Jeff Wall Admits that Any Scrutiny of DOJ’s Motion to Dismiss Flynn Prosecution Will Cause Irreparable Harm to Bill Barr

The hearing in Mike Flynn’s petition for a writ of mandamus just ended.

The key takeaway, given the make-up of the court, is that for the majority of the hearing, Judge Karen LeCraft Henderson seemed clear that it was too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

But the notion this might involve ruling for DOJ is the most interesting part of this hearing. Flynn filed the petition, not DOJ. Powell’s argument for Flynn was predictably flimsy, self-contradictory, and false. Even Judge Neomi Rao, who will clearly rule for Flynn, seemed to be struggling to find a way to agree with Flynn.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

When Robert Wilkins pointed out that DOJ had not filed this petition, Wall basically asked for a mulligan, the opportunity to file their own mini-writ of mandamus. Judge Henderson responded by asking (as she had more generally) why this case shouldn’t proceed under regular order, in which when DOJ missed the opportunity to file their own writ, they can’t be granted a mulligan to do so after the fact.

Along the way, Wall and Powell both repeatedly misrepresented the status of the case. More importantly, both claimed DOJ’s motion was very detailed, without noting that it also made false claims, claims on which DOJ has reversed itself at the Circuit level. That will matter in a hearing, which may be why Wall was so insistent that a hearing would do real damage to DOJ.

As noted, given Henderson’s questions for the bulk of the hearing, the Circuit will likely deny this petition. But the most striking takeaway is how panicked Wall was that DOJ might be asked to explain itself.

121 replies
  1. BobCon says:

    Is there something that could be exposed in a Sullivan hearing that could cause real problems for DOJ?

    I realize they’re arguing a point at a higher level about the harm they would suffer, knowing that confessing they don’t want to be caught doing something embarassing or even improper wouldn’t fly. But is there a serious risk of concrete evidence of problematic behavior by DOJ being exposed?

      • Burt berman says:

        Am wondering if there is a way at the prospective hearing (if petition not granted) that Sullivan, or Gleason or some other party could raise issue that DOJ, in it’s motion to dismiss, effectively was abusing / making a mockery of Presidential pardoning power by seeking to accomplish substantially similar result without formal exercise of that power?

        [FYI, your username has been edited to remove your email provider. You really don’t need more spam from the kind of bots spidering this site. /~Rayne]

          • jplm says:

            For a non lawyer and non US citizen this was starting to look a bit too technical but looking up s48a it does seem that ‘with leave of the court’ means it is the Judge’s call at the request of the prosecution with the agreement of the defence.Powell from what I’ve heard seems to not acknowledge any discretion on behalf of the judge. By Powell’s argument the statute would omit ‘with leave of the court’.
            Secondly, it looks as though the right to request to dismiss via s48a would be pre the verdict being reached To me it’s not a mechanism to overturn a finding of innocence (a bit redundant) or guilt but to intervene before such a finding is reached?
            Therefore, should not the process be to appeal with the support of the prosecution to a higher court to dismiss the finding of guilt based upon new evidence?

            • bmaz says:

              Yes, but the right to appeal does not accrue until there has been a sentencing upon the finding of guilt.

                • bmaz says:

                  Which is not to say Flynn/Powell will not try another mandamus should Sullivan deny their motion, they likely will. But that is most certainly not how it is supposed to work.

    • Matt Reingold says:

      Maybe that can be a procedural thing going forward instead of directly referencing Sullivan even though it’s correct in this case.

      IE: new definition for Sullivan Hearing (noun)

    • SteveL says:

      Mostly just embarrassment, I suspect. In the Stone sentencing, I seem to recall that ABJ asked Shea who had written the revised sentencing memorandum, and he demurred. This is DOJ’s right, but surely it’s kind of embarrassing if no DOJ lawyer will take credit for writing the thing.

      Many other embarrassing questions come to mind, e.g. isn’t it true that the motion does not actually allege any violation of DOJ internal rules, much less genuine prosecutorial misconduct? Has DOJ ever taken this position on materiality before, and is it content to let defendants make such materiality arguments going forward? And, as emphasized by Marcy, how many of the purportedly new documents are actually new?

      Moreover, who is actually going to represent the government? Will Shea have to come back from DEA for a hearing? Who can they find who is credible to defend the motion?

      • earlofhuntingdon says:

        I think any concern the DoJ might have had about credibility went out the rat hole when Bill Barr came through it.

      • anaphoristand says:

        Is there a formal DOJ protocol under which Barr assigned Durham and Jensen, governing the scope of their respective investigations? And insofar as DOJ ostensibly made use of Jensen’s uncovering of supposedly new evidence in its motion to dismiss, is it within Sullivan’s purview to compel his appearance at the July hearing?

      • Silly but True says:

        See the most recent Senate cmte. Rosenstein hearing for the strategy.

        The fundamental excuse will be the originating sin of lack of regularity of prosecution as Special Counsel not regular US Atty prosecution.

        The DoJ could have prosecuted Flynn through DC US Atty but chose instead to prosecute through Special Counsel.

        This then immunizes everyone on DoJ side, and Special Counsel office is long evaporated.

