Citing Presumption of Regularity, DC Circuit Rules against Emmet Sullivan to Prevent Embarrassing Billy Barr

Neomi Rao just ruled against Emmet Sullivan in “Mike Flynn’s” petition for a writ of mandamus. She did so on two grounds. First, DOJ is entitled to a presumption of regularity, something I predicted would be central to this (under binding precedent, it takes a great deal to be able to argue something is awry at DOJ).

The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity … in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted). On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.

She also argued that DOJ was correcting itself, though without laying out any basis that DOJ had found that it had made an error.

Finally, each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.2 As the Supreme Court has explained, “the capacity of prosecutorial discretion to provide individualized justice is firmly entrenched in American law. …

This is particularly ridiculous given that, in its most recent filing, DOJ made clear that DOJ had not erred. Nevertheless, this argument was likely critical to getting Karen Henderson on board; I had noted Henderson raised this right at the end of the arguments as a potential way to side with Rao.

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.

Of significant import, Rao’s opinion makes no attempt to defend Flynn’s argument. Rather, her order is entirely about preventing DOJ — Bill Barr — from the embarrassment of being forced to explain his decision.

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal. See Cobell, 334 F.3d at 1140 (“[I]nterference with the internal deliberations of a Department of the Government of the United States … cannot be remedied by an appeal from the final judgment.”); see also Cheney, 542 U.S. at 382.

We must also assure ourselves that issuance of the writ “is appropriate under the circumstances.” Cheney, 542 U.S. at 381. The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power. The first troubling indication of the district court’s mistaken understanding of its role in ruling on an unopposed Rule 48(a) motion was the appointment of John Gleeson to “present arguments in opposition to the government’s Motion.” Order Appointing Amicus Curiae, No. 1:17-cr-232, ECF No. 205, at 1 (May 13, 2020) (emphasis added). Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts— answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. See May 12, 2020, Minute Order, No. 1:17-cr-232. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.

And we need not guess if this irregular and searching scrutiny will continue; it already has. On May 15, Gleeson moved for permission to file a brief addressing, among other things, “any additional factual development [he] may need before finalizing [his] argument” and suggesting a briefing and argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232, ECF No. 209, at 1–2 (May 15, 2020). The district court granted the motion and then set a lengthy briefing schedule and a July 16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17- cr-232. In his brief opposing the government’s motion, Gleeson asserted the government’s reasons for dismissal were “pretext” and accused the government of “gross prosecutorial abuse.” Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10,

2020). He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases. See id. at 43, 46–47, 57–59. These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions, not only in this case, but also in the past or pending cases cited in Gleeson’s brief. Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (condemning district court’s failure to dismiss criminal charges based on its view that “the government has exaggerated the risk of losing at trial”). As explained above, our cases are crystal clear that the district court is without authority to do so. See Fokker Servs., 818 F.3d at 742; Ammidown, 497 F.2d at 623.

This order is entirely about preventing Billy Barr from embarrassment. It has zero to do with Mike Flynn’s case.

Robert Wilkins wrote a dissent that makes a lot of sound points that — if Sullivan chooses to ask for an en banc hearing — might be very powerful. I’ll lay those out in an update.

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146 replies
    • Peterr says:

      You mean that it isn’t regular for a defendant’s motion for a writ to be granted because failure to do so would harm the prosecution?

    • earlofhuntingdon says:

      There’s no regularity in Barr’s DoJ’s treatment of either the Flynn or Stone prosecutions. The about-faces in their arguments and the departures of line staff – including resigning from the DoJ altogether – and their unwillingness to go along with obvious irregularities are not facts that would bother a Chicago-trained FedSoc ideologue like Rao. If Trump cheats enough to stay in office, she’ll be on the Supreme Court.

      I hope that Merrick Garland promptly orders an en banc rehearing on his own authority, to limit the consequences of this obvious injustice – and its egregious assault on the courts.

      • BraveNewWorld says:

        >”There’s no regularity in Barr’s DoJ’s treatment of either the Flynn or Stone prosecutions. ”

        There’s lots of regularity in it. The same kind of regularity you get from eating prunes.

      • bmaz says:

        I still think that is normal wheel rotation. the CJ in DC Circuit is Srinivasan, and he would not run the office to accommodate Trump or Rao.

    • Mitch Neher says:

      Somebody whose name I can’t remember argued that the DOJ’s presumption of regularity ended with the appointment of a special counsel to investigate the whole thing after Trump fired Comey after Comey refused to let Flynn go.

  1. madwand says:

    I guess now we will see if Sullivan has the cojones to go all the way with this and ask for an en banc hearing. It would seem the argument might be that the court doesn’t really address Flynn but argues more about saving the DOJ from embarrassment. Waiting for your Robert Wilkins post.

  2. Peterr says:

    Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.

    This ought to scare the bejezus out of every defense attorney in the country. Is Rao truly saying that a judge scrutinizing a prosecutor’s reasoning and motive is no longer appropriate?

    • Alan K says:

      Well, I do appreciate the clarity of Rao’s statement:

      “In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”

      It shows that the doctrine of the Unitary Executive inevitably leads to “Innocent when we say so” and “Guilty when we say so”. The clarity is breathtaking, and should prove fairly simple to push into “the tip” as the British say.

