Jeff Wall: It Would Cause Attorney General Barr Irreparable Harm If He Had to Reveal His Secret Reason He Moved to Dismiss Flynn’s Prosecution

Before I explain the most important takeaway from the Mike Flynn hearing, let me note two points.

First, the Department of Justice is quite clear that none of the materials turned over recently to Mike Flynn were Brady material showing exculpatory evidence. DOJ has disclaimed any prosecutorial misconduct in Judge Sullivan’s courtroom. Bill Barr even said as much, under oath, before the House Judiciary Committee. DOJ has falsely claimed they were “new,” but some of the actual details weren’t even new to Flynn, much less new to DOJ, even if some of the documents were. That’s important because a number of the judges today seem to believe that DOJ wants to dismiss this case because they believe there was misconduct.


The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.

They want to dismiss the case because they don’t believe calling up the country that just attacked us and secretly undermining the punishment on them, then lying about it, is any big thing.

Second, in the second-to-last release to Flynn of materials that aren’t new but that Billy Barr used to invent a reason to dismiss the prosecution, DOJ either betrayed breathtaking ignorance of the investigation into Flynn, or they lied. In turning over notes from Peter Strzok that clearly memorialize a January 5, 2017 meeting that has been the subject of public disclosure going back years (well before Flynn reallocuted his plea deal), DOJ claimed not to know their date.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

That professed uncertainty led the frothy right to claim that Joe Biden suggested Flynn be prosecuted for the Logan Act, which led to FBI reopening the investigation, which led to his prosecution. It was obvious the notes were from January 5, and I’ve since confirmed that. That DOJ claimed not to know the date of these notes is either evidence that they’re using this process to invent campaign dirt, or evidence that all the people reviewing this material have no grasp on the facts.

Which is to say, the judges have the very mistaken impression that DOJ withheld material they should have turned over, and that DOJ itself has suggested (in the less damning reading of their actions) to have no grasp of basic facts about the investigation into Flynn or even basic physics about time. No. Both claims are, at best, reason to further scrutinize this case.

Even ignoring the fact that DOJ has presented two different explanations for why they want to dismiss a case that they, months earlier, argued merited prison time, taking just the original motion to dismiss on its face value (ignoring the obvious lies in it), three months later, no one understands why DOJ moved to dismiss the case.

That’s important, because Acting Solicitor General Jeff Wall claims it would cause irreparable harm to the Executive Branch if DOJ had to answer any questions about why they dismissed the case.

That matters for two reasons. First, as the attorney representing Judge Emmet Sullivan, Beth Wilkinson, pointed out, what distinguishes this case from a Dick Cheney case that SCOTUS has said threatened the prerogatives of the Executive branch, DOJ has already proven willing to offer up reasons for their motion to dismiss, even if they are, partly, transparently false. DOJ is not claiming that they can’t respond to these questions, they’re offering up explanations unasked, and then objecting aggressively when asked question about those claims.

Indeed, Wall offered up a crazy new detail in this hearing: He implied that, in addition to believing that material lies are not the same for Flynn as other people and that secretly calling up the country that just attacked us to say, “no big deal,” is not alarming, there is also non-public information from other investigations that led Billy Barr to tank the Flynn prosecution.

The Attorney General sees this in a context of non-public information from other investigations.


I just want to make clear that it may be possible that the Attorney General had before him that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.


It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.


If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

Billy Barr has a secret. And that, Acting Solicitor General Jeff Wall suggested, is why a mere hearing on this motion to dismiss would irreparably harm DOJ (even while Wall alluded to the information without being asked).


The revised explanation why DOJ can’t prosecute Flynn that Flynn prosecutor Jocelyn Ballantine has offered (one in which the Solicitor General’s Office has also participated) is that DOJ can’t “prosecute” Mike Flynn because DOJ has collected so much impeaching evidence against those who investigated Flynn that they can’t prove the case he has twice pled guilty to even though witnesses like KT McFarland and Mike Pence support their case.

