Judge Sullivan Amicus John Gleeson Lays Out How DOJ Is Arguing Against DOJ, then Invokes Barr’s Other Interference

When Judge Emmet Sullivan holds a hearing on DOJ’s motion to dismiss the Mike Flynn prosecution later this month, DOJ will likely refuse to answer any questions about why just Timothy Shea, Bill Barr’s lifelong flunky, signed the original motion to dismiss.

But even without raising that issue, retired Judge John Gleeson — acting as Sullivan’s amicus to oppose the motion — has amplified Shea’s role in his reply brief, submitted today.

He did so by noting that Shea’s argument is fundamentally incompatible with things DOJ claimed before Barr intervened (in filings arguing against Flynn’s Brady claims) and with things DOJ has claimed since (in a response brief signed by AUSA Jocelyn Ballantine).

Effectively, then, Gleeson has laid out that even DOJ believes DOJ lied in their motion to dismiss.

He does so, first of all, with materiality. Gleeson lays out that the government didn’t bother to defend the radical claims about materiality made in the Shea motion.

Although the Government attempts to respond to other arguments in my brief, it offers no response here. It does not claim I have misapprehended or misapplied the law. It never explains why one legal rule—the one set forth in its motion—applies to Flynn, while a different legal rule applies to everyone else. It never explains why its own lawyers erred so grievously in stating the law. It never explains why Flynn’s statements, in this setting, were not even capable of affecting the FBI’s general function. The Government’s silence on these crucial points is, by itself, sufficient to establish that its claims about materiality are pretextual.

Then, Gleeson argues that the government not only got the standard wrong, but misstated the evidence. To support it, he did what I’ve been clamoring for for months — he pointed to the government’s own claims about the materiality of Flynn’s lies (though he relies on a different and weaker filing than the government’s most aggressive statement on materiality, which had to he delayed twice to get senior DOJ review), noting that not that long ago the government argued aggressively that Flynn’s lies were material.

I have explained that the evidence demonstrating materiality here is so strong that the Government could satisfy an even tougher standard than the law requires—specifically, by demonstrating that Flynn’s statements had an actual effect on a specific FBI investigation. See ECF No. 225 at 41–42, 48–49. The Court need not take my word alone for this point. It can take the Government’s own word, as set forth in briefs submitted (unlike the Rule 48(a) motion) by the prosecutors who actually investigated this case, explaining that Flynn’s lies in fact affected the FBI’s investigation into contacts between the Trump campaign and the Russian government (a.k.a. “Crossfire Hurricane”). See ECF No. 132 at 10–11 (stating that Flynn’s “false statements to the FBI . . . were absolutely material”).

He also shows that the response brief — the one signed by Ballentine — offers no response on materiality itself but instead, “kick[s] up administrative dust.”

[T]he Government now abandons any discussion of the supposedly “critical”—but actually irrelevant—“predication threshold” that formed the backbone of its original motion. See ECF No. 198 at 16; see also id. at 2–5, 13–18. Instead, the Government refers vaguely to an irrelevant internal draft closing memorandum, “disagreement” about protocol, and other supposed “procedural irregularities,” ECF No. 227 at 2, 26–27, none of which is either particularly irregular or has any legal significance in proving materiality, see ECF No. 225 at 42–44. The Government seeks to conceal its retreat by kicking up administrative dust, but the bottom line is that it no longer stands by its own motion’s implausible reasoning.

Significantly, he mocks what is, in Billy Barr’s little mind, the real reason Flynn’s case should be dismissed: that many of the people who prosecuted Flynn have since been hounded out of government and are suing. Gleeson points out not just that two of them (Andrew McCabe and Lisa Page) are not witnesses to Flynn’s lies, but that in other places the government celebrates the experience of Peter Strzok and Joe Pientka (and had disclosed Strzok’s damning texts before Flynn pled guilty both times).

[T]he Government trots out a new explanation for its materiality rationale. The Government previously claimed to believe that the available evidence, taken at face value, showed Flynn’s statements to be immaterial. But it now says it has a different concern: that the witnesses it would rely upon to introduce the evidence might lack credibility with a jury. ECF No. 227 at 27–28. As this Court well knows, shifting explanations are classic red flags of pretext. See, e.g., Foster, 136 S. Ct. at 1751; Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011).

