In Opposing Mandamus, Judge Sullivan Notes Schrodinger’s Materiality

Beth Wilkinson, the attorney representing (with the approval of the Office of US Courts) Judge Emmet Sullivan in Mike Flynn’s mandamus petition has submitted her brief making a very strong case opposing the petition. The brief argues what I have: that DOJ argued repeatedly and forcefully that Mike Flynn’s lies were material — and Judge Sullivan twice agreed — before DOJ flip-flopped and claimed the lies were not material.

Wilkinson lays out three instances where the government has argued Flynn’s lies were material and the District has agreed.

December 1, 2017

The statement of offense recounted three sets of materially false statements. Two involved lies Mr. Flynn told to the FBI, in a January 24, 2017 interview, regarding his contacts with Russia and other countries regarding U.S. foreign policy. Id. at 2–5. The remaining statements involved lies to the DOJ, in documents Mr. Flynn filed on March 7, 2017, about work that he and his consulting firm did for Turkey. Id. at 5.


At this hearing, the government represented the basis for its charge. Among other things, the government claimed that “the defendant made material false statements and omissions during an interview with the [FBI] on January 24, 2017” regarding his interactions with Russia, id. at 14; that “[a]t the time of the interview, the FBI had an open investigation into Russia’s efforts to interfere in the 2016 presidential election,” id. at 14–15; and that “on March 7, 2017, the defendant filed multiple documents with [DOJ] … pertaining to a project performed by him and his company for the principal benefit of the Republic of Turkey” where “the defendant made materially false statements and omissions,” id. at 17. The government also provided a detailed description of why each statement was materially false. See id. at 15–18.

December 18, 2018

A full year after Mr. Flynn originally pleaded guilty, the parties filed sentencing memoranda. The government’s memorandum reiterated that Mr. Flynn’s false statements in both the January 2017 FBI interview and the March 2017 DOJ filings were “material” under § 1001. Dkt. 46 at 2–4. Mr. Flynn “d[id] not take issue” with the government’s description of his offense. Dkt. 50 at 7.


Only after these repeated offers and colloquies did Judge Sullivan accept Mr. Flynn’s guilty plea to making materially false statements to the government. Id. at 16.

January 7, 2020

In January 2020, the government filed a supplemental sentencing memorandum, reiterating its representations about Mr. Flynn’s guilt. See Dkt. 150 at 5–14. The government again asserted that “this case is about multiple false statements that the defendant made to various DOJ entities.” Id. at 5; see also id. at 9, 12–13, 17 (explaining bases for materiality). The government recommended that Mr. Flynn be sentenced to 0 to 6 months in prison, noting that he had committed a “serious” offense, in a position of “public trust,” that undermined “[t]he integrity of our criminal justice [system, which] depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.” Id. at 2, 26, 31.

After claiming Flynn’s lies were material three different times, the brief notes, DOJ and Flynn claimed they weren’t.

May 7, 2020

After spending more than two years claiming that Mr. Flynn’s “false statements to the FBI on January 24, 2017, were absolutely material,” Dkt. 132 at 10, the government now claimed that any lies by Mr. Flynn in the same interview were “not … material,” Dkt. 198 at 2.

This flip-flop is one of four things Wilkinson points to that questions any presumption of regularity here. First, she notes that the government has not withdrawn its past filings, including those asserting Flynn’s lies were material.

Fourth, the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn’s false statements.

Then she notes that the government is now claiming that all those past statements, made under the Rules of Professional Conduct requiring accurate representations to the court, were not true.

The relevant facts are set forth in detail above. For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements. As recently as January of this year, the government maintained those representations. And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government’s prior solemn representations were legally and factually untrue.

I’ve argued that DOJ has put itself in a position where their current stance may be estopped by all their prior stances. Wilkinson has certainly laid out the record to make that case.

