Russiagate: Judge Sullivan Strikes Back

Yesterday was the due date for Judge Sullivan (and a taxpayer funded team of high powered lawyers) to respond to the Appeals Courts demands that he explain WTF he is doing with the Flynn case in asking for amicus curiae briefs, and appointing a lawfare friendly judge friend to step in as the prosecutor as the DOJ declines to prosecute and asks for a dismissal with prejudice. Judge Sullivan did not fail to disappoint. Ace: RedState Legal Analyst "Shipwreckedcrew:" Emmit Sullivan's Response to the Court of Appeals Is Deranged, Doesn't Cite Any Authority for His Actions, Just Tells Them To Let Him Do Whatever He Wants

Emmet Sullivan has submitted the reply he used taxpayer funds to pay a high-price lawyer to write for him. You can read it here.

I'm sure the Twitter Circle-Jerk of Experts will tell us what a tremendous piece of lawyering Sullivan has submitted.Making my way through the Sullivan filing.

30,000 Foot Observation and why I think this is not a serious effort to prevail:
1. The Cir. Ct. did not ask for an explanation from Sullivan because they were intrigued by his approach and the just wanted to know more about it.

That is: the Circuit Court was not asking him, "Hey, buddy, this is interesting, can you tell us more?!"

They were saying: DEFEND YOUR ACTIONS. CITE LAWS. SHOW YOUR WORK.

As we'll see, Sullivan decided he couldn't defend his actions and so decided to ignore the orders of the court. . .

At Red State, "Bonchie" writes  Judge Sullivan Delivers Response in Flynn Case and It’s Something

Judge Emmet Sullivan has delivered his response in the Michael Flynn case to the writ of mandamus. He tapped an outside attorney to make his case for him, something that is apparently highly unusual under these circumstances, where both parties are asking for a dismissal after new evidence of FBI malfeasance came to light. If this judge can’t make his own arguments and decisions, why is he on the case?

Undercover Huber broke down much of what’s in it earlier today. I’m not a lawyer and won’t play one, but there’s a lot in here that strikes me as ridiculous.

“Judge Sullivan’s” response to the writ of mandamus is such ba embarrassment, it’s no wonder he didn’t write it or even sign it (his new lawyer Beth Wilkinson did)

THREAD

— Undercover Huber (@JohnWHuber) June 1, 2020

Politico, cited by Drudge, is much more politic in DOJ urges appeals court to force dismissal of Flynn case. WaPoo gets their opinion into their headline, Judge Sullivan says he is not required to ‘rubber stamp’ DOJ’s bid to dismiss Flynn case

U.S. District Judge Emmet G. Sullivan should not be required to act as a “mere rubber stamp” for the government’s unusual move to undo the guilty plea of President Trump’s former national security adviser Michael Flynn, the judge’s lawyers told a federal appeals court in Washington on Monday.

Sullivan’s attorneys asked the appeals court to stay on the sidelines to give the judge an opportunity to ensure the “integrity of the judicial process” and to rule on the Justice Department’s request to dismiss Flynn’s case.

The judge must evaluate Flynn’s dramatically different claims, Sullivan’s lawyer Beth Wilkinson told the court: “What, if anything, should Judge Sullivan do about Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty?”

The filing from Sullivan, defending his investigation into the Justice Department’s reversal, is the latest development in the extraordinary case. It comes after Flynn’s lawyers asked the U.S. Court of Appeals for the D.C. Circuit to immediately order Sullivan to get rid of the matter and accused him of bias.

Sundance got not one, not two, but three posts out of it, featuring Judges response in Flynn Judge’s Lawyer Files Response to District Court – Says Flynn Can Defend Himself Against Independent Accusations By Court…

The hired lawyer for Judge Emmet Sullivan has filed a response to the DC District Court order in the case against Michael Flynn. [pdf available here] The DC district court ordered Sullivan to explain why he would not allow DOJ to drop charges against Flynn; the response by Sullivan’s lawyers says the DOJ position is essentially a moot issue, and Flynn can defend himself against independent accusations by the court.

The premise of Judge Sullivan to act as both prosecutor, judge and jury is ridiculous. Additionally, Sullivan now claims Flynn must defend himself against claims of unlawful lobbying for Turkey that were never a substantive part of the original DOJ filing before the court.

A second from the governments quick response, U.S. Solicitor General Noel Francisco Responds to DC District Court – Refutes Arguments Presented by Flynn Judge Emmet Sullivan…

The DOJ has responded to the DC District Court invitation to file a brief in support of intervention by the appellate court. [pdf available here] In an unusual move the response from the Department of Justice comes directly from the office of the United States Solicitor General, Noel Francisco.

