Judge Sullivan to Judge Gleeson: Pick Flynn’s Perjury

Since at least last July, I’ve been warning that Sidney Powell’s serial efforts to use Judge Sullivan’s courtroom to rile up the Fox frothers might backfire. In January, I started pointing out that the claims Flynn had made to try to get out of his prosecution presented four materially conflicting sworn statements. Just this morning I pointed out that Sullivan has to figure out what to do with Flynn’s conflicting sworn statements, which are:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

Judge Sullivan just appointed an old mob prosecutor, John Gleeson, to do just that — as well as to represent the views that a competent government would represent if we had one.

Upon consideration of the entire record in this case, it is hereby

ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss, ECF No. 198, see, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); it is further

ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.

I’m still sorting through the different legal consequences of doing this versus appointing Gleeson as a Special Master. Probably, Gleeson will only have access to the public record of the case, and not the Covington materials prosecutors were just about to unpack, to say nothing of evidence at DOJ proving or disproving that none of the materials submitted last week were new.

For now, though, understand that Powell has been laying these consequences for ten months.

143 replies
  1. earlofhuntingdon says:

    As it happens, Retired Judge Gleeson is a former federal prosecutor for the EDNY. He helped prosecute Mafia don, John Gotti, former head of the Gambino crime family, who was convicted of five murders and a string of other crimes, including racketeering, obstruction, and tax evasion. Unlike Trump, when he’s in the kitchen, he can take the heat.


  2. BobCon says:

    Is this likely the only thing Sullivan will do, or is it possible there is more?

    I’m curious if we’ll see another story planted in the press saying Barr didn’t want to do this but Trump made him.

  3. earlofhuntingdon says:

    I still can’t figure out why a guy who could have walked away with probation made such a hash of things, including switching from competent counsel to Sidney Powell. Was he goaded by Trump to never surrender, a threat that he could expect no pardon if he did? Is it his special operator’s sense of invincibility, a self-destructive streak as wide as Trump’s. Or could he not manage his post-military with a felony on his resume?

    • Das Robot says:

      My bet is all of the above. Pension, Trump threat, the whole nine yards. That pension is a chunk for an LG. His self destruction started long before this though. He’s in a perpetually weak position principally because he’s otnay ottay ightbray if you catch my meaning…

    • viget says:

      Personally, I think he’s the key to bring the whole criminal conspiracy down. He’s not just answering to Trump, he has many conflicting foreign masters to answer to as well, who don’t play nice with snitches. He knows way too much about why Trump was “elected.”

      Also, depending on what’s really happening at FBI/DoJ, his ongoing shenanigans to avoid prison have probably been an absolute gift to any counterintelligence investigation. The more Flynn drags things out, the more time the nat sec folks have to unearth what he’s really up to.

    • Peterr says:

      Sullivan made it clear in Dec 2018 that a “probation only” sentence was not a sure thing. Indeed, hearing Sullivan ask the prosecution whether they ever considered filing charges of treason against Flynn probably shook him more than anything else in that hearing.

      That’s a word that a general never ever ever imagines hearing being aimed at him/herself, even if only as a possibility. To even ask if someone thought his actions were treasonable is a shot to the gut.

      After court ended that day, I suspect Flynn did some deeper thinking, and I think your last issue — his post-military future — loomed large in that thinking. He could get a wingnut welfare appointment at some conservative think tank, and he could get some Ollie North-style rightwing speaking gigs, but he would never get a legitimate (that is, big $$) board seat or three, never get a prestigious university gig, and never be welcomed into the company of other retired generals.

      Somewhere along the line, someone whispered in his ear “You can see what you’re gonna get from Sullivan – so what have you got to lose if you trade competent counsel for a flamethrower?” Someone also probably looked at US v Stevens and said to him, “look, this is a judge who hates prosecutors, and we can use that to our benefit to get you off.”

      What that someone overlooked is that in US v Stevens, what set Sullivan off is not that he had to deal with prosecutors, but that he had to deal with people who misused their office in a way that brought his courtroom into disrepute and made a mockery of his work. Today, that’s Barr and Shea, not van Graak. It’s not because they screwed the defense, but that they are tanking their own very strong case in such a way as to excuse the conduct of someone who stood up and lied to Sullivan’s face in Sullivan’s own courtroom.

      • BobCon says:

        I think he could get reputation rehab to a decent extent — Petraeus seems to be on that path. But doing so would mean renouncing and speaking out against his clique and worming his way into a different club.

        He could certainly end up speaking at Aspen and hosting meetings at Brookings, and he could get into a club of moderate John Kerry types in the national security arena if he made an honest effort to make things right.

        But he would then be dead to his current clique of Heritage Foundation types. That was the issue.

        Also, he’s not so bright.

    • Rick Ryan says:

      Based on nothing but a lifetime of observation of human behavior, I’m guessing it’s something like:

      Indignation at getting caught (by pretty “basic” means no less) + Thinking what he did wasn’t “that bad”/Everyone does it + plentiful sycophants/delusionals/co-conspirators in regular communication + time = At some point he became convinced he actually *was* innocent

      Pathological liar lies pathologically, rejects reality and substitutes his own.

      At some point, Sidney Powell showed up and was willing to enable his deluded reality, whether because she’s a huckster looking to gain/improve her own standing in Trumpworld, or a fellow delusional who actually believes this BS (they’re not mutually exclusive, I suppose).

    • posaune says:

      Saw a Peter Zeidenberg tweet the other day . . . . “Flynn was sooooo close to getting it wrapped up with no time.” Disbelief that he would undo it all.

    • PieIsDamnGood says:

      Ollie North retirement plan. He’s going to be a star in the Trump campaign and will be set for life doing bits for right wing propaganda.

    • Bex says:

      I keep asking why he hasn’t been brought up on UCMJ charges and gone thru Courts Martial. As a retired NCO spouse I’d like to see this wiener treated like the enlisted were after Abu Ghraib fiasco in which officers hid behind a bunch of ignorant kids. Flynn deserves a 10-year appointment to Leavenworth. Oh, but guess what – the only one who can charge a General appears to be … The President. Convenient.