In any event, this claim makes no sense. The Government asserts without explanation that it “would need to prove its case” by calling as witnesses individuals from the FBI whose credibility could be impeached. ECF No. 227 at 27. But two of these “witnesses” were not present for Flynn’s false statements, so it is entirely unclear why their testimony would be required or even permitted (under evidentiary rules) in the Government’s case-in-chief. And more generally the Government’s professed credibility concerns are not plausible. They center on professed evidence of political bias by an interviewing agent that both the Government and Flynn have known about from the start of the case, see ECF No. 122 at 8–9; ECF No. 144 at 25– 34 (this Court discussing, at length, the history of the referenced text messages and why they do not cast doubt on Flynn’s guilty plea), and two pages after assailing the agents’ credibility, the Government does a back-flip to proclaim the very same agents “highly experienced investigators” whose assessment of the interview should be credited, see ECF No. 227 at 30. As I previously explained—without response from the Government—“[n]o competent lawyer thinks this way.” ECF No. 225 at 55.

To defeat the government’s claims that it would have a hard time proving Flynn’s lies were false, Gleeson points out a key disagreement Flynn has with the government. The government (in the form of prosecutor Ballantine, but others signed the brief too) maintains prosecutors did not commit any abuses.

[T]he Government affirmatively rejects Flynn’s own principal account of why his prior admissions of falsity should not be credited: namely, that prosecutors had threatened him with charges against his son. Compare ECF No. 160-23 at 8 ¶ 34 (Flynn Declaration describing “intense pressure,” including “a threat to indict my son Michael”), and id. at 11 ¶ 46 (“I allowed myself to succumb to the threats from the government to save my family . . . .”), with ECF No. 227 at 28 n.1 (“[T]he [G]overnment’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded . . .”).

Given that Flynn repeatedly admitted to lying—and given that the Government is unwilling to accept Flynn’s claims about why those admissions were untrue—the Government struggles to offer a coherent account of why it doubts its ability to prove falsity.

Even Billy Barr, in sworn testimony before the House Judiciary Committee, said there were no Brady violations here (though he lied, under oath, about whether files had been withheld from Judge Sullivan).

Having shown how DOJ disagreed with itself on materiality and falsity, Gleeson then notes how DOJ invented a completely new reason — interests of justice — to dismiss the case.

The Government’s Rule 48(a) motion stated that “continued prosecution of Mr. Flynn would not serve the interests of justice.” ECF No. 198 at 12. It then elaborated on the reason: “the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt.” Id. The Government thus asserted that the “interests of justice” would not be served by pursuing a case in which the Government doubts it could prove materiality or falsity. See id. at 12–20. No free-standing “interest of justice” policy reason is apparent in the Government’s motion.

But the Government now insists otherwise, asserting that it has always advanced a third “separate” and “alternative” reason for dismissal wholly unrelated to the difficulty of proving the elements of its case. ECF No. 227 at 23, 25–26. While this conclusion would come as a surprise to any careful reader of the Government’s motion, it would not surprise anyone familiar with doctrines designed to uncover pretext. See Foster, 136 S. Ct. at 1751 (where a party’s “principal reasons” have “shifted over time,” it can be inferred “that those reasons may be pretextual”).

And what exactly is the Government’s non-merits reason for dismissal? The answer is unclear, since the Government never quite explains its newly minted rationale in the sole paragraph devoted to it. See ECF No. 227 at 25–26. It gestures vaguely at “enforcement priorities” and “policy assessments,” id. at 24, then rattles off a disjointed string of allegations regarding “circumstances surrounding the interview,” id. at 25. But these are just the same facts that are legally irrelevant to its materiality and falsity assertions. The Government does not explain what additional supposed significance it has suddenly “assess[ed]” those facts to have, or why Flynn’s conviction disserves the “interests of justice,” see id. at 23, given that his guilt is both conceded and readily provable. While the Government conveniently asserts that these “policy assessments” are “quintessentially unreviewable,” id. at 24, it never actually explains what the policy is, what judgment it made, or why the conduct of the FBI agents in question would warrant dismissal of this case given Flynn’s demonstrable and confessed guilt. See id. at 23–26.

Having shown that DOJ (in Ballantine’s reply) already showed that DOJ (in Shea’s motion to dismiss) was wrong, Gleeson notes that DOJ hasn’t even mentioned his arguments showing that there’s a more logical explanation for all this–that Trump demanded it.