      That is, provided the DoJ branch of Trump doesn’t just decide to sue and sue while Flynn stays free until the next administration issues the traditional Dem pardon of all GOP crimes while in office.

    • BobCon says:

      I’m curious how the timing would work out. I’m sure any full DC ruling would get appealed to the Supreme Court, but they would be out until October.

      Would they let the full DC ruling stand? Or would they put it on hold in the hopes of kicking the can down the road past the election?

    • Hal Weiner says:

      What a crock. The Court as a whole would never do this.
      I sure hope it goes en banc and Sullivan gets upheld. But
      if they don’t have an outside prosecutor, the Justice Dept. will throw
      the case if Barr has any influence on it.

      • bmaz says:

        You want to see a crock, Hal? Put your own comment in the mirror and take a gaze. You have no clue what you are talking about. First off, yes Circuit Courts do indeed sometimes set sua sponte en banc hearings and consideration. It is more common in the 9th Circuit than other circuits, but it is not unheard of anywhere. Secondly, Judge Sullivan has his own advocate for the court, and there is no need for a “special prosecutor”.

    • Peterr says:

      An initial appeals court hearing is done before a 3 judge panel. The losing side with this panel can appeal the decision in two ways. One is to have the entire circuit court roster hear the case (or in circuits with large #s of judges, a double-digit subset of the roster), and the other to take it to SCOTUS.

      The former is called an en banc hearing.

      • Pete T says:

        So, does Sullivan have the option to ask for an en banc or go to direct to SCOTUS do not pass go?

        If that’s true, and I believe an en banc that goes against Flynn gets upped to SCOTUS anyway, then why not, you know, get it over with.

        • earlofhuntingdon says:

          Getting it over with is not the issue. Process, strategy, and timing are. Time is not on the side of either Flynn, Barr, or Trump.

          If the DCC does not call for a full rehearing of its own accord, I expect Sullivan will ask for one by the DCC. That’s normal procedure, plus the DCC is probably friendlier and is certainly closer to the issues Rao has smashed than the Supremes. Plus, the Supremes take fewer cases, though I doubt they would pass on this one. If nothing else, a full hearing by the DCC would create a better documented case for the Supremes to consider.

          • Pete T says:

            Good point. Perhaps I was being overly flippant suggesting Sullivan go straight to SCOTUS. If he does prevail and Flynn goes to SCOTUS then he has a better basis tp prevail there.

          • vvv says:

            To the extent that delay is not what the Flynn/DOJ side (and they are the same, no?) want, seems to me, a request for *en banc* vs. trying to go to SCOTUS might have some add’l tactical value to the J. Sullivan/The People side (and they are the same, no?).

          • timbo says:

            I suspect that the only reason that Sullivan would push this on to SCOTUS immediately is if he felt the defendant’s rights would be harmed grievously and immediately. (Or there was some immediate threat to the US or other US citizens either directly or indirectly?) Since the rights of the defendant do not appear to be significantly jeopardized here, he might be more inclined to appeal up the chain, as others surmise he will do.

    • pseudonymous in nc says:

      ‘En banc’ means the entire circuit re-hears and rules on the case, because enough of its judges think the three-judge panel ruled in a way that erred on the facts or is unrepresentative of the circuit’s case law.

      I can’t see this not going en banc — whether it’s from Judge Sullivan or sua sponte. Neomi Rao is a wrecking ball, and enough judges on the circuit have been around long enough to appreciate the load-bearing precedents she’s taking out with her rulings.

    • punaise says:

      “en banc” = on bench in French. So I imagine nine judges lined up in a dugout, calling balls and strikes.

      • earlofhuntingdon says:

        Your credulousness would be charming were your snark not so devastating.

        If nothing else, this absurd decision by Rao most likely extends the time until Flynn’s prosecution and/or sentencing is resolved. With the polls going starkly against Trump, the clock is ticking regarding his issuing Flynn a pardon – and thereby courting a later obstruction charge. Short of Trump trying to pardon himself, that is.

        I note from events in Madison, WI, last night, though, that Trump’s stoking of the fires of hate is working – and we’re a long time from the November election and the January hand-off. (If we get there, I can’t imagine Trump would participate – he’ll send Pence with a BS excuse.)

  3. adam says:

    Does Sullivan have to dismiss with prejudice? Or can he do it without prejudice, leaving it to a non-corrupt DoJ to pick the case back up in a few months?

    • Rugger9 says:

      If I understand the writ correctly, it has to be with prejudice since that is what DOJ was asking for in the last filing.

      • earlofhuntingdon says:

        In a twt, EW says Sullivan could dismiss with or without prejudice, which must mean that Rao’s decision was not explicit on that point.

        • Rugger9 says:

          That lack of clarity seems like an error, since without prejudice means the charges could come back and the WH achieved nothing.

          • FL Resister says:

            …Except a public perception that Flynn was wrongly accused, prosecuted, and found guilty. Trump World will try to put political points on the board with this fraud and it could have an effect on independent uninformed voters.

            • Silly but True says:

              More significantly for Flynn is he continues to receive, even this week, the entirety of the prosecutorial file and notes.

              This information raises the steepness the slope for any future prosecution which would inevitably include jury trial not plea.

              Prosecution for false statement is all but impossible now.