        Rosenstein already essentially said, “yes, I know I said previously that Mueller reported to me, but what that means is we never discussed any of the details you’re asking about.” Bring Mueller back in 2021 or 2022 for more answers and he’ll be like “Meh. I don’t recall.”

  2. Yogarhythms says:

    The ball placed expertly on the tee by Judge Sullivan. Each player addressed the tee. The gallery is in awe. Your voice has the knowing poise of the best hushed commentators.

  3. bmaz says:

    “…too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.”

    I don’t think Lecraft Henderson contemplates another writ, and that was the back and forth over “regular order”. I think she contemplates that if the motion is denied, there will be a sentencing and appeal. But agree completely she would likely be on the Flynn/DOJ side if it gets to that. I heard a lot of the O/A, but not all, so maybe I missed something as to availability of subsequent mandamus, but I don’t recall that. And she is right about Gleeson’s “brief”, it was not only a tad bizarre, but counterproductive overall. Was not helpful to anybody, including Sullivan.

    • earlofhuntingdon says:

      Then Sullivan would hold his hearings, etc. – with the attendant risk of embarrassing disclosures about Flynn, Trump, and the DoJ – Sullivan passes sentence (almost certainly involving prison time), which gives us a conviction. A retired three-star army general becomes a convicted felon. The case proceeds on appeal in the ordinary course. That would seem to be exactly what Barr was attempting to forestall. Schaden, schaden something.

      • bmaz says:

        Yes. But that was my point about “regular order”, which was a constant discussion point in the O/A. Regular order is either granting of the Flynn/Powell motion, or denial and sentencing, then appeal. Regular order is not another mandamus before sentencing. We shall see soon enough I guess, but that is my take.

        • Silly but True says:

          It seemed there was sufficiently wide agreement among all three judges that mandamus may well be warranted but is premature at this time when nothing has happened yet; approval of mandamus after dismissal hearing but before sentencing appeared to be more likely; in fact DoJ, in deliberations to do so on their own when Flynn filed, may file at that time and find a more willing panel in July. If not DoJ mandamus then it both DoJ and Flynn appeals will likely also find traction on the same points argued Fri.

          • bmaz says:

            To me, they focused more on “regular order”, which would not contemplate another mandamus but sentencing and appeal if he denies the motion. But who in the world knows. Also likely would go back to this panel either way. But, again, who knows?

      • Mel Grant says:

        Prediction: Sullivan will hold his hearings, then (reluctantly) dimiss per the DOJ request.

        • bmaz says:

          Maybe, but if he thinks the entire deal is in extreme bad faith, and he clearly does, and it clearly is, why should he dismiss it. That would be a bullshit cave in to impropriety and sanction of outright fraud on the court.

          • BT says:

            Isn’t it likely that appellate will dismiss if Sullivan fails to? Is there some sort of judicial stigma associated with being overruled by appeal? (I seriously don’t know if that’s true or not). If that is the case, that might be why Sullivan would not want to deny DOJ’s motion even on principle.

            • bmaz says:

              I don’t think Sullivan gives a damn about being overturned, and that is not a given that DCCA, especially en banc, would overturn him Better question would be what SCOTUS would do if it got to them.

    • BobCon says:

      If it goes to appeal, would it be this set of three judges who would hear it?

      Or is there a brand new assignment process?

      • bmaz says:

        Unclear. May well be yes, they do. But this could be considered a motions/emergency panel and a regular panel gets assigned for an appeal. Not familiar enough with DC Circuit in this regard.

    • Desider says:

      Was Gleeson to pin the extreme position so Sullivan could provide the happy, reasonable, & orderly medium?
      IANAL, but could he reference the charges dropped to give a 4-month sentence just enough to piss off Trump/Barr, low enough to seemingly not warrant outrage (but will produce it anyway)?
      Also, i thought judges, not DoJ, controlled contempt charges – did I boff my Perry Mason?

  4. Martin Morgan says:

    I’m incredibly impressed how you can process this in almost real time. Obviously, your command of the facts allows that. You need a bigger media voice. Thanks.

    • Peterr says:

      If you and others here tell their friends and neighbors about Emptywheel, her media voice gets bigger.

      • Alan Charbonneau says:

        I regularly tweet with links to articles at emptywheel. They go to people who I think will enjoy them.

        But also to those like Hannity, Ingraham, McConnell, and to other Trump toadies. Of course @realDonaldTrump gets them as well. :)

  5. earlofhuntingdon says:

    Sid Powell has succeeded in one thing: she has co-opted the most senior levels of the Department of Justice to work for her client and against the interests of justice.

    • Pete T says:

      I know ad hominem attacks are not cool around here, but I’ll take the risk and state for the record: Sidney Powell’s voice annoys the crap out of me.

  6. Moonzoo says:

    IMO Powell must be terrified of hearings. Testimony from Covington (IMO) would be devastating regarding the circumstances of the plea. And Flynn could well be humiliated defending his absurdly lame “declaration,” where the stout and savvy warrior would have to explain how he was a bewildered and frightened little lamb.