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

That is, Ballantine says DOJ can’t sentence Flynn for his admitted crimes because they’ve also laid out how DOJ has trumped up investigations against all the people who investigated Flynn, and at least three of those people have credible legal claims against DOJ for those trumped up investigations.

That suggests one of several things.

It’s possible the secret Billy Barr doesn’t want to reveal deals with how 30-year intelligence veteran Mike Flynn sold his services to the government of Turkey while working for Trump, while trying to hide that fact, all without knowing why that’d be a problem. DOJ has not yet backed off the facts Flynn gave the grand jury (another basis for perjury charges against him, in addition to his plea allocutions, which the Circuit judges appeared to miss), and indeed has doubled down on the Bijan Kian investigation. So maybe DOJ is claiming that poor Mike Flynn was compromised by his non-professional partner out of naiveté?

Another possibility is that there are other secret investigations ongoing, whereby poor 30-year defense intelligence veteran General Flynn was targeted by Russian intelligence but was helpless to rebuff their entreaties and so must be forgiven for lying about all that.

A third possibility is that DOJ has been ordered by the President to make sure none of the people who protected him do prison time. Secret reason. Can’t be shared with judges. Checks out!

The most likely secret information Billy Barr is hiding — particularly given Wall’s reference to other investigations — is the Durham investigation, the possibility that John Durham will find something in his investigation into  Trump’s people where DOJ IG found nothing. That means either that Billy Barr took actions in May that John Durham has not charged in the interim three months. Or, that Billy Barr is trying to pre-empt Flynn’s prosecution believing — or expecting — that an investigation that has not yet completed will end up in criminal charges.

If that’s what’s happening, it would suggest that Barr has already decided what the outcome of the Durham investigation will be, prejudging its outcome and effectively neutering Durham, making his prosecutorial decision an afterthought.

Which is why I focused on DOJ’s false claim — possibly attributed to Jeffrey Jensen, the US Attorney Billy Barr directed to find reasons to blow up the Flynn prosecution while Durham continued to work — that Joe Biden raised the Logan Act before the FBI (and ODNI) raised it themselves. In that case, at least, Barr’s selected flunkies have proven themselves to either be willing to misrepresent evidence or to be painfully stupid about it. In that case, a US Attorney deputized into Billy Barr’s projects has admitted to either knowing fuckall or inventing facts for political purpose. That, by itself, raises questions about the presumption of regularity that Barr might otherwise be afforded.

DOJ claims they’ve given abundant reason why they wanted to dismiss the prosecution against Flynn, even though their reasons conflict with all precedent and the record that Bill Barr’s DOJ has established in this case.

But today we learned there’s another, secret, reason why Billy Barr wanted to dismiss the case against Flynn. Even while DOJ has made it clear they are either misrepresenting the record or unfamiliar with it.

Which is all the more reason why Judge Sullivan should have a hearing, and which likely explains why DOJ has claimed, multiple times now, that that would do irreparable harm to DOJ.

76 replies
  1. jdmckay says:

    That professed uncertainty led the frothy right to claim that Joe Biden suggested Flynn be prosecuted for the Logan Act, which led to FBI reopening the investigation, which led to his prosecution. It was obvious the notes were from January 5, and I’ve since confirmed that. That DOJ claimed not to know the date of these notes is either evidence that they’re using this process to invent campaign dirt, or evidence that all the people reviewing this material have no grasp on the facts.

    Which is to say, the judges have the very mistaken impression that DOJ withheld material they should have turned over, and that DOJ itself has suggested (in the less damning reading of their actions) to have no grasp of basic facts about the investigation into Flynn or even basic physics about time. No. Both claims are, at best, reason to further scrutinize this case.

    Sullivan’s attorneys didn’t clarify this? The court is left with this ambiguity?

    • emptywheel says:

      This is in the criminal case, not the appeal of the non-dismissal. It is why you’d need a hearing, to clarify this.

      • bmaz says:

        Well, or you know, to actually lay down evidence on a record in a trial court. As one should.

        Not by blowing Pope announcement level smoke that Barr had “secret reasons” for deceiving a Federal trial court judge. And appellate courts. These are some of the dumbest legal “evildoers” in history. Once I fretted about AGAG. It is just breathtaking currently.