              The Rafiekian trial ending in Trenga vacating conviction does not bode well for any Flynn FARA prosecution, but the retrial could serve as good test.

  4. jdmckay says:

    it takes a great deal to be able to argue something is awry at DOJ

    Hard to fathom, from all I’ve seen of late, that well beyond a “great deal” (saturation?) is not in full evidence… just in the last week alone.

    I would expect Sullivan will not need much time to ask for en banc hearing.

    Really appreciate you simply laying facts out straight Marcy, not adding anything else.

  5. Rugger9 says:

    This is a typical fact-free CYA exercise built on froth and innuendo. I’m surprised Rao didn’t cite the Clintons, but if Judge Sullivan chooses to send it back to en banc (and I think he will given what Flynn has already done in his court) I would hope more of the judges there would look at the case instead of the packaging.

    • BroD says:

      Yeah, it’s hard to see how, after having solicited an amicus, Sullivan does not request en banc.

      • timbo says:

        The one does not necessarily follow upon the other. However, in this case, it is hoped to be likely.

  6. Raven Eye says:

    Driving home after grocery shopping this morning NPR broke in with the story. I almost strangled the steering wheel, and the air inside the car mysteriously turned blue. All this before 8:00 am.

    • Lawnboy says:

      FWIW: Theres a thing called “Viagara Vision ” that occurs when one overdoses on Viagara! The user has the sense that there is a blue tinge in the air, perhaps this is what’s going on with you. But really, I had some choice words on tap too.

      Great work Wheelers

      • Robert H says:

        “Viagra Vision” isn’t that bad of a side effect – unless you are trying to land a plane and the white lights of Rt. 28 look like the runway at IAD. ;-)

        As for the decision, it appears that the decision making aspect is what one side wants to examine, and the other side says that we must not examine. Sounds like the central point, and the presumption of “innocence” of the prosecution is a hard thing to swallow with the rest of the cases of interest to the president seeing interference – a pattern.

          • Rugger9 says:

            I think he means (and it appears the DCC panel agreed 2-1) that there is a presumption of innocence in Government motives for requesting this change. I.e., to correct a mistake, not to cover up a crime.

            Too bad Judge Gleeson and Judge Sullivan’s lawyer clearly showed otherwise.

            Judge Sullivan for his part has stayed the proceedings and seems likely to go for en banc. As noted above, why appoint an amicus if he did not intend to follow through on this? Democracy lucked out here with Judge Sullivan, as opposed to that idealogue in TX that tried to shut down the ACA on flimsy grounds. Judge Sullivan is one much more likely to enforce court etiquette including such onerous requirements as not lying to him as Flynn did in his allocutions.

    • mospeck says:

      Love your rather stark image. Have a picture in my head of it. yikes. Many times ions in solution turn blue. And they turn into beautiful cobalts, prussians and egyptians. Docs could diagnose which one is your particular affliction :) Joni says listen to Charley, so that’s what I do

  7. Jenny says:

    Laurence Tribe on Twitter: 10:47 AM · Jun 24, 2020
    “It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own.” — Judge Robert Wilkins, dissenting powerfully from the grant of mandamus that the full DC Circuit should reconsider and reverse.

    • Jenny says:

      Wow – lying is acceptable. Flynn lied to FBI and plead guilty twice.
      As a teacher I always ask, “What are we teaching our children?”

      Flynn exchange with Judge Sullivan, December 18, 2018
      https://www.justsecurity.org/wp-content/uploads/2018/12/121818am-USA-v-Michael-Flynn-Sentencing.pdf

      Judge: Do you wish to challenge the circumstances on which you were interviewed by the FBI?
      Flynn: No, Your Honor.
      Judge: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?
      Flynn: Yes, Your Honor.
      Judge: Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?
      Flynn: No, Your Honor.
      Judge: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?
      Flynn: I was not — I was aware.
      Judge: You were aware?
      Flynn: Yeah.

      • timbo says:

        The fact that this exchange appears to have been ignored by the current appeal’s panel ruling here is chilling. Hopefully en banc will happen and some sharp legal minds will tear apart today’s order as it so richly deserves.

  8. Peterr says:

    As I recall the timeline in US v Stevens, the govt came to Sullivan post-verdict and pre-sentencing, and admitted misconduct. Sullivan at that point accepted their motion to dismiss with prejudice — and then turned around and ordered his own investigation into the misconduct, not trusting DOJ and its OPR to fully investigate themselves. It wasn’t enough simply to void Stevens’ conviction; Sullivan demanded that the DOJ conduct had to be exposed in court, which it ultimately was through a special counsel’s report.

    Should this ruling here ultimately be affirmed and upheld, I can easily see Sullivan doing the same here. “OK, I have been told I must accept your motion to dismiss. But before I do so, there’s one little matter that needs to be addressed. . . DOJ lawyers have represented to this court on multiple occasions during these proceedings that these charging decisions were appropriate, and only lately comes with a reversal of that. If this is simple discretion, that’s one thing; if someone was lying to me and absuing the court’s limited time and resources, to say nothing of trying to mislead the court, that’s something else. I’ve seen this movie before (US v Stevens), and I don’t like what appears to be the sequel. As I did before, I intend to appoint a Special Counsel to help assess which is the case.”