  4. sneakynordic says:

    The President can pardon criminal contempt. Guess this decision by Taft didn’t age well: “If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument.” Ex parte Grossman, 267 U.S. 87, 121 (1925).

    • david says:

      He goes on to say: “… Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President. … ” And thus it shall be.

    • Yohei72 says:

      Jesus, Taft actually wrote that with a straight face? What an astounding level of naiveté in someone in his position.

      • Rick Ryan says:

        Something that stands out when reading American political history is that most of the participants, even the most corrupt or outright evil among them, were fundamentally dedicated to making democracy work, because it certainly was not a given that it would.

        I am convinced that some time in the 1980s, probably coincident with Gorbachev’s rise and the growing realization that the USSR would fail, American political powers came to believe that they “won,” that our system was victorious over “Communism” and therefore both inevitable and indestructible, and so their mindset shifted from taking care to preserve democracy, to testing its limits in the extreme.

        I am reminded of the story of Garry Hoy, who heard the glass windows of his high-rise apartment would not shatter, so he took to demonstrating this by charging into it with the full weight of his body. He did it one too many times and the window popped out of the frame, and he fell to his death.

        He was right though; it didn’t shatter.

        • DNA says:

          They were so intent on making democracy work that they made the election of the most powerful position in the land non-democratic, and yet supposedly intelligent people continue to talk about the danger to our democracy.

        • Tracy Lynn says:

          I had never heard of Garry Hoy — I had to look this one up. Sometimes it’s better to be wrong and safe than right and dead.

  5. harpie says:

    Gleeson and two colleagues 2 days ago:

    The Flynn case isn’t over until the judge says it’s over
    John Gleeson, David O’Neil and Marshall Miller
    May 11, 2020 at 6:52 p.m. EDT
    [John Gleeson served as a U.S. district judge for the Eastern District of New York and chief of the Criminal Division in the U.S. Attorney’s Office in that district. David O’Neil served as the acting assistant attorney general for the Justice Department’s Criminal Division and assistant U.S. attorney in the Southern District of New York. Marshall Miller served as the highest-ranking career official in the Criminal Division and as chief of the Criminal Division for the U.S. Attorney’s Office for the Eastern District.]

    […] Fortunately, the court has many tools to vindicate the public interest.

    It can require the career prosecutor to explain why he stepped off the case […]

    It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.

    And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. [Flynn/Kislyak transcripts] […]

    By ordering disclosure of the transcripts, the court can empower the American public to judge for itself— and assess why the department is trying to walk away from this important case. […]

  6. The Old Redneck says:

    Oh my. That must have been one interesting conversation when Flynn called Sid Powell and asked her to explain what that order meant.

    • oldoilfieldhand says:

      So, Powell’s plan, harassing the judge to make the courageous Michael Flynn look like a victim of an out of control DOJ, while keeping Flynn’s name on the front page of the NYT and WaPo, to ensure his financial security selling his pristine reputation seems to be backfiring. Even with a pardon, the only way Flynn can make real money now is by penning a tell all. Will the Turks, Russians, Emirates and Saudis risk that happening? Will the Presindebt?
      Flynn disgraced his uniform, sold out his country for lucre and now he is not getting his hero reputation cleansed and re-packaged for big money influence sales. Only a presidential pardon to look forward to in his old age.

      • JamesPope says:

        He could have more or less disappeared and popped up a few years later, even with jail time, peddling widgets to Homeland guys. Now it looks like he’s going to be lucky not to drown from having the judge drag his reputation exhaustively through the mud face-first as publically as an annoyed judge can manage.

  7. Rugger9 says:

    Then it appears that we will see the transcripts, since I doubt Gleeson will be able to argue his case without them. This would seem to set up another round of litigation regarding access to those call transcripts, with Barr’s DOJ and Powell arguing that Gleeson’s appointment is invalid, or at least irregular and the WH has executive privilege or perhaps we’ll get a classification fight.

    That will take time and time is on Judge Sullivan’s side. I also think the selection of charges for Gleeson to look at (the perjury on the court) is genius, since I can’t see how Flynn or his attorneys (including Barr’s minion) gets off of that hook. At least one of Flynn’s statements to the courts must be perjury.

    • pseudonymous in nc says:

      “That will take time and time is on Judge Sullivan’s side.”

      This is the relevant point. Flynn’s initial plea was in December 2017. The initial sentencing hearing was December 2018. Sidney Powell started diddling about with the docket in mid-2019. If Judge Sullivan can drag this out until February 2021 it’ll be hilarious.

      • Ollie says:

        Oh I’m so on the edge of laughing at the joy of what I think you’re referring to: That in 2021, trump would be nothing but a citizen and then we can get Flynn w/o interference. Do I have that right? Please say yes, I really need the hope, lol.

        • pablo says:

          Unless President Biden just wants to put this all behind us. Looking forward, not backwards. He was Obama’s VP after all.

          • timbo says:

            Assuming he hasn’t been up to any other crazy stuff within the statute of limitation of course. Never underestimate the need for cash some of these players have…

    • madwand says:

      Even if they release the transcripts, the redacting pen redacts then moves on to redact more. You can almost bet nothing of value will be revealed. A full declassification is needed, nothing less.

  8. Rugger9 says:

    Given that the WH cannot let this daily dose of bad news drip drip drip through the summer, are there ways (not that I want to give the WH any ideas) for AG Barr to bypass Judge Sullivan on the appellate level?

      • Das Robot says:

        Sooner or later the pardon is in I reckon. The timing will be interesting. Can Gleeson’s arguments drag past the election? Will Sullivan throw in some other interesting objections such as requiring Covington’s materials? This is entirely new re perjury is it not? That is I’m assuming this is in regards to his changed testimony from his previous allocutions. Sorry to pile on…

        • bmaz says:

          I would love to say that is not the case, and originally did not think it was. That was long, long ago though. It may well be now. We shall see how panicked Trump gets.

