In His Mike Flynn Opinion, Emmet Sullivan Made a Finding of Fact Against Billy Barr’s New Reality

I’ve been unpacking the Judge Emmet Sullivan opinion dismissing Mike Flynn’s guilty verdicts.

This post lays out how Sullivan asserts authority to refuse the government’s motion to dismiss Flynn’s prosecution, but does not do so, because the question is moot.

This post shows that Sullivan laid out evidence 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.

And this post notes that, before Sullivan started mooting the shit out of DOJ’s interest in his docket, he struck some documents that Sidney Powell had submitted to his docket because the government had not authenticated them, without at the same time striking another document that the government didn’t rely on but had not authenticated. It’s a tactical step, I think, that leaves everything else in his docket as authenticated, even though DOJ stopped short of standing by all those exhibits.

Before I get into what Sullivan says about Trump’s pardon power — which, make no mistake, Sullivan affirms as expansive — I’d like to lay out some findings of fact that Sullivan includes in this opinion. He includes a number of other findings of fact that are tangential to the question of a pardon but which Bill Barr and Donald Trump have staked a lot on. He does so, he explains, because the government has invited him to.

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 Foster v. 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.”).

The findings of fact Sullivan addresses primarily come in this paragraph on materiality… [my numbering throughout]

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” [1] the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it [2] relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, [3] extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

And this passage assessing the evidence that Flynn’s lies were lies.

[4] With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, [5] who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, [6] an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, [7] the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

In these passages, District Court Judge Emmet Sullivan finds as fact that:

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of Janaury 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

One way to think about this language is that Billy Barr attempted to create a new set of facts by submitting documents from the Jeffrey Jensen investigation to Sullivan’s docket and making false claims about them, thereby attempting to annul the set of facts that led DOJ (even DOJ under Bill Barr, repeatedly) to argue that Mike Flynn’s lies were serious. Judge Sullivan is having none of Billy Barr’s new reality, in significant part because DOJ has not explained what changed from its prior assertions of fact and partly because none of the claims it has made about the so-called new evidence refutes DOJ’s prior representations.

These findings of fact may have a more specific effect, though. Billy Barr has served up his different set of facts and based off those, John Durham is attempting to criminalize the decisions of the people that prosecuted Mike Flynn for telling the FBI material lies. DOJ generally has no basis to appeal Sullivan’s findings, because its position in the docket is (as Sullivan notes repeatedly) moot. But Durham has even less ability to contest Sullivan’s findings of fact; he has no standing.

So unless DOJ finds a way around the fact that they themselves have mooted any further involvement before Judge Sullivan, then, any further investigation into the circumstances of Flynn’s prosecution will have to contend with the fact that a judge has already found a number of key premises entertained by those pushing the investigation into the investigation to be false.

At least as of right now, it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

134 replies
  1. Peterr says:

    Sullivan demonstrates a gift for using the DOJs own words against their current posture in this case. The “you invited me to look at your evidence, and I’m just taking you up on your offer” that you cite above is but one example. The way in which Sullivan demolishes the notion of the “presumption of regularity” inside the DOJ is another.

    Sullivan is clearly laying the groundwork for something here. I don’t know what it is, and it may be nothing more than a shot across the bow of the next DOJ prosecutor who will enter his courtroom. But it also may be related to something else, and that ought to scare the pants off Bill Barr.

    • John Lehman says:

      …” that ought to scare the pants off Bill Barr.”

      Might that not be the judgement of history… and by extension, if you’re a believer,… the judgement of God.

      Thanks Marcy for the clarity, yet again, of your analysis for us and for future history books.

      • Rugger9 says:

        Maybe it is time for a post on who the AG ought to be. I saw Doug Jones as an option since he was just removed as AL’s Senator. I suspect he doesn’t have the Main Justice experience.

        Note that FDR appointed Joseph Kennedy to be SEC chair precisely because he knew how the stock market operated with all of the shenanigans. That’s why Main Justice experience should be necessary, since such a person would know how things ought to be in comparison to how DJT / AG Barr has defiled the DOJ.

        • Alan Charbonneau says:

          Yes, Doug Jones has been mentioned along with Merrick Garland.

          I like Jones, but I don’t know if senate experience makes for a better AG. But I do know that I was celebrating in 2018 the night he beat Roy Moore!