    • earlofhuntingdon says:

      There’s also the possibility that Sullivan reconsiders dealing separately with Flynn’s lies and contempt before his court, which are separate from his other lies.

        • timbo says:

          The problem with pursuing this in the Flynn prosecution (and/or sudden lack thereof) is that instead of incompetence, one has to find out who was and was not competent and/or potentially obstructed justice. That’s a much harder task than Sullivan’s earlier effort in US v Stevens for a number of reasons, chief amongst them the issue of innocent or competent lawyers from earlier in this prosecution having to likely continue to retain lawyers, have the investigation continue to interfere in their lives, etc. Taking on such an investigation is not a light matter, and certainly heavier than the earlier investigation done in the earlier case.

  9. Joseph Carson says:

    The DOJ attorneys who withdrew from the case should file a whistleblower disclosure with US Office of Special Counsel, per 5 USC section 1213, alleging “abuse of authority” on part of their DOJ supervisors. By law, such a disclosure could include legally privileged info that cannot be shared with media/Congress.

    • timbo says:

      Maybe they secretly have? And you did notice that Trump has begun firing IGs though, right? Basically, when Impeachment Trial 1 failed, things became a lot harder to rein this in by the “old laws” on the books.

    • Rugger9 says:

      Corruption in the IOKIYAR sense, remember Lindsey is still going after Burisma (Biden) and I’m sure AG Barr will have some prosecution ready (something really disgusting with some element of projection like underage stuff which had already been floated earlier while pursuing the Tara Reade flop – it failed because Joe wasn’t even there) just in time for October.

    • John Lehman says:

      “corruption as a way of life.” Corruption as in the milieu of an over weened Byzantine upbringing, knowing nothing or caring anything about anybody else. A corruption that can’t imagine there being any other milieu.

    • timbo says:

      Only their own corruption. The rest of us will have to watchout that we don’t jaywalk and like it. That’s how authoritarianism works. And believe me, there are tons of people ready to get on the jaywalking reporting neighborhood committees and report any malfeasance to the secret police. :(

  10. MB says:

    House Judiciary hearing on political interference in the Stone case starts streaming at 4 PM eastern time today. Get that mute button finger ready for the likes of Jim Jordan, Louis Gohmert, Doug Collins, Matt Gaetz et al. Or, alternatively, find soft objects to throw at the TV.

    • Jenny says:

      While in the car, I heard Jim Jordan (The Screamer) on the radio say,
      “Bill Barr is doing the Lord’s work.”
      Fortunately, I was parked.

      • P J Evans says:

        Those people using that line should have to explain, live, what lord they’re talking about, and what work. And then what Jesus said about how to treat other people.

      • earlofhuntingdon says:

        So claims a guy who was aware that serial sexual predation of the students in his care went on for years and ignored it. Gym Jordan’s claim that he has the slightest awareness of the Lord’s work is hyperbolic.

      • Savage Librarian says:

        And there is also this hopeful news:

        “Wall Street firm tells clients Senate will flip to Democrats as Biden surges” – June 23, 2020

        “Financial advisory firm Signum Global Advisors is telling clients that it now believes the U.S. Senate is going to flip blue as presumptive Democratic nominee Joe Biden continues to surge past President Donald Trump in the polls.”

        https://www-cnbc-com.cdn.ampproject.org/v/s/www.cnbc.com/amp/2020/06/23/wall-street-firm-tells-clients-senate-will-flip-to-democrats-as-biden-surges.html

      • timbo says:

        I expect Trump and his supporters to triple down on their dirty tricks. Polls at this point are meaningless in such an environment. The only high point of the past several months has been the Black Lives Matter’s movement’s successes in moving our society to a more egalitarian and just society.

        Unfortunately, that can all be erased easily enough if the military prefers authoritarian rule. So far that does not appear to be the case but… the traditions of the Old Republic still seem to be holding sway enough to at least fool some pretty smart people… if those people turn out to be wrong. Let us hope that the pessimists choice is not the ruler of that day.

        • Rugger9 says:

          There are many politically adept brown-nosers in the military but the majority of us in the officer corps take our oath to the US Constitution seriously and also we know we can reject illegal orders.

  11. Desider says:

    I think this ruling Is really great. Now when prosecutors/DoJ realize that if any of the 90% of cases that were pled out instead of going to trial would have actually been unlikely to win in court, they’ll just free the prisoners. Awesome precedent. How many convicted does this effect? Of courses would be much larger at state level, but maybe states will adopt this new rule too. Might go a long way to solving that Black incarceration problem.
    OK, just kidding – I know this Is just a “Friends of Trump” ruling, and like the famous 2000 Supreme Court decision is not not intended as precedent for the unwashed or Democrats, just, as Voight notes in Deer Hunter, a “one shot”.

  12. Robert Britton says:

    I woke up today with expectations that POSSIBLY things might start turning the tide for the good guys, for Truth & Justice vs. Trump / Barr Corruption.

    Did not expect to be greeted with this ruling in the Flynn case. Yet, I guess it is not unexpected.

    The Rule of Law is dead. Trump Destroyed it, along with the Constitution.

    America is dead. Yes, you can accuse me of being fatalistic, but it is far too late.