          • Raven Eye says:

            I wouldn’t call it panic (yet) but I sense a certain level of anxiety in Barr. I think he figured he was riding the Tiger (large and orange) but now he’s kinda got the Tiger by the tail. Not a great feeling when the Tiger stops, and then turns around to look you in the eyes.

          • Rick Ryan says:

            Quick question, echoing one of Robot’s (I think): if Trump pardons Flynn for the crime he plead guilty to, would that also cover his potential perjury due to the inconsistent sworn statements Marcy outlined above?

            • bmaz says:

              It could! The pardon could be framed in terms of “any and all offenses against the United States”. And, yep, that would wipe out the perjury too.

              • jinn says:

                There will be no pardon for Flynn before the election. A pardon makes Flynn look guilty.

                Trump is winning the propaganda war that paints Flynn as an innocent victim of the evil Biden/Obama FBI. The electorate that matters (swing states) is mostly convinced that Flynn is a innocent victim and a pardon will undermine that narrative.

                The problem with the story that Obama’s FBI wrongfully prosecuted Flynn is that the FBI had nothing to do with the decision to prosecute Flynn. The Trump administration appointed Mueller and the FBI was immediately removed from the Russia investigation and the Trump DOJ took full control of it. But all it took was a few tweets by Trump calling it a witch hunt and a coup attempt and the voters are convinced that Mueller is working for the Democrats. And that false image allows the Mueller team to do all sorts of things that later can be blamed on Democrats and the Democrats are too stupid to point out that they have no say in what Mueller is doing. And so we have the story that Democrats railroaded Flynn is going to get a lit of votes for Trump.

                Trump’s narrative that Flynn is an innocent victim is winning and will continue to win unless the Democrats wake up and realize that Mueller is a Trojan horse who is not on their side

              • timbo says:

                It would not wipe out crimes committed by others however, nor could it cover future problems arising from future false witness problems, etc, though, correct?

      • Bex says:

        Someone please answer these – Can Trump pardon Flynn for the charges for which Barr just claimed Flynn’s crime actually didn’t happen? Can Trump pardon Trump for crimes (perjury) that have not yet been prosecuted? And, if Trump were to pardon Flynn for the circa 2016 crimes which have been admitted to and reneged upon, before any perjury charges are brought, would the “perjuries” still stand as distinct crimes or would they be erased, treated as not happening, by that Presidential pardon. Many thanks!

          • Drew says:

            Under the heading of Marcy’s observation that it is a fool’s errand to predict what Emmett Sullivan will do:

            It occurred to me that Sullivan might, after arguments and hearings, choose to accept Barr’s motion to dismiss, but dismiss the charges WITHOUT Prejudice and also accept Flynn’s motion to withdraw his plea, deeming his agreements with the DOJ to be thereby voided.

            If that happened would Trump have anything to pardon? Or would Barr or Flynn have anything to appeal? And come February could the DOJ file both FARA charges and false statement charges (& perjury charges?) against Flynn.

            Just wondering.

            • bmaz says:

              Technically anything to pardon, no. Could Trump still pardon for any and all conduct against the United States up to the date of the pardon, sure.

    • orionATL says:

      politically, this is the thing – this flynn matter is coming front and center in the crucial time just before the november election. that brings the trump-putin dalliance of 2016 back into public view at the worst possible time for our president.

      will there be an imminant pardon for flynn just to “get it over with” and get the story behind? or will it be safer (quieter) for the trump/barr tag team to allow the legal system to bury the story in maneuvering thru november 3, 2020?

  9. pseudonymous in nc says:

    I’m not saying that Sidney Powell’s filing last night triggered this — in fact I’m sure that Judge Sullivan has been thinking the specific steps since last week and the general drift for much longer — but an overentitled white lady “lawyer” telling a veteran African-American judge what he needed to do right away measures pretty high on the Karenometer. (If she and DOJ seek a mandamus order, they’ll literally be asking for the manager.)

    The question of perjury seems like the lowest-hanging fruit to consider here, since it’s all under oath and in the public record directly in front of the judge. And that’s before any more amicus briefs come in.

    • Peterr says:

      This isn’t Sullivan’s first rodeo. From the day he took this case, every ruling and order has been meticulously laid out for the record, knowing that there’s a better than even chance that this will get appealed. If you’ve been a district court judge for over 25 years, you’ve made your peace with the fact that the appeals court is always an option for the losing party, and all you can do is do your best and lay out your reasoning every step of the way.

      The December 2018 hearing is a classic demonstration of exactly what I’m talking about. He gave Flynn every chance to change his mind about pleading guilty, and every chance to make additional arguments to support a sentence of probation only, and even then gave Flynn a not-so-subtle warning that if what he said in court was all he’s got, then Flynn was going to prison, so maybe he might want to ask for additional time to see if he couldn’t come up with a little more cooperation in exchange for leniency at a later hearing.

      Sullivan knows full well the kinds of things that appeals court judges use to overturn a district court judge, and Sullivan preemptively emptied every one of Flynn’s weapons that I could see that might have been used against him on appeal. Are you sure you lied? Are you sure you had good and effective counsel advising you? Are you sure about X . . . about Y . . . about Z? You’ve still got this other case outstanding where you could offer assistance to the prosecution – do you want to take a break so you can talk with your attorney, and maybe ask to postpone sentencing today so that your record of assistance looks better than it does right now, because right now it doesn’t look all that great (hint hint).

      Sullivan knows what he’s doing here.

    • Rugger9 says:

      I would think that will mean trouble for Shea since he signed the motion. Perhaps it might be time for a primer on what happens to bad lawyers (sanctions, referrals to the bar) since I would not be surprised to see Judge Sullivan hand some down for this adventure.