          • bmaz says:

            Oh, noooo. Jones spent four years as the United States Attorney for Northern Alabama, prosecuting huge cases like the Birmingham bombing case and Eric Rudolph. And has a fantastic record on civil rights above and beyond that. He would be fine. Adding, I would still prefer someone with DOJ Main experience such as Gupta or Rosenberg.

            • Norskeflamthrower says:

              “He (Jones) would be fine.” Really?? You just took a big hunk of the ache in my gut over Biden’s choice for AG. Does he have a base in the professional civil service in Justice, are any of ’em left there? If you are right, then I really am optimistic when thinking about Jones in Justice and Lloyd Austin at Defense. I know, I know…I’m not fond of military generals in charge of civilian administration of defense either but in this case I think it might be a really good move on Biden’s part. I wonder if Obama had anything to do with his choice.

              • bmaz says:

                Yeah, I dunno. Jones would not be my personal choice, but he is a very decent and honorable guy by all reports, and would serve well by everything I know. There are a lot worse choices.

                • Norskeflamthrower says:

                  Under the existing circumstances, the defense appointment my be the most important for the longevity of a Democratic administration…I’m all in on Jones.

                • DTK says:

                  The Real Estate Swindler will operate a government in exile, from Mara Lago. The next AG should have the expertise for the troubles to come.

        • AndTheSlithyToves says:

          One of my first posts here at Emptywheel was about the persecution | incarceration of former Alabama Governor Don Siegelman of Alabama, and Roger Shuler, who had his life trashed as a result of blogging about and supporting Siegelman throughout his ordeal, up until current day.

          Doug Jones was Siegelman’s lawyer and IMHO he was compromised by the Karl Rove | Alabama GOP machine, and did a great disservice to Siegelman and co-defendant, Richard Scrushy. Jones should not be AGOTUS.

          • Rugger9 says:

            That is one of the crimes of W’s administration, and one of the things Obama could have fixed but did not. Maybe Biden will do better.

            • AndTheSlithyToves says:

              Agreed that Siegelman, who probably could have been POTUS, was ultimately a victim of Ratf*cker Rove’s dirty tricks. One piece of gossip making the rounds during the post-W era was that Obama’s AG, Eric Holder, gave Rove a pass on testifying before Congress in testifying on the Siegelman case corruption in exchange for later GOP support for SCOTUS nominee Sotomayor.

              The wife-beating ex-judge in the case was Mark Fuller.

              You can bet Trump had “binders full of dirt” on Alabama politics and politicians…

      • Mitch Neher says:

        At 73, Judge Sullivan is only three years older than the current AG, What’s-His-Name.

        It is nice of you to consider Judge Sullivan’s feelings on the question, though.

      • Chris.EL says:

        Thank you for this assessment of these events; much is at stake and Judge Sullivan is clearly doing his best to — wait for it — “lay down the law”!!! Yay!

        Glad you mentioned the lifetime appointment! I’ve been afraid the *lame duck* prez — Donald — would get it into his messed-up brain to fire Sullivan.

        Trump’s a tricky ducky.
        What really bothers me about the image of Amy Coney Barrett (with lasers shooting from her eyes) is it seemingly serves to elevate her judge’s work and opinions to a level of a god. I value the separation of church and state; I value freedoms for each individual’s religion. Part of what makes Trump so abhorrent. …

  2. Rugger9 says:

    I’m wondering what this will do to Durham’s investigations if he gets around to getting after anyone other than Clinesmith. It would appear to me (IANAL) they and Clinesmith can argue with some chance of success that under the equal protection standard in the 14th Amendment they’re being treated differently solely based on personal political considerations. Since Judge Sullivan lays these claims out as the de facto Government standard then that precedent can be applied elsewhere.

    This of course assumes Durham charges anyone, which appears from prior work to be unlikely because there is no there there.

    • emptywheel says:

      I don’t think it helps Clinesmith’s equal protection challenge, though I think he’s got one anyway.
      I think, to the extent Durham’s investigation is premised on there being anything untoward about the Flynn investigation (and I think it is), it will have a far, far harder time pursuing any charges.

    • Troutwaxer says:

      I think the problem with Durham’s investigation is the very chilling message it sends to anyone in the government, which is that you can do your job and chase down some leads, just like the government asked you to. Then the next government (or the next boss) will chase you down and fuck you over. (Just for the record, I think it’s fine if the next government follows a different policy – that’s why we have elections – but going after the spear-carriers doesn’t send a good message at all.)

      • puzzled scottish person says:

        Hello me old trout (-mask replica).

