Appointed Amicus John Gleeson Argues DOJ Engaged in Gross Prosecutorial Misconduct in Moving to Dismiss Flynn Prosecution

I’m painting and doing other chores today and so my analysis of the amicus John Gleeson submitted in the Mike Flynn prosecution will have to wait. I did a thread of my initial read of the filing here.

The short version, however, is this.

Gleeson argues there are two bases for denying a motion to dismiss a prosecution: the prosecutor’s reasons for doing so, or clear evidence of gross prosecutorial abuse.

Guided by Rule 48(a)’s text and history, as well as separation of powers principles, there are two grounds for denying leave of court. First, “the requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Ammidown, 497 F.2d at 622. Those reasons must be real and credible; where they are demonstrably pretextual, the court may deny leave under Rule 48(a). Second, courts may deny Rule 48(a) motions based on clear evidence of gross prosecutorial abuse. See id.

He then argues that DOJ’s reasons for moving to dismiss are such obviously bullshit, the only explanation for the motion is that Flynn is a political ally of President Trump.

Both grounds for denying leave of court under Rule 48(a) are present in this case. The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

Of all the places where Gleeson might (and in some cases, does) use DOJ or Barr’s prior statements against DOJ, the most effective one is quoting Barr’s statement that Trump’s tweets about investigations into his flunkies “make it impossible to do [his] job” to substantiate a claim that any DOJ independence has severely broken down.

These [over 100 Trump tweets complaining about the Flynn prosecution] were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President. As Professor Jack Goldsmith notes, “every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.”57 One component of that independence is “resistance to politicized influence.”58 Yet President Trump has overtly claimed and exercised the “absolute right to do what I want to do with the Justice Department.”59 The Attorney General stated earlier this year that President Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”60

Which leads Gleeson to concede that DOJ is permitted to exercise its prosecutorial discretion to help a Trump ally for sound reasons, not not for pretextual ones.

The Government may permissibly exercise its discretion for sound reasons even if doing so benefits a friend and political ally of the President (who, as noted, tried unsuccessfully to persuade the FBI Director at the time to “let this go,” ECF No. 79-6 at 26). But the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President—and where the ostensible reasons advanced for dismissal amount to a thin and unpersuasive disguise. Only by acting as a rubber stamp could the Court presume that all of this is regular and that the Government’s reasons here are anything but pretextual. Unfortunately, what is actually happening in this case is precisely what Rule 48(a) was intended to guard against. If the Executive wishes for the Judiciary to dismiss criminal charges—as opposed to issuing a pardon or taking other unilateral action—the reasons it offers must be real and credible. Its professed concerns about materiality are neither.

Ultimately, Gleeson argues that Judge Emmet Sullivan should deny DOJ’s motion to dismiss, but that he should not hold Flynn in contempt, but instead factor Flynn’s materially conflicting lies into his sentence.

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145 replies
  1. civil says:

    Re: “the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President,” Gleeson later writes:

    “The Executive Branch had the unreviewable discretion to never charge Flynn with a crime because he is a friend and political ally of President Trump. President Trump today has the unreviewable authority to issue a pardon, thus ensuring that Flynn is no longer prosecuted and never punished for his crimes because he is a friend and political ally. But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President. Avoiding precisely that unseemly outcome is why Rule 48(a) requires ‘leave of court.’” (p. 59)

    I hope that Sullivan rejects the Motion to Dismiss, and I hope that Gleeson’s brief is useful to Beth Wilkinson in the oral arguments about the writ of mandamus this Friday before Henderson, Wilkins and Rao.

    • bmaz says:

      This is more cherry picked garbage. Whether by you and/or Gleeson. Let’s be clear, this is nonsense:

      “….the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President.”

      That is categorically false. The government did NOT “forfeit the right” when it charged Flynn. The final say so was lost when the court not only entered, but more importantly, formally accepted the plea. Now I suppose you and Gleeson can argue that it all happened instantaneously, but that is sloppy and technically incorrect.

      • Rugger9 says:

        Perhaps it is important and I would be concerned that the RW will seize upon that distinction as proof of Judge Gleeson’s unfairness. However, as you note we have already passed through the gate of decision about guilt so I think it will amount to nothing substantial. Would Judge Henderson use this to wriggle over to Rao’s perch?

        One wonders whether Judge Gleeson finished this to be sure it would be included into the filing to the DCC. It was either that or deal with the “honey-do” list … you make the call.

      • SteveL says:

        You are reading to much into that sentence, which is indeed poorly written, but not “categorically false.” All Gleeson is saying is that the government could no longer avoid the court taking seriously its responsibility to review a dismissal request. It’s entirely true that the court actually has the power to complete its work and issue a sentence in this case, and would not if there were not yet an accepted guilty plea. But Gleeson’s point is just that once the court has jurisdiction, the government has forfeited the right to dismiss without court scrutiny for possible prosecutorial corruption.

        • bmaz says:

          Naw, I read the entire paragraph on page 59 exactly as it should be read. It is sloppy and stupid as hell.

          • oldoilfieldhand says:

            “The preacher said there is only one true interpretation of the infallable Rule of Law.
            And the choir said “Amen”!

        • anaphoristand says:

          While clunkily worded, I tend to agree with SteveL here. I read the argument as, post-charging, the government forfeited the right to have sole discretion as to whether the case could be dismissed for such openly corrupt reasoning, and that any DOJ motion to dismiss citing simply, “Flynn is a friend and political ally of the President,” as its sole justification would be well within Sullivan’s 48(a) auspices to deny.

          • bmaz says:

            Oh you did, did you? Because reading what you gratuitously want into a critical position in court arguments is not how things actually work.

