Before He Mooted DOJ’s Motions in the Mike Flynn Case, Emmet Sullivan Treated DOJ’s Authentication as Official

I’m writing a bunch of posts on Judge Emmet Sullivan’s order dismissing Mike Flynn’s prosecution as moot.

This post laid out how Sullivan established that he has the authority to rule against DOJ’s motion to dismiss the Flynn case, but declined to do so because the question is moot

This post laid out the evidence Sullivan laid out that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

As I noted, because the order itself moots all pending DOJ issues in the docket, the government would have a hard time appealing either of those issues, especially given that Sullivan didn’t ultimately rule on them. DOJ has no business making requests in this docket because the matter on which they have primacy, prosecutions, has been mooted by Trump’s pardon. Sullivan has reclaimed authority over his docket.

In this post, I’d like to look at something tactical Judge Sullivan did just before he started mooting DOJ’s role, which looks like this in the docket.

Before he ruled on the pardon, Judge Sullivan first struck four exhibits from the docket:

  • 228-2: Some texts involving Peter Strzok
  • 228-4: Sidney Powell’s submission of a motion from Amaro Goncalves
  • 228-5: Sidney Powell’s submission of a motion involving Ted Stevens
  • 248-1: Some texts from FBI intelligence analysts

With the exception of the last of these, these aren’t that important — as I noted in this post, Sidney Powell’s submission of prior filings from other lawyers is the rare moment when she can be relied on to be more accurate than the government (or any bum off the street). But by striking those other four exhibits, this order makes clear that Judge Sullivan considers the claims in this DOJ filing to be operative.

Interestingly, Sullivan did not strike a different exhibit — basically some Strzok and Page texts DOJ repackaged to be assholes — which are referred to in the paragraph before the one excepting out those four (which I’ve italicized), which DOJ treats as the same, stuff they’re not relying on, but which they do not decline to authenticate.

On September 2018, the DC-USAO received from the Department of Justice Office of the Inspector General a complete set of the text messages between OGC Attorney Lisa Page and DAD Peter Strzok. As the Court is well-aware, the government first disclosed the existence of these text messages to Mr. Flynn on November 30, 2017. Thereafter, the government provided excerpts of these text messages and links to publicly available compilations of these communications to Mr. Flynn on March 13, 2018, June 24, 2018, October 28, 2019, and April 29, 2020. On September 23, 2020, the government provided Mr. Flynn with additional text messages from the set it had received from the OIG in September 2018. The government is not relying on these additional text messages in support of its motion to dismiss.

The government also notes that there are Discovery Documents attached to Mr. Flynn’s filings that it has not authenticated for the purpose of this filing because those documents were not relied upon by the government in its motion to dismiss or arguments in support thereof. See ECF Nos. 228-2, 228-4, 228-5, and 248-1.

Effectively then, Sullivan has struck stuff submitted by Flynn’s lawyers that DOJ was not relying on, but not stuff DOJ submitted that it said it was not relying upon.

Sullivan left on the docket a bunch of filings that DOJ fell far short of validating in its filing, as laid out here, including the filings that DOJ altered. But he also made it clear that that filing authenticating exhibits in his docket does remain operative.

30 replies
  1. Rugger9 says:

    I get the feeling Judge Sullivan is about to announce some sanctions on the DOJ attorneys because he left these docket items in. However, can he sanction on a case rendered moot by a pardon? It would seem to me that the fact the lawyers did the stuff they did is an issue in its own right and to prove that point Judge Sullivan still needs the originals.

    • Peterr says:

      IANAL, but it strikes me that the behavior of the lawyers who stood before Sullivan and made representations to him about this case remains something within Sullivan’s purview. Flynn may have been pardoned for his lies, but if Sullivan smells lies from the DOJ attorneys, that is not covered by Flynn’s pardon. The fact that Flynn’s jeopardy is moot does not mean that the behavior of the DOJ is necessarily moot as well.

      IOW, they’ll have to go to the boss and get their own damn pardons.

      • Hika says:

        If AG Barr was instrumental in the undoing of Flynn’s prosecution, and it’s hard to imagine he wasn’t, then I think he is going to have a hard time getting Trump to give him a pardon for helping to get Flynn off the hook as Flynn eventually still required a Trump pardon and it seems like Barr has burnt his bridge with Trump for suggesting that there just isn’t evidence of widespread electoral fraud that could overturn Biden’s win.
        Now, how hard will Barr continue to work on burying the misdeeds of Trump’s crew?
        [Of course, my opinions/comments are merely uninformed speculation.]

        • harpie says:

          Barr recently floated that he might just up and quit before 1/20/21.
          I wonder how that might fit in to this.

  2. Peterr says:

    I’m still working my way through the whole opinion, and Sullivan is trolling the DOJ in truly amazing style. Each use of the word “regularity” carries with it more force each time, as Sullivan uses it to indicate just how far from regular the DOJ has been acting in this case.