    Trump has already started screaming that the next election is going to have the BIGGLIEST VOTER MAIL FRAUD EVER! And before that, Kushner hinted at the real plan: To never leave office, regardless of the vote.

    it is time to be prepared to do what needs to be done if Lord Foul chooses to not leave the WH.

    I don’t understand why American’s aren’t out in force like Taiwan, BLM, or even Occupy Wall Street.

    Where’s anything more than twitter outrage?

  13. paul lukasiak says:

    1) In addition to order dismissal of the charges, the Court also “vacate[d] the district court’s order to appoint an amicus.” Would this give Gleeson grounds to request an en banc appeal — given that by vacating the order, he might not be eligible to get paid for his work?

    2) The court order is to “grant the government’s Rule 48(a) motion to dismiss”. That motion was to “dismiss with prejudice”. (from the Proposed order: “On May 7, 2020, the government filed a Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn, in which the government moved to dismiss with prejudice the criminal information filed in this case pursuant to Federal Rule of Criminal Procedure 48 and as an exercise of its prosecutorial discretion. ”
    To me that goes well beyond an order to respect prosecutorial discretion to not bring charges — it requires the court to conclude that the charges were brought improperly/inappropriately. (a point made in the dissent by Wilkins). In fact, the word “prejudice” does not appear in the majority opinion at all. This in itself looks like sufficient grounds for an en banc hearing requested by Sullivan, because he is being directed to issue an order based on evidence that has never been tested in court.

  14. Hika says:

    After Zelinsky’s testimony to the House Judiciary Committee, that “presumption of regularity” idea should be as dead as a proverbial pox-ridden rat that’s just been run over by a steam-roller.

    • Ginevra diBenci says:

      Yeah, I’m wondering if Rao realized her masterwork would debut on Situational Irony Day?

    • Vicks says:

      We’ll see.
      Zelinsky is testifying remotely; out of sight of of mind I guess because Nadler Seemed to forget he was in the lineup during opening statements,
      On the other hand Gomer is making sure to use his time to diss him for stating he wasn’t there out of concern for family members due to Covid.

      • MB says:

        Really? I saw Zelinksy’s opening statement, he was behind the other 3, who were there in person. Gohmert and Jordan threw a fit before Zelinsky was allowed to speak, objecting to the fact that he was testifying remotely (despite the fact that several members on the committee were also testifying remotely).

        Jaime Raskin isn’t getting his 5 minutes because of tech problems.

        • MB says:

          correction: “several members of the committee were questioning remotely”

          Raskin got his 5 minutes – tech problems fixed. Congressional hearings now need extra tech support people added to their regular staff…

  15. paul lukasiak says:

    a few more questions
    Here is the text of the DoJ’s “proposed order” to dismiss the case…

    [PROPOSED] ORDER
    On May 7, 2020, the government filed a Motion to Dismiss the Criminal Information
    Against the Defendant Michael T. Flynn, in which the government moved to dismiss with
    prejudice the criminal information filed in this case pursuant to Federal Rule of Criminal
    Procedure 48 and as an exercise of its prosecutorial discretion.
    Upon consideration of the request, and for the reasons stated in the government’s motion,
    the government’s motion is hereby GRANTED.
    It is further ORDERED that criminal information filed in this case will be dismissed with
    prejudice.
    IT IS SO ORDERED.

    The Circuit court order directs that the “Rule 48(a) motion to dismiss” be granted. Does that apply to this entire proposed order (including the last line). or just the part directly referenced to Rule 48(a). If it includes the entire order, does that mean that everything Flynn confessed to is now out of bounds as well?

    • Silly but True says:

      Let’s get specific. There is the Plea Agreement, the Statement of Offenses, and the Criminal Information.

      What is being dismissed is the Criminal Information: the statement by Prosecutor of the crime(s) the defendant is pleading guilty to. In this case, it is the single crime of false statement.

      Everything else only relates to Flynn’s plea agreement; Flynn’s separately requested to withdraw this plea which had still been unresolved when DoJ requested dismissal, and if he was allowed, would have nullified the agreement which also considers the Turkey FARA, etc. for his prospective sentencing.

  16. soothsayer says:

    No words, well not yet massing past the cursing of all these corrupt puppets.

    Though two quick thoughts:
    1. It speaks volumes how obviously corrupt this decision is that there are already so many comments on this post, the people are rightly furious.

    2. That I feel sickened that this countries laws are being twisted and broken.

    No I apologize, I have a third thought that just came up past the cursing

    3. May it be short lived this Ununited Republic of Bananas, Co (now just another sub entity of Trump Co)

  17. Rugger9 says:

    It’s a pity Berman didn’t testify today, did Nadler reserve another day to allow time for Berman to prepare with an opening statement, etc.?

    • civil says:

      My understanding is that Berman has an open invitation from Nadler, but no date set. I’d love for Van Grack to testify as well.

      I wish members of Congress were better at questioning. So much of the time is taken up with grandstanding and they seldom elicit as much useful info as they could from the witnesses.

        • civil says:

          Yeah, I know, they’re politicians and many like to grandstand, and for some of them, the goal is actually to avoid eliciting info, and for others, the goal seems to be getting sound bites. But some members of Congress are decent at questioning people, and it would serve the country better if the rest became more skilled at it.

