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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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42 replies
    • Don says:

      The Stevens matter is not the same. Stevens was found guilty then they discovered that Brady material was withheld.

      Here we simply have both parties agreeing to drop charges. Judge Sullivan now seeks to be a prosecutor as well as judge, but the courts have stated that Rule 48(a) doesn’t allow for judicial intervention. See: United States v. Fokker Services B.V. 818 F.3d 733 (D.C. Cir. 2016).

      Also see the recent unanimous SCOTUS ruling: United States v. Sineneng-Smith

      [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named ” Don” or some variant of “Donald.” Thanks. /~Rayne]

  1. Rugger9 says:

    What was obvious is the WH need to make this go away now. Powell’s pressure here underscores that but I will still be looking for other shoes to drop. Nothing so far indicates the current trigger (a potential Covington v. Flynn notwithstanding) has been revealed since as EW’s team has noted everything cited was available to the defense months ago.

    There is something else in play here, and it probably involves money. The SCOTUS rulings will be in June as well, so I don’t think that is it either.

    • subtropolis says:

      What else is in play is the Senate hearings which Republicans have been foreshadowing all week, and which Trump has been dangling as “obamagate”. Their plan is to subpoena Comey, McCabe, Yates, and many others. Setting Flynn free was to be the opening shot but they’ll have to go ahead without that win. Or, simply pretend that it’s already a done deal.

  2. Peterr says:

    Reminding Sullivan about US v Stevens may not work out the way Powell thinks it will, after Shea’s filing last week. Sullivan could easily look at that filing and say “the govt’s latest motion alleges what amounts to prosecutorial misconduct by (among others) the former DOJ attorneys handling this case, and before I rule on the motion to dismiss with prejudice, I need to examine this allegation. In detail.”

    That kind of investigation is the absolute last thing Shea, Barr, and Trump would like to see.

    • harpie says:

      Sullivan might even want to hear from those “former DOJ attorneys handling this case”.

    • Rugger9 says:

      That’s my thinking as well, and in Judge Sullivan’s shoes we have clearly conflicting, mutually exclusive inputs from the pleadings and the evidence he has already seen. I think he demands the transcripts to sort it out.

    • subtropolis says:

      I get the impression that Barr and Powell we’re counting on Sullivan being outraged at the actions of the Obama DoJ, and welcoming Barr’s heroic moves to clean things up. I also have the impression that Judge Sullivan is not the least bit stupid.

      The way things are going, this could drag on past January. :-)

      • bmaz says:

        Oh, that is what you “hear” is it? I have no idea who the fuck you are talking to, but they don’t know squat. This is just ludicrous. Prison is no fun. You ever been to a facility? You ever been inside a facility? Ever been in a cell? Ever been in a pod? Ever been in a yard? How about especially when a disease is ravaging the premises? I will bet the answer is no to all. Stop, you have no clue.

        • laura says:

          Jeezus Bmaz, apologies for failing to utilize the snark tag. I posted to merely suggest that Manafort’s treatment is a travesty. Sorry for pissing in your cornflakes.

          • Peterr says:

            In this case, I think Manafort’s treatment is very much in line with what medical folks in prison settings are recommending. He’s got multiple conditions that put him at heightened risk for COVID-19, and by assigning him to home confinement it both keeps him safer and allows more space in the federal prison for those who remain there to help keep them safer as well.

            I don’t think anybody is pulling strings on this one.

            • RicoM says:

              There have been no reports of COVID-19 in the prison where Manafort was incarcerated (a fact acknowledged in the 4/13/20 letter his lawyers wrote to the director of the Bureau of Prisons and the warden at FCI Loretto). So the notion of “protecting” him from the virus is obviously pretextual, intended to provide only the thinnest veneer of justification for favored treatment because of who he is. Besides, even if there were a coronavirus risk, why release Manafort to home confinement for the remainder of his sentence, instead of only for the duration of the risk (which his lawyers requested as an alternative). “I don’t think anyone is pulling strings”? LOL. Sure, ok.

              • bmaz says:

                Hi Rico. Is it just Manafort, or do you think all non-violent, non-repetitive, non-flight worthy first offenders should be blithely locked up at an enormous cost to society, in a time of pandemic, or naw? So, does humane release just not give you enough unnecessary carceral jollies?

                • TAG69 says:

                  So I guess you think Cohen should also be released. He’s served more of his sentence than Manafort, was scheduled to be released until Trump got wind and then what do you know. He’s not being released. If he’s not then Manafort shouldn’t be. We all know why Manafort was released. There are thousands of people that fit your description. Should they be let out?

          • bmaz says:

            I do not eat “cornflakes” and I find nothing snarky or funny about making lighthearted jokes about the conditions in prisons. The best are hell holes. They go downhill from there. But if you are doing comedy comments, do maybe indicate so.