As detailed in my opening brief, Flynn is a close ally of President Trump, who personally pressured the FBI director to “let this go” within weeks of Flynn’s crime, who has since repeatedly made clear his desire for Flynn to avoid criminal liability, see ECF No. 225 at 17, 56– 59, and who has expressed a desire to re-hire Flynn within his administration, see Max Cohen, Trump Says He Would Welcome Michael Flynn Back to His Administration, POLITICO (July 15, 2020, 11:08 AM), https://perma.cc/5EG4-CLTQ. Allowing dismissal for these “irregular” reasons would necessarily “implicate this Court” in denigrating “settled, foundational norms of prosecutorial independence.” ECF No. 225 at 59.

The Government does not disagree with any of this—presumably because it cannot. Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution. Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion—as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the Government’s request for leave under Rule 48(a) and proceed to sentencing.

Gleeson is exploiting DOJ’s failures to address his claims. But he’s probably right.

Gleeson expands the record to include solid evidence of prosecutorial abuse

Sullivan did not and will not order further discovery in this case. But Gleeson got three key pieces of additional information into his brief. He cited the SSCI Report describing why Flynn’s lies were material.

In its bipartisan report assessing Russia’s interference with the 2016 presidential election, the U.S. Senate Intelligence Committee similarly concluded that the “series of communications between Flynn and Kislyak” on sanctions was relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities associated with the Transition.” REPORT OF THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ON RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION, VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES, S. Doc. No. 116-XX, at 702 (1st Session 2020).

He pointed to Aaron Zelinsky’s testimony describing how Billy Barr personally intervened to sabotage the Roger Stone prosecution.

Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” See Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (statement of Aaron S.J. Zelinsky, Assistant U.S. Att’y), https://perma.cc/48ZV-23EK. This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy. Id. at 2. This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President,’” id. at 10.11

And he used that to invoke the case of Geoffrey Berman.

11 Perhaps those officials had reason to worry: the President recently fired a prominent and wellrespected U.S. Attorney who was investigating his associates. See Paul Le Blanc et al., White House Admits Trump Was Involved in Firing of Top US Attorney After Trump Claimed He Wasn’t, CNN (June 22, 2020), https://perma.cc/TPB5-ZXGQ.

Had he waited a few hours, he could have cited how John Durham’s deputy, Nora Dannehy, just resigned in part because of political pressure.

While Gleeson has not had the opportunity to develop a record about why this particular Barr intervention is thoroughly corrupt, he manages to show that Billy Barr here argues against Billy Barr, and in similar cases, did have a political purpose.

At the very least, he has succeeded in establishing a record that Billy Barr’s own DOJ disagrees with him.

80 replies
  1. Tony el Tigre says:

    I just want to say your insight and explanations on issues like this are greatly appreciated.

    Thank you for the great work.

  2. OldTulsaDude says:

    Great post, Marcy. Also – trying to be helpful here – the second “is” in this sentence, right before the semicolon, is redundant and can be removed.

    “Significantly, he mocks what is, in Billy Barr’s little mind, the real reason Flynn’s case should be dismissed is: that many of the people who prosecuted Flynn have since been hounded out of government and are suing”

  3. Rugger9 says:

    Judge Gleeson hammered the DOJ quite well, let’s see if DJT tweets about it. As far as debarring AG Barr, I do not think he’s signed any of these interventions as attorney of record which I think would be a prerequisite to go after him. If AG Barr was held in contempt by the House that might be another avenue for a Bar referral but based on my own experience dealing with sleazy lawyers it usually takes a judge to get the Bar to move.

    This is where Ms Dannehy’s resignation can be very interesting, and I would speculate there is a linkage to the Ukrainian MP (Derkach) pushed by Giuliani and Ron Johnson as a witness for alleged Biden corruption who turned out to be a Russian agent for at least a decade. I think it was a last straw for her if Durham trotted out Rudy’s “evidence” as factual when it’s clearer now that it was maskirova. Her reference to political pressuring was a tell for me.

  4. Chetnolian says:

    I recall Bmaz’s doubts about the appointment of Gleeson as amicus, for reasons which looked good at the time.But it looks a bit better now, because his first brief seems to have suckered the DOJ in its response into demonstrating the validity of just what he argued in the first place about pretextuality..