  7. Savage Librarian says:

    Jeff sounds like he might be having night sweats where he wakes violently from terrifying nightmares in which he hears bagpipes and ominous voices shouting, “Build the Wall, build the Wall.”

      • soothsayer says:

        Ha, interesting observation John, which would imply that Barr’s passionate Bagpipe playing, would suggest he is no gentleman. Well, we all know after Lafayette Square, that he is no “gentle”man, as that would be an oxymoron, n’est-ce pas.

        That old saying you mention, was actually stated in this 2019 New Yorker article about his bagpipe playing:


        There’s an old saying: “A true gentleman is a man who can play the bagpipes, but doesn’t.” In March, when Donald Trump called in to “Hannity” to tout Jeff Sessions’s replacement, he crowed, “Our new Attorney General, Bill Barr, is a great gentleman.” But new information has come to light. This magazine has located five individuals who attest that Barr, who has come under fire for his SparkNotes summary of the Mueller report, plays the bagpipes. And, no, it wasn’t just a onetime thing, in college, where he mistook a set of bagpipes for a bong. Throughout the eighties, Barr performed in the City of Washington Pipe Band—one of the top bagpipe ensembles in the world—giving new meaning to the cool-dad line “I used to be in a band.”

        “Bill was a serious piper,” Mike Green, a fellow band member, said recently. “He started playing as a young kid, in New York. I’ve seen pictures of him, ten years old, wearing a Balmoral bonnet, a kilt, a doublet, big bagpipes on his shoulder.” Barr moved to D.C., in 1973, to work for the C.I.A. and attend law school simultaneously. After graduating, he joined a private law practice, then a pipe band. “He came ready to play at the top level,” Green said. In competition, the band performed such classics as “The Sheepwife,” “Highland Wedding,” and “The Cockerel in the Creel.” It also did contemporary jigs, hornpipes, and polkas. Green recalled, “Bill definitely preferred the military marches.”

        Anyways, I am of the opinion that Barr would be a better bagpipe player using his tightly clenched sphincter, but then again, I think we are safe to assume that there is much hot air which escapes from either orifice, so who knows.

          • soothsayer says:

            Touché monsieur, my bad. But the Truth is, I actually do in fact enjoy the sound of bagpipes. I do not, play them though. Not sure that makes me a Gentleman, I think that would in fact be a logical fallacy, ha! Anyways, the gist of the above is just my Canadian humor or what not, which intersects well with my enjoying taking the piss out of bullies aka Mr Barr in this instance.

            But, I do in fact love all things Scot, very much in fact. A few things to support this: a) one of my closest friends in my early adult hood is a Scot, and we would go to the Highland games in Canada every year b) my brother in law is in fact a Scot, and his uncle had a sheep farm in Scotland, he has a great SOH for sure (they all even wore Kilts for the wedding to my sister) c) my father did some Uni in Edinburgh and Glasgow, where he may have picked up his smoking of a pipe (not sure? God bless him) d) I have visited Scotland in my youth, and again in my adult hood I brought my wife e) and to link it all back to bagpipes, in both visits I was smitten by the “Tattoo” at Edinburgh castle, and had a chance to see it the time I took my wife, many bagpipes were to be had, and it was glorious. Btw, I also did the Whisky tour, what a delight.

            With that in mind, in honor of Bagpipes, Tattoo, the highlands and all, I will have a small nip of Laphroaig here, and say a toast to all things Scot.

            • P J Evans says:

              ah, one of my sister’s favorite whiskys. (She loves single malts.)

              Why yes, there are Scots on the family tree – mostly from the Border counties, but that’s close enough.

        • Desider says:

          I hear he plays colostomy bag in his other band. Supposedly they’re big in Europe. Or Euranus, i forget which. (Space Truckin’…)
          PS – i like bagpipes, tho prefer unbeaten-to-death tunes)

  8. Rugger9 says:

    Rao also kept talking over Wilkerson to cut off her answers, starting within the first minute. What a jerk.

    I’ll agree that the whole idea was to kill this now so no more bad info comes out. However the pardon would do the same thing, noting that there is no way IMHO that Flynn sings even if 5th Amendment protections no longer apply. At best we’ll get a curious loss of memory.

    • Reader 21 says:

      A pardon brings trump back into focus and puts the spotlight right back on him—the last thing they want.

      • Rugger9 says:

        That would presume that DJT has shame, which he has none for this kind of stuff. Melania’s playing him for a better prenup might.

        • MattyG says:

          No shame that is true. But his ego is even more impressive. Pardoning an associate would elevate that asscociate higher than DT’s fragile ego may be comfortable with. It would be an admission on his part that the associate provided some vital service DT – genius and prime mover in all things – actually needed help with. He may not be able to do that. He may well not pardon any of his own circle for that reason alone.

  9. Grif says:

    If during Sullivan’s hearings Trump pardons Flynn, would the hearings end, or do they have separate standing in uncovering facts related to DOJ’s actions apart from any jeopardy Flynn was in?

    • Desider says:

      Have to ask a lawyer, but i believe he loses some of those 5th Amendment protections and can be forced to testify, which Is prolly not what Trump/Barr want.