Update: Corrected that Wilkinson only included the times DOJ and Flynn agreed the lies were material, a total of three times. Judge Sullivan has found them to be one more time.

66 replies
  1. earlofhuntingdon says:

    Wilkinson points out one of the absurdities the government’s plea for dismissal – and Powell’s petition to the DCC for a writ of mandamus to force Sullivan to accept that plea – would put both the trial and appellate court:

    “The government’s [and Powell’s] request is not merely for the district court to enter an order accepting a plea, but to dissolve two findings of guilt by two different judges.”

  2. readerOfTeaLeaves says:

    The social context in which DoJ is making this claim: with 105,000+ COVID deaths, millions unemployed, state budgets cratering, and Trump hectoring governors that they are ‘weak’, is mind-boggling.

    And I’ve not even mentioned China, 5G technologies, nor China’s move into chip manufacturing. Nor that the price of West Texas crude oil today is <$40 barrel:

    So, hey, it must be as good a time as any for the DoJ to claim that they didn't say what they said, and if anyone had said any such thing, they never really meant it, and besides lying to a federal judge is not really lying, and fwiw they didn't really lie anyway…

    The dizzying intellects at DoJ these days appear to be downright terrifying. Can we just 'rebrand' DoJ as The Palace of Vizzini’s? Unbelievable.

      • Peterr says:

        Have you ever heard of Plato? Aristotle? Socrates? Morons!

        From the Great Man himself:

        ….Actually, throughout my life, my two greatest assets have been mental stability and being, like, really smart. Crooked Hillary Clinton also played these cards very hard and, as everyone knows, went down in flames. I went from VERY successful businessman, to top T.V. Star…..

        . . . followed by . . .

        ….to President of the United States (on my first try). I think that would qualify as not smart, but genius….and a very stable genius at that!

        • P J Evans says:

          The people I’ve known who have been very smart, even geniuses, didn’t boast about it. They had no reason to: everyone around them was aware.

        • rip says:


          Look for Josemaría Escrivá and Opus Dei underlying the support for the drugged addle-pated ignoramus inhabiting the WH and destroying the executive branch.

          The ignoramus is being played like a drum by many factions that hope to get their messages amplified. Besides the normal venal vendors of scare such as Flynn and Bannon, there are the capitalists (all the cabinet-level?) that see this as a way to make their nests even feathier.

          But an undertone is a much more coordinated effort by groups with a long-term agenda. Supreme and lower court justices ramrodded through; DOJ put under the considerable sway of Barr; IC being throttled and many other public-serving agencies.

          Looking for some common denominator that can explain much of this mayhem. Still come back to a cabalistic group that can coordinate efforts across many very different organizations.

        • ernesto1581 says:

          Betty Clermont’s blog, Open Tabernacle, is a good place to dig into Opus Dei and the members of its Catholic Information Center who have had, and continue to have, such an outsized impact on national policy and politics.

          btw: A fifth of all US Catholic Church entities which applied under the initial ~$350 million small business loan program received aid. Aside from the curious admixture of church & state, the aid was for an American “small business” which the Economist estimated to be worth $170 billion in 2012.

        • vvv says:

          “But how does she know how to contort her face just right—in just that specific way to convey Trump’s droopy narcissism? Sometimes, Cooper will repeat a line to herself until something comes to her. Sometimes, an idea for a prop will come to mind—like sniffing a marker or passing a tainted tongue depressor back and forth. But mostly, it’s just a matter of listening to the audio over and over again. Loudly. “Much to the chagrin of my husband, who does not want to hear it,” Cooper said.”

          ht tps://

  3. Peterr says:

    I like how Wilkinson comments on Powell’s arrival on the scene. In addition to noting how Powell was making requests of Barr to investigate the prosecution for misconduct *before* Powell entered with the court a motion to appear on behalf of Flynn, there’s this tasty little footnote (doc p. 11):

    On counsel’s first appearance in the case, Judge Sullivan disclosed that several years earlier, she had sent him a copy of her book, Licensed to Lie, with the inscription: “Judge Emmet Sullivan, to all those who seek, hallow, and do Justice. With the greatest respect and gratitude for your honorable service ….” Dkt. 94 at 3. Neither party objected to Judge Sullivan’s proceeding with the case. Id.