    My only question is whether the reply brief’s wording is just a bit too snarky, and whether he could have argued his case just as effectively in more “measured” terms. Any views?

    • bmaz says:

      Gleeson’s ability to create work product was never my issue, rather it was the optics. That said, think his work product has been mediocre.

      • FL Resister says:

        I think this is a pretty good work product:

        “This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. ”

        • emptywheel says:

          I’m glad he got it in but I really wish he had included Billy Barr’s comment at HJC about Brady (and lying about what had been turned over).

    • subtropolis says:

      I agree that snarkiness ought to be tamped down, generally. But I think the tone is suitable in responding to the DoJ’s cack-handed — indeed, insulting — actions in this case.

    • CapeCodFisher says:

      I thought his explanation hit the mark. Bulls eye. Accurate. Unraveling all of the logical inconsistencies down that rabbit hole must have been a strenuous mental exercise. Could be Gleeson is a little ticked off at how far into the weeds Barr was willing to go to try to camouflage the DOJ corrupt motives?

      • Arthur M. says:

        This is the only part of the conversation I am even arguably qualified to offer my opinion on, so please excuse the following:

        Barr may not be willing to stand up for the rule of law but he will also not stand for somebody acting snitty. Let’s just say he does a lot of sitting. However I am guessing that if Gleeson had evidence that Barr did not deserve the snark, he would have so said.

  5. subtropolis says:

    Judge Gleeson has really thrown down! This was a joy to read. Not only is he calling out Barr, but the so-called President, too. (“that corrupt pressure”) He made very clear how fantastic has been DoJ’s rambling, ridiculous position in this case. Its shifting claims have been utterly unbelievable.

    • bmaz says:

      Formal legal briefs are NOT about “throwing down”. If you are sitting there cheering because this one was, it was probably a little much. These things are not blog posts, and Gleeson was mediocre at best.

      • Rapier says:

        If Gleeson’s work is less than sober or not world class how would you characterize the DO’s original motion or their reply?

        I suppose if this ever reaches appeal as Trump and Barr take another term, that a Conservative majority will use Gleeson’s tone as a way to allow the withdrawal. That is hardly necessary however. They could find for the government/DOJ in any case and probably will. Or perhaps not in which case Trump pardons or commutes and sentence, End of story.

        At least Gleeson’s tone will have made the case more interesting and understandable as current and later observers do what observers do.

        Meanwhile “…. and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do’.

        • bmaz says:

          An attorney’s job is not to evince a tone that gives lay people jollies, it is to do a sober and professional job in service of the case. Gleeson went for the former. He was a regrettable choice all the way around.

          • Rugger9 says:

            As has been noted in several other places, the facts really do speak for themselves in this case and the “winged words” which might have been used in the Iliad don’t add anything to it. Why give DJT and his minions an almost valid excuse to claim animus?

            This is for a court record, not TMZ.

            • bmaz says:

              Exactly. And this from a guy that was already being pilloried for his earlier op-ed on the same subject he is supposedly advising a neutral court on. It is just not a good look. Gleeson is a fine man and was a very good judge, but this whole thing just does not sit well.

              • Rapier says:

                Who would you judge to be acting in good faith on this case. The DOJ/Barr or Sullivan/Gleeson.

                The law isn’t going to save us from fascism. As fascism rejects democracy (https://research.calvin.edu/german-propaganda-archive/angrif06.htm) so too does it reject law. Or as Justice Minister Gürtner said: The will of the Leader is the source of law)

                If Gleeson’s performance is bad form, well boohoo. At worst a desperate and futile gesture. Playing nice won’t change the outcome. The play is already written.

                • bmaz says:

                  What a load of dumbass shit. If you cannot believe in the Constitution, maybe you are the reactionary internet problem, and not me. There is a rule of law. It is a LOT stronger than binary blowhards think.

                  • rattlemullet says:

                    Yes, there is rule of law. I concur whole hardly! Why does it seem that that rule of law is applied differently for the rich? What effect on the rule of law does approving in some cases clearly unqualified judges holding very partisan views contrary to established law and precedent? What effects on the rule of law does Barr have on the DOJ and applying that law blindly going forward? Does no law cover the Oath of Office the presidents takes, then violate that oath almost daily? It appears the Oath of the Office is clearly must not be based in law and only theatrical when not taken seriously by the recipient.