    • earlofhuntingdon says:

      The short answer is that if Trump pardons Flynn for crimes included in this prosecution and guilty plea, the prosecution and the case against him end. The general opinion is that that pardon would be valid. But issuing it exposes Trump to a claim that he obstructed justice, for which he could be prosecuted after he leaves office. (We’ll set aside the likelihood that Joe Biden would go that route.)

      If there were other legal proceedings that sought to compel Flynn’s testimony, a pardon would remove any claim Flynn might have not to answer those questions. No legal jeopardy, no right not to answer the questions for Fifth Amendment reasons.

      That’s why punters have said Trump should commute Flynn’s sentence – if and when he receives one – rather than pardon Flynn. If he does, jeopardy would still attach, and Flynn could keep his mouth shut for Fifth Amendment reasons. Flynn’s trouble – and Trump’s – is that even with Bill Barr at his side, Trump has little capacity to appreciate the difference.

      • John Mc says:

        Have been told by friend, a retired Air Force general, that if Flynn is convicted, and it’s not overturned on appeal, he will lose his military pension for life. There’s no way it can be re-instated and a pardon won’t change this either. Not sure if this is a factor here.

          • timbo says:

            For a general officer convicted of lying in a court of law in such a way to impede a CI investigation to not lose there pension would seem rather absurd.

            • bmaz says:

              Earl is right. Unless the judgment comes by way of a court martial, it is very rarely invoked. And a Presidential pardon would stop any such effort in its tracks.

              • MOG says:

                I believe the only automatic suspension comes with actual incarceration. But if I’m not mistaken, his wife’s interest would not be in jeopardy.

            • TimH says:

              I don’t understand the attitude that a conviction should nullify one’s pension. The pension is earned, and has no relation to the conviction. Also, this is such a heavy penalty for most people (lose your rest-of-life income!) that the police, for one, are very reluctant to convict one of their own. So the deterrent effect is against prosecution of the crime, not commission of it in the first place.

              • bmaz says:

                The conviction itself would not. It would have to be done via UCMJ. That is pretty unlikely, but not impossible.

                • Rugger9 says:

                  It would require a dismissal from the service because Flynn is an officer, which functions as a dishonorable discharge does for enlisted. That would require a court martial (probably a general one) and if Flynn is pardoned for what we have now (the specifics would be important) it would have to require new peccadillos by Flynn. That process is not likely to be invoked unless Flynn confirms the First Law of Dirtballs, where they will always give you another chance to discipline them.

            • earlofhuntingdon says:

              It has been said by a man of some authority, however twisted his oily critics might consider him, that the law is an ass.

      • Silly but True says:

        It’s not going to happen, but what happens to _sentencing_ and conviction if Trump pardoned Flynn now, or between July dismissal hearing and sentencing.

        It would seem that issue is not particularly different than the current one: if court has it’s own Art. 3 independent role then I presume that all penalties evaporate but that need not stop court from completing?

        That is, all of the current limitations (travel, etc.) cease. Flynn would not be in a y position to go to jail. But could the court sentence anyway and then record that conviction that would otherwise have been imposed?

        Or does everything just end because Flynn can’t be penalized, and so there is no justice to be meted out by courts?

  10. chetnolian says:

    I have a theory on the Gleeson amicus appointment and brief. It is very clear it is designed to be a foil to Powell rather than a serious legal exercise.

    Now we know what Judge Sullivan thinks of Flynn, that he’s near to being within the definition of a traitor to the USA, because he has effectively said so by raising the question of treason.

    Let’s suppose that he takes pretty well the same view of this whole process as Marcy and Bmaz do, a likely scenario. And we know that , while quite irascible, he is a stickler for the law and the system. So maybe he feels that this charade is both an insult to that system and to him personally.

    Now Sullivan was 67 the other day. He can go when he likes, and particularly in the current charged environment he then can name his price for speaking engagements etc.

    What about a really grandstanding hearing, aided by careful questioning of Gleeson, and then “I don’t need to put up with this. Bye!”?

    • Desider says:

      Or Sully let’s Gleeson do the dirty work, putting it out on record, but can come back and be the reasonable one, providing a carefully justified but moderate sentence, while noting that DoJ didnt effectively explain why it contradicted itself, while Powell’s arguments were defective and previously rejected.
      Will the Circuit Court really step in to override say a 4-month sentence based on facts, prior pleas, and charges set aside, along with contempt for lying? I’d think thatd embarrass them

    • Das Robot says:

      My guess is there are exactly zero reasonable federal judges that are considering leaving the bench prior to the next election. Sort of like when NYT’s Freidman came up with the genius suggestion of a coalition Biden group that would displace 6 or 7 Dem senators to serve in Bidens administration. Sullivan would get replaced with Carrot Top or some such.

      • Rugger9 says:

        Carrot Top (merely clueless) would be an improvement over Judge Rao (clueless and hacktacular). No video for my feed, but one could hear the eye-rolling exasperation over the arguments she would try to make.

      • bmaz says:

        Yes, it is not that the “reasonable ones” will go at this point as the unreasonable older nutters that can go senior status and be replaced by young fascists that have lifetime tenure.