        • Ken Muldrew says:

          Cheney: “Reagan proved that deficits don’t matter”
          Barr: “AGAG proved that competence doesn’t matter”
          One shudders to imagine the next advance in this progression.

        • ThoughtMail says:

          I must admit that I’m getting a little confused here, about Wall’s/Barr’s “secret reason(s)”.

          While witnesses, under oath, swear to tell the truth, the whole truth, and nothing but, is this not also implied that officers of the court (lawyers, DOJ) have made their submissions in the same wise? So, where’s the candor that the court requires to render justice? What’s the WHOLE truth, please, Mr. Wall?

          I have to presume, just for the sake of (blind) justice, that Sullivan J. will have it, in camera if necessary. And that it will be reflected in some fashion in his Reasons for Judgment.

          Am I all wet? Should I just see myself out?

            • ThoughtMail says:

              Is it then your opinion that Sullivan J. will get the “whole truth” after the DC Circuit et seq. get done kicking it back to him? Most certainly, it should be kicked back to him (eventually) so that he can get the whole truth and put whatever is necessary into the record.

                • ThoughtMail says:

                  Let me rephrase the question.

                  Assuming that the presence of “secrets” is now in the record, and presuming that eventually higher courts remand to Sullivan J., further presuming that Sullivan J. has the authority/jurisdiction to demand what they might be …

                  Is it your opinion that Sullivan J. is bulldog/terrier enough to demand all of it, whether or not some of it makes it into his Reasons for Judgment (on which, at least, some comment would serve the public interest)?

                  (Yes, I think we all agree that the current DOJ doesn’t seem to be interested in what the law-givers have to say.)

                  • Rugger9 says:

                    Judge Sullivan is one of the most likely to demand answers like this, refer back to his famous digging in Stevens where (for different reasons) the Government tried to fudge some important details. He will not have any tolerance for this nonsense nor give any mulligans given what Barr’s DOJ has already tried to do.

    • anaphoristand says:

      I read the professed uncertainty from DOJ on the dating of Strzok’s notes as knowing bad faith. Yes, one can deduce they clearly recount the meeting of 1/5/17, but insofar as they’re undated, intentionally eschewing that deduction allowed them to give the notes a useful role in their disinfo. Even if you could pin Shea (or whoever actually wrote the thing) down on knowing the date of the meeting, the notes needn’t necessarily have been taken concurrently.

  2. Charles says:

    Thanks for following the hearing, Marcy. I hope Wilkinson got appropriate corrections into the record, but from your presentation, it sounds like the justices will be going into their deliberations with some serious misconceptions.

  3. OldTulsaDude says:

    I’m betting Barr is protecting the President as he treats executive privilege as if it were White House omerta.

  4. ButteredToast says:

    Thanks for this. No doubt the “frothy right,” as you inimitably put it, will seize on the phrase “non-public information” to speculate on those bombshells just waiting to be released at any moment. Durham has damning evidence of the Obama Administration committing all possible crimes under the sun! It seems absurd, but under this Administration I wonder how much the language was crafted to provide red meat for the Fox News evening set to chew. Little doubt that “Barr has already decided what the outcome of the Durham investigation will be, prejudging its outcome.” I suspect Barr had decided the outcome before he appointed Durham—at least, we’d never have heard about the investigation again if he couldn’t mold things into said desired outcome. I just wonder what led Durham to get on board with this. After reading all the media’s portrayals of Barr as an honorable institutionalist when he was confirmed as AG, I take all the descriptions of Durham as being fair and nonpartisan with a mountain of salt.

    • PhoneInducedPinkEye says:

      It sounds like he is the guy they bring in when administrations want a sheen of legitimacy over end results they find politically expedient, based on past performance.

      • ButteredToast says:

        Yup, it would save so much time to write the “principal conclusions” ahead of time! Department efficiency. The question is of course how much deference the media will give Barr after his last summary proved just a bit inaccurate. My fear is that they’ll lean on Durham’s supposedly sterling reputation as a reason to take any Barr statement at face value.