                    • timmer says:

                      Thank you for coloring in various shades for bmaz. History has shown the rule of Law is not black and white. It is bastardized with various shades by those in power.

                    • bmaz says:

                      Thanks Timmer, I don’t need any “coloring in of shades” as I’ve been doing this for a living for many decades. It is not perfect. Sometimes messy. But it is the worst system only compared to all the others being far more worse. You, however, do not seem to know anything but internet blather. Seriously, WTF? Get a fucking grip.

                      And, by the way, “the rich” usually get better outcomes because they can afford better attorneys and defense, not because they are “rich”. You want to do something about that inequality? Maybe stop whining on a blog, get off your ass and donate money and time to public and contract defenders in your area. Until then, please spare me your bullshit lecture.

                    • Timmer says:

                      It appears from his deleting my response, that bmaz “may” believe in what he states as “The Law” is not as important as freedom of speech. What a hypocrite!

  6. joel fisher says:

    Do you think a cert. petition will be filed and freeze things until after the election? It’s hard to imagine Trump/Barr want their very dirty linen waiving around in the run up to 11/3.

  7. Spencer Dawkins says:

    Thank you, Marcy. This was an encouraging analysis, at least for me.

    Bmaz, I saw you mention “mediocre” work product in a couple of responses. Honest question – how could Gleeson have done better work?

    I’m reading Marcy’s post through non-lawyer eyes (my business law class was in the early 1970s, and even that’s not relevant), so I’m cheering for the way this should read to the press, and I take bmaz’s point that the key audience is the court that’s going to be reading it and trying to figure out what to do with Flynn, in a way that the Supreme Court won’t overturn when their unfavorable decision is inevitably appealed.

  8. biff murphy says:

    I read the mediocre performance of Gleeson by bmaz, and I’m not sure what’s missing there.
    But my thoughts are that it’s about time these sycophant’s and ass kissers are at a minimum called out publicly and accused of deliberately twisting the DOJ for such blatant political considerations. This administration seems to thrive on destroying all of the institutions of government.
    (FBI,CIA, Post Office, DOJ, the media, the military,and the friggen CDC, and WHO)
    and when they’re gone how much actual damage will we find done, my bet is plenty. I did like this line.
    “Given that Flynn repeatedly admitted to lying—and given that the Government is unwilling to accept Flynn’s claims about why those admissions were untrue—the Government struggles to offer a coherent account of why it doubts its ability to prove falsity”

    • John Lehman says:

      Miner point, WHO (World Health Organization) is not a US institution, it’s a UN institution. The World Health Organization may be hurt by threats of someone (won’t mention any names) withholding funds but WHO is carrying on, it has the other 7 billion people in the world whose health it needs to worry about. We, the US, are just 4.3% of the World’s population.

      Guess if they don’t care about millions of humans why care about billions?

      • biff murphy says:

        Yes, thanks I understand that but…
        A number of CDC staff members are regularly detailed to work at the WHO in Geneva as part of a rotation that has operated for years

          • Timmer says:

            You don’t know me a$$hole. I have been donating and door knocking since the late 60’s. I know I am not as gifted as you believe you are but you need to show a little more respectfullness to readers, dick

            …….”And, by the way, “the rich” usually get better outcomes because they can afford better attorneys and defense, not because they are “rich”. You want to do something about that inequality? Maybe stop whining on a blog, get off your ass and donate money and time to public and contract defenders in your area. Until then, please spare me your bullshit lecture.”

      • Super Nintendo Chalmers says:

        Miner (sic) point. We’re not talking about UTEP basketball here, so if you want to be pedantic, then you can’t be misspelling that kind of point you wish to make. In these circumstances, your error is anything but minor.

  9. harpie says:

    I’m going to get shit from bmaz, I guess, but I, as a lay person, like Gleeson’s “tone” here.

    Barr’s DOJ [in my view as a lay person] corruptly threw a flaming monkey wrench into Sullivan’s court for POLITICAL reasons.

    Trump wants to avoid all repercussions for his own unlawful behavior and Barr is helping him do that.
    And,they’re going to get away with it because, to me, again as a lay person,

    Trump could have pardoned Flynn and been done with it…
    but HE IS A COWARD and CHEEP-SKATE who didn’t want to pay that political price.