        Call me old-fashioned, which I definitely am, but I think that is rather the point of having a civil service, i.e., public servants: people whose duty is to the public rather than the guy who pays their bills.


          • puzzled scottish person says:

            Um, what?

            Mind you, you did point to a potential flaw in my point.

            Yes, ultimately, the public pays the bills via taxation. (Unless, of course, you ban taxation and go full dog-eat-dog.) But individual especially rich members of the public don’t, or shouldn’t, be able to dictate government policy. Because then we have the current Bozza ‘chumocracy’. Which has not worked well for anybody other than Bozza’s chums.

            It’s on a par with watery bints handing out swords.

          • puzzled scottish person says:

            Crooning in a cave with a Pict and that dog from the Meddle LP (Seamus, I think) Skin up, somebody (takes me back to all those Roy Harper gigs) :-)

  3. sara mcintire says:

    Not a lawyer, so I am grateful for these explanations. What a group of miscreants we have at the helm. 42 more days.

  4. Molly Pitcher says:

    OT: according to Beast Inside of the Daily Beast,

    Russian Media Wants Moscow to Grant Asylum to Trump

    Russian state media—a reliable barometer of the mood at the Kremlin—remains fixated on election-related events in America. Affectionately referring to Donald Trump as “our Donald,” “Trumpusha” and “Comrade Trump,” Russian lawmakers, experts and pundits repeatedly have expressed their concerns about the future of Moscow’s all-time favorite U.S. president.

    Co-host of Russian state TV news talk show 60 Minutes Olga Skabeeva brought up the possibility that President Trump would end up seeking asylum in Russia to escape any prosecutions in the United States following the conclusion of his sole presidential term. Skabeeva emphasized that this was by no means a joking matter: “It’s all very serious,” she said, as she pondered out loud about the nature of criminal charges Trump might soon be facing.

    • puzzled scottish person says:

      I’m picturing Alec Guinness as Smiley, leading The Donald over that bridge.

      Sadly, he won’t go. His ego won’t let him. He won, you know. It’s only your lying eyes that are telling you otherwise.

      • LeeNLP says:

        I wonder. I suspect he wants a safe haven to set up his government in exile. I so hope Biden doesn’t stand in the way of full and fair investigation.

    • Peterr says:

      This could also be Putin’s way of turning up the heat on Trump, to get him to follow through on whatever Putin would like to happen before January 20.

      The overall effect of this Russian media coverage could be to send this message to Trump: “Donald, you’re in deep trouble over there in the US, in so many ways. It’s unjust and you will be railroaded, but you’re on your way out and you won’t have power to protect yourself after January 20th. Face it, Donald, you need a powerful friend, someone who appreciates all you’ve done and can protect you from these unscrupulous Democrats. You need someone like me. But first, I’d I would like you to do us a favor though . . .”

      • Molly Pitcher says:

        I was very chilled by the end of the article when they quote “Deputy Speaker of the Russian State Duma (lower chamber of parliament) Pyotr Tolstoy [responding] with an ominous threat: “We’re going to use their computers to make sure that people like Biden and his entire team will never again imagine that they have the right to world domination. We will unquestionably demonstrate it to them in years to come. Just wait and see.” ”

        Especially in light of the fact that yesterday, Fireeye stated that they had been hacked by the Russians.

        From the NYT:

        “FireEye revealed on Tuesday that its own systems were pierced by what it called “a nation with top-tier offensive capabilities.” The company said hackers used “novel techniques” to make off with its own tool kit, which could be useful in mounting new attacks around the world.”

        If you want to really scare yourself, read the whole article.

      • Norskeflamthrower says:

        I have been thinkin’ that if the Dumpster is really worried that he can’t slither out from under legal consequences of his treasonous tyranny or that the Republican Party won’t help him that he would end up in Moscow. I’m hopping he does.

        • MattyG says:

          Not that it’s terribly original but I’ve been gleefully predicting he flees to a dacha in the East ever since 2016 when it was clear he was working on the Kremlin’s dime. I had elaborate notions of a crack Russian seal team extracting him and fam from the water hazard at the Mar-a-Lago back nine (a waiting mini sub hidden in the reads) and hustled off to the trusty disguised Russian “trawler” quietly circling offshore.

          However now that DT has so clearly “proven” that he won the election he can leave for Moscow, or the Caspian or Baku or whereever, head held high General McArthur style confident in his inevitable triumphal return.