            • SteveL says:

              The sentence in question is simply not a critical position. It is a rhetorical statement, and nothing hinges on it.

              The corresponding critical position — which stands independent of this sentence — is that Sullivan has both the responsibility to seriously review the government’s motion, and the authority to deny it.

                • The Old Redneck says:

                  But for the grace of God go I. Have you never written something in a brief which, looking at it later, made you cringe? Or which, read out of context, ends up sounding over the top? You’re absolutely right that this is sloppy, and that the real key is the guilty plea and fessing up under oath in court. But if the overall argument is a good one, this kind of rhetorical flourish shouldn’t be fatal.

                  • skua says:

                    Fatal?
                    Who is arguing for “fatal”?

                    The inclusion of that erroneous assertion makes Gleeson’s brief in part demonstrably fallible.
                    Such a brief is not what the nation needed in a case with the independence of the judiciary under attack by the executive branch.

                    Too many people in positions of authority, including Gleeson, are indulging in rhetorical flourishes and motivated reasoning. This is destructive in a probably failing state.

                    • anaphoristand says:

                      IANAL, but if 48(a) requires leave of court post-complaint/information/indictment (independent of whether or not a plea’s been reached), I guess I’m unclear on what precisely the demonstrably fallible assertion is? While the government may have tremendous discretion to be openly corrupt in its charging decisions up until such time as it’s involved the judiciary in the proceedings, that involvement, and the requirement of judicial leave for dismissal once it’s been established, would seem to amount to a forfeiture of DOJ’s right to sole discretion over the reasoning, no?

            • penalty box says:

              Pompous and condescending. If anyone is gratuitously reading stuff into a critical position it is you. Rule 48 does not make any distinctions about how far along the process must be before leave is required. That is all Gleeson is saying. Once the case is filed, leave of court is required as a prerequisite to dismissal. The leave part prevents the Justice Department from implicating the Court in its corrupt machinations. It’s both great rhetoric and sound reasoning.

  2. Zinsky says:

    Boom! The hammer comes down rather hard on Billy Barr’s hamhock-like head! I can’t wait to read FauxNews’s bizarre take on this decision and of course, the orange, spray-bronzed one’s erudite and unhinged tweets about it! Things are really getting interesting now!

    • Rugger9 says:

      It’s an argument to help Judge Sullivan reach his decision (as well as the DCC), but the sense I’m getting from the chattering class is that this was unusually forceful and complete in its scorn for the current DO”J” position. Add to that the demand from Judge Walton for the DO”J” to personally explain themselves and it looks like a trend is developing. However, for me the most important part of this is how it will affect the DCC panel.

      OT but typical, it seems Senator Risch (R, of course) doesn’t need to hear from Pompeo about State Department abuses or irregularities. It’s almost as if the GOP wants “plausible deniability” to use an old Reagan administration phrase.

      • John B. says:

        Is bmaz going to give you a stern cutting lecture now on the stupidity of outing the J in DOJ in quotation marks, like “J”?

    • earlofhuntingdon says:

      Gleeson’s is only a potential hammer. For it to become a hammer requires Sullivan to adopt the same view and for his decision to survive review at both the DC Circuit and the Supremes. If it does that, it will be a hammer, but it will be Sullivan’s hammer (as opposed to his Travels).

      Either way, Bill Barr won’t give a shit. He will be out of office and luxuriously back at his white shoe law firm, with an endless stream of corporate clients coming his way. Or, he will be ramrodding Donald Trump’s second term. If the latter, it will be hard to distinguish between Bill Barr and Sauron’s eye.

      • Rugger9 says:

        Maybe I missed it, but did Judge Gleeson make the distinctions between the appropriate controlling precedent for the mandamus request versus the one tossed out by Powell?

        • blueedredcounty says:

          I am not a lawyer, so I expect bmaz or one of the other attorneys to correct me if I am wrong. But I read both Gleeson’s amicus filing and Beth Wilkinson’s filing for Judge Sullivan today. There is no doubt that Wilkinson’s filing was clear on this subject.

          “These facts require denying the petition. Mr. Flynn and the government, now joined in favor of mandamus, seek unprecedented relief: An
          extraordinary writ precluding a district court from even considering a motion
          that requires “leave of court” before it can be granted, that raises open questions of law and unanswered questions of fact, and that would require
          dissolving multiple court orders. This Court’s mandamus precedents—which
          the government barely mentions—require denying that relief, for two independent reasons.”

          A few paragraphs later: ‘The Supreme Court suggested, and Congress approved, a version of
          Rule 48 that requires “leave of court” in all circumstances. Following that textual command in Rule 48, the Supreme Court in Rinaldi, as well as this Court
          in Fokker and Ammidown, recognized courts’ authority to consider such motions even when they are unopposed.’

          Beth Wilkinson did cite the amicus brief twice, I believe, but a lot of the precedent references were to Ammidown and it was flagged in the Table of Authorities.

          https: //www.justsecurity.org/wp-content/uploads/2020/06/Flynn.CTADC_.Sullivan.Response.pdf

          • bmaz says:

            Wilkinson’s work is far better than Gleeson’s. And she is exactly right about the court’s discretion and inherent power.

  3. James E Powell says:

    I’m a lawyer who’s rarely done criminal defense work and never in federal court, but it seems like a very long time between Flynn’s guilty plea and sentencing. What is the explanation for that?

    • bmaz says:

      Two things: First, time for Flynn to cooperate with the government. Second, through Flynn’s own nutty pleading, mostly through Sid Powell, though it kind of started toward the end of Rob Kelner’s representation. And, now, with the Covid and whatnot, here we are. And speedy trial time gets waived for all that.