    That last sentence is a nice little metaphorical shiv between the ribs. (Gotta love footnotes!)

    • Savage Librarian says:

      “Too Much Skin in the Game? A Review of Sidney Powell’s Licensed To Lie” / Solomon L. Wisenberg
      October 27, 2014
      “But in a book devoted to exposing Brady error, written by one of the country’s foremost appellate lawyers, I expect more than two pages of cursory, conclusory attacks on a key federal appellate decision. Powell fails to fairly present, much less refute, Judge Smith’s specific points (incorrectly referring to his careful 19 page opinion as a “meager” nine pages). I call this a material omission.”

      • earlofhuntingdon says:

        Wisenberg appears good at giving a shiv himself. Like Brett Kavanaugh, he was one of Ken Starr’s deputies during the Clinton investigation.

        He describes Powell as “one of the country’s foremost appellate lawyers,” at least in Powell’s estimation. Then notes that in her book, she devoted “two pages of cursory, conclusory attacks on a key federal appellate decision. Powell fails to fairly present, much less refute, Judge Smith’s specific points.”

        That quote accurately characterizes her work for Flynn.
        Powell is a FedSoc creature with a Fox-inspired IMDB entry, but apparently no wiki entry, something of an achievement.

  4. Rugger9 says:

    Anxiously awaiting the full reviews on Wilkinson’s brief by those with experience here, I would note that it seems rather stupid to contradict a long-held position without withdrawing that position formally. Almost like putting the cart before the horse, because hypothetically it would force Judge Sullivan to choose which Government documents to use in his action unless the DCC says which ones apply. All in all I would guess the swing judge here would find it harder to support the intentional creation of confusion.

  5. Molly Pitcher says:

    I know this is OT, but I don’t want it missed:

    From CNN just now “An active duty military police battalion consisting of 200 to 250 military personnel is now in the process of deploying to Washington, DC, and could be in the nation’s capital as soon as tonight, three US defense officials tell CNN.

    The troops are expected to provide security in the nation’s capital but not perform law enforcement duties such as arrest and detention of protesters or rioters.

    Two defense officials said the troops will be coming from a unit at Fort Bragg in North Carolina.

    Because of Washington, DC’s unique status, the deployment does not require local authorization.

    There is no indication that President Trump is invoking the Insurrection Act, which is not required due to the fact that the forces will not be performing law enforcement actions.

    The Pentagon did not immediately respond for request for comment.”

    • earlofhuntingdon says:

      True, the District of Columbia is a federal district under the direct control of Congress. It’s local authorities have powers only as delegated by Congress. But it’s really a city-state, which should have statehood. Neither party in Congress seems to think that’s a good idea. I hope the Democrats reconsider.

      But those distinctions and that history are irrelevant to most people. The effect of this move is to normalize – there’s that word again – this conduct and make similar moves elsewhere less controversial. My concern is that this is part of a build-up to an October surprise that will be as big as Trump’s waistline.

      Never underestimate the cynicism of Trump’s administration or his controlled subsidiary, the GOP.

        • earlofhuntingdon says:

          Close, but no cigar. Let’s see what the Dems do when they have both houses of Congress and don’t need to override a presidential veto.

        • civil says:

          Your claim was “Neither party in Congress seems to think that’s [i.e., DC statehood is] a good idea.” I was simply noting that Democrats now think it’s a good idea. I guess I should have been more explicit about that, but assumed it would be clear from the cosponsors.

        • bmaz says:

          I think the Dems would have been okay for a while. Adding two more Dem senators is too good to pass up. And that is why the GOP hates the idea. But if Dems controlled all three branches, it might be actually doable.