          The main purpose of this sustained and otherworldy court election challenge was to build up his private emotional edifice that he won – specifically so he *could* leave the country strutting not slinking. And at this point if the Kremln does offer him asylum he probably be a fool not to accept – what great theater!

            • MattyG says:

              Yep I messed up there. Baku is on the Caspian Sea so it didn’t bear repeating. Black Sea is “what I meant”…

          • Ginevra diBenci says:

            The main purpose of Trump’s anarchist attack on democracy? Money. Same as it ever was. He’s raked in hundreds of millions in little over a month with this pyramid scheme of chimeras, with Those Who Know Better puppetized by their fear of those who know nothing–nothing but what “your favorite president, Me!” tells them.

            • MattyG says:

              It’s absolutely true he made bank on this post election fraud. But he’s driven by deeper seated emotional needs. At this point he craves to see the other GOP that won their elections get knocked off their perch. His followers would go for the same things since their association to the GOP is similar to that of DT, and they are willing to throw money at DT if it reinforces their own self image.

              If DT can contrive a way to walk away from all this without being forced to recognize Moscow Mitch is in control the world in DTs mind can be more easily reconciled. He makes up a world to conform to these self images – it’s even stronger than money – though making money reinforces his make believe world plenty good. His election loss overturned the made emotional world he is slave to.

    • Alan Charbonneau says:

      “Co-host of Russian state TV news talk show 60 Minutes Olga Skabeeva brought up the possibility that President Trump would end up seeking asylum in Russia to escape any prosecutions in the United States…”

      Her and half the people on Twitter are having this conversation.

    • Stacey says:

      Donald is of no use to Putin/Russian oligarchs IN Russia. They need him outside of Russia, because that’s where the laundry mat is! To think that Russia’s ‘love for Trump’ will result in any more protection or loyalty TO Trump than he would give any of his sycophants is not paying attention!

      I would love for the Secret Service to help stage a fake flight to Russia days before the end of his term, making him think that’s where he’s going! I’d laugh my ass off to see that show!

      • subtropolis says:

        They needn’t do it out of loyalty. Providing him with asylum would, of course, come with a price: continuing to be of use to Russia. He could be the Lord Haw Haw of the 21st century, rolled out now and again to repeat the talking points put before him. Even appearing on his very own show on state tv, perhaps.

        He could live in style, spending his days golfing and receiving guests. Just as long as he faithfully follows the script, which wouldn’t be such a stretch. He has no allegiance to America. And, after all, we’re talking about his flight from Justice. Under those circumstances, he’d have no reason to hold back from shitting on the US.

        He could cause a great deal of damage, undermining the government at every turn, both domestically and around the world. The Q Believers would hang on his every “drop” and the Russians could find all kinds of obscure things for him to weigh in on.

        No, not loyalty; usefulness. He’s the perfect idiot.

  5. John Forde says:

    My guess for Trump’s exile is the Persian Gulf. Maybe Dubai? He can characterize it as an extended business trip. Various countries will put him on a financial retainer and let him whimsy about US secrets. He will think he’s safe from selling secrets because it’s not a quid pro quo – it’s a retainer!
    I don’t know much about Russian golf courses. I suspect they are not attractive.

    • graham firchlis says:

      Trump Tower, Resort and Spa, Sochi.

      There are no golf courses in Sochi, opportunity abounds. Gambling recently approved, big investment happening, reports are the Agalarovs are interested in replicating their world class Moscow golf resort. Putin has a new Sochi getaway. Trump can safely squat, while the world’s glitterati come to him – under Putin’s wing.

  6. Richard Spruill says:

    As per Mr. trump, it reminds me of many a late night when the bright lites came on, ” You don’t have to go home, but you can’t stay here.”

  7. DTK says:

    The Real Estate Swindler will operate a government in exile, from Mara Lago. The next AG should have the expertise for the troubles to come.

    • rosalind says:

      ha! i’ve just begun reading “Clanlands: Whisky, Warfare, and Scottish Adventure Like No Other” by Outlander actors Sam Heughan and Graham McTavish. this morning’s chapter was their 9am whisky tasting at Clachaig Inn. their favorite: the Speyside.

  8. earlofhuntingdon says:

    Joe Biden seems determined not to let a single former colleague or Obama official go to waste. As one wag put it, “trading favors and snap judgments” seems to be the order of the day. Meanwhile, whole farm teams languish, as players remain in minor leagues of their own.