      • BobCon says:

        What are the odds that this doesn’t look like it will be settled by November, and Trump has to short circuit with a pardon at a time when the optics are less than favorable for him?

        • Rugger9 says:

          That raises a question that has been bugging me for a while: why hasn’t DJT pardoned Flynn already? It’s not like he wouldn’t do it to interfere with the judicial process (like he did for Arpaio) or that DJT cares a whit about norms or justice when it’s a “comrade” at stake when letting people off.

          However, in this case he had AG Barr pull this kabuki which to my non-lawyer eyes doesn’t help DJT avoid getting hit with the blame (like the St John’s photo op), so why try a process that has a substantial risk of failure? Even though this WH does a lot of idiotic things, there is always a reason for every one, so why this method and why now instead of pardoning Flynn? If DJT had pardoned Flynn even when Powell filed the mandamus request the news cycle would have forgotten about it by now.

          • emptywheel says:

            Probably mostly because of the election but unless someone pardons Trump on the way out, there’s a fair amount of evidence this pardon would be obstruction, and even Bill Barr’s confirmation testimony backs that.

            • MikkiW says:

              Am I reading what you said here correctly? “Unless someone pardons Trump on the way out, there’s a fair amount of evidence this pardon would be obstruction”…Marcy, do you believe that this is the possible scenario:
              Trump loses the 2020 election.
              Shortly before his term expires at noon on January 20, 2021, Trump issues a number of pardons to persons convicted of crimes and committing other offenses to protect him from prosecution.
              Trump then resigns and Pence assumes the presidency and issues a blanket pardon to Trump.
              Pence takes the fall but is immune from prosecution as he is legally able to use his power to do this.
              Pence is later rewarded generously by Trump allies for his slavish devotion.
              Everybody gets away with everything!!!

              Is this possible?

              • Yargelsnogger says:

                IANAL, so I won’t say much about the legality other than it seems possible by what little I understand. But I’m not 100% convinced that Pence would do it. Although he is an obsequious toady in almost everything he does, I bet he thinks he still will have a career in politics after Trump. This is so nakedly corrupt I have to wonder if even Pence would be willing to destroy his own career after he is so close to finished with Trump.

                I worked for a pretty severe narcissist business owner for a dozen years, and there is a only a very teeny-tiny chance that Pence actually likes or respects Trump (who does really). Narcissist have a hard time inspiring anything but transactional loyalty. Since this sounds like potential career suicide, I’m putting $5 on no he wouldn’t. (But $5 is all I would risk on this bet)

              • Mitch Neher says:

                From the horse’s “mouth”:

                As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
                — Donald J. Trump (@realDonaldTrump) June 4, 2018

                • Mitch Neher says:

                  Unsettled questions at the link below:

                  https://fas.org/sgp/crs/misc/pardons.pdf

                  For all we know, Trump could’ve already issued himself a pardon while, so far, having declined to accept or receive that pardon, until such time as he needs to use it.

                  In that way, Trump’s self-pardon could remain “secret” while Trump is in office without resorting to any assertion of any privilege nor claim of privacy.

                  Unless I’m wrong. Which I might be. Oh well . . .

                  • Raven Eye says:

                    Trump started making provisions for close-hold executive actions on January 28th, 2017 when he issued: “Executive Order: Ethics Commitments by Executive Branch Appointees”.

                    I had been waiting for that and once it was issued I did a quick skim through the similar E.O. issued by Bush and Obama. They were pretty much the same, with some stylistic and arrangement differences. Then I built a two-column table in Word, inserted the paragraphs from Obama’s into cells down the left column, and inserted each paragraph or function from Trump’s into the right column — mapped across to Obama’s.

                    It was revealing, especially if you started a review from the bottom of Trump’s document to the top. The Obama E.O. had an elaborate process for rationale, review, and reporting of waivers. The top of Trump’s looked like some pretty strong requirements to put a check on the “revolving door”. But the bottom line with Trump’s E.O. was that waivers need only be know by three individuals:

                    “Sec. 3. Waiver. (a) The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.”

                    “(b) A waiver shall take effect when the certification is signed by the President or his designee.”

                    “(c) A copy of the waiver certification shall be furnished to the person covered by the waiver and provided to the head of the agency in which that person is or was appointed to serve.”

                    So if the person being granted the waiver is the “head of the agency” only two people would need to be furnished with a copy of the signed waiver.

                    It makes you wonder if there are a bunch of folders in a White House safe somewhere, and if the contents of those folders will ever make it to the Archives.

                    • Mitch Neher says:

                      Ah-ha. So an executive who orders “ethics waivers” might be just the guy to execute a “presidential pocket self-pardon” for a term or two.

                      And we might not find out unless, or until, Trump is indicted for crimes against The United States.

                      Thanks for the tip.

          • rip says:

            “WH does a lot idiotic things, there is always a reason for every one”

            Maybe the WH is not in control of its messaging? It is spasmodically reacting to command-and-control sequences that seem to be coming in from the aether.

            • Rugger9 says:

              I’m not so sure about that idea. If this were a situation where DJT had just pardoned Flynn off the cuff, or what we did see with the photo op, this loose cannon idea would make more sense. This mandamus request after the DO”J” tried to pull the rug out from under Judge Sullivan was planned to be done in this way, but Judge Sullivan wasn’t buying the idea.

              In this case we have a process being used which to me was unnecessary and also IMHO out of DJT’s character when it comes to being concerned over process versus getting his henchmen out of trouble. Add to that the unusual timing for this play to apparently try to keep DJT’s fingerprints off of this, and something is not stacking up properly.