          • Rayne says:

            You’re asking a lot of a democracy. The people who show up to run for office aren’t required to pass any tests (gods help us or assholes like Jim Jordan would never be permitted to run). We get who shows up and survives the grueling process of running for office.

            You want better candidates in office? Develop a better recruiting method and ensure good candidates have appropriate funding and adequate team support.

            • civil says:

              I worked in education for many years. I believe people are capable of learning if they want to. Some Members of Congress don’t want to learn the things I’d like them to learn, but I suspect that others might. I’ve toyed with trying to set up a website where people could propose questions they’d like MoCs to ask in hearings, both as a way to improve questioning and a way to engage interested citizens. MoCs or their staff could scroll through and see if there were questions that they hadn’t thought about, and if different people propose related questions, they could also think about how the wording is more or less effective in eliciting info (I’ve interviewed people for qualitative research and both wording and sequence can influence people’s responses). Maybe it would prove fruitless, but it seems worth trying. I know I’ve appreciated the sets of questions that Just Security has periodically put out (an example: https://www.justsecurity.org/68699/three-dozen-questions-for-congress-and-the-news-media-to-ask-attorney-general-barr/ ). I have no idea whether anyone from Congress considered them though.

              • Rayne says:

                If you’re an educator you also know there are some things which can’t be taught to every student. How to think on one’s feet and reorient a line of inquiry given a 5-minute limitation isn’t something everyone can acquire.

                And every committee will have a range of competence as well. Not even going to go into how difficult it is for some people to work remotely without all visual cues available in a hearing room.

              • bmaz says:

                Rayne is right, it is hard and, frankly, beyond most Congresscritters. I have tried to personally work with a couple over the years, as has Marcy, and with at best mixed results.

                Even the ones who used to be lawyers are generally horrible. Cross examination is hard, and the lawyer/congresscritter, to do it properly, has to control the witness and not let the witness control them by prevaricating and rambling on and on.

                This is harder than you think. Even a lot of supposed trial lawyers are horrible at it. But good ones know how to make things into yes or no questions and insist that they be treated as such by the witness. Katie Porter and Kamala Harris are particularly good at this. Schiff and Lieu are not bad. But it is an art that few have.

                And for gawd’s sake, use every second of your time to actually question the witness, instead of wasting half or more of it with some bloviating statement that is irrelevant. There are a hundred ways to get your generalized statement out if you are a member of Congress, preening for CSPAN while the real purpose is to gather evidence need not be one of them.

                  • vvv says:

                    I seem to recall Demings and Swallwell were OK, also.

                    FWIW, I agree with bmaz that it’s a kinda rare skill even among trial lawyers. But sometimes, depending on the case, the only path toward winning.

                    I confess that watching the wit realize what just happened, and lose their, eh, composure brings great joy to some. Like, almost as good as getting paid …
                    ;-D

                    • errant aesthete says:

                      Rayne/bmaz,

                      Masterfully articulated. Most assuredly, a rare talent and art form that is both gift and instinct to few. In the accompaniment of seldom-seen humility, it can transform a stultifying back and forth into unforgettable forensic eloquence.

                • civil says:

                  I have no experience with cross examination, and it’s clearly different than the kind of questioning that I do have experience with; research interviews generally aren’t adversarial, though it can be difficult to elicit some kinds of information, e.g., when it’s an emotionally sensitive topic. Agreed re: how annoying it is when they waste their time bloviating.

                  • posaune says:

                    I remember that huge directional flow chart showing communications between the WH and DOJ that Sheldon Whitehouse presented in a hearing (I think it was Alberto Gonzales testifying in 2005?). He presented it and asked AG if he could remember the calls.) Very impressive.

  18. earlofhuntingdon says:

    Ironic, is it not, that the chief of the DC USA’s Fraud and Public Corruption section – J.P. Cooney – is the one Zelinsky alleges told staffers to play ball or Donald Trump will get mad at them? Sounds a lot like public corruption to me. I guess J.P. misread his title and thought he was to promote, not fight, corruption. If true, he should be fired for it. His conduct is something even the moribund DC bar association should look into.

    The DoJ – main justice and many USA offices – will need housecleaning after Bill Barr and his GOP predecessors are done trashing the place. They have acted like Tom Hagen, who suddenly finds himself in charge of the Organized Crime section, and is madly trying to protect Don Corleone and stop the office from running before someone notices the blunder and tells him to leave. Cleaning up and thoroughly restaffing is something the last Democratic administration didn’t feel fit its agenda.

    • harpie says:

      “Cleaning up and thoroughly restaffing is something the last Democratic administration didn’t feel fit its agenda. “

      That’s exactly why I was/am so disappointed in “our” choice of Democratic nominee.

  19. vvv says:

    “The district court chose an amicus who had publicly advocated for a full adversarial process”: bmaz, et al., were right predicting this, so kudos.

    Asked above in various ways, but my phrasing would be: does this result – if allowed to stand – prevent further proceedings, ex., perjury, contempt?

    • earlofhuntingdon says:

      That’s true. But what federal judge would not advocate for a full adversarial proceeding? Rao’s reasoning, such as it is, is not reasoning but special pleading for a predetermined outcome.