  10. ThreeDayCondor says:

    Well, in truth. . . unusual times. . . lead to unusual. . . orders.

    It also means Sidney Powell should explain to Flynn, right now, tonight — just how much malpractice she’s committed on his file — and how much better Covington’s advice was [he’d have completed his probation by now, and be free, had he taken the Covington advice].

    Now, no matter what Barr or Trump does. . . Flynn may yet spend some time in jail. Poetic, that.

    Judge Sullivan has set this out very carefully. It’s going to leave a. . . mark. Perhaps on Barr, as well.

  11. jdmckay says:

    Will be interesting to see what comes out of Sydney & Billy Bar’s midnight oil brainstorming session. (Does Sekulow join in on these things, u know just for “ethical oversight” & to make sure no laws are broken ?) Has ‘da prezinut tweeted “low IQ Sullivan” yet?

    Seriously, like everyone else here I REALLY appreciate what you are doing with this Marcy. I do not have time or, at this point the will to get all this explained factually, in detail as you do. With the virus and all the other really serious stuff being similarly politicized and ignored I am keeping all this a bit more at arms length. Sorry to say I have +/- -0- expectation that the right thing will get done by our political class.

    Hope I’m surprised.

    Anyway, thanks again. I’ll drop some $$ into the EW coffers here when I get home this evening.

  12. earlofhuntingdon says:

    Sullivan is sticking to process. He’s being a good judge. His professionalism has the effect of highlighting Flynn’s repeated false statements, of showing what appears to be a corrupt process at the FBI, and of forcing Trump’s hand. That is, if Trump wants Flynn to get off scot-free and keep quiet, he’s gonna have to pardon him.

    This case will not disappear without appeals, and it’s unlikely it will get to the Supremes soon enough for Roberts’s conservative majority to conveniently dispose of it ahead of the November election. In fact, the more Barr screws up the process, the less likely the Supremes will fix it. Karma’s a bitch.

    • Peterr says:

      I can’t see it being settled before November. SCOTUS is done taking new cases this term, so the soonest a case like this could be heard would be October, assuming the appellate court acts quickly. Even then, SCOTUS would need time to hold their behind-the-scenes deliberations, pass their draft opinions and dissents around, and then decide what exactly would emerge in the final ruling.

      • earlofhuntingdon says:

        True, neither Trump nor his cheating will stop in November: they’re likely to become rabid in the wake of a loss. But that would be stage 2. Stage 1 is to cheat enough to claim victory and stay in office. Flynn should be afraid that Trump will deteriorate so rapidly, his case gets lost in the chaos.

        I hope Biden’s kitchen cabinet have a team already working on how to respond to the chaos and violence Trump would throw in the way of any legitimate process to remove him from office. Same goes for Pelosi, Schumer, and the federal courts. Nothing will proceed normally. Look at the crap BushCheney succeeded with in Florida in 2000 and that McConnell threw at Obama for eight years. The Michigan Reopeners, too, are probably just a few billionaires flexing their muscles.

        • harpie says:

          chaos and violence

          At some point each day,
          sometimes at many points,
          I wonder what Steve Bannon is up to.

          • orionATL says:

            yes, violence.

            much more attention needs to be focused on trump and his encouraging and authorizing violence in the form of armed resistance to legitimate authority.

            trump himself is just a soft, pudgy little rich boy; he wants others to do his violence for him. to that end, he has been covertly applauding and inciting violence in others since charlottesville in 2017. his applause and permission has taken root and is showing up here and there around the country like little pockets of viral illness. recently he overtly incited resistance to state authority which took form as displays of armed resistance.

          • vvv says:

            No good, of course:
            ht tps://nypost.com/2020/05/09/steve-bannon-is-quietly-creeping-back-into-the-white-house-sources-say/

        • orionATL says:

          retributive destruction. burn it to the ground, or threaten to do so. that’s the trump way.

  13. skua says:

    As an exercise in analysis I assumed that this response by Sullivan, to appoint Gleeson, was forseen by Barr.
    And then I considered how yet another activity that will be media-hyped to Trump’s base as “Deep State activity” might suit Trump’s, or the Repub’s, purposes.

    One possibility is that Trump et al are working towards declaring that multiple elements in the DoJ and judiciary have gone rogue, “as we saw in the Mueller witch-hunt and the terribly unjust persecution of good General Flynn which has gone on for years”, and so “in the interests of the nation and justice”, issue a blanket pardon to everyone involved in any way whatsoever with the Trump campaign or the Trump Administration for all prior acts.

    Hopefully bmaz or others will shoot this idea down into a flaming wreck.

    • Das Robot says:

      Just my opinion (IANAL) but I think you have to look at this mess like a narcissitic sociopath would. Trump’s only concern is the election. What happens in the run up to the election if he pardons him? Bad press. Rankled DOJ/FBI types. Potential investigations where Flynn can’t hold his tongue with a fifth. After a loss to Biden real trouble afoot. A commutation after sentencing if before the election could do the trick but sentencing could be delayed. Pardon after election either result? The commutation gag means Trump still has Flynn in a bind for a pardon if he’s sentenced soon. It’s likely Billy the Janitor can play a card or two more (appeal or dispute a finding?). Who knows maybe the review comes back in their favor? I’d guess he holds off on a pardon until after the election and commutes unless he wins. Flynn’s still in jeopardy I believe in that case.

      • milestogo says:

        I am a layperson but understand a commutation allows for the 5th in ongoing investigations wereas a pardon does not. I see no real downside for Trump to commute from Nov 4th through Jan 20th if the election goes to Biden. However, there may be a silver lining in the sentencing potentially being delyayed until after innaugeration (assuming Biden) in that it forces a pardon over commutation. You can’t commute before there is a sentence. This would force Flynn to either lie or perjure again in any Biden DOJ led investigation. Maybe that is the best we can hope for at this point. Do I have this right?