    • Tom says:

      I’m wondering if Durham’s next assignment will be to investigate the results of the November election, assuming Biden/Harris are the victors. Will he be tasked with looking for evidence of fraud, foreign interference, etc., just to muddy the waters and generate doubts about the outcome.

        • Tom says:

          Here I must confess to having commented in haste and without researching the process that would be involved. Since AG Barr assigned Durham his current investigation into the origins of the Russia probe, I assumed Barr could also request an investigation into the results of the 2020 election, but I am prepared to be corrected on that score.

          • Rayne says:

            If Biden-Harris are elected, I would put money on Barr being asked to step down immediately on Inauguration Day. Unless Team Trump thinks they can investigate and report on the outcome in the window between the election and Inauguration Day and do so in a manner which Americans would find credible, I think Barr’s going to have enough on his hands with destroying evidence, I mean, preparing the transition of power.

            • John Paul Jones says:

              Raises a question that’s been bothering me for the last few days. If Biden/Harris are elected, what can they do to make sure that the outgoing administration doesn’t do what Emperor Hirohito’s bureaucracy did in the two weeks between surrender and the arrival of McArthur’s team, that is, hold bonfires which destroyed the majority of documents related to the war? Would it be worth issuing a public statement that they hope that the outgoing Administration adhere to all the regulations relating to retention of records?

              • Rayne says:

                IIRC there’s a nonpartisan/bipartisan group which has already been discussing the transition process including threats you describe. EPA has already been destroying records, I don’t know if some departments will wait as long as Election Day let alone Inauguration Day.

                • Rugger9 says:

                  That’s aside from deliberate sabotage of the economy to pin it on Biden. The meme is already out there that a Biden election means a 25% drop in the stock market, which would reflect more about the investor class’ knowledge that the rank favoritism of the current WH will be over. For a self described bunch of steely-nerved self made innovators these guys are pretty much snowflakes.

                  • P J Evans says:

                    They’re afraid of people actually looking into whatever they’re claiming, and fining out how much is smoke and mirrors.

                    • Rugger9 says:

                      Which is what happened in 2008, and those systemic protections were undone by DJT and his minions.

                    • P J Evans says:

                      “those systemic protections were undone by DJT and his minions.”
                      Yeah, DJT and his minions have a lot of smoke-and-mirrors “investment opportunities” in their pasts.

  5. vvv says:

    Reading the above and your real-time twitter (thanks!) I, for one, am persuaded it’s likely that, “that would do irreparable harm to DOJ.”

  6. crispy says:

    Thanks so much for the analysis. Reading the comments on the hearings online, I thought that Wall’s position was a little *less* nuanced than what is presented here. The commentary I found captured some of the back and forth and it was a little surreal.

    Acting Solicitor General Wall said that just being asked questions in a hearing would irreparably harm the DOJ! Even when the DOJ has complete control over how or even whether they answer? I wish I could have been at the hearing to hear the incredulity that was clear in the notes!

    Apparently, no one shall even question Dear Leader and his Consigliere! Only political remedies can apply? I don’t think so, not when you can—and should—disbarr Barr!

  7. Rugger9 says:

    Aside from the missing details it really seemed to me that Garland and his allies weren’t buying what Wall was selling. However, one will not know until they rule, so when would that come down? I would expect this one pretty quickly.

    So why wouldn’t Sullivan or any other federal judge be able to hold in camera hearings?

    Also, I did see a lot of attention focused on Gleeson’s amicus after the op-ed, which is why both bmaz and I considered Sullivan’s choice of Gleeson as amicus to be an unforced error. It gave Wall a bogeyman to use as a distraction.

    • bmaz says:

      My guess is by end of August, but who knows right now. The normal talking to each other in the lunchroom and Prettyman offices is off kilter due to Covid. And ten judges is a lot to wrangle. We shall see.

      • Peterr says:

        OTOH, the courts have been dealing with these unusual circumstances for a while now, and I suspect a new normal is setting in. During oral arguments at the appellate level, it seems to be a lot more orderly via Zoom when the judges generally ask their questions in order of seniority, rather than willy-nilly jumping in at random as was more common in the face-to-face setting.