          • RobertsWheel says:

            Having the case thrown out fits the narrative: this was a corrupt prosecution, and by extension, a corrupt investigation – Flynn did absolutely nothing wrong, and the fact that the case was thrown out proves it. A pardon could waste political capital and also leaves the impression that the person did something wrong In order to warrant the pardon.

            • harold hecuba says:

              Agree with RobertsWheel. Trump probably did want to pardon Flynn (and may do so, anyway), but “his” DOJ said no, no, we’ll handle it so you don’t have to.

              So, yeah, Trump’s going to get tired of dicking around with this and he’ll pardon the guy in a tweet. He probably thinks doing so makes him look decisive.

              “I tried to let the process work, but the swamp’s kangaroo court forced my hand. My big, giant hands! GREATNESS!”

            • anaphoristand says:

              Trump still needs to finagle his way through to sanctions removal, and entrenched public/congressional sentiment that Flynn was in the wrong’s an impediment to getting there. Barr’s task is to undercut the entire Mueller probe, not simply make the punishments go away for those co-conspirators that didn’t spill the beans.

          • vvv says:

            There has been a lot of prior discussion here that a pardon would require testimony if he is called as a witness thereafter, as he can’t do a Brubeck (“Take V”), opens himself to contempt if he refuses, etc.
            Now, a *commutation* … but that requires a conviction.
            Hence, this gambit, this stall, this attempted corruption of the process.

                • vvv says:

                  “Desmond is credited with composing “Take Five,” but Brubeck says the tune was a group project with Desmond providing two main ideas.”
                  ht tps://www.npr.org/2000/11/19/1114201/take-five

                  And it’s 5/4, which I find a lot easier than “Blue Rondo a la Turk” in 9/8, (altho’ my little project just did a tune in, and I like, 7/4).

          • timbo says:

            There could be a few reasons. To wit:

            1. Trump likely doesn’t trust Flynn all that much. It is possible that he really is a foreign spy and Trump isn’t sure about that. Or, Trump could be sure about it. Either way, if it were to come out that this was indeed the case, pardoning Flynn would look pretty bad.

            2. Flynn may be Trump’s mcguffin for other purposes. One would be a loyalty test within DOJ or elsewhere in whatever schemes are going on.

            3. Something we can’t imagine.

            4. All or most of the above.

            • Mitch Neher says:

              timbo’s answers go to Rugger9’s question, “[W]hy hasn’t DJT pardoned Flynn already?”

              P. S. I love scrolling . . .too.

  4. pseudonymous in nc says:

    I’m not sure what tone I was expecting from Gleeson, but I wasn’t expecting something quite as forceful: “transparent disingenuousness”, “gross prosecutorial abuse”, etc. It’s arguing that Judge Sullivan would be complicit in the sham if he granted the motion to dismiss, and that DOJ has been so corrupted it couldn’t be trusted to prosecute Flynn’s perjury. (The part about not issuing an Order to Show Cause is saying enough to ongoing contempt.)

    It’s also saying “make the president pardon him.”

    It’s as if he took the high dudgeon of Sidney Powell’s cosplay-lawyering and infused it with actual law. And he’s helped by having [some] Flynn-Kislyak transcripts and the HPSCI interviews as reference. The suggestion on p. 53 that Sullivan might want to request materials from Flynn’s voluntary interviews with Mueller’s office is a nice touch.

    I suppose it’ll need to be filed separately on the mandamus docket, but it’s setting a marker for whatever shit Neomi Rao has in mind, and what it means to be a judicial rubber stamp.

    Does a pending mandamus petition enjoin the district court? I doubt that Sullivan is going to issue direct rulings on the motion to dismiss, but Gleeson’s pointed towards additional motions that the government ought to satisfy.

    • Rugger9 says:

      As I understand the concept of mandamus, the DCC would direct Judge Sullivan’s options to one action: accept the dismissal request by DO”J”. If that is how it goes, look for SCOTUS to find reasons to decline to hear an appeal, but IIRC it takes four justices to force cert. That would follow a likely en banc appeal.

      As far as Judge Gleeson’s tone, remember that bmaz and I had noted some earlier pieces he had done with a similar viewpoint and for that reason another amicus would have been a better option. In terms of the solidity of the arguments, I’ll leave that to the lawyers but the scuttlebutt is that Judge Gleeson is on the mark here.

      • SteveL says:

        I have to say I find the direct language — calling a spade a spade — refreshing. We all know that DOJ’s motion was grossly at variance from the professional standard for federal prosecutors and engaged in lots of misdirection and innuendo that was ultimately irrelevant, and that DOJ would never allow its own arguments in that motion to stand in another case. It’s nice to see that plainly stated, in contrast to DOJ’s reality-defying mandamus brief.

    • Moonzoo says:

      Agree 100%. I wanted to post it but got cautious. Now that you have said it, I will agree: Gleeson sounds like Powell but with more actual law.

      • earlofhuntingdon says:

        Knowing the law better is one reason Judge Gleeson does not sound like Sid Powell.

  5. Savage Librarian says:

    I’ve painted a lot of rooms in my time. But the last time I did, I suffered a short spell of amnesia from toxic fumes and lack of ventilation. It was an interesting experience but I wouldn’t want to have it again.

    Now that we’re on that topic, I think Barr’s character is similar to the consistency of paint. Sort of a primordial ooze with an occasional glop.

    “So this is why Bill Barr is such a bully” – The Washington Post, 6/9/20

    https://www.washingtonpost.com/opinions/2020/06/09/so-this-is-why-bill-barr-is-such-bully/

    • Molly Pitcher says:

      As I said in response to Harpie’s posting of the same article on the Barr Flip Flop post:

      It would appear that we are saddled with our very own Douglas Neidermeyer as Attorney General [see Animal House].