    Rewarding old pals, now lobbyists, and returning to some mythical normal is old school and old hat. It will not get us out of the hole Covid, Trump, and the GOP have put us in. It will not energize and empower the people who put and would help keep Joe Biden in that office. It won’t bring in the votes in Georgia, where two Senate run-offs will decide whether a Biden agenda gets a jump start or dies on the vine.

    Personnel is policy. It also defines hope. Reverting to some past happy time might feel comfy, but it’s a poppy field full of broken bones and broken dreams. We need more, we expect more, we demand more from Joe Biden and Kamala Harris.

    • bmaz says:

      But, hey, when everything, in all facets of governance, has been either intentionally, or recklessly, sabotaged, who better to return a baseline normalcy? It is NOT rookies that don’t know anything. Forge the foundation for the change after reclaiming some semblance of normalcy.

      • earlofhuntingdon says:

        Absolutely. Reinforce the establishment, shut out agents of change. Having reinstated old white power brokers to defend [Tara] the status quo ante, expect them to give up a smidgen of power and accept changes that might affect their status and pocketbooks.

        What could go wrong with that? To rephrase Shakespeare, “First thing we do, is hire all the lawyers.”

        • bmaz says:

          Fix it first, then improve it. And people that do not know jack shit cannot do that. Sometimes it takes actual knowledge of the bureaucracy to do that. And, yes Mr. Shakespeare, that is why lawyers are around.

          • earlofhuntingdon says:

            The civil rights movement would suggests that incrementalism is overrated. But I’ll avoid references to three-headed dogs and Shakespeare from now on.

            Seeking change and knowing what you’re doing are not mutually exclusive traits. Nor are knowing what you’re doing and preserving a lucrative status quo. Mr. Vilsack and his many companions fit the latter framework.

        • earlofhuntingdon says:

          Sure, let’s waste no time getting the crazy drunk out from behind the wheel and putting a competent driver in his place.

          But if you look around the house, you’ll probably see that fixes, like road repairs, tend to stay the way they’re fixed. After that, the steam pressuring for change goes cold.

          • subtropolis says:

            We’re far beyond simply needing to improve infrastructure. These assholes have done a very great deal of damage that must be sorted out immediately. I’ll take the veterans.

    • Chris.EL says:

      off topic — been watching “Charlie Wilson’s War” and being disappointed by the efforts of so many that resulted in, ultimately, what we have today.

      The story mentions that Texas representative Charlie Wilson was under investigation for 18 months by SDNY attorney Rudolph Giuliani — an investigation that proffered no indictments against Charlie Wilson.

      History repeats, doesn’t it?
      Curious — what is procedure a foreign country follows to establish an embassy in the US of A? Asking for a comrade.

  9. earlofhuntingdon says:

    Her politics aside, which I find too centrist, Dianne Feinstein is Not facing “age concerns,” the framing chosen by Jane Mayer and Igor Derysh. She is facing concerns about her alleged dementia.

  10. harpie says:

    Wow. Things are really moving fast over at the SCOTUS docket wrt Texas/GOP attempt to disenfranchise the voters of four states.

      • Eureka says:

        I like how you put that, “harsh. And necessary.” [Popehat is SeditiousAbuseHat for the moment.]

        On one hand I am thankful and proud to be so represented; on the other … it’s only by the grace of prior elections (and honest electeds/judges) that it’s going down this way.

        As a general consequence of all of these suits (and all the ways they’ve exposed ratfucking opportunities thru various officeholders), they might be able to use the ghost of Trump to GOTV downballot to set up an even more harrowing 2024 (and interim). [LOL at imagining a civilized version of N-dimensional chess, when they’ve got (the threat of) coercive violence to rely on*.]

        What ever will we do?

        *this example was telling and probably applies widely:

        Trip Gabriel: “PA’s @SenatorKimWard’s acknowledgment of the rabid GOP base’s vice-grip on elected Rs reaches French readers >”


        Corentin Sellin: “”Si je vous disais que je ne signerais pas , il y aurait 1 bombe déposée chez moi ce soir.” Kim Ward, cheffe de la majorité républicaine du Sénat de #Pennsylvanie sur son soutien à la lettre pro-#Trump aux élus de l’Etat contre les grands électeurs #Biden. [links to The Hill, a secondary source of Gabriel’s NYT piece, but with an incendiary (in the) title]” [thread with French people talking about us]

        En anglais:

        Even in Defeat, Trump Tightens Grip on State G.O.P. Lawmakers

        Kim Ward, the Republican majority leader of the Pennsylvania Senate, said the president had called her to declare there was fraud in the voting. But she said she had not been shown the letter to Congress, which was pulled together hastily, before its release.