        • bmaz says:

          I am not sure that is true. The problem with commutation means that Flynn would still be convicted of the false statement charge and could be questioned on that completely. As all his other potential crimes, of which there are many, they were not addressed in the simple plea, so he could still be charged with those later (as well as leaving open UCMJ jurisdiction Rugger has discussed before). The only simple answer is for Trump to give him a full pardon. But that means Flynn has no jeopardy and would have to testify later if subpoenaed. He would likely lie again, restarting the process.

          • vvv says:

            It is my understanding a potential recipient can refuse a pardon.

            A commutation also be refused (see, Arnold Ray Jones),

            Any thought that flynn, if offered a commutation, might hold out for a pardon?

  14. Rugger9 says:

    Yep, genius work by Judge Sullivan, but the one lever that can be used is Judge Gleeson being co-author of the opinion piece. I would think Gleeson (if he frames his arguments and questions as carefully as I would expect he will) would be quite effective, but I also see the RWNM kicking into high froth about his being “biased”. That bias claim will get traction in the press because of the op-ed and for that reason alone I suspect it would have been better if Judge Sullivan had picked someone else without this complication to present the amicus case. I’m sure there are still a few some reasonable ones in (for example) the 5th Circuit or in FL where liberalism is not usually present (unlike the 9th Circuit’s reputation).

    • oldoilfieldhand says:

      “Judge Gleeson being co-author of the opinion piece”
      Didn’t seem to hurt Bill Barr’s chances for a second time on the big stage.

    • earlofhuntingdon says:

      I think there’s more to Judge Gleeson than a single Op-Ed. His experience prosecuting Mafia don and Gambino crime family head John Gotti would be one item.

      • bmaz says:

        Sure. He is very good. But the prior authorship, whether prior op-ed or recent Motion For Leave, leaves a very open bias argument. Gleeson is a great guy but for the ball and chain of this argument.

        • earlofhuntingdon says:

          Gleeson did frame his commentary to be, “in the interests of justice.” Would his Op-Ed actually change the bias arguments Trump supporters would aim at any investigator? Or the character of the Supreme Ct. majority that might ultimately review this? But, yes, if it goes south, it affects Sullivan as well as Gleeson.

      • Rugger9 says:

        All very true, and I’m sure Judge Gleeson would be a straight arrow here. However, as we have seen repeatedly from the Right Wing Noise Machine, IOKIYAR (covering Barr) and the need to protect DJT at all costs since they are wrapped up tightly in this as well.

        With that said, Judge Gleeson is involved as an advocate, not a jurist and so impartiality is not a prerequisite.

        • bmaz says:

          It damn well should be. Injecting this into the equation was a very stupid move by Sullivan.

          • orionATL says:

            yeah. my concern and a big one for sure.

            judge sullivan has got to be aware that hyperpoliticization is the hotair fuel that the trump admin runs on. so why, judge?

          • vvv says:

            I’m trying to think of how it might be a chess-like move.

            I don’t see it vis-a-vis the RWM, but as against Powell, Barr, et al.

            Something like, “if they attack the knight, they open up …”?

            I can’t see how the introduction of a new issue/controversy helps, unless it’s a play for a quick delay?

    • Raven Eye says:

      Sullivan’s move has allowed him to define the field of play here. I doubt that Powell expected such a focused action from the bench, and if she argues against the specific selection of Gleeson as amicus curiae, it appears to me that she must accept the introduction of bench-selected amici curiae in roles more active than just submitting briefs. Sullivan seems to be a pretty thorough person, and I suspect that he has a short (and very interesting) list of suitable candidates if, for some reason, Gleeson requests to be withdrawn from this case.

      Perhaps Powell thought that Sullivan was just out there floating on the ocean. Instead, she’s now in a stern chase – something that is always best avoided.

  15. Rugger9 says:

    Yep, genius work by Judge Sullivan, but the one lever that can be used is Judge Gleeson being co-author of the opinion piece. I would think Gleeson (if he frames his arguments and questions as carefully as I would expect he will) would be quite effective, but I also see the RWNM kicking into high froth about his being “biased”. That bias claim will get traction in the press because of the op-ed and for that reason alone I suspect it would have been better if Judge Sullivan had picked someone else without this complication to present the amicus case. I’m sure there are still a few some reasonable ones in (for example) the 5th Circuit or in FL where liberalism is not usually present (unlike the 9th Circuit’s reputation). No need to gift-wrap an appeal point.

    • Rugger9 says:

      Sorry about the double post, the edit timer doesn’t always work. So, even though Judge Gleeson is absolutely correct in his op-ed about the state of the DOJ, the problem is that his statements will be used against him. Indeed, Hannity’s already started in on this topic.

  16. Flounder says:

    Has anyone besides the Grand Jury asked Trump is Flynn was talking sanctions on his orders?

  17. Sothsayer says:

    I can’t even.

    I have not posted anything on the internet in relation to the current goings on in over 2.5 years, but I just had to here.

    Reading the WSJ take on this tickles my pickle, but it is disheartening. Basically, that they would infer bad judgement on Sullivan while he is trying to uphold our insitutions from interlopers who worked with Russians or Turks against us. It is ironic and ridiculous. Especially considering how obvious the Russian states interloping here was to corrupt and bully their way through our electoral processes with certain individuals, and yet, the Editorial boards main motto is of being, against any “dictators” or “bullies”, but especially against “Ukases” – omg that word, seriously. It is tragicomedy.


    This paragraph is their motto, against dictators, bullies and “Ukases”. How can they really not know what has all transpired and to whom and what they are supporting: “We speak for free markets and free people, the principles, if you will, marked in the watershed year of 1776 by Thomas Jefferson’s Declaration of Independence and Adam Smith’s “Wealth of Nations.” So over the past century and into the next, the Journal stands for free trade and sound money; against confiscatory taxation and the ukases of kings and other collectivists; and for individual autonomy against dictators, bullies and even the tempers of momentary majorities.