        Total WAG, as I don’t hang out with a lot of federal appeals judges, but I suspect that the judges are probably doing a lot more talking with each other — either informal conversations or formal conferences — via Zoom, to take the place of those lunchroom chats or bumping into each other around Prettyman. When they’ve got a case this big, and are tackling it en banc after what seems to have been a 3 judge panel decision that horrified a majority of them, I think they spent some significant time chatting with each other before the hearing actually took place today.

        • bmaz says:

          Yeah, I dunno about that. My experience is that they talk a hell of a lot better and more honest off any record.

    • vvv says:

      FWIW, as I was reading Ms. Wheeler’s real-time twitter of the hearing, I think Wilkerson said one reason Gleeson was chosen was exactly because it was known that he’d take the position he did, one Sullivan thought necessary to hear to get the opposing argument.

      In my little mind, I saw an analogy to Barr’s audition for his own position …

  8. x174 says:

    mt–i think your hypothesis that flynn’s dismissal is necessary for durham’s investigation to proceed “sucessfully” is not only plausible, it is likely.
    the thing that i can’t get my head around is the surreal optics of Rao’s apparent defending of barr and barr’s transparent defense of flynn. thankfully wilkinson pointed out that it was Rao (and henderson) who made sullivan a party to the case in her bizarre defense of barr:
    “[Wilkinson] notes that it was the appeals court panel that ordered Sullivan to respond to Flynn’s petition that it get involved, which essentially made Sullivan a party in the dispute.”
    One thing that’s clear in this whole charade: Wall and Rao definitely don’t want there to be any fact-finding at all. nothing to see here! Just let billy boy dismiss the case, so that he can make his client, the toddler-in-chief happy, by exposing the real malefactors: brennan, clapper, mueller, biden, and of course obama!

    • harpie says:

      I really enjoyed Marcy’s live-tweeting of this part:
      12:51 PM · Aug 11, 2020

      Rao: What is the District Judge seeking to vindicate.
      [Rao basically waving a sign saying, “I don’t understand rule of law appoint me to SCOTUS!!!!”]

      Rao: Can judges litigate? What is the judge’s interest?

      Wilkinson: This court made him a respondent. The court ordered him to respond. [RAO ORDERED IT]

      Rao: But that process played out at panel.
      [Rao: Why didn’t the District Judge follow my batshit order?!?!]

      Wilkinson: There are cases where District Judge moved for cert. There’s not a vindication of any right. Panel made their decision with three able judges, and now respondent making request, same posture. Most respectfully we’re arguing in front of 10 judges.

      Rao: Can judges in other cases file to ask that we rule en banc?
      Wilkinson: The court was ordered [BY YOU!!!] to respond below.

      Rao: Presumption of regularity. Govt has presented a lot of information about irregular behavior, reason to want to dismiss.
      [Shorter Rao, Billy Barr accused Obama of irregularity, so why shouldn’t he be presumed to regularity?]

      • Rugger9 says:

        Totally speculation as of now, but I would bet that Neomi Rao isn’t the most patient of office bosses.

      • x174 says:

        thanks for providing some of Marcy’s live tweeting and the relevant excerpted passage! the way that wilkinson responds–so tersely and deftly–gives me the impression of a trained martial artist who fights using concise legal articulation.
        sydney powell’s entire basis for removing sullivan from the case, however, can easily be disposed of: first, the case had been prosecuted and all that was left was to sentence flynn. since the proseution phase of the trial was effectively over, the doj is now–or should be–out of the picture.
        second, her argument that sullivan had somehow presented personal bias in requesting an amicus flies in the face of a judge’s ability to motion sua sponte.
        lastly, her intemperate and accusational tone towards the court should disqualify her as she is acting in a wholly contemptuous manner towards the judiciary. i cannot imagine how disgusted the judges must have been at her rank treatment of another honorable member of the judiciary. i wonder if this unworthy treatment will cause them (10-2) to give sullivan the case back completely unfettered.