          • orionATL says:

            laura –

            i think your comment and its sarcasm are entirely appropriate. no apology needed on your part, in my view.

            yes, prisons are harsh homes, but manafort is NOT the hapless victim of some legal chicanery. he is multiply a criminal and an experienced o ne, and most importantly one of three people – manafort, flynn, and stone – who know with certainty that our president did not just collude with putin and company but criminally conspired with them to seize control of the american presidency.

            further, you only have to know from earl of huntingdon’s comments at 11:36 and 11:47 that in being released Manafort is receiving special treatment. i’d day that treatment is tied to our president’s desire to not only continue to hide his and putin’s 2016 games, but to bury them from any 2020 election year critical reprise.

            further still, manafort being out of prison will make it much easier politically for trump to pardon him in the immediate future. manafort, flynn, and stone – those who know fulwell what the president did in 2016 – will very likely skate as we curse, gnash out teeth futilely, and lay out the bald facts for all to read.

            more generally and importantly, the fact that a president can conspire with a foreign power to gain the presidency (a fear of the founders), and then relentlessly use his status and power to attack the federal legal system in such a way that he can not be held accountable, save by history, for his transgressions should be all the warning we need that the american presidency needs to be reigned in by the Congress and the people, and its power over the judiciary and the legal system severed forever.

            • bmaz says:

              Orion, you too can go straight to hell. You do not know anything more about actual prisons, and conditions therein, than “Laura”. You are just blowing shit out of your ass, and thinking that passes for valuable commentary. It does not.

              You have turned into a troll here. Go spend some time in a prison. Heck, any prison. You and “Laura” can go together since you are similarly ignorant about what conditions are really like in them.

              • BD Mac says:

                OK, brother of mine. I read this site daily, including comments, and you just officially crossed “the line”.

                Marcy, U and BMAZ should have a sit down or you’re going to lose readership.

                I’ve been to Hell. So don’t refer me back to it.

                Your compassion is duly noted, prisons, R in fact, in abomination in the eyes of God, however, Paul Manafort is most certainly, in part, responsible for the Maidan massacre as a result of his “business” relationship with Viktor Yanukovych. He made the disaster in Ukraine an absolute possibility.

                When you do your homework regarding Paul’s relationship with murderous Ukraine oligarchs and of those in other nations including warlords in Africa:

                https://medium.com/war-is-boring/donald-trumps-campaign-manager-worked-for-warlords-arms-dealers-and-dictators-261626a143d8,

                then his guilt is revealed in further detail beyond simple money laundering and tax evasion.

                https://www.bbc.com/news/magazine-31359021

                That’s just one story of the Hell Paul Manafort created for Ukrainians. Shall I link to Yuschenko’s dioxin poisoning as well. Paul was around for that as well. The idiom; “the company you keep” comes to my mind.

                He was found guilty. He should be serving his time. End of discussion. When the environment of his incarceration is “safe” again from SARS2, then he she be returned immediately. If you TRULY cared about Paul’s correction, and I mean that in an ultimate sense, you’d realize that he does in fact need to go through HELL to eventually reach his HEAVEN. Yes, I’m an SOB. Deal with it!

                E-mail me anytime brother. You’ve gone dark!

                I can shine light in your direction.

                Peace.

                • bmaz says:

                  Thanks. I know who and what Manafort is.

                  So, if you say you have been to this hell, you are still in favor of people dying in it for crimes they were NEVER convicted of, and that played no part in “other relevant conduct” in sentencing?

                  If that is your position, I am not your brother. Sorry.

                  • TAG69 says:

                    This is my first time to this website and everything I’ve read tells me you’re a loose cannon. Telling people to go to hell. Not respecting other peoples opinions. It’s your way or the highway. You’re not better than anyone else and your opinion doesn’t matter more or hold more weight. How about you learn to have a dialogue like a grown up and drop the childish name calling and pouting.

                    [Welcome to emptywheel. bmaz is our guard dog moderator. Regulars understand how this works. They also understand that ad hominems and insults directed at moderators and contributors don’t fly here. /~Rayne]

    • Frank Anon says:

      Where will home be? His wife got gone, his daughter denies his existence, New York tied up all his money, and the good people of New Britain took his name off the street named for him and his dad. Home confinement is not cheap or easy. What do you think it is, and will he have to go back in 2 years?

      • vvv says:

        “… his attorney Kevin Downing said.
        Downing told CNN that Manafort is going to serve the rest of his term in home confinement after serving about a third of his sentence ….”