  11. MB says:

    No comment. Read/watch at your own peril.

    ht tps://

    [FYI, link ‘broken’ with blank space to prevent accidental clickthrough. That site doesn’t need accidental traffic from this site. /~Rayne]

  12. earlofhuntingdon says:

    Sid Powell’s reply brief attempts to cast poor Mr. Flynn as a victim. Under felony indictment, a thirty-three year army veteran, who spent five years in combat, has no access to a weapon! He is burdened by the costs of his defense (which would surprise Covington, whom he has apparently not paid), and an overreaching government engaged in an illegitimate escapade. Whew.

    It’s filler, because her arguments on the issues before the DCC are a little light – even though she is the petitioner. Her languages reads as if she borrowed it from an airport bookstore. A belief supported by her citation to Ed Meese, one of Ronald Reagan’s Attorneys General. Like other Reagan-era officials, he resigned under a scandal. While AG, Meese’s briefcase was regarded much like the Hotel California: briefs checked in, but they never checked out.

  13. Budd says:

    As a non-lawyer, it’s infuriating to me that so many details of process are evidently up for debate. It should be possible to have clearer rules that leave less to the imagination. I’ve only listened to the first half hour of the hearing (thanks for linking to it), and Sidney Powell is repeating the argument that Judge Sullivan doesn’t have the authority to request an amicus opinion. All the arguments I’ve heard so far cite precedents, rather than the court rules being debated. Perhaps that’s an indication that the rules aren’t clear enough?

    Do I understand correctly that the writ of mandamus ordered Sullivan not just to respond to DOJ’s motion to dismiss, but to actually accept it?

    I wish I understood this better, but I don’t wish I had spent my college years learning about it. Thank you for covering this so reliably!

    • bmaz says:

      The rule, and the court’s inherent authority to maintain its own integrity, is actually quite clear on its face. Just because some Fox News Quack attorney like Powell is spewing bullshit does not mean you ought equate it with lack of clarity.

    • Das Robot says:

      It appears to me that what DOJ is trying to say is that the District Judge should have no say in the matter of the Prosecutor being given a job as the the head of the DEA in exchange for a favorable turn for the President’s buddy/co-conspirator.

      Wall is hedging already that their deliberations re the reversal shouldn’t be taken into account and that almost anything short of a cash register at the prosecutor’s table to get your case dropped is no business of the court even if the judge has accepted a guilty plea and made his findings. Wall tried to head that argument off by admitting bribery was within the boundaries of the court’s review. Wilkins proposed a scenario where a clearly unconstitutional reason for withdrawing the case would be reviewable by Sullivan but I don’t see why there is a distinction. Apparently Beth Wilkinson didn’t either.

      Clearly they really don’t want a lot of poking around about how or why the reversal came about but I would bet almost anything at this point it has to do with a Trump cut out floating a deal with Powell/Flynn, if for no other reason it stinks to high heaven like that’s what is going on. IMO Trump is likely implicated somewhere making it difficult to pardon Flynn because his fifth amendment rights and the ability to compel his testimony. As has been pointed out elsewhere it could also open Trump to obstruction also (but I rank that likelihood lower).

      Signed “Dying to hear what Covington has hangin round”.

    • earlofhuntingdon says:

      Yes, if the DCC sides with Powell and the DoJ now, it would order Sullivan to accept the DoJ’s withdrawal of its prosecution – without further proceedings and with prejudice, meaning there could be no more prosecution of Flynn for his admitted crimes.

      That would be equivalent to a pardon, but one that does not require Trump to issue one. A bit of protect the president from himself gamesmanship by Bill Barr.

      Based on the questioning, it appears more likely that the DCC will reject Powell’s petition and send the case back to Sullivan to complete his work, which is what it would have done in the first place.

      • bmaz says:

        Note that the plea agreement, charging document and statement of offense, all contained here, really pertain only the the circumstances of the false statements as charged in the single count of the direct complaint. It is not impossible, by my eye, that Flynn could be charged on other offenses and conduct not contained in these items, if a later DOJ was so inclined. I think that highly unlikely, but maybe possible, even if the current case was dismissed with prejudice. The difference between the North case Silly But True cited is that Flynn was never immunized, and the plea agreement did not specifically exclude any and all other offenses.

        • Das Robot says:

          I was wondering about that. Could the Covington or Grand Jury material play into subsequent prosecutions bc he has essentially forfeited his A/C privilege? Or would that be disallowed?

          • bmaz says:

            Dunno, not clear yet. Have to see how this eventually plays out to really answer that question.

            • Silly but True says:

              There’s also another interesting delay tactic for Flynn should it become apparent to him it’s in his best interest just to maintain the status quo: the DoJ’s appeal of the Trenga overturning Kian conviction.

              The entire reason why we didn’t have sentencing in the _first_ sentencing hearing was because Flynn’s contributions to that case still having bearing on sentencing.

              With DoJ appealing the overturning of the conviction and seeking leave to have a new trial, that can essentially reset the conditions of the first hearing: Flynn can argue it’s condition of his plea to continue to seek to assist the prosecution, and that while it ultimately chose not to have him act as witness in Kian’s first trial that was overturned, it could still conceivably involve him in any new trial still to come.