  9. PeterS says:

    Didn’t Powell know her audience was a panel of judges, not the jury in some third rate TV crime drama? Mind you, Sekulow was much the same in front of the Supreme Court.

    Wilkinson is obviously a real lawyer, as indeed is Wall; I could almost admire his nerve in saying the Flynn case is truly exceptional when the legal precedents are against him, having just argued for several minutes that the case must follow the legal precedents that he likes.

  10. PeterS says:

    As regards the “secret reason”, Wall didn’t just blurt this out, he clearly wanted to say that to the judges. I guess he thought it better to get this on the record in this forum, rather than for the first time in front of Sullivan?

  11. Pete T says:

    Dunno why the thought occurred to me that, one day, this might make a blockbuster Lin-Manuel Miranda musical play on Broadway.

    • Epicurus says:

      The musical has already been written – Chicago. Powell and Wall are just versions of Billy Flynn defending the Zellweger-like character in Michael Flynn. This piece in the movie – We Both Reached for the Gun – is classic and might as well be Gere taking the part of Powell/Wall and Zellweger taking the part of Michael Flynn.

  12. GeneP says:

    As mentioned, the Durham investigation is likely where this “information” is sourced to. And having to show his hand in court might do significant damage to Barr’s planned propaganda campaign in October.

  13. Chris.EL says:

    IANAL … can it be explained what’s going on — or will we have to wait (like Watergate) — what was it — like 40 years until deep throat offers up the whole truth and nothing but the truth. This stinks — of something.

  14. thomas paciello says:

    I am just waiting until they pull out the “well now you are under ‘double-secret probation'”.

  15. x174 says:

    millett nicely cuts powell down to size when she asks whether powell filed for a motion of reconsideration of upon sullivan’s request for an amicus. by exposing powell’s lack of response, she reveals that it wasn’t judge sullivan’s request for an amicus that she had a separation of powers issue with, but instead sullivan’s choice of amicus, gleeson. powell even sounds like she’s been transformed into 120 lbs of thinly sliced baloney at 25 min into part 1,

    • Chris.EL says:

      Thanks for the c-span link. Since I dc’d cable before 2016 election, I’ve not heard Powell speak. Have to carve out some time to digest this (pun intended).
      Can’t believe D.T. has nerve to call women nasty … some of the expressions on D.T.’s face have been beyond words.

      • Tom says:

        I don’t think it takes nerve. It just takes ignorance and stupidity along with callousness, contempt, and indifference for anyone but himself. But I agree he’s starting to look like a well seasoned apple-head doll.

  16. x174 says:

    the en banc dc district court appears to work well when they follow up on each others questions (e.g., millett –> pillard).
    At 2:20:00, judge millet does an nice job of exposing SG Wall’s charade: on the matters of separation of powers and unwanted disclosure of executive determinations (regarding the dismissal of the flynn case), judge millett suggests that during sullivan’s hearing, the doj could just state that they are not going to answer questions which infringe on executive powers. once judge sullivan rules, just appeal, as is normally done in criminal cases. SG Wall, however, will have none of it. The simple process of safeguarding executive determinations will not be sufficient. Wall’s SOP’s argument under millett’s proposed scenario is revealed as a ruse. What Wall and barr most want is for flynn and his entire case to be promptly removed from the clutches of the district court.
    grant it, there may be considerable (damaging) exposure for barr if the en banc court rules in sullivan’s favor. however, what judge millett has shown is that what the doj most wants is the immediately removal of sullivan (and gleeson) from the case. Wall wants it all to just magically disappear into thin air, just as though nothing had ever happened at all. as wall was inclined to say repeatedly, flynn will nevertheless face the “specter of contempt” (a non-SOP issue) if the case remains with sullivan–and therein lies the rub.

  17. x174 says:

    for those interested, there’s an informative 2020 paper on the history of Rule 48a by Thomas Ward Frampton, “Why Do Rule 48(a) Dismissals Require “Leave of Court”?” (Stanford Law Review)

    Excerpt: “In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants,11 but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted precisely to deal with the situation that has arisen in United States v. Flynn: Its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors’ attempt to abandon a case.”


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