      And the issue regarding prosecutorial discretion, as EW has pointed out before, is not just whether the DoJ is unduly harassing Flynn. Is also whether it is showing him special deference because he is a crony of the president who could implicate him in several crimes or a multitude of impeachable offenses. The latter is relevant if Trump cheats his way to a second term, but the Dems have control of both House and Senate.

  20. Robert Britton says:

    What’s a pity is that we have such weakness and ineptness in the democratic party as much as there is total corruption in the GOP.

    Nadler…what a buffoon. Weak. Inept. Sad.

    Today’s hearings and the antics by Ghomert. Pathetic. I’d have the Master at Arms throw his bitch-ass out of the chair.

    How nice of Barr agree to come in July *28th****

    I’d send the Master at Arms over TODAY, personally carrying the subpoena and get Barr’s fat ass hauled into a chair tomorrow morning.

    I’d be holding a vote to use inherent contempt. Tomorrow. They should have hauled others who failed to report from a subpoena into a holding jail. Long time over due.

    I’d be holding a vote to unauthorize the DOJ budget.

    The dems are weak. Bringing flowers to a gangster criminal empire street battle. They are being weak, while Trump, Barr et al bring their switch blades, bazookas, flame throwers and are tearing this country apart.

    Weak. Pathetic. Pussies. I’m done being a democrat or having hope in the Muellers, Schiffs, and Pelosis. Frankly, the problem isn’t really even them.

    It’s the dumbass American’s who love hatred and bigotry and racism.

    It’s time to rage against the corruption. Enough is enough.

  21. John Clarke says:

    Can we dispense with the phraseology that DOJ is showing favoritism to Trump’s “friends”? The reason this matters to Barr is that both Stone and Flynn could INCRIMINATE the so-called president if they were willing or were forced to do so.

    • earlofhuntingdon says:

      Indeed. Barr is running a protection racket. He’s obstructing justice to protect Donald Trump. Why is almost an after thought.

  22. Franktoo says:

    Upon appointing Mueller Special Counsel, dAG Rosenstein said: “What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.” In other words, Rosenstein decide that a “presumption of regularity” was not in the public interest in this case. The Flynn prosecution was the result of the Mueller investigation. Now that the Special Counsel’s office has closed, the prosecution of Flynn is no longer independent from the normal chain of command, but still shouldn’t benefit from a “presumption of regularity”. Judge Sullivan was justified in appointing an amicus because the public interest required hearing from someone outside the normal chain of command.

  23. GKJames says:

    (1) What explains Henderson’s joining Rao? (2) Does Roberts really believe that “we do not have … Trump judges”?

  24. Curveball says:

    I think there are some more principled conservatives on the DCC than Rao, and that they don’t care for her pro-Trump hackery in support of her ambition for RBG’s higher seat. Might take that to the banc. And an observation: Imagine a team of doctors viewing a CATSCAN that shows a serious diverticulitis, and one of them argues for a presumption of regularity.

  25. x174 says:

    mt–thanks for your take on rao’s obvious continuation of the barr’s “protection racket” (earl). mahalos too for the excerpted passages: I was particularly struck by the desperate stridency of “These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions. . .” wow. i get a real sense of fear and panic in the possibility that someone might be curious to know more about the reasoning and justification for . . .gulp, jurisprudence. it is plainly obvious from the excepted passages that rao does not understand how justice (or the appearance of it) is effectuated. she (and henderson) is willfully obstructing justice. she doesn’t belong in the judiciary. should be fun to see what the en banc court will do to her “special pleadings” (earl).

  26. sand says:

    For the lawyers,

    1) Does Sullivan have standing to appeal the writ or even ask for en banc review? Neither party would appeal. Where is the remaining case or controversy, considering that there are two (corrupt) parties that both want dismissal. Is it now moot? Who other than these parties could show a concrete and particularized injury? Also, Fed. R. App. 21 does not appear to allow for the trial judge to question the writ without request by the higher court, but maybe that’s the wrong thing to be referencing here.

    2) Is anyone in the D.C. bar willing and able to submit professional responsibility complaints with respect to the DOJ’s unethical representation of its client, the United States of America? IANAL, but I do have a professional responsibility book for them. It reads like Kafka now. Do the rules have any bearing on DOJ attorneys or do they have the same power as Pope Francis’s catechism has on Bill Barr with respect to the death penalty – more rules that he can ignore without apparent consequence, at least in this life?

    • Rugger9 says:

      It would seem to me that Judge Sullivan can also point to Flynn’s false statements in court, the antics of Powell and AG Barr’s henchmen, etc., in terms of a contempt issue. Flynn didn’t have to lie to Sullivan, but he undoubtedly did and it seems Rao is trying to say that it’s irrelevant since Flynn wasn’t supposed to be there anyway. It doesn’t matter in my book, and I would suspect Judge Sullivan would say that any witness or defendant caught lying in his court ought to get hammered with contempt at least, regardless of the background circumstances.

      After all, Martha Stewart went to the federal poky for lying to the investigators, not for the insider trading they were asking her about when she fibbed.