    In my opinion, Gleeson is meeting this train head-on, on the political track THEY CHOSE.
    But he [and WE] are going to get run over, all the same.

    • harpie says:

      Or, how about this:
      Prosecutor Quits Trump’s Law Enforcement Commission, Saying The Fix Is In
      John Choi is worried the group is intent on “providing cover” for a predetermined law-and-order agenda that “will only widen the divisions in our nation.”
      09/11/2020 04:56 pm ET

      An elected prosecutor who took a role in Donald Trump’s presidential commission on law enforcement has resigned, telling Attorney General William Barr that he is concerned the commission was “intent on providing cover for a predetermined agenda that ignores the lessons of the past” and will issue a final report that “will only widen the divisions in our nation.” […]

      • harpie says:

        From the article: more quotes from Choi’s resignation letter to BARR:

        “Rather than examine how decades of over-policing in communities of color have created that deficit of trust, the Commission was instead encouraged to study ‘underenforcement’ of criminal laws and ‘refusals by State and local prosecutors to enforce laws or prosecute categories of crimes’,”

        “At the very beginning of this process, President Trump said the Commission would ‘have [the recommendations] soon because most of them know many of the answers before they begin.’ It is now patently obvious that he was correct ― that this process had no intention of engaging in a thoughtful and open analysis, but was intent on providing cover for a predetermined agenda that ignores the lessons of the past, furthering failed tough-on-crime policies that led to our current mass incarceration crisis and fueling divisions between our communities and our police officers”

      • earlofhuntingdon says:

        Choi’s concerns should have been obvious before he joined a Trump commission. But I’m glad that he resigned and is articulating his reasons for doing so.

        It’s a wonder that Bill Barr has time to review how well state and local police are doing their jobs, when he has so much to do in his own federal day job.

        Barr’s claim that police are “under-enforcing” criminal laws is LOL funny, given his non-enforcement of white collar crime laws. But he’s not talking about the law: he’s talking about how much people of color break it. All to dredge up votes for Donald, which is silly, because American racists already know who they’re going to vote for.

        • harpie says:

          Yes, “articulating his reasons” is the important part…getting it out in the open in writing, informing US…like Dannehy and Gleeson.

  10. earlofhuntingdon says:

    There will be no October surprise. Trump’s entire campaign is an October surprise. It is also a slow-moving coup, spearheaded by Bill Barr. Mike Pence is somewhere in the back of the bus, but even he’s holding a Montana fundraiser next week at the home of q – anon gazillionaire hosts.

    That fuzzy group’s beliefs boil down to something hard that burns through the bottom of the pan: Trump is our god-saviour. His Democratic Party opponents are literal, not figurative, demons from hell. That apocalyptic belief sanctifies – no, requires – any violence thrown against them.

    If Mike Pence is holding that fund-raiser, it’s because Trump wants it and Mother approved it. Asked about closely associating violent q – anon loyalists and his presidency, Trump’s response, “Is that a bad thing or a good thing?” Trump the psychopath will align himself with anyone who will let him hang on to power and get more of it. But that doesn’t mean he disagrees with them.

    • harpie says:


      1] and POLICE:
      Yesterday, bmaz retweeted this:
      9:13 AM · Sep 11, 2020

      In the footrace between NYC PBA Pres. Pat Lynch and NYC SBA Pres Ed Mullins to see who is more batshit crazy, Mullins appears to be pulling ahead. I did not think anyone could out crazy Lynch, I may have been wrong. [link]

      Links to:
      Police Union Leader Under Investigation For Calling Councilmember A “First-Class Whore”
      SEPT. 10, 2020 4:47 P.M.

      […] The Civilian Complaint Review Board began their investigation after Torres made a complaint. The CCRB investigates cases of misconduct under four categories: abuse of authority, discourtesy, force, and offensive language. It’s likely investigators will determine whether Mullins, who recently appeared on Fox News with a QAnon mug in the background, violated the offensive Language and discourtesy categories. […]

    • harpie says:

      This is QANON:
      911 dispatchers in Oregon are slammed with calls about QAnon-backed false claims about the wildfires there.