        Asked if she would have signed it, she indicated that the Republican base expected party leaders to back up Mr. Trump’s claims — or to face its wrath.

        “If I would say to you, ‘I don’t want to do it,’” she said about signing the letter, “I’d get my house bombed tonight.”

          • Eureka says:

            Indeed, as well as a failure to confront it more appropriately — like with law enforcement resources, refusing to enable, saying NO — instead of giving them perpetual power by anticipating their reactions with accommodation. Hard to pinpoint when the refusal to say NO to narcissist Trump escalated into what seems like an impossible thicket of forward-feedback with his fans (especially when we can see at each stage, in realtime, when ‘enough is enough’ would have stopped the bloodletting), but here we are. “Very fine people, on both sides” seems quaint by comparison.

            For posterity it should be noted that Ward did join a nutter amicus brief for Texas v.– America (“Motion of Certain Select Pennsylvania State Senators…” docketed on Dec 10th, a day after that NYT story published).

    • harpie says:

      Entities who have filed briefs SUPPORTING Texas, so far:

      1] Christian Family Coalition
      2] Leaders of the Pennsylvania Assembly
      3] 106 members of Congress
      4] Various state officials in Alaska, Arizona and Idaho

      • harpie says:

        Also in this category:
        12:45 PM · Dec 10, 2020

        These states’ Republican AGs have decided that yesterday’s amicus brief wasn’t enough. They just filed a motion to intervene directly in the case:

        To clarify: The AGs of Arkansas, Louisiana, Mississippi, Missouri, South Carolina, and Utah just asked SCOTUS to intervene directly in the case. The represent six of the 18 states asking SCOTUS to nullify every vote cast in Georgia, Michigan, Pennsylvania, and Wisconsin
        12:51 PM · Dec 10, 2020

        6 of the states that joined an amicus brief in support of Texas’s overturn-the-election #SCOTUS suit are now seeking to intervene *as parties*: [link]

        This intervention motion—like Trump’s—underscores why *Texas* has no unique interest (and, thus, no standing).

      • P J Evans says:

        I feel like any elected official supporting this suit should face recall or expulsion, because it’s clearly violating the Constitutions and laws they swore to uphold. Ongoing members of Congress definitely should – and they really ought to face questioning as to why they should be seated, given that they want to overthrow the Constitution.

          • Eureka says:

            I haven’t seen an analysis of these reps w/districts representing ~ < 1/4-ish of the population (though elected with a still-lesser proportion of the pop in votes), but boy that would be helpful in identifying (just maybe) some way out of this mess. It's bad and I don't want to minimize, but what's different about those reps (and their districts) who _didn't_ sign?

      • harpie says:

        The 106 Congress members:

        Due in large part to those usurpations, the election of 2020 has been riddled with an unprecedented number of serious allegations of fraud and irregularities. National polls indicate a large percentage of Americans now have serious doubts about not just the outcome of the presidential contest, but also the future reliability of our election system itself. Amici respectfully aver it is the solemn duty of this Court to provide an objective review of these anomalies and to determine for the people if indeed the Constitution has been followed and the rule of law maintained.

      • P J Evans says:

        There are six or seven people I’m reading on legal twitter – he’s one of them. Vladeck is another.

  11. madwand says:

    As far as this Texas lawsuit against the four battleground states is there anyone else besides me that senses danger out there? I have to believe that if SCOTUS does anything but dismiss this suit for the bs it is, a two liner, denying the injunction, people will be in the streets like we have never experienced before. Could SCOTUS be that stupid.

    • P J Evans says:

      Additional lines sanctioning the lawyers who put it together would be nice, though not expected.
      I know it’s too much to hope for, but an opinion from RBG magically appearing on desks would be welcome.

      • madwand says:

        Marc Elias on MSNBC doesn’t think the suit stands a chance, he’s taken back, however, by how many state AGs and congress people are willing to go down this road, to effectively destroy the Republic. Many are joining the suits because Trump is kicking ass and taking names, not surprising. Here in Georgia they are closing some voting precincts in counties that went for Biden and there is a lot of pushback about that.

        Georgia is acting essentially two faced, on the one hand they are opposing the Texas lawsuit while making voting in the upcoming special election more difficult. It looks to me that one way or the other Georgia is still in the disenfranchise business.