    Look I get some entities are much more fearful of heavy taxation and other related policies, but why would they work with our Adversaries and corrupt our system to get the outcome they want, this does not seem a logical decision. I do not see how there was no better way than people selling their soul to the devil, and then even still going all in to work with the devil when people tried to show them the reality of what they have done, and the greater loss to our western society, real freedom to have true liberty especially from harms, and a healthy global market.

    How can the WSJ have fallen so far, to not understand how derelict they are to their own motto. It’s truly all tragicomedy.

    • oldoilfieldhand says:

      How can the WSJ have fallen so far, to not understand how derelict they are to their own motto. It’s truly all tragicomedy.
      Who owns the WSJ? Rupert Murdoch. Does that answer your questions?

      • Peacerme says:

        It’s a global market now. Greed is a disease that interferes with the brains ability to validly interpret the world. Like any addiction. Humans need to learn more about how punishment and shame fuel denial and how denial leaves us with MEGA sized blind spots. (Genocide of the American Indians, slavery). It was NOT free markets that made us a rich nation. It was instead our ability to pillage and plunder. Hence the blind attraction to Trump.

        • Greg Hunter says:

          True and because it is a global market and that America is the most powerful agent in that dynamic, the billionaires have realized that purchasing America through Congress is a cheap way to control how the world works. If Americans actually realized how they could vote to remake the world in a more equitable model it would be cataclysmic. Rupert and the boys know this and are actively working to prevent it with the willing or brainwashed complicity of half of the country.

      • jdmckay says:

        WSJ OpEd page was right wing, free market hackery at ANY COST long before Murdoch took over. Paul Gigot comes immediately to mind: his fanning the flames during 2k election recounts, Enron and Iraq “liberation” not much different then Hannity today.

    • Rugger9 says:

      The WSJ editorial page has been a mouthpiece of the RWNM for a long time now. Note the arguments, develop the counters and move on since this attitude is not new there.

    • madwand says:

      I came across this a while back and it seems to go to the heart of what you are saying.

      “We’re looking at a convergence of people who basically see in Putin’s Russia a reflection of their own desires for where they want to take this country. It’s still more or less veiled, but the veil is pretty tattered. Autocratic rule, suppression of dissent, subjection of the media to authoritarian control, semi-official Christian Nationalist religion (and Christian Nationalism ALWAYS means white nationalism), government by and for the oligarchs (of whatever nationality”

  18. Tom says:

    Re: the discussion above about Trump possibly pardoning Flynn. If Flynn accepts a Presidential pardon, will that not be tantamount to an admission of guilt on his part? That outcome would conflict with Flynn’s position that he is entirely innocent, unless Trump and Flynn were to take the position that the pardon was for crimes that the general actually didn’t commit and the pardon was the best means of resolving the situation. But even that argument would be an admission that the evidence against Flynn’s was too damning to be overcome in any court proceedings, regardless of Barr’s efforts to rewrite history. So I don’t see how a pardon would help Flynn in his efforts to rehabilitate his reputation.

    Also, the only way for Flynn to be fully exonerated would be for Trump to restore him to some important position in the intelligence community. But with his history of lies, secret phone calls to the Russians, and other dealings with foreign governments, would Flynn not be the skunk at the picnic at any gathering of intelligence and national security people? Who’s going to feel free to discuss secret information in front of Flynn or in any other venue to which he would have access? And how will America’s allies feel about sharing their own intelligence with the U.S. knowing that Flynn is back in the loop? This scenario would seem to suit Putin very much and again would seem to raise the question of what is motivating Trump to want to clear Flynn’s name.

    • bmaz says:

      No, being pardoned is NOT an acceptance of guilt. That is an old canard that comes from a case over 100 years ago by the name of Burdict v. United States. The acceptance of guilt trope was in dicta, and it effectively means nothing. One premise a pardon can be based on is actual innocence. Trump could cite that in a pardon were he to issue one. It would be a lie of course, but he could issue it

      • jinn says:

        No, being pardoned is NOT an acceptance of guilt. That is an old canard that comes from a case over 100 years ago
        I don’t think the voters care about 100 year old cases

        The purpose of this whole Flynn flam is to convince the voters that Trump is doing heroic battle against a deeply corrupt state apparatus and winning that battle. Flynn is being presented as a heroic figure who has been unfairly accused of crimes he did not commit and trump is successfully helping him clear his good name against all odds.

        Now you may think that fanciful story is silly but it is playing very well in the heartland. Voters are convinced that Flynn was framed but due the heroic effort of one DJ Trump he will walk away exonerated.

        When trump wins the election you will be scratching your head wondering how that happened.

  19. milestogo says:

    I think Bill Barr may have made a bad chess move and that his attempt to soft pardon Flynn could backfire spectacularly. It seems an attempt by Barr to spare Trump the need for a pardon/commutation. Presumably, Flynn’s lack of true cooperation with Mueller and team are because he is in part protecting Trump and other co-conspirators. Barr getting him off the hook with a dismissal, would protect the conspiracy, keep Flynn happy and quiet, and negate the need for Trump to pay a potential pardon/commutation political price. The big however is…
    I do not see Judge Sullivan playing along and there is at least the possibility that this effectively forces Trump to pardon Flynn rather than commute. Because Barr’s actions may delay sentencing until after the inauguration of a potential Biden presidency and you can’t commute when there is no sentence. So after November 4th, Trump offers a pardon for any and all crimes committed against the US. But what does that do?
    Flynn is then compelled to testify both before congress, and in any ongoing criminal investigations, or court cases. My understanding is that he cannot plead the 5th. And lying will be extremely hard given the amount of evidence. So, we have the spectacle of Flynn revealing his near treasonous (words of judge Sullivan) activities to thee public and further endangering Trump and his co-conspirators.
    My ideas may be bunk because my understanding is nowhere near the experts commenting here but if it plays out this way, Barr may have just just royally messed up.

    • bmaz says:

      No, that is about right. While you did this comment, I was responding to your previous one with about what you have said here.