              I doubt it would be persuasive to Sullivan given the history, but then that would become just yet another issue to fight on appeal if Sullivan moved to sentence with an outstanding Kian case that could benefit more from Flynn’s involvement per his plea, is still hanging out there.

              • bmaz says:

                Fair point, but think that ship has likely sailed. I had kind of forgotten about the appeal in that case though.

      • earlofhuntingdon says:

        So a dismissal goes only part way in solving Trump’s potential problems on the QT. A properly worded pardon would fix that, but it exposes Trump to obstruction charges. But I think you’re right, it seems improbable that Joe Biden’s AG would prosecute Flynn – or Trump.

        Frankly, I think it will be hard to persuade him not to look forward, and avoid the rear view mirror. He will need periodic reminders that open wounds do not heal until they are cleansed and properly sewn up.

        • Das Robot says:

          There’s no reason in my mind that Biden couldn’t appoint a Special Prosecutor. Ordinarily I would agree but the transgressions have been so serious a lot of people are going to be out for blood. Especially the career DOJ and other bureaucrats who have been thrashed by this administration.

          A special prosecutor could provide political insulation. Times are a changin’ and by January 2021 there’s likely to be 300k dead from these incompetent bozos.

          • Super Nintendo Chalmers says:

            It was a mistake in 2009 to not prosecute the Bush officials for torture and crimes relating to the US Attorney Scandal. It would be an even bigger mistake to not prosecute the wanton criminal behavior of the current maladministration.

            • Ruthie says:

              It’s not an accident, IMO, that the seriousness of (Republican) presidential crimes has increased dramatically since Watergate and Ford’s pardon of Nixon. The lesson has been learned, and the only way to break the cycle is to take a powerful magnifying glass to the Trump administration. If it would be more palatable to centrists, I would be willing to entertain a “truth and reconciliation commission” style process.

  14. Budd says:

    Listening to Mr. Wall at about 36:00, I think he’s claiming it’s a separation-of-powers level problem for Judge Sullivan to require DOJ to explain the factual grounds for the motion to dismiss, because Sullivan has no choice. I really don’t get this absolute assertion that Sullivan *has* to rule in their favor.

  15. John Langston says:

    Just a dumb hypothetical here.

    If the judge just accepted the plea, rejected the DOJ withdrawal, and sent Flynn to jail right away, how long would an appeal take to prevent or limit his incarceration vs a Trump pardon? At this rate, if Flynn spent a night jail, it would be well worth it.

    And once the appeal courts side for Flynn, what precedent does that make for Federal prosecutions?

    Last question, does Barr have any criminal liability given the entire naked sham? Or is the entire system rigged?

  16. x174 says:

    glad to hear that things are looking up for sullivan. i agree with desider and chetnolian that judge gleeson has been most likely playing a specific role to make sullivan’s actions appear more measured by comparison. since even before–as per his op ed–gleeson has been presented as a rabid dog–fierce with a hatred for injustice and institutional crime.
    sullivan, his amicus and lawyer all seem fervently strategic. i wouldn’t be surprised if they all had an ace up their collective sleeve which they’re not showing.
    should be extraordinary to see how the flynn hearing will undermine barr’s wretched investigation of the investigation.

  17. CD54 says:

    I haven’t seen any analysis of what happens when Trump’s DOJ loses mandamus here and then just FU’s the District Court Judge. What do the three Circuit Court judges do then — if they have truly signaled they will rule for dismissal after a hearing?

    And I was wondering what DOJ was going to say about bribery. As @Das Robot at 11:05 pm helpfully recapped Wall said bribery isn’t kosher. But apparently obstruction is nobody’s business except DOJ’s.

    • Silly but True says:

      There is nothing the appeals court will do automatically on its own. Either Sullivan will hold his hearing and timely dismiss with prejudice, or he won’t. If he does, expect Flynn and DoJ to accept it and not act any further; the Flynn case is then over, forever. If he doesn’t, it will require either Flynn or DoJ to motion again to Appeals court for relief. At least one judge admonished DoJ for not making its own independent mandamus, but now wasn’t most reasonable time to do so as other judges made apparent. A 2nd Flynn mandamus carries baggage of this first misfired one; better for Flynn that DoJ makes next mandamus after dismissal hearing but prior to sentencing hearing; or alternately either or both Flynn and DoJ could wait to appeal the sentence.

      With election looming, I’d expect both Flynn and DoJ to kill it as quick as they can, but for Flynn’s additional and more important personal interest to stay out of jail.

      • bmaz says:

        If Sullivan denies the motion, and I cannot emphasize this enough, he sentences Flynn and appeals to the Circuit. That is what they were talking about as to “regular order”. People are all focused on Mandamus now because they don’t understand why it is historically called “The Extraordinary Writ”.

        It should never be sought, and never be contemplated by an appellate court where there is a regular remedy available. And there clearly is here. People buying in to another mandamus action are playing a mug’s game and facilitating Flynn getting treatment that NO OTHER defendant in America would get. Irf that occurs, you ought be outraged, NOT accepting. Seriously, this case is still ludicrous, and people by off on it.