    • harpie says:

      I’m re-reading this:

      How Shelby County v. Holder Broke America
      In the five years since the landmark decision, the Supreme Court has set the stage for a new era of white hegemony.
      VANN R. NEWKIRK II JULY 10, 2018

      […] [Thurgood] Marshall never truly got the Court he wanted. But his vision did help pull the body into its modern role as an institutional check on white power. Last month, however, the Supreme Court finally closed the book on that vision. Just five years after the landmark Shelby County v. Holder decision, it’s become clear that the decision has handed the country an era of renewed white racial hegemony. And we’ve only just begun. […]

      For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.

      • harpie says:

        Two different views of the
        Court’s duty to protect voting rights in Shelby v. Holder

        ROBERTS [DECISION]: Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.

        Ruth Bader GINSBURG [DISSENT]: throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

      • harpie says:

        And this paragraph brings us right back around to the TEXAS et al CRAP that’s going on right now:

        […] The contrast between these two different views of the Court’s duty to protect voting rights took a back seat to considerations over the practical effects of the decision. After all, why the Supreme Court invalidated the preclearance coverage formula, or what that means for future voting-rights-related decisions, hasn’t mattered much.

        It hasn’t even mattered that the decision was technically limited, not rejecting the concept of preclearance at all, but sending the matter back to Congress to come up with new criteria.

        What has mattered in the proliferation of a test round of new laws that make voting more difficult is that Congress currently does not wish to do so. There is functionally now no preemptive federal oversight of state and local voting laws. This will likely be the status quo for the foreseeable future. […]

      • harpie says:

        TEXAS et al are SCARED
        of KAMALA HARRIS becoming VICE President:

        From the lawsuit:

        […] While Americans likely care more about who is elected President, the States have a distinct interest in who is elected Vice President and thus who can cast the tie-breaking vote in the Senate. Through that interest, States suffer an Article III injury when another State violates federal law to affect the outcome of a presidential election. This injury is particularly acute in 2020, where a Senate majority often will hang on the Vice-President’s tie-breaking vote because of the nearly equal – and, depending on the outcome of Georgia run-off elections in January, possibly equal – balance between political parties. Quite simply, it is vitally important to the States who becomes Vice President. […]

        • harpie says:

          And now we get to TRUMP’s intervention:

          4:17 PM · Dec 9, 2020

          Trump’s lawyer on the brief is John C. Eastman, who wrote the infamous editorial about VP-elect Kamala Harris’s eligibility denounced widely as birtherism. [link]

          4:33 PM · Dec 9, 2020

          Trump has filed to intervene in Texas’ attempt to overturn the US election. But who REALLY wrote his lawsuit? Let’s find out. [link] […]

          According to the metadata, Trump’s legal intervention wasn’t written by John Eastman, the Counsel of Record. It was written by someone else: Lawrence Joseph.

          Who is Lawrence Joseph? Well, he’s one of the lawyers in the original Texas complaint, listed as the “Special Counsel to the Attorney General of Texas”.

          The metadata of the Texas SCOTUS complaint itself also features Lawrence Joseph, alongside Aaron Reitz, the Texas Deputy AG who was just promoted into his job two weeks ago.

          I suspect that he’s Larry Joseph, a DC-based conservative lawyer [who] has backed Trump at the Supreme Court before, filing an Amicus in Trump v Vance on behalf of conservative lobby group “Eagle Forum Education & Legal Defense Fund” […]

          Anyway, perhaps it’s fairly typical for the filings from plaintiffs and amici to be actually written by the same lawyer? So maybe this isn’t nefarious, I don’t know. But it’s interesting anyway. […]

    • harpie says:
      6:37 PM · Dec 11, 2020

      BREAKING: The US Supreme Court has rejected Texas’s last-dtich effort to challenge President-elect Joe Biden’s win in four key states. More to come. [screenshot]

      SCOTUS hands a decisive loss to Texas and dashes Trump’s hopes of a high court showdown in just three sentences, including: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” [LINK]

      • harpie says:

        The Supreme Court Rejected Texas’s Last-Ditch Legal Challenge To Biden’s Win
        The justices found that Texas lacked standing to sue other states that President-elect Joe Biden won.
        Zoe Tillman December 11, 2020, at 6:36 p.m. ET

        The US Supreme Court on Friday rejected Texas’s unprecedented last-ditch effort to challenge President-elect Joe Biden’s win in Pennsylvania, Michigan, Georgia, and Wisconsin by suing those four states in the high court.