      • milestogo says:

        Thanks so much for your reply. I am still hoping for the arc of justice to bend in the right direction in this case.

    • harpie says:

      Flynn is then compelled to testify both before congress, and in any ongoing criminal investigations, or court cases.

      hmmm…this happened last night:

      10:00 PM · May 13, 2020

      News: The FBI served a warrant on Senator a Richard Burr tonight and seized his cell phone [LA Times]

      If the FBI does not do the same for Sen. Loeffler, then we will know that this action probably has something to do with the fact that Burr, Chairman of the Senate Intelligence Committee, somehow did NOT please Trump…maybe with respect to his committee’s report on the Russia Investigation.

      • Rugger9 says:

        OT, but apparently the emoluments suit brought by MD, et al can proceed since the appeals court (9-6) said it could go forward. DJT will not be happy.

      • Rugger9 says:

        Sen Loeffler is apparently tap dancing around the question about being contacted by the FBI. But this is a good marker to determine whether it’s about corruption or payback.

        I see Barr is resigning his chairmanship, which is not really good news since a mouthbreather will probably replace him. I think it will be Tom Cotton.

        • P J Evans says:

          DiFi reportedly answered questions from the FBI about her husband’s investments, so they’re at least trying to make it look like it’s about corruption.

        • orionATL says:

          i would think cotton is too junior a senator (jan 2015) for that particularly important post in the senate, but maybe not under mcconnell.

    • Jason Nyberg says:

      Vivisection and full-frontal display Flynn’s prosecution, prosecutors, defenders, defense, and evidence is the last thing Barr or Trump wants, IMHO.

  20. harpie says:

    O/T wrt: Covid “response”:
    Trump is upset that Dr. Rick Bright is testifying today [10AM] before the House Committee on Energy and Commerce’s health subcommittee:

    8:37 AM · May 14, 2020

    I don’t know the so-called Whistleblower Rick Bright, never met him or even heard of him, but to me he is a disgruntled employee, not liked or respected by people I spoke to and who, with his attitude, should no longer be working for our government!

    Here’s his prepared Opening Statement:

    • Rugger9 says:

      Also note that DJT still can’t decide what Obamagate is even with Bartiromo feeding him softball questions.

      • Rugger9 says:

        Kayleigh McEnany told a reporter today at the presser that it was the reporters’ jobs to figure out what “Obamagate” is. How lazy is that!

          • e.a.f. says:

            No, it isn’t laziness, it was deliberate. Simply putting a word out now and as it is repeated and repeated. If Trump is re elected watch him try to have Obama arrested. In the world of trump and some of his sports team friends, no person of colour ought to be the President of the U.S.A. and they’re going to ensure it never happens again. this is racism, pure and simple.

    • harpie says:

      This is what Bright said on 5/8 when Trump called him “disgruntled”:

      “I am not disgruntled, I am frustrated at a lack of leadership,”
      “I am frustrated at a lack of urgency to get a head start on developing life saving tools for Americans. I’m frustrated at our inability to be heard as scientists. Those things frustrate me.”
      “We see too many doctors and nurses now dying, and I was thinking that we could have done more to get those masks and those supplies to them sooner,” “And if we had, would they still be alive today?”
      “To take me out of our organization focused on drugs and vaccines and diagnostics in the middle of a pandemic — the worst public health crisis that our country’s faced in a century — and decapitate the BARDA organization, to move me over to a very small, focused project of any scale, of any level of importance is not responsible.”

      • earlofhuntingdon says:

        Standard low-level character assassination for an executive to call someone a “disgruntled former employee.” It’s meant to conjure up having an irrational ax to grind or even someone who might go postal. Meant to make their disclosure of embarrassing or illegal conduct seem false or biased. Given how much corporate America usually has to hide, the HR industry is full of standard playbook variations on the theme.

        For someone who so likes to humiliate and fire people, Trump doesn’t seem very good or original in how he does it. Then, why should that be different from how he mangles everything.

        • P J Evans says:

          He’s used to having someone else handle the firing of employees, and very much not used to getting questioned about it. (Something else he should have learned long ago.)

          • Ancient Mike says:

            Calls to mind the old P.G. Wodehouse line: No, I’m not disgruntled, but I’m not exactly gruntled either.

    • Eureka says:

      Thanks for the opening statement and reminder of the time(!), harpie.

      (UH, GOPer wasting a pair of nitrile gloves by wiping his face!)

      Related (in the big scheme of info control), someone isn’t pleased about press-hashing of COVID death data. While it might be fun to play guess the leader/country, here is the Authoritarian Mad Libs template all filled-in:

      Russia calls on New York Times, Financial Times to retract stories about coronavirus toll (AP via–>)

      Russia’s Foreign Ministry has accused the Financial Times and the New York Times of spreading “disinformation” after the two newspapers alleged that Russia’s coronavirus death toll could be much higher than officials are reporting. The Foreign Ministry’s spokeswoman Maria Zakharova said late Wednesday that letters demanding a retraction would be passed on to the newspapers’ editors-in-chief Thursday.

      Both articles are based on a spike in total mortality cases reported by Moscow officials. The capital registered around 1,800 deaths more in April this year than the month’s average. The Financial Times also pointed to a similar spike in deaths reported by St. Petersburg authorities and concluded that Russia could have 70% more coronavirus deaths than it reports.

      Russian health officials insisted that the nation’s relatively low coronavirus death toll is explained by a quick ban on travel from China earlier this year…

      • P J Evans says:

        Their case numbers are lower than I’d expect, and their fatalities are *much* lower than they should be.

    • c180tom says:

      Thanks for the CNN link. Is the courageous Dr. Bright getting any help as he does the right thing? (E.g., typo “June 12, 2020” vs. May 12 for Dr. Fauci’s testifying.)