      Authorities in Oregon are pleading with the public to only trust and share information verified by official sources about the unprecedented wildfires sweeping the state. The pleas come as law enforcement agencies described 911 dispatchers being overrun with calls about a false online rumor that “Antifa” members had been arrested for setting the fires — a claim promoted by the anonymous account behind the QAnon conspiracy theories.
      The incident highlights how online conspiracy theories, a sustained right-wing campaign to create increased fear of anti-fascist groups, and amplification of false claims by QAnon followers, have real consequences. […]

  11. BayStateLibrul says:

    Thank you Marcy and Judge Gleeson.
    Anyone that prosecutes John Gotti is a friend of mine.
    Anyone that prosecutes The Wolf of Wall Street is a friend of mine.
    Anyone that pisses off Jonathan Turley is a friend of mine.
    Thank you Judge Gleeson for your “friend of the court brief”
    I don’t care if it was mediocre, grandstanding or out in left field.
    You called the DOJ for what it is and your “one liners” were delightful

    • bmaz says:

      Yes, “Thank you Judge Gleeson” (who is not a freaking judge anymore, for christ sake) for being a bellicose jackass for the masses instead of doing a professional and competent job of briefing. Rah rah.

      • DAT says:

        You have asserted several times that Mr. Gleeson’s work is not competent. You perhaps have a blog post in the works explicating your position and his errors?

        • bmaz says:

          Gleeson appeared as an attorney, not a judge or otherwise. This is complete garbage. Here is his latest brief. Please point to where he appears as a judge or former judge, “honorable” or otherwise.

          I challenge you. Gleeson’s work has been cheerleading pablum for the masses, and mediocre at best actual legal work where it counts. Cheer for this bunk if you wish, but only if you think this crap is more important than the actual law and case.

          • BayStateLibrul says:

            The word Nazi returns…
            First time it was “BSL regrets the error”
            Second time it is “BSL says “mea culpa”
            The Supreme Court of Ohio agrees with you. It is not proper to call a retired Judge a Judge. They conclude that the practice should not be encouraged, and I will abide by that ruling even though I don’t live in Ohio.
            They do provide a small opening, when they say “it’s okay if lawyers by habit, custom or etiquette or a prior relationship” use “judge” in a colloquial fashion. So, in his weekly poker game with his buddies in the Bronx, a smart arse colleague might say, “Judge, I’m calling your bluff.”
            You might also want to text Charlie Pierce for his 6/10/20 Esquire article. His lead was “Judge Gleeson told Bill Barr He’s a hopeless hack serving a hopeless crook.”
            In my opinion, that was NOT a mediocre opening, neither was his article “bunk” and finally Jack Dorsey didn’t issue him a speeding ticket.

            • vvv says:

              I suspect there is varying geographical custom and usage, in that here in Chi we call former judges, “Judge” as a mark of respect.
              I can think of only one former judge now in private practice litigation and I do so call him, altho’ if he was an opponent I’d likely use, “Counselor”.
              FWIW, in these parts, most who leave the bench but continue working do so as private arbitrators, mediators or (typically non-litigating) partners and of counsel, where they still get the honorific.
              I do know one former judge who became something like an Amway salesman – pretty good as a judge but maybe just a bit eccentric.

              • bmaz says:

                I will NEVER call a common attorney involved in current court process “Judge” whether they once were or not. It is complete bullshit. At this point, Gleeson is no more of a “judge” than any other lawyer involved in the Flynn case, and it is gross to treat him as such.

                • vvv says:

                  Absolutely agree. I would never call a former judge, “judge” in a formal court process, and especially if they are an adversary.

                  But in an arbitration (if they are the arbitrator), it is common practice here; same when encountering them on the street or in a bar. Did I say, “bar”? Restaurant, I meant, “restaurant”.

                  • bmaz says:

                    Lol, what are these things “restaurants” and “bars” you speak of? It is getting hard to remember.

                    The fact with me is that there are not that many judges, past or current, that I would really recognize out and about anymore. A handful of federal judges, though they are mostly the older ones no longer out and about that much. As to state trial level, I always knew the presiding judges, especially the criminal ones.

                    The last time I recall such a situation was at the local steakhouse when a former presiding criminal judge stopped by out table to say hi. Just introduced him to my wife as “this is Ron_____” and later told her exactly what he had been. And what he had been is a great judge. But back then, you could wander into chambers and chat if they knew you. Today, you can’t get past the bulletproof plexiglass, and it is far harder to actually get to know the judges.

                    In an arbitration where they are the arbitrator, sure, because they effectively are a judge again. But that is rare I’d think.