      • Franktoo says:

        Martha Stewart was being investigated for insider trading. She and her broker concocted a false story and written evidence claiming the trading in question was triggered by the price of Imclone stock falling below a pre-determined threshold, not by insider knowledge. The prosecutors determined the written evidence was forged (two different inks), the broker’s assistant confused to his involvement and other evidence was assembled. The case that Martha Stewart lied to the FBI was stronger than the case proving insider trading, because Martha Stewart could always assert that she didn’t realize the inside information on which she traded wasn’t already public information. Proving what a defendant knew in court beyond a reasonable doubt to a jury likely to sympathize with that defendant can be challenging. (As CEO of her own public company, there was every reason to ASSUME Stewart understood the rules about insider trading.) In an ideal world, she would have been indicted and convicted of both crimes, but if the jury bought her story about believing the information that prompted her trading was public information, then the jury would have more sympathy for her lies. So the safest course of action for the prosecutors was to present the case that she lied to the FBI (and ensnared two other people her criminal conspiracy).

        If Martha Stewart had initially claimed that she believed the information on which she was trading was public information, the prosecutors would have doubted her story, but probably would have settled for returning the profit Stewart made from trading early and a fine.

  27. Mitch Neher says:

    Remember: Trump can’t fire Sullivan. Ha-ha!

    Pelosi and Nadler would never allow Sullivan to be impeached. Ha-ha, again.

    So McConnell and company can only dream of convicting Sullivan at an impeachment trial that will never happen. Ha-ha! Ha-ha! Ha-ha-ha-haaaaah!

  28. Tom says:

    As a soldier and a military intelligence officer, I assume General Flynn would have been trained in techniques for resisting interrogation and torture in the event he was ever captured by the enemy. So I’ll be curious to hear him explain why he twice pleaded guilty to criminal offenses that he now claims he didn’t commit. Was he so suggestible, so malleable, so weak-minded, and so easily prevailed upon that he permitted himself to be talked into a guilty plea that he now disavows? Was he so lacking in self awareness and knowledge of the implications of his own actions that it required Sidney Powell to point out to him the ‘error’ of his plea? It seems to me that Flynn will have to put himself in the role of having been an admitted dupe and a sucker, or a lap dog beneficiary and accomplice of the corruption being dispensed by Bill Barr’s DoJ.

    • Rugger9 says:

      Flynn’s one of the brown-noser political types I noted above. This was to save his own ass, nothing else, and it served AG Barr’s purpose to keep DJT’s fingerprints off of a pardon.

      As far as SERE training, I don’t have his service record in front of me but I would be very surprised if he didn’t get that ticket punched given his Army posts (as you noted).

      • earlofhuntingdon says:

        I think he has his Ranger tabs, which, along with his intel jobs, would suggest he completed SERE training. But as one commentator here pointed out, he was not an operator. Most of his army career was spent in staff rather than field intel jobs.

    • Jenny says:

      “When you are given immunity that means that you’ve probably committed a crime.” Michael Flynn

      • Jenny says:

        What am I missing from a retired U.S. Army lieutenant general who for 22 days was the 25th National Security Advisor?

        Flynn discussed sanctions with Russian diplomat in late 2016 while President Obama was still in office, plotted to kidnap a Turkish dissident cleric living in U.S. and send him to a Turkish prison for $15 million, lied to the FBI and plead guilty.

      • bmaz says:

        That is a ludicrous statement. “Immunity” is a complex thing, and one that can importune any number of things.

    • vvv says:

      FWIW, I think part of his argument is he was forced to by the alleged leveraging of a possible prosecution of his spawn.
      The argument seem to have been going that way at various times, along with how unfair it was not to accept his lies and drop the case because he lied so well/fooled ’em the first time.

      • Tom says:

        Thanks, I forgot how the possible legal fate of Flynn’s son figured in his calculations around his plea bargain.

        • bmaz says:

          Be careful there, if non-prosecution of his son was not a formal part of his plea, and it was not, it does not mean squat.

          • earlofhuntingdon says:

            Does that mean that Mike Flynn’s son remains vulnerable for any crimes that feds have probable cause to believe he committed, concerning which the SOL would not have run as of January 18, 2021? I wonder how Baloo Barr will handle that over the next several months.

            • Rugger9 says:

              I would say yes, for the reason bmaz noted. Junior wasn’t part of the deal we know about. I wouldn’t be surprised given this WH that there’s a side deal of sorts.

              I don’t recall if any of Junior’s peccadillos made it into the press feed either, but his dad sure wanted to cover for him something fierce. Why?

            • bmaz says:

              Yes. Anything like that simply has to be a formal part of the plea, else it just doesn’t count.

              • vvv says:

                To be clear, I agree with you, 100%.

                I was responding to, ” So I’ll be curious to hear him explain why he twice pleaded guilty to criminal offenses that he now claims he didn’t commit.”

                At various times he seemed to be bringing up his son’s potential prosecution as an excuse for why he pleaded, as perhaps a plea to the punters for understanding …

                  • Silly but True says:

                    Jr.’s airfare was paid by RT for Flynn’s 2015 Moscow speech.

                    Jr. was also Flynn Intel Group employee, serving as Flynn’s Chief of Staff, accompanying him nearly everywhere business related, as well as serving as de facto Chief of Operations, running the company’s day to day operations.

                    Whatever liability FIG leadership had was equally going to include Jr.

                • earlofhuntingdon says:

                  Self-sacrifice is genetically wired in to sell better than, I stole the bear meat because I was hungry and deserved it more than our starving children, or “You’re Goddamn right I did!”

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