        • earlofhuntingdon says:

          My observation was that earlier Democratic administrations have passed up a lot of good ideas, because they interfered with their agenda.

          Assuming its citizens want it, DC statehood seems to be the right thing to do. But yea, past voting history suggests it would produce two solid Democratic seats in the Senate and one in the House. The reverse could be said for, say, Wyoming, so tough.

        • civil says:

          DC residents have been working for statehood for a long time, in part via their non-voting Rep. in the House, Eleanor Holmes Norton. They overwhelmingly passed a statehood referendum a few years ago. The DC license plates say “taxation without representation.” It’s shameful that so many Americans have no voting representation in Congress.

        • MB says:

          The idea of DC statehood goes wayyy back. When I was a grade-school kid, on vacation with my family in DC in 1965, we witnessed a small peaceful demonstration by denizens of the American Nazi Party (Geo. Lincoln Rockwell was their leader) carrying protest signs saying “No Home Rule for DC”. The protesters were wearing military uniforms with swastikas prominently displayed on them. Nowadays, the same type of folks are bearded libertarians carrying semi-automatics and are admired by El Presidente. Back in 1965, they were so fringe that LBJ let them have their free speech and safely ignored them…

        • civil says:

          IIRR, the statehood effort goes back ~40 years. But Congress passed the DC Home Rule Act in ’73. I hadn’t really thought about who’d have been advocating against it, but it’s not surprising to me that that was an ANP stance.

        • Old Antarctic Explorer says:

          And once DC gets statehood why not carry that idea forward and grant large cities statehood. I read an article about that years ago and if sounded logical. There are many cities in the US that are larger than a handful of low population states. Effectively large cities are not represented in Congress. If you want really turn the House and the Senate Blue give statehood to large cities.

        • civil says:

          I don’t see that happening. And it doesn’t require an amendment to repeal the Permanent Apportionment Act of 1929 and increase the size of the House.

        • Ruthie says:

          In response to Old Antarctic Explorer (reply button missing):

          Puerto Rico, should they vote in favor of it, would be another obvious candidate.

    • Raven Eye says:

      Similar to the DoD assistance (if that claim could ever be proven) to federal law enforcement agencies on the southern border. Things like that tend to stick in Trump’s brain.

      The two sides of the MP coin are that; (heads) MPs should know the difference between Rules of Engagement and Use of Force, and (tails) their presence carries some likelihood of devolving into law enforcement actions (under orders or under the guise of “self defense”).

      I’ve worked with a lot of DoD personnel (including MP and JAG) and they don’t like these missions one bit.

      • P J Evans says:

        I know someone who was in the Guard and deployed in L.A. in 1992. He said it was really weird being on active duty in his own city. (Also, their firearms weren’t loaded.)

    • Molly Pitcher says:

      This entire fiasco was staged so that he could give a speech with the sounds of the tear gas going off in the background of his speech in the Rose Garden. Then he walked to St Josephs’s Episcopal where he stopped in from of the signboard for the church and raised a bible.

      He is producing his own TV show. And future political ads.

      And he has announced that he is declaring an emergency that allows him to call up military action against American citizens.

      • P J Evans says:

        St John’s Episcopal.
        And the protesters were noisy, not violent, so the tear gas and all was unnecessary. (It wasn’t the DC police, either.)