    • gmoke says:

      I was accepted at Horace Mann and, if I had gone there, William Barr would have been one year ahead of me. I can easily see myself as a victim of his bullying.

      I went to another school in the “little Ivy League” of prep schools around NYC, Hackley (we competed athletically with Trmp’s school, the NY Military Academy as well), and recently found out that Barr’s father, Donald Barr, was headmaster there for about a decade starting a few years after I graduated. The elder Barr went to Hackley after getting the boot from Dalton, to which he had brought Jeffrey Epstein. Noel Casler, the writer and comedian who is telling “tales out of school” about his days with Trmp on The Apprentice, tweeted on June 2, 2020 that the elder Barr was known as “Chester the Molester” during his years at Hackley, a rumor I can not confirm.

      Recently, I learned that there was a serial pedophile at Hackley when I was in 7th and 8th grade there, a serial pedophile whose activities lasted for at least 30 or 40 years (which I can most definitely confirm). I, fortunately, had little to do with him and, my memory now says, always thought there was something a little too “hungry” about him.

      These bits and pieces have made me think about prep school bullies (my experience let me immediately identify George W Bush as one) and the culture of cruelty, sexual and otherwise, that were and probably still are part and parcel of these “elite” private schools. I suspect that there is much more abuse, sexual and otherwise, being played out in the corridors of power by middle-aged and older men now. That strain within our politics should not be discounted out of hand however uncomfortable it may be to confront it.

      It has long been my contention that the 60s©™allrightsreserved never go away and the pro-war side from those times (William Barr evidently brags about fighting against SDS at Columbia University in the 1968 strike) is the one which is always in power. It is the reaction to the 60s©™allrightsreserved that we’ve had to live with ever since the Beats and the blacks and the hippies and the women and the gays kicked a little hole in the wall to let some daylight in. The reactionaries have been reacting against that for the last nearly 60 years and, it seems, always will, acting out of their own untreated pain of abuse, sexual and otherwise.

      May whatever Spirit is out there help us all because it sure as Hell looks like it’s all coming to a head.

      • Max404 says:

        The reactionaries have been reacting for more like 90 years. They never forgave FDR.

        Actually, since 1917. They never forgave Lenin.

        Actually, since 1862 . They never forgave Lincoln, even if he was a Republican …

        since 1789…

        and so on …

      • Savage Librarian says:

        Here’s the school motto, according to Wikipedia. I wonder if Barr remembers it.

        “Horace Mann’s motto is Magna est veritas et prævalet, a Latin phrase meaning “Great is the truth, and it prevails”. The phrase comes from the King James version of the Old Testament, whose contemporary translation is “Magna est veritas et prævalebit,” or will prevail.”

  6. Vinnie Gambone says:

    Way OT, but…..Hoping EW is working on analysis of house intelligence committees interview with fired Inspector general Steve Linick . No MSM mention of the possible investigation of US State department leaks about Wuhan Covid beginnings.

    “There are now widespread suspicions within senior ranks of the Australian government and the intelligence community that the document was leaked to The Daily Telegraph by a staff member in the US embassy in Canberra.”

    Anyone know if there were any mention of a possible investigation into the propaganda attempt in the transcripts of Linick’s interview? Once again, they got caught spreading lies. Or did they?

    • P J Evans says:

      It’s something that has a lot of people worried. I hope it doesn’t come to that scenario.

    • Molly Pitcher says:

      That is one of the most terrifying things I have read. When talking with family and friends, we often ‘what if’ scenarios such as this, always assuming we are being hyperbolic and reactionary. It is chilling that serious people are thinking the same way we have been.

      • drouse says:

        This latest Antifa hysteria is almost looking like a practice run. I can just imagine the hoaxes that are going start circulating just prior to the election.

        https://www.dailykos.com/stories/1951844

        Essentially identical hoaxes with the details changed to fit the locality. Who in the hell thinks it’s OK to set gullible armed men off on a snipe hunt just for the lulz. The other explanation is even more unpalatable to contemplate.

        • vvv says:

          I have some slight optimism that after numerous such stories and locals spending tax dollars to post police and the RWNJ’s taking time off work and buying extra ammo in these hard times, that maybe they’ll learn to be more skeptical of rumors?

          Yeah, prob’ly not.

      • punaise says:

        I’m about to go off the grid for four days, camping in the Sierras. For the sake of a good outing I am going to resist reading the article before leaving.

        • bmaz says:

          Lol, have a great trip. Things will still be shitty when you come back! What an awesome time to be up there though, I am extremely jealous.

        • P J Evans says:

          I got four days off by having my computer go wonky when I turned it back on after a power outage (it was fine when turned off; the UPS works well). The shop couldn’t find anything wrong, so I’m chalking it up to “aren’t computers wonderful?”

        • Molly Pitcher says:

          Say hi to Smokey and take snow gear too. There was an inch of snow on the ground at Alpine Meadows last weekend.

  7. Molly Pitcher says:

    From George Conway’s Twitter feed:

    Kaplan Hecker & Fink LLP
    @KaplanHecker
    ·
    4h
    We are honored to have worked with Judge Gleeson on the brief he filed today in US v. Flynn as court-appointed amicus. Kudos to our colleagues Marshall Miller, @JoshuaMatz8, and Michael Skocpol for their outstanding work.