        “The letter indicated that Manafort could be moved to a three-bedroom apartment in Northern Virginia where his wife lives.”

        ht tps://www.cnn.com/2020/05/13/politics/paul-manafort-release-prison-coronavirus/index.html

      • earlofhuntingdon says:

        I think you’re underestimating the value of wingnut welfare. Manafort invents his own, too. He kept schtum. Lots of people will reward that. If not, Paulie will take it, anyway. No need to worry about how he’ll pay his bills. He fits a valid category for temporary early release. The BOP seems to have jumped the gun by making it permanent.

        That’s one of the things worth reviewing, but systemically, not just about Paulie. Rather than worry about him, we should try to change why US prisons are so full and so bad.

        • Peterr says:

          Rather than worry about him, we should try to change why US prisons are so full and so bad.

          What his Lordship said.

    • earlofhuntingdon says:

      What’s screwy is the claimed rationale – BOP says it’s prioritizing release of those who’ve served half their sentence or have less than eighteen months to serve. Neither applies to Manafort. His sentence runs until Nov. 2024. BOP says he can serve it at home on supervised release. Meanwhile, Mickey Cohen languishes in prison, having been promised then denied release, presumably the latter after a nasty twit from Trump.

      I have no beef about letting prisoners out when they fit vulnerable categories, or for that matter, generally. The US prison system is probably the harshest and most overpopulated in the developed world. And Covid-19 makes already bad conditions lethal. But the BOP shouldn’t get away with the disparate treatment and bullshit rationale, as if it were an avatar of Trump.

      • Das Robot says:

        Supposedly Cohen gets out late May? We’ll see. There’s a low infection rate in Otisville I guess. Ten to twelve? None in Lorretto where Manafort resides. Manafort is going to skate now instead of later. The pardon’s inbound for him and not Cohen that’s for sure.

          • Rugger9 says:

            But Mickey is writing a book that DJT will be reminded he doesn’t like and Manafort is not. All that is missing is the rehiring (back to one of my theories about why now – to get the transition gang under the WH thumb.

  3. Rugger9 says:

    Perhaps the master plan is to get the in-the-loop transition team under the WH thumb to keep them away from House subpoenas. If anything is done with Priebus (who probably wouldn’t talk anyway, toady that he is) or Bannon it would confirm this theory. Hicks and Spicer are already squirreled away (and nobody’s heard from them as far as I know), but Flynn being a felon would preclude that option which is why his plea must be wiped out and soon.

  4. Madwand says:

    I suppose Sullivan could always deny the amicus brief, but then require Shea to appear and testify to the “new” information and Sullivan could also demand the transcripts again. Since the argument the government used in denying the transcripts originally was that Flynn had pled, it is only logical, at least for guys like me, that those transcripts be released publicly so a judgment can be made. It is a stretch that classification should still be an issue, but if it is, it is only being used to conceal other facts which may lead back to Trump, who right now is insulated. Let the American people judge. While realizing fair is not always fair, a failure of the government to release the transcripts would be an admission that Flynn is indeed guilty and perhaps there is new evidence so far not revealed.

    • Rugger9 says:

      Since the transcripts are the only thing that could be reasonably trusted (remember Barr’s had plenty of time to “edit” them in addition to misstating the contents) I don’t really see how Sullivan could rule on materiality without them. All of the reporting players cited them as the reason their hair lit on fire.

  5. The Old Redneck says:

    “Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor.”

    If you read this whole passage carefully, Sullivan denied intervention. He mentioned an amicus brief in passing, but did not foreclose amicus briefs entirely – especially from different parties at a different stage in the case.
    Sullivan may deny the Watergate crew permission to file their brief anyway. He may think it’s better that Sid Powell not be bitching on appeal about “contamination” by people with “an ax to grind.” Regardless, it’s some comfort to know that people with major credibility and horsepower care about this as much as Marcy and the people on this thread.

  6. dude says:

    …”Let the American people judge. ” Isn’t that what was argued by Mitch McConnell while delaying Garland’s nomination? Isn’t that what Sekulow argued during the impeachment as the remedy for not convicting Trump? I don’t quite understand how this works in court. I think there have been decisions from time-to-time in the Supreme Court where the Supremes say “It’s not our job. Let the duly elected people decide.” I think the Republicans are more than willing to let the fallout of this case come raining down because they also think they have a better chance in the Fall elections if the people do decide.

  7. Fenix says:

    “ she posted something (then deleted it) making it clear she believes Sullivan can go much further and appoint an outside investigator to investigate irregularities in a prosecution”

    Know if anyone caught a screen grab of that deleted post?

  8. Dopey-o says:

    Regarding Manafort’s release: Who is to say that he is not a flight risk? Were I Manafort, I would have memorized a few foreign bank account numbers, studied Google Maps for a quick route to the coast where a fast boat is waiting, and perhaps ransacked my home toolbox for a hacksaw.
    I would not be surprised if Manafort wound up in a better apartment than the one where Snowden resides today.

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