        • civil says:

          “The Episcopal bishop of DC – who oversees the DC church Trump just stopped at – tells the @washingtonpost she is ‘outraged’ and that neither she nor the rector was asked or told… ‘that they would be clearing with tear gas so they could use one of our churches as a prop, holding a bible, one that declares that God is love and when everything he has said and done is to enflame violence. I am beyond. We need moral leadership and he’s done everything to divide us and has just used one of the most sacred symbols of the Judeo-Christian tradition. We so disassociate ourselves from the messages of this president. We hold the teachings of our sacred texts to be so so grounding to our lives and everything we do and it is about love of neighbor and sacrificial love and justice.’ @Mebudde Bishop Mariann Budde ”

    • madwand says:

      Not the first time, MPs were used in protests in DC during the Vietnam War. As I remember it the same unit was then deployed in one of the Fort Dix protests. At Fort Dix they initially were bivouacked out somewhere on Range Road and came onto mainpost at the time the protesters broke through the Wrightstown gate. The MP’s then gassed the protesters with CS from a riot control vehicle capable of dispersing gas over a wide area. The gas stopped the crowd cold, many retreated immediately off base with stragglers rounded up and escorted back off base. The gas cloud was blown into the enlisted and NCO housing area, gassing many dependents in the process. High profile reporters were given escort officers and led all over post everywhere but the protest.

      Watching Rachel Maddow as I write this, they have released gas in DC dispersing many protesters. Shades of the 60s and early 70s. According to Rachel, Trump ordered the Secretary of the Army to do this and he did. You can’t do this on the fly, there is a lot of planning that has to go into it, logistically and operationally to include Rules of Engagement ROE and deployment of units. One can only hope it works out well for the protesters, they are pawns in a political exercise.

      I’m also old enough to remember when the 101 and 82nd deployed units to Detroit in 67. 43 dead, 1189 injured, 7200 arrests and two thousand buildings destroyed that time. Canadian singer Gordon Lightfoot memorialized the events in his song “Black Day in July” in the 1968 album “Did She Mention My Name” A long time ago in a faraway place and once again we revisit the past.

      • earlofhuntingdon says:

        Trump physically assaulted a peaceful crowd, trespassed on church property, and abused Christianity – for a photo-op.

        He was embarrassed at the criticism he drew for hiding in the White House bunker and needed to save face. Imagine what he’ll do to save face after losing in a landslide to Joe Biden.

        • OmAli says:

          ‪Police/military force at his command, 2nd amendment, and the Bible. Pretty clear message.

        • Ruthie says:

          I wouldn’t put it past him to gin up some “emergency” in lieu of a more typical October surprise, possibly necessitating the use of the military against protesters. This incident, after all, starts the normalizing process.

        • Rayne says:

          Pay attention to what has already been set in motion. We’re still under emergency declarations. He doesn’t have to manufacture anything. If a strong uptick in COVID-19 case arises from this week’s protests, he’ll just double down under that.

        • Raven Eye says:

          Trump is as about as much of a Christian as Nancy Pelosi is a Formula One driver.

          Meanwhile, Pence (Mr. Christian) is probably praying like mad for Trump’s soul — an effort that is likely to be just as successful as Pence’s Pray-Away-Gay.

      • P J Evans says:

        Federal police, park police, DC national guard…and some police units from other cities, at least one of which has been recalled by their city because they were requested “under false pretences”.

        • Rugger9 says:

          Plus, the “I will protect you” theme was front and center, which also points to why DJT and AG Barr are plugging “ANTIFA” as the new pinko. This chaos will be leveraged and we cannot allow it.

          Vote early to ensure it’s counted as soon as you can. Make sure you don’t get “disappeared” from the voting rolls because of a GOP Secretary of State’s “mistake” (i.e. Kobach’s initiative).

          OT, the Notice 1444 showed up from the IRS, for my daughter (she got a stimulus check) which apparently is a signed letter from DJT to remind everyone who “sent” them the stimulus. I suppose we wil need to frame it like they do for Kim Il Sung and Kim Jong Il’s pictures in the DPRK.

        • P J Evans says:

          on that letter: “Oh, it must have gotten mixed up with the paper we shred and compost”, or something similar, even if it’s just shredded and recycled.

    • Mitch Neher says:

      The MP’s from Fort Bragg will be lending fire and fury the likes of which the world has never before seen to the greatest, most tremendous reopening of an economy in the history of economies reopening. Hurrah! Hurrah!