                    • vvv says:

                      Here in IL, “alternative dispute resolution” is a big bidness. There are at least three companies that (pre-pandemic) provided space for hearings (often with lunch) and a choice of arbitrators, most of whom are former judges, with the odd former bar assoc. pres.

                      It is a cliche, here. A popular judge retires, becomes the hot new thing for a year or so, until the next popular judge comes around. There is humor to be had, also, when a dick tries to make it as an arbitrator, and no one chooses them, altho’, one of the Greylord guys – majorly unpleasant and severely defense-oriented – became popular on lemon-law cases, but only acceptable to the plaintiff bar if there was a high-low agreement.

                      I practice on the state level only (just gave up my fed trial bar earlier in the year – I think I mentioned that before). In Cook County the judges are elected, and are mostly competing within the Dem party. Now in middle age, they are my peers, and so (pre-pandemic) I was going to a couple-5 fundraisers every year, and often hanging out for drinks afterward. Sometimes they are to be found at happy hour – some like to get a drink while we await the verdict (the couple times a judge bought the first round, I always won the case – so I try to get ’em to that). And there are/were always judges to be seen in those place we go/used to go for lunch … The ones I try/tried cases before they retire have often become and remain friendly, first-name acquaintances.

                      In many ways, it seems like what I imagine small-town practice is, except there’s probably 2-300 lawyers in my little community.

                    • BayStateLibrul says:

                      Let’s have Matthew have the last word.
                      “Judge not, that ye be not judged.” Matthew 7:1
                      My daughter works for the state district court in Massachusetts. Occasionally, a few retired judges will come by to “shoot the shit.” She addresses them as “Judge xxx…”
                      out of respect.
                      Colleen McMahon, a District Judge in SDNY believes that the most important virtue for a Judge is self-awareness. She means two things, “The first is knowledge about one is, as a person, what one values and does not value and what motivates one’s decisional processes. The second is the ability to be completely honest with oneself about such matters.”
                      It is pretty clear to me that John Gleeson (esquire) views Barr as a character of self delusion, exercising his power by interfering in the process.

                    • bmaz says:

                      VVV – Yes. There are dedicated places, like JAMS and FedArb that do this. Which is a good thing generally; I’ve used them and it is okay. Much better when you get to choose than just get a random wheel assignment though.

  12. Casey McCarthy says:

    This reporting is so necessary and appreciated (many times discouraging of course). Keep up your critical and talented light shining.

  13. madwand says:

    Yeah I thought the Dannehy resignation might be significant in proving Stroks assertion on Rachel Maddow that there are still moral and competent people in Justice who want to do the job right. Since she is not talking there is still a little doubt, however, she didn’t resign for any other personal reason, that would have been stated had it been true. Barr has been quoted as saying that while he is in charge of DOJ there will be no politization of the DOJ. What that means in practice is that he means that cases filed against Trump allies, Stone, Flynn, etc are political in nature and should be dismissed or pardoned. It’s hard to see Barr as acting as a neutral arbiter of the law or facts, his bias is overwhelming.

    • bmaz says:

      No, and in some cases you have to read behind the lines, there are several of them out there from the get go, but it is clear Dannehy resigned for a reason.

  14. Jenny says:

    Thank you Marcy. Again, you put all the pieces together. Gives me peace of mind for the moment. Last line, spot on.

  15. earlofhuntingdon says:

    Bill Barr stating there will be “no politicizing” of the DoJ on his watch [that he doesn’t insist on] is like Louis DeJoy saying he won’t politicize the USPS. The more obvious and outrageous the lie, the greater its effect. It’s like tormenting the vulnerable and innocent precisely because that’s who they are. Straight from the KUBARK manual. It’s what one does to destabilize and overthrow a regime.

    Louis DeJoy, for example, has no time to respond to congressional investigators or to fix the many problems he has created, but his staff have the time and budget to send out a postcard to every registered voter in America, making false statements about their state election procedures. He and Robert Duncan have made the USPS a wholly-owned subsidiary of the RNC, which is a subsidiary of the Trump Organization.

    It all fits Trumps demented persona: if he can’t win or steal enough votes, if he can’t stop enough people from voting against him, he will tear up the game board and eat the pieces so no one else can play. Please let’s get this psychopath out of public life.

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