        • Silly but True says:

          I agree with normal order outcome.

          Do we think the dismissal hearing becomes also the sentencing hearing at the same time?

          I think everyone knows, well Sullivan certainly can expect, that if there’s so much as a second’s gap of time between Sullivan’s completion of dismissal hearing before sentencing, much less a whole different hearing scheduled a week or two or three later for sentencing, that the time in between will be exploited by Flynn, the DoJ, or both.

          • bmaz says:

            I’ve thought about that, but doubt it. Powell is crazy, I think she really will attempt another mandamus. It would have no more merit than this one, but kind of expect she will try.

  18. PeterS says:

    I commented before that in such an unpredictable case I thought it bold to predict – with certainty – how Rao would decide. Perhaps my memory is at fault but didn’t “we” confidently predict that the DOJ wouldn’t file a motion to dismiss.

    This is not to say I think Rao will decide against Flynn, just that I accept the possibility. Numerous unlikely things happen every day.

    • bmaz says:

      Lol, you have hard money to bet on Rao? Do you know who and what she is, and how she performed at oral argument? Did you listen to it??

    • earlofhuntingdon says:

      LOL x2. A seemingly restrained argument. Yet, it misses Rao’s career-long advocacy of extreme FedSoc, Heritage, and Hoover perspectives on executive power and neocon economics.

      • Rugger9 says:

        Having listened to the arguments in full, I agree with the concept that Rao was trying to float irrelevancies and flimsy justifications to support her coming vote to grant the writ. There was not much that would indicate any deep seated concern about regular order, unlike Henderson for whom regular order really did not need to be tampered with. This is why it was genius in a way that Sullivan had already assigned his hearing date, because the DCC would have a date certain not too far in the future where the amicus arguments would be heard and a decision following. No dithering or open-ended timelines. That completely undercut the arguments made about Powell and DOJ about how the process would drag on forever until the inevitable release of Flynn. No mention of course that Flynn was the author of many of the delays (directly or indirectly via cooperation work) or that Barr was trying prevent the bad optics of a pardon (which DJT wouldn’t care about the optics in this case).

        If it goes as I would expect the DCC will see this again on appeal and while Henderson signaled some interest in the DOJ’s ideas, there would be more court testimony (and maybe Covington too) that would remind her of the wisdom for checks, balances and oversight.

  19. The Old Redneck says:

    The reason I think you should go a step further is” if Sullivan eventually approves the dismissal of the Flynn case, “it’s still not the case that the parties haven’t suffered harms,” Wall said. “The harms to Gen. Flynn are obvious from the prosecution… But the harms to the government are really what I’m focused on. You have, as you say, a potentially ‘intemperate’ amicus, you have all these allegations being lobbed at the executive branch. We’re going to have to answer them in a public forum in a politicized environment.”

    How pathetic is this? Boo hoo.

    • Das Robot says:

      What’s really pathetic is side stepping the harm this clown car has foisted off on the court and the people of our country. They’re now asking the court to go through the process of undoing Flynn’s plea agreement and it’s acceptance by the court but claim the court can’t even ask a single question before performing according to that demand.

      The plea itself was entered into with the DOJ/Mueller acting in good faith and Flynn’s previous attorneys also intending to honor their agreement. Flynn’s more serious (that we know of) charge was dropped and he was given a sweetheart deal no one else would get but somehow that got screwed up at about the same time Trump suggested publicly a pardon was in the offing. Keep in mind the acts he performed that resulted in the investigation/finding of guilt were directly in contravention of the policy of the United States and he was working at the direction of a foreign country while maintaining a TS security clearance, advising a presidential candidate and president.

      The idiot Powell shreeks that poor Mikey was too stupid to understand he has to tell the truth when he fills out those tricky forms and speaks to government investigators in spite of being in that line of work for 30 or forty years.

      Flynn, Powell and now the DOJ are the orchestrators of almost 100% of any harm and they are the creators of this public spectacle.

      It’s clear to me where harm falls in this scenario. It falls on the people of this country.

    • earlofhuntingdon says:

      A politicized environment that Wall’s superiors are entirely responsible for. As with Powell, he’s just throwing words on paper and in the air. The expectation is that suitable FedSoc judges do not needs words or valid arguments to justify their decisions. As with all Trump lieutenants, they know the right answer before he asks the question.

  20. harpie says:

    The initial dialogue between Wilkenson and Rao interested me. [1:12:35]
    6/12/20 9:30AM AUDIO:

    This is from Marcy’s amazing live tweeting [my comments in brackets]:
    10:43 AM · Jun 12, 2020

    Now Beth Wilkinson for Sullivan.
    Wilkinson: Govt’s motion still pending, [!] alternative relief available below, court doesn’t clearly prohibit consideration, would be inappropriate to issue mandamus where govt raising new constitutional issues.

    Wilkinson: Issue here is whether federal judge can appoint amicus and accelerated briefing.

    Rao: In case such as this where govt and defendant, [are joined at the hip] isn’t court creating controversy?

    Wilkinson: Case and controversy bc [!] govt asking motion to dismiss w/prejudice.