      Also, every rubber bullet the MP’s fire will bear Trump’s signature sharpie signature. Ouch!

    • drmyk says:

      Do you think they’ll quarter them in people’s houses? I mean, there’s only so much time to violate so many amendments, might as well take care of the third now.

  6. waldo says:

    If DoJ were to withdraw its previous filings asserting materiality, would the prosecutors who filed them have to be involved at all? Or could the new prosecutors just say “Oopsie!” and pull them?

    • earlofhuntingdon says:

      The former prosecutors are out. It’s up the current crop to make any filings or motions and to respond to demands from the court. If they do move to withdraw earlier filings, Sullivan would be entitled to demand that they justify their position. Those arguments would look like shit, which is probably why nobody has made them yet.

  7. x174 says:

    civil–thanks for the links. I love the completely unmotivated appearance of the statement that “The President asked for petitioner’s resignation on February 13” sans reason (14/42). the motion seems to be written in a patently amateurish manner. the logical gaps and persistence of the worn out right wing talking points make for miserable reading.

    • civil says:

      You’re welcome.

      And yeah, that reason is now inconvenient. I’d love for someone to ask Trump and/or Pence why they’re talking about having Flynn work for the White House again, when they both said that he was fired in part for lying to Pence.

  8. x174 says:

    my reading of “The principal object of [Rule 48(a)’s] ‘leave of court’ requirement” is “to protect a defendant against prosecutorial harassment.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)(per curiam); see Fokker, 818 F.3d at 742 (USCA Case #20-5143, Document #1845183 (Filed: 06/01/2020), 20-21/42)” is that while prosecutorial harassment may in fact be the “principal object” of Rule 48(a), it most likely is not its only object. again, the nature of the petitioner’s argument has a sort of dilettantism that borders on arrogance or presumption.

  9. x174 says:

    speaking of materiality, it’s not until 28/42 that the motion states: “Although petitioner previously pleaded guilty, it is Justice Department policy that prosecutions should not be initiated—and thus should not be continued—“unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”
    i can’t see how proof of flynn’s lying is not supported by his admission that he lied. i have not seen such specious argumentation that was so wonderfully obscure since reading Rabelais’ Gargantua and Pantagruel

  10. x174 says:

    There was one sentence in the government’s motion for a writ of mandamus that jumped out: “There is no indication that petitioner pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” ” from my reading, that assertion sounds not only patently misleading–since the motion never seems to acknowledge the relevant context that the doj is attempting to force the the court to be a willing accomplice in their self-evident subterfuge–but also self-incriminating in its overt self-serving nature. the doj and the court’s have themselves become parties to the case as a result of barr’s egregious underhandedness and the court’s need to protect its integrity and the perception of its integrity.

    • earlofhuntingdon says:

      A “lesser” design would do. The argument seems to be a straw man, like many of the arguments in this response.

  11. x174 says:

    The self-incriminating nature of the motion for a writ of mandamus appears so self-serving. what are the relevant issues of constitutional law at stake here when a president and his ag have so willfully and blatantly abused their offices?
    btw, the above quotation is from 36/42.

  12. The Old Redneck says:

    It was a really smart response. First, it emphasized how rare mandamus really is, and pointed out that this proceeding should be governed by the usual rule: one appeal at the end of the case. Subtext: you don’t get special appellate rules because you’re Trump’s buddy.
    Second, it resisted the obvious temptation to trash Powell and Flynn for their mendacity. At the same time, it pointed out that there were some very good reasons why the district court (Judge Sullivan) should be given a chance to consider all the facts and circumstances.
    I don’t know what the outcome will be, but Wilkinson definitely put her best foot forward.

  13. x174 says:

    Wilkinson’s rebuttal jarringly contrasted with the dim witted excuse of a motion signed by the solicitor general et al.

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