  8. Jim says:

    A few comments about the AG. I was in college with Barr. As the NYT relates in its Magazine profile, he was a member of a conservative faction that supported the War in Vietnam. He admits he beat up political opponents. The odd thing is that he joined the CIA right after college, rather than enlist, which no doubt meant that some one else had to go to the War in his place. In other words, the perfect attorney for President Bone Spurs.

  9. Moonzoo says:

    Have I missed the discussion about the meaning of “pending?”

    Is a charge pending after a conviction?

    A charge is an accusation, a conviction is no longer an accusation. Why was that argument not made? And why was the body of law regarding guilty pleas not made a central issue?

    Contempt (IMO) seems precisely how to deal with Flynn. “I lied under oath to do a favor for somebody else” is why pleas are taken under oath. The whole body of law regarding guilty pleas needs to be addressed because perjury is so necessary to pleas so often, but the law IS the law.

    Powell was a blithering idiot because she made political arguments, not legal arguments. Sullivan needs the counsel of good legal advice, too.

    • bmaz says:

      Yes, you have missed something. Flynn has NOT been “convicted”. He entered a plea, which was accepted by the court, and that constitutes a finding of guilt. The same as a jury verdict would constitute. Until such a finding of guilt merges with a formal sentencing though, it is NOT legally a “conviction”.

      • Moonzoo says:

        Just going by the definitions in my jurisdiction, which I assumed were universal because they are so basic.

        In my jurisdiction, a plea of guilt or a jury verdict is a conviction. IOW, the “trial” is over, and the charges are no longer pending. They are awaiting judgment, meaning sentencing. A conviction and a sentence is a “judgement of conviction.”

        A guilty plea takes the place of a trial. A guilty plea is NOT a perfunctory legal process precisely because it takes the place of a trial, and a trial is one of the few basic, fundamental aspects of the system of justice. At least in my jurisdiction, the role of the judge is deemed central and critical to a plea, as is the truth.

        With 100% confidence, I analogize the significance of the role of a judge in a plea to the role of a jury in a trial, including the determination of truth.

        Does a prosecutor have the power to dismiss the charges after a verdict? Certainly he does not have plenary power at that point, and arguably much less. So too after a guilty plea.

        To me, that is the central issue, determining how much power a prosecutor has after a conviction, regardless of sentence. Conviction is an adjudication of guilt, sentence is an adjudication of punishment after guilt has been found.

        It seems to me that a prosecutor has zero discretion after guilt has been found, IOW a conviction obtained. That does not preclude a prosecutor from agreeing with a defendant after a conviction, but it does alter the role of a judge in addressing the validity of the plea, if only to be consistent with the role of a judge in a guilty plea.

        • earlofhuntingdon says:

          Comparative analogies can be as tricky as historical ones. Bmaz has spoken about the distinction here between a finding of guilt and conviction.

          The very point you seem to be assuming is what’s at issue for the district and appellate courts. What discretion does a federal trial court have to accept or reject a prosecutor’s attempt to withdraw his case, after a pleading of guilty but before sentencing?

          However the DC Circuit decides, the case is likely to be appealed to the S.Ct. Whether it takes the case will likely depend on how much its conservative majority liked the DC Circuit’s decision.

          Much of this is about the political protection of Donald Trump, for now, the right’s placeholder as supreme leader. Bill Barr is working overtime to get him what he wants without exposing him for having wanted it. There’s a theme here beyond Mike Flynn. Donald Trump has a lot of problems and wants them all to go away before he leaves office, should that ever occur. In some cases, he has the power to make that happen, but at some risk to himself.

          • Moonzoo says:

            But why then did Gleeson ignore the question?

            And with respect to a judge’s or prosecutor’s power after a plea has been taken, of what possible relevance would a sentence be?

            The distinction between a conviction (guilt) and a judgment of conviction (guilt and punishment) seems so fundamental to me, it is hard to see it overlooked.

            Just as the distinction between “pending” charges (accusations) and conviction (definitive resolution of accusations) seems hard to overlook.

            What bothers me is a legal argument of the Flynn related issues which omits these distinctions all together.

        • bmaz says:

          Eh, a finding of guilt only truly becomes a formal “conviction” after it is merged into a sentencing. And, no, once the finding of guilt is obtained, a prosecutor can only withdraw or dismiss the charge “with leave of the court”. That is exactly Flynn’s problem.

          But as to when there is a “conviction” that its only formally after there is sentencing. Were it otherwise, there should be no such thing as a motion for new trial, there would only be an appeal. But appeal occurs after there is a formal conviction perfected by sentencing.

          The actual DOJ guidelines recognize this fact, seriously, even as to absconders before sentencing:

          “In United States practice, conviction means a finding of guilt (i.e., a jury verdict or finding of fact by the judge) and imposition of sentence. If the defendant fled after the verdict but before sentencing, he or she has not been convicted, and the prosecutor must supply the affidavits described in this Manual at 608, unless the treaty specifically equates conviction with a finding of guilt.”

          That is just how it is.

      • Moonzoo says:

        Sorry to come back, but this question bothers me.

        I have seen your opinions on this site and ask sincerely (IOW, with an open and respectful mind), do you consider the charges against Flynn to be pending after his plea? And does your answer (if true) affect the arguments being made?

          • vvv says:

            FWIW, a useful analogy *might* be in that in many jurisdictions (including IL) *civil pleadings* may be amended up to and including the entry of judgment. This is to allow the pleadings to be amended to comport with the proofs, which is much different than in criminal proceedings where the accused has notice rights of the charge, etc., but I offer it to show that when there exist issues of fact and law regarding the disposition of the case before the trial judge in a civil case, it ain’t done yet.