        At least a majority of the justices concluded that Texas lacked standing to bring the case at all, a threshold the state had to clear before the case could go any further.

        “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in the brief order. /

        • harpie says:


          The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

          Statement of Justice Alito, with whom Justice Thomas joins:
          In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

  12. earlofhuntingdon says:

    The Patriots v. Rams game is boring. So back to Joe Biden’s nominations. Denis McDonough to run the VA, for example. He’s reasonably well-credentialed, but not stellar. A 51-year old white guy, he’s never held elected office or run a government agency. He’s not a vet, never wore the uniform, never spent time in a veteran’s facility, hospital or otherwise. He’s a top staffer and friendly guy known to Obama and Joe.

    This is a gross mismatch between talent and requirements. It’s a demonstrably wasted opportunity, and a sign of exhaustion and mental fatigue. That’s not fixin’ the problem first, then working toward responsive change. It’s kicking the can down the road because serious attention to change would distract from the president’s agenda.

    • Eureka says:

      EW rt’d a great, receipt-laden thread on the NYT-mediated whisper campaign against the overwhelmingly qualified and indigenous-supported Deb Haaland for Interior.

      Unnamed Biden advisors say she lacks experience (coffee-spew relative to other floated noms for other positions, McDonough included); their chatter suggests that they must have someone else, with different “qualifications”, in mind.

      • earlofhuntingdon says:

        The big money boyz must be ladling out the cash. They are too used to Interior being their natural resources piggy bank to accept a Native American having control of it.

        This will be taking auspices. Will the gods – and Biden – favor courtiers of capital, or those from whom they take their capital? The answer will define his administration and the chances for recovery and progress.

  13. Eureka says:

    Mike Balsamo: “#BrandonBernard’s execution is expected to begin momentarily. The next word we’ll hear likely will be a time of death once the media witnesses return to the media center.”
    9:09 PM · Dec 10, 2020

    From earlier, thread w Sotomayor’s dissent:

    Jordan Rubin: “NEW: a divided SCOTUS denies execution stay for Brandon Bernard. He’ll be the ninth federal inmate executed this year and the second of the lame-duck period. The next federal execution, Alfred Bourgeois, is scheduled for tomorrow. [screenshots; thread later links doc]”
    8:31 PM · Dec 10, 2020

    • Eureka says:

      Liliana Segura: “The crowd is still at the Dollar General, awaiting word on the execution. One activist who has been here every time is @AbolitionAshley, pictured with the RBG sign. She became close to Christopher Vialva before he was executed. [photos incl RBG sign: “If I were queen, there would be no death penalty”]”
      9:25 PM · Dec 10, 2020

      […ongoing thread…]

      “Email just came through from the BOP: “Please report back to the Media Center at this time if you choose to.” Brandon Bernard has been executed.”
      9:29 PM · Dec 10, 2020

      • Eureka says:

        I just got chills from your likening of the executions to *his* Advent calendar. Chills, so aptly said. You nailed him to his cross.

      • earlofhuntingdon says:

        I wonder what he’ll do with the tip of his sword when he no longer needs it. Perhaps he’ll loan it out for Constantine II.

  14. madwand says:

    It seems this morning the ball is still in SCOTUS’s court, I’m wondering if the recently appointed Justices are on Trumps speed dial? According to CNN the justices have three things to consider.

    “At the core they have to decide how to handle three requests from Paxton: He wants them to temporarily block election results in the four states, consider his case on an expedited time frame and agree to let him bring the case.”

    Trumps take “During a Hanukkah party at the White House on Wednesday night, Trump told guests that with the help of “certain very important people — if they have wisdom and if they have courage — we’re going to win this election.”

    Wisdom and courage to do the absolutely wrong thing, wow.

  15. Eureka says:

    Welp, here’s something I wish I could unread (in re wtf is Biden admin thinking, part Z:)

    Rachel Barkow: “Hard to imagine a worse Democratic pick for AG than Cuomo if you care about criminal justice issues. This would be awful. Maybe his name is being thrown out to make the others look like reformers by comparison?”
    7:54 PM · Dec 11, 2020


    The Associated Press: “New York Gov. Andrew Cuomo is being considered for attorney general by President-elect Biden, a source with knowledge of the search says, with Alabama Sen. Doug Jones, Judge Merrick Garland and former Deputy AG Sally Yates also on the list. [link]”

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