    Or here’s another example, with emphasis added:

    The Court is mindful that it is “particularly ill-suited” to reviewing the strength of the case. Wayte v. United States, 470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d 454, 455 (7th Cir. 2003) (finding that the trial court’s belief that “the evidence was strong and conviction extremely likely” was an inappropriate basis to deny leave). That said, the role of the Court is to conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30. Moreover, the Court examines the factual basis underlying the government’s reasons because not doing so would amount to rubber stamping the government’s decision, contrary to the requirement of Rule 48(a). Here, the government has invited the Court’s examination of its evidence. See Hr’g Tr., ECF No. 266 at 42:22-43:1 (stating that “we’re completely unafraid here to address . . . the specifics as to why we thought we needed to dismiss this case. . . . we’d be happy to go through the evidence.”). Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications. See Fosterv. Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”).

    Shorter Sullivan: “Hey, you asked for it, but I have to warn you that you’re not going to like it.”

    • harpie says:

      I haven’t read it yet, but have really been enjoying the annotated readings from Marcy, you and others! [Thanks!]
      I’ve been looking through the live tweeting of the hearing and Marcy and Zoe Tillman expressed it this way:
      2:32 PM · Sep 29, 2020 [THREAD]

      Gleeson: SCOTUS itself put rule [48(a)] of court back in. DOJ position not just countertextual, but history flatly refutes it, put into rule precisely to empower court in rare case where prosecutors have abused discretion.
      2:35 PM · Sep 29, 2020 [THREAD]

      Gleeson argues that DOJ is entitled to a presumption of regularity in how it exercises its power to prosecute (or not), and the court should give deference to that, but it is not “blind deference.” He argues evidence of abuse of power pierces that presumption.

  3. noromo says:

    Completely OT and NAIAL (Neither Am I A Lawyer). (And I’m sipping 100 proof reposado.)

    I do like this site quite a lot, even though it often gets deep (deep) in the weeds, and regular posters and commentators are often obstreperous (you know who you are). It provides me some REALLY intelligent perspective on the shit show that has been the American Experience for the last 4 years — and especially the last weeks & months; as well as ammunition for when I’m sitting in a break room, and co-workers are yammering about what a fraud the election was. And I hold some optimism that Trump, et al., will be held responsible for … something.

    And yet … and yet…. Remember the end of “Raiders of the Lost Ark?” The Ark of the Covenant just disappears into a vast US government warehouse, never to be seen again.

    Please, convince me I’m wrong.

      • noromo says:

        Tinao, the main thing I take from that (and that is some evil stuff) is that Democrats and liberals and progressives are lousy propagandists. I don’t think I’m the 1st to have that opinion.

        Goebbels: “Good propaganda does not need to lie, indeed it may not lie.” But hasn’t the Republican propaganda, certainly since “…[G]overnment is the problem” Reagan, been nothing but a lie? On just about everything: deficits, taxes, economics, entitlements, health care, science, religion, etc.?

        • tinao says:

          Yes noromo, just like you can make statistic say anything you intend, and your reaguns quote is exactly why I used the 50 year mark! But, I would much rather be a lousy propagandist that speaks truth than a great self-serving propagandist any day of the week. Call me silly but I still see the motto hanging above the auditorium of my high school, ” The Truth Shall Set You Free.” I want to graduate from this planet and not have to come back here unless I choose to.

        • tinao says:

          And just one more thing noromo, you know what I would like to see…
          The complete corporate media pounding moscow mitch for being a state corporate queen. He has used a sanctioned russian to build a aluminum factory to tack together the votes for himself to the ignorant Kentucky voters. And hey, my husband was born in Kentucky. It is not that I hate Kentuckians, but I see how goebbles out they are.

        • tinao says:

          As well as a corporate queen. He is really the problem that stands trump up.His state takes more federal money from us hard working folks than any other state. FEDERAL TAXES FOLKS, FIND OUT WHERE THEY GO.

  4. Chris.EL says:

    Re: Noromo’s last request; how — for the love of god — how?
    A little off topic, Jar-i-Vanka’s purchase of $30 mil land in Miami is for new family compound since Mara-leak-o isn’t supposed to be used as a residence; well, maybe.
    In my humble opinion, lady Hillary probably would have been elected president [I’m a product of late 60’s/early 1970’s “women’s lib.”] were it not for her female gender! To me, the majority of US still not “ready” for female president. Kamala is beyond terrific; voters have too much adversity. FWIW that’s my take. **!!!LOVE TO BE PROVED WRONG!!!**
    Here is another *CIRCA 2016* WARNING ABOUT TRUMP! Save for 2023.
    From Wapo:

    What does “I do the RICO” mean? Color me dumb.

  5. John Paul Jones says:

    RICO = Racketeer Influenced and Corrupt Organizations act. Basically, it’s a statute designed to assist prosecutors in going after Mafia-style groups, but it’s been used against other groups engaged in similar acts. Not sure of the exact context of your quotation, but sounds like whoever said it might have been making an admission.

  6. Stew says:

    Trump, McConnell and Graham are demonstrable enemies of the constitution
    and should be treated as such
    perhaps hanged for sedition against the state
    that’s an entirely justifiable response to their behavior

Comments are closed.