan’ go home

    • vvv says:

      I’m pretty sure you are being sarcastic, (use of “/s” would have been helpful) but felt like taking a crack at the questions anyway …

      “It seems that an investigation without a charge at the end isn’t a proper investigation. So the law enforcement agencies should only investigate people they’ve already decided to charge.” — No, an investigation may be to learn information to decide whether to proceed with charges, or to gain information related to the potential charging of others, or for other purposes (referral for additional or other investigations – depending on who is investigating, for counter-intelligence purposes, etc.)

      “Therefore getting new information by interviewing people isn’t really necessary.” — Interviews are bog-standard investigatory technique.

      “Which also means that lying to the agencies during interviews isn’t a problem because the interviews weren’t needed in the first place.” — “needed in the first place” is certainly part of the argument (whether the lies involved were about things material to the investigation ) that the Barr DOJ is asserting and in this instance incorrectly, even wrongfully; there are statutes that make lying to federal law enforcement (note not just the FBI) a crime, with materiality a threshold part of the anlysis.

  15. Terry Mroczek says:

    I always like reading Marcy’s analysis and all the comments. I am not a lawyer, but I have a couple of questions. (Maybe dumb, but excuse my ignorance.)
    1. Flynn pleaded guilty twice before the judge. I believe the judge asked him directly if he was sure and Flynn stated yes. Why isn’t this considered lying to a judge? Why isn’t this considered perjury given he is now changing his tune? Why would a judge be okay with that – assuming that if he does dismiss the case as the DOJ asked, he would be implicitly saying it was okay to lie to a judge, no harm, no foul.
    2. If the judge does not dismiss the case and somehow Trump pardons Flynn, doesn’t Trump make it explicitly clear that he was only doing that to protect himself? Trump is on camera stating that Flynn had to go because he lied to the VP. Isn’t that impeachable, as in an abuse of power? Can Trump suffer any legal consequences after he leaves office for doing that?

  16. vvv says:

    1. We’ll have to await the judge’s decisions, but it is entirely possible he does make a finding of perjury at some point.

    2. If the judge does not dismiss the case and somehow Trump pardons Flynn, doesn’t Trump make it explicitly clear that he was only doing that to protect himself? — Many, including me, believe that is a primary motivation were he to do so.

    Isn’t that impeachable, as in an abuse of power? — Pragmatically, he has pretty much an absolute right to pardon; it would raise a constitutional crisis to impeach.

    Can Trump suffer any legal consequences after he leaves office for doing that? — Theoretically, perhaps yes, but very unlikely in that specific regard.

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