    • Eureka says:

      Just noting that 1137am Ms. Castor of FL began the questions about the N95s*…describing how HCW have died for lack of same, how the fall is going to be a problem (flu season in face of chronic, ongoing shortages). Bright takes this element of pandemic prep/warning back to 2007.

      1142a: Bright: “absurd” re admin reaction; next they swing topic into lives lost, insufficiency of things like substitutes from other countries, false senses of security in using them.

      Add to my earlier comment ^: the face-touching NPI fails are a bipartisan affair, gloved or ungloved, subcommittee member or witness.

      Whether feeling too comfortably ‘at home’ or mirroring, this is a great example of what happens when (lay) people socially gather and converse in even well-spaced workplaces — and even among those practiced at being on camera/display, so come to this with attenuated face-touching habits.

      *the ones 3M volunteered to kick into high production gear in January, declined (by Azar),

  21. oldoilfieldhnd says:

    It matters little to his tattered reputation, whether Trump pardons Flynn. Lost honor can be restored, greed squandered honor is irredeemable.
    Lt. General Michael Flynn, Ret. was clandestinely working for a foreign government (Turkey) while advising GOP candidate Donald Trump and while serving as the National Security Advisor to Presindebt Donald Trump. Flynn hitched his wagon to Trump and was selling access, first to the candidate and after the Electoral College Count, to the newly elected head of the incoming Executive Branch of the US Government.
    Trump was supposedly upset (apoplectic) when he discovered Michael Cohen was selling access to him without allowing the Presindebt to “wet his beak a little”. Flynn was in on the deal to arm the Saudis with nuclear technology, and would have profited handsomely. But greed is a powerful motivator and Flynn likely did not disclose his firm’s work for the Turks to the boss. By not sending his commission up to the Presindebt, he betrayed his mentor. Flynn would already have received a pardon if he was getting one. He will not get a pardon from Trump, unless he threatens to spill the beans. That would be a dumber move on his part than hiring Sidney Powell to reverse his guilty plea.

    • e.a.f. says:

      It sums it all up. Who would have thought this is what would happen in an American government. This is about as bad as it gets and it goes on and on. Between this mess and COVID 19 its hard to imagine the country will continue as we knew it. Between the disease and the politics, which is another disease, you just have to shake your head and wonder.

      What will bring the country down first, COVID 19 or the dirty politics?

  22. Vicks says:

    As I understood it, when Flynn signed the cooperation agreement it limited prosecution to the list of offenses that we are all familiar with.
    Is it right to speculate that could have been done by leveraging other crimes, (or crimes committed by his son) that Mullers investigators would persue or refer if Flynn refused to cooperate?
    If so, does Flynn backing out of his cooperation agreement make any of that fair game?
    We know Flynn turned over a recording of John Dowd asking for a heads up it Flynn was going to implicate Trump.
    What would be the status of any other information Flynn may have given to Mueller’s team?
    Could this spectacle be more about protecting the Trump organization than freeing Flynn or campaign gimmick?

  23. PieIsDamnGood says:

    Will Covington get a chance to clear their names of the ineffective council accusations?

    • Raven Eye says:

      If Powell’s “competence” drives her into a lawyerly death spiral, will she try* to hire Covington to get her out of it?

      *If she can find someone to pay the bill.

    • Rugger9 says:

      They can force it, and it seems they would have a pretty good defamation case here. IIRC, and IANAL, civil suits are harder to stop from filing, and the discovery (if it gets that far) would be, ahem, entertaining.

  24. The Old Redneck says:

    Driving home from work today, I heard “The Daily” on a local radio station. It’s a NYT radio show hosted by Mark Mazzetti, a national security reporter.
    It was really, really bad. Among other things, it repeated the trope about “recently revealed” documents showing Flynn’s interview being an FBI frame job, didn’t mention that he pled guilty twice, etc. If that show was all you heard, you would think this is just a pure he said/she said, two political sides bickering, and who knows what to really believe.
    Mazzetti seemed completely out of his depth talking about Flynn’s criminal case. As a national security reporter, maybe he is. But you’d think the NYT, with all its resources, could have done a better job than throwing out another slab of false equivalency.

  25. Das Robot says:

    For anyone’s consideration… Does the US vs Sineseng-Smith decision weigh against the Amici Sullivan is requesting in this case? Chenowith at Forbes claims that Sullivan’s move flies in the face of the recent SCOTUS ruling as well as U.S. v. Fokker Servs. B.V., in a mandamus judgement. Just curious to get input from somebody who knows Latin better than I. My thinking is Powell brought a new kettle of fish into this disqualifying the party presentation principle and allowing Sullivan to request advise.

    • bmaz says:

      Lol. First off, it is Chenoweth. How he got to Forbes, as opposed to a normal crackpot home like The Federalist, is probably a good question. But as to here, no, his point is bullshit. Just look at how the 9th Circuit handled inherent supervisory powers in the Arpaio case. And SCOTUS did not even care to touch it. Chenoweth is full of shit.

      • Das Robot says:

        Hahaha you really don’t have to sugar-coat it, I can take it straight. I’ll put on a hazmat suit and look at that Arpaio bit. Thanks for the response bmaz.

        • Das Robot says:

          One interesting thing I ran into was a discussion put forth that a contempt conviction by a court isn’t subject to the Presidential pardon powers similar I guess to a state conviction. Facinating…

          • Das Robot says:

            This maybe: Young vs US + Vuitton
            The Court held that the “power to punish for contempts is inherent in all courts…and may be regarded as settled law. It is essential to the administration of justice.” Id. at 795 (block quotation and citation omitted). “The ability to punish disobedience to judicial orders is regarded as essential to ensuring the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.” Id. at 796. The power to appoint private attorneys to prosecute contempt of court “satisfies the need for an independent means of self-protection.”
            I’ll stop now…

  26. observiter says:

    You historians, have we ever had this level of corruption running the u.s. government ? Trump and the right-wing extremists have dotted lines to McCarthy times. Seems there should be lessons from that time on how to take down such evil.

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