            As I write this, *victim impact statements* come to mind, where the court hears from victims before the court renders the sentence; not sure when the court hears about and considers prior offences – after verdict? …

            I’m just a civil guy, of course.

      • Moonzoo says:

        I am so bad, please forgive. So in the federal system a person who pleads guilty but not sentenced, cannot have his guilty plea used as a prior conviction for predicate conviction purposes, whatever they may be?

  10. Chris Blanchard says:

    I am puzzled. I a not a lawyer, and not a US citizen either, but a phrase in Gleeson’s submission is disconcerting: ‘The unreviewable discretion to never charge Flynn with a crime … .’ I would have thought, in relatively plain English, that a phase like that would, somehow, exonerate gross negligence – “I didn’t see this guy commit a murder, although I did see the corpse and him with a gun in his hand,” and it is my discretion whether or not I charge him with anything. ”Unrelieved discretion’?

    • vvv says:

      I am not a criminal law attorney, but would reply that “gross negligence” might be charged as a form of negligent homicide, but absent a jurisdiction’s anomalous terminology, would not be “murder”, which requires a greater finding of intent (used to be called *mens reas* – evil mind) than a degree of “negligence”, altho’ “gross” is usually the greatest degree (some jurisdictions might use terms like “wilful and wanton”, or possibly “depraved”, etc.).

      As far as the discretion to charge, the executive branch (law enforcement, prosecutors, etc.) has that discretion, and there are many factors that might be considered when, “I did see the corpse and him with a gun in his hand”; *ex*., law enforcement or other (say, military) authority, cooperation, nat’l security, cooperation, self-defense, defense of others, evidence issues, …

      I’m likely a bit off in this answer, if only incomplete, but I think I’m giving good info …

    • timbo says:

      I’m not a lawyer either but I do seem recall that the charges be dropped “with prejudice”, meaning that no further chargers will be considered for the crime originally charged. The DOJ is asking the court to allow dismissal with prejudice and has presented a lot of hackneyed and bogus reasoning as to why. Basically, the DOJ (on behalf of Twitler and his minions) is requesting that the federal courts basically issues a seeming pardon of Flynn in the case. The implications of that request in and of itself mean that the US Federal Courts are now even deeper a part of the crisis that Twitler and his gang represent to the survival of the US Republic.

      Here’s an example of the concept of dismissal with prejudice from a site in Illinois:

      https://www.illinoislegalaid.org/legal-information/difference-between-dismissed-or-without-prejudice

  11. OldTulsaDude says:

    Flynn backed out of his cooperation agreement just at the time he was to testify in the trial of Bijan Rafiekian. Is Turkey pivotal in some unknown way?

    • Silly but True says:

      Not so sudden when you realize RBG was back in hospital again just a month ago; Francisco may just want to start limiting the clear instances where he’ll be in position to rule on his own argument.

    • civil says:

      Ted Olson left office in July, 2004, Paul Clement in June, 2008, and Don Verrilli in June, 2016, so it’s not so surprising at the end of the SCOTUS term in an election year.

  12. Bay State Librul says:

    Like Diogenes, Gleeson is denouncing the corruption he has seen, carrying a legal lantern.
    Don’t worry, it will be extinguished by Barr, a man full of love and honesty?
    We are in peril.

  13. civil says:

    Re: “gross prosecutorial abuse,” I wonder whether anyone will be filing complaints against Shea and/or Barr. I know that Rep. Pascrell filed complaints with the DC and VA Bars against Barr last fall (https://pascrell.house.gov/news/documentsingle.aspx?DocumentID=4024 ), as had Reps. Lieu and Rice earlier (https://lieu.house.gov/media-center/press-releases/reps-lieu-and-rice-call-bar-investigation-conduct-william-barr ), but I haven’t been able to find info about how long it takes for these investigations to occur. I can’t find any notice of Barr having been sanctioned, so either the investigations are ongoing or they were concluded without sanction. I’d be surprised if these are the only complaints filed against Barr.

  14. klynn says:

    OT
    Thank you for this post EW. Thank you for taking the time to write it when you are so busy. Hope everything with your move is going well. I cannot imagine how difficult a time it is for moving. Stay safe.

    • bmaz says:

      It is not all that interesting, it is cherry picked crap from Roger Parloff, who never spent a day in a criminal courtroom, and wouldn’t know Rule 48 if it bit him in the ass.

      Rule 48 is not at all particularly controversial. In fact, it makes perfect sense, after a verdict has been rendered and accepted, whether by plea or trial, the court SHOULD absolutely be involved in deciding future actions that will disturb the verdict. that has been the rule forever, and the statutory language is quite clear. There are a multitude number of reasons one or more parties may want to disturb a properly entered verdict, and it absolutely not only in the court’s discretion to evaluate the issue, but its duty to make sure justice is done. People who actually practice criminal trial law know this, it is not a hard concept in the least.

      The dope Parloff depends on an article by a self climbing little academic named Thomas Frampton. He mays as well been citing Peter Frampton. What a load of crap. Frankly, I am not even sure at this point Frampton knows what dicta means. Especially when the Rule is clear on its face. What revisionist garbage.

  15. Ed Walker says:

    I like the direct language, particularly this quote of Scalia: “this
    contention “taxes the credulity of the credulous.” Unfortunately the frothy right is beyond credulous and into slavish acceptance.

  16. tinao says:

    What I want to know is when does the prosecution of bill barr start? The fat ass has met his day for it!

  17. tinao says:

    What i want to know is when will bill barr get charged for reckless use of DOJ, or whatever the charge is?

    • blueedredcounty says:

      The question mark does not automatically denote a tracker. It is a delimiter in the URL that denotes parameters follow. The ‘/watch’ is a request processor implemented on the youtube website, and the v= is the parameter that directs the processor to the correct clip stored on YouTube.