    Rao: If judge denies motion, moves to sentencing?

    Wilkinson: If hearing gives some basis, the parties would file another writ. As Henderson has said, court only set briefing schedule. Order is only presenting args in opposition.

    Rao [1:16:38]: What standard is article 3 judge supposed to apply?

    Wilkinson: Ammidown [sp?], presumption of regularity or clear violation of public interest.

    • harpie says:

      Here’s a transcript of the discussion in that last exchange and following:

      [1:16:38] RAO: And what standard is an Article III judge supposed to apply in this context? In order to assess the Motion to Dismiss, Rule 48 just says there must be leave of court. What’s the standard that the District Court judge must apply?

      [1:17:00] WILKENSON: Well, the governing here lies in Ammidown [sp?], which is still good law, was cited by Fokker. And there, as Fokker reiterated, I think, we have to look at whether that presumption of regularity, or there was a clear violation of the public interest for the Court to seriously consider whether it can deny the motion to dismiss.

      So, there is a presumption, as you mentioned earlier. The question is, is there any basis to overcome that presumption? And that would be by the Court’s inquiry after receiving the briefing and asking questions of the Government and the Parties.

      [1:17:38] RAO: But, I mean, the public interest is not a standard that is mentioned in the Rule [48]. And, I mean, in our Constitutional system of government, isn’t the public interest with respect to whether a prosecution goes forward, isn’t that public interest one that is committed firmly under Article II to the Executive Branch, and to the politically accountable Executive Branch, not to an Article III court.

      [1:18:04] WILKENSON: Generally, yes, your Honor, the prosecutorial prerogatives protect and consider the public interest.

      But in Rinaldi, the Supreme Court specifically held out that standard I think you know in footnote 15, where they said they aren’t ruling, they are allowing the motion to dismiss being reviewed [unclear] discretion, and they found that it did abuse discretion.

      But they said they have not decided whether you could consider a rule 48 in light of the public interest. And in fact, the dissent, led by Justice Rehnquist said he thought it was clearly an independent basis to review a Rule 48 motion.

      But, in any event, that law is not clear here. There’s no clear and indisputable standard for this court to issue a writ of Mandamus based on the fact that the standard is unclear as to how you determine leave of court and any kind of abuse of discretion or discretion. […]

    • harpie says:

      10:52 AM · Jun 12, 2020

      Rao: Doesn’t court have to decide presumption of regularity overcome before it has a hearing?

      Yikes. [my emphasis]

      Wilkinson: Govt answers these questions all the time. If you look at Rinaldi, court called prosecutors in. SCOTUS didn’t say that was improper. That’s all that’s happening here. There’s nothing more nothing less.

      Rao: Amicus. Not everyday occurrence.

      Wilkinson: Adversarial position, just like this court does, or SCOTUS does.

      Rao seems unfamiliar with our adversarial court system. [my emphasis]

      Wilkinson notes that RAo has just said standard is not clear.

  21. Timo says:

    By Judge Sullivan’s reaction at the original sentencing hearing – that Flynn was getting off easy and that Flynn may have committed treason, I have to assume Barr has been putting pressure on the DOJ prosecutors to diminish the charges the whole time. Trump obviously wanted to end the Flynn issue from the get go.

    My guess is the prosecutors refused to let Flynn completely off the hook like Barr wanted. That’s when Barr stepped in himself.

    All of this is likely to come out in the hearing right?

  22. Arthur Mullen says:

    Hi all, this is my first comment and as a longtime reader please allow a hearty thank you to everyone involved here. The amazing insight re: the law is greatly appreciated — especially as my wheelhouse turns in the opposite direction (I’m one of the pirates in the restaurant industry.) To better understand the context of current events as well as to help meditate during this time staying home, I have been putting together digital scrapbooks with the online newspaper archive and a little help from a green plant that’s not for everybody, and that brings me to my comment and question.

    Today we have a reckoning connected to that which followed the Rodney King verdict in the spring of 1992, and that, like this, was a Presidential election year with a Republican incumbent in the White House and an Attorney General William Barr atop the Dept. of Justice. That year in Judge Marvin Shoob’s courtroom was the trial for the guy left holding the bag on billions of dollars of loans extended to Saddam Hussein’s government in the run-up to the first Gulf War — a scandal known at the time as Iraq-gate.

    I was surprised to learn that this was an official on-the-down-low U.S. policy in the late 1980s. As Attorney General, William Barr used every advantageous avenue available to prevent the bagman’s trial from revealing the involvement of anyone in the Executive branch. I am unqualified with my background to accurately draw the parallels, but my bottom line is that William Barr, who I would describe as a CIA-trained legalese chessmaster with a disarmingly pleasant demeanor — copied what he did in Judge Shoob’s courtroom, and has employed many of the same legal tactics here in Flynn’s trial.

    Am I wrong or is what is playing out here similar in vibes if not procedurally to what went down with Judge Shoob and Iraq-gate? Unfortunately, seeing how easy it was for Barr to use his AG power in bad faith last time and get away with it does not have me feeling good for how this case will go. Here is a link to a scrapbook I made of articles about Barr from back then:

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