  18. Rugger9 says:

    I’m sorry if I missed it, but did Judge Gleeson say which precedent applied? He seemed to look at a breathtaking set of choices, but while Powell argues Fokker (which apparently applied pre-verdict) the amicus brief also cites Ammidown which seems to be more in line with the current state of the process. IANAL, though.

    OT, but predictable: it seems to go to the Tulsa rally for DJT one has to sign a waiver not to sue if COVID-19 is contracted. It’s bad enough he’s doing this on Juneteenth and in a place with real significance from 99 years ago (many of the missing are allegedly in unmarked mass graves) but if it’s so safe and COVID-19 is conquered like the WH says it is, why do they need a waiver? DKos is expanding upon an article in the Hill.

    https://www.dailykos.com/stories/2020/6/11/1952483/-Trump-Demands-Tulsa-Rally-Attendees-Hold-Him-Harmless-if-They-Get-Sick

    • madwand says:

      Tulsa’s covid seven day moving average is moving “straight up” waiver not surprising, Trump throwing shit against the wall and hoping it sticks.

      • bmaz says:

        Yeah. And I am not even positive the waiver is enforceable, but it might be. Would be a really hard case to prove anyway…how do you prove you caught the Covid at the Maga rally? Think it is more intended to make a statement that “hey, look, these people are strong and not in fear”. And also most of these dolts would never guess that the disclaimer may not be enforceable, so just plant the thought that it is in their minds.

        • madwand says:

          Yeah and it’s kind of funny asking your supporters to sign a waiver in the first place, not much trust there. In aviation we called it a “Hold Harmless Disclaimer”, never saw it enforced.

        • earlofhuntingdon says:

          The absurdity of the waiver – as used by a sitting public official during his election campaign for the highest office – seems boundless. It looks like a standard adhesion contract, which should not be enforceable, but under these Supremes, I have my doubts.

          The waiver is consistent with Trump’s lifelong attempts to shield himself from disclosure. It is also consistent with Trump’s and the GOP’s support for blanket immunity for businesses, so that they can re-open without taking costly steps to protect their workers from disease – or anything else (Eugene Scalia’s lifelong quest). Then, too, the RNC, the Republican Party, and Trump’s campaign are private bodies. The “gatherings” are probably private, although that belies their significance and the meaning the public normally and rightfully attaches to them.

          As you say, this would seem to be another attempt to own the liberals and to build an emotional and political fence around Trump. He wants to be invincible always. I doubt that the demon-eyed ravens, tap tapping and rapping outside his chamber door, will heed his wish. Their reply is more likely to be, nevermore.

        • vvv says:

          Another civil guy and I were debating this today; he thinks it fully enforceable.

          My response was its very existence shows they know there’s an issue including with forseeable injury (notice) and yes, it is an adhesion contract which, altho’ it *might* work to defend against an attendee who signed it, it may not work so well for the family of the attendee whom (s)he goes home or to work, etc., to provably infect and whose damage is also forseeable but who also signed no release. (A shout out to the old lawyers – remember “privity”?)

          And as far as forcing adherence/arguing release/assumption of risk re the attendee, it may cover negligence and release them from readily forseeable (open, obvious) risk, but what about a failure to enforce whatever rules the campaign decide to implement, what about gross/willful and wanton negligent conduct that they fail to control or even (knowing the failed president) encourage? Not to mention sanctioned or ignored intentional conduct in violation of whatever rules they do put in place …

          Finally, and I’m reaching here, if the express and accepted purpose is part of public policy that we wear masks to protect others, than discouraging the use of same – particularly in a non-social distancing context – would be causing harm to 3rd party beneficiaries (non-attendees in family, work contact with attendees, etc., who get provably infected by an attendee). Will there be campaign conduct that discourages wearing masks? We know the pres ain’t gonna wear one.

            • vvv says:

              Usually is, yeah, but through the eyes of a PI guy it would be a very valuable claim if, for example, the claimant is an elderly or compromised person or even group in total isolation except for contact with an attendee.

              And such a monetarily valuable claim could have huge implication in terms of public health and policy as well certain political positions – in my mind, the first two are the key reasons for the existence of tort law in the first place, and the latter (not entirely separable, anyway) would be a beneficial effect, also.

              I have no idea, but campaigns insure for these events? One would think the venues do. I wonder at the costs, and any push back from there.

    • Vicks says:

      It’s a sick and twisted loyalty test, and I just can’t believe that at least a sliver of his base doesn’t feel some resentment at his ask.
      It will be interesting to see how hard they are going to have to work to fill this place. I mean it’s all fun and games until the base finds someone who can do (virus) math.
      As for the waiver, I’m not sure if there is a fancy legal word for “it takes one to know one” when referring to fools calling out fools in the courts but it certainly applies here.

    • Vicks says:

      Oh come on now!
      I clicked on your link to the story about the arrest of a boogaloo fella and I get ads for Hawaiian shirts

      • PhoneInducedPinkEye says:

        I will forward your feedback to the nbcnews webmasters.

        PS: browsing the internet with JavaScript disabled unless whitelisted leads to a longer and more fulfilling life

  19. holdingsteady says:

    Thanks for the JavaScript tip, it just now worked for me to get rid of the Hawaiian shirt ad:))

    So sad to see this happened in Santa Cruz, but it happening at all anywhere is crazy and scary

  20. holdingsteady says:

    Sorry, my comment was meant to reply to and thank PhoneInducedPinkEye and Vicks about the nbc news boogaloo report and JavaScript tip

Comments are closed.