The DOJ points out the Judge has no standing to violate Article II and Article III of the U.S. Constitution in an effort to anoint himself as prosecutor, judge and jury of a criminal case outside of his judicial authority. “The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” Francisco argues.

Additionally, rules of criminal procedure “do not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading would violate both Article II and Article III” the DOJ writes.

And finally, Flynn’s Attorney, Sidney Powell, Responds to Latest Brief by Judge Emmet Sullivan…



At the Sunrise Cafe, Bruce Hayden, one of the commentators at Althouse

I thought that the government’s brief in favor of dismissing the case against Gen Flynn was impressive. I don’t think that he DC Circuit panel that asked for a response by the government ever expected a brief signed by the Solicitor General, several of his top assistants, as well as the acting USA and his top staff. This means that it wasn’t just the voice of rogue AUSAs, as was the case when the case was originally filed and was prosecuted until just recently, but by the DOJ itself. They are speaking for AG Barr, himself. And the importance here is that the brief argues that Sullivan is violating both Articles II and III by his attempt to bring in essentially his own prosecutor. This is the Department of Justice asserting its Constitutional supremacy in charging and dismissing criminal cases. They are asserting the DOJ’s, and therefore the President’s, power under the Constitution about as blatantly and visibly as they can. My expectation is that te only question for the Writ of Mandamus is whether the panel votes 2-1 or unanimously with the sole Democrat signing with the two Republicans.

For those watching AG Barr’s attempts to clean up the DOJ, I think that this is a strong sign that he is very serious about it, and isn’t just going trough the motions. He is trying to right an egregious wrong, propagated by elements of his department hostile to the president, who have thus operated extra Constitutionally. Notably, (corrupt, highly partisan) former lead prosecutor Brandon Van Grack was apparently summarily removed by the DOJ from all of his current cases, when he was removed from this case. That is the sort of extraordinary staffing move made only when egregious wrongdoing on the part of a prosecutor is discovered that is likely to affect all of his cases active in court.

Getting back to the brief. I noted that it asserted that Judge Sullivan was trying to violate both Articles II and III. I essentially alluded to the Article II argument. The decision whether or not to prosecute is a core Article Executive power, and also implicates the President’s Pardon power. The Article III argument is that for the most part the Judiciary Is limited to Cases and Controversies. Once there is no controversy, the district court has no Constitutional power to hear (or continue to hear) the case. It no longer has jurisdiction. And once the two parties to this case (Flynn and the government) agree that dismissal (with prejudice) is proper, there. Is no longer a controversy. (The courts can interfere in rare cases in order to prevent injustice to a defendant through repeated prosecution for the same crime, but that is impossible in this case with the motion to dismiss being with prejudice).

 Residual Flynn, Nice Deb at AmGreat, Newly Released Transcripts of Flynn/Kislyak Phone Calls Show Nothing Nefarious, Lloyd Billingsley at Front Page, Flynn Transcripts Tell the Truth and The left’s response to the Flynn-Kislyak transcripts shows a monarchal mindset by Andrea Widburg at AmThink,

The difference between the FBI and DOJ charges against Flynn and the revelations contained in the released transcripts, especially when read together with the Form 302 that was the best that Peter Strzok and Lisa Page could create, vindicates Flynn. Not only was he innocent of the charges, but the transcript also shows a man trying to prevent Russia from hurting America in response to Obama’s last-ditch effort to sow dissent between America and Russia.

(It would take a whole book to discuss the “why” of Obama’s efforts. Suffice to say that he was probably trying to force a phone call between Kislyak and Flynn because he was already spying on Kislyak and could, therefore, get to Flynn without an unmasking. The need to go after Flynn was part of a broader Obama administration effort to hide the fact that it had used the government’s intelligence apparatus to spy on and attempt to destroy an opposition presidential candidate and eventual president-elect.)

What’s both fascinating and frightful is to read how the left views the Flynn transcripts. Rather than seeing Flynn as a man who was set up by the Obama administration and the intelligence apparatus to destroy Flynn and, by extension, the president-elect he was set to serve, they see treason.

This is treason of an old-fashioned kind, however. Although leftists pay vague lip-service to the notion that Flynn was working against America, the gist of their position is that Flynn was working against Obama’s policies. For them, Obama has transmuted into a monarch so that any disagreement with him is treason.

Chuck Ross at Da Caller takes note of the cleaning at the Top FBI Lawyer Who Authorized Carter Page Surveillance Is Forced To Resign and Schumer Calls On GOP To Cancel ‘Conspiracy’ Hearings On Origins Of Trump-Russia Probe. After 3.5 years of a taxpayer funded conspiracy theory generated by Democrats.

And finally, Monica Showalter at AmThink thinks the Bell is tolling for FBI Director Christopher Wray?

Huber, who is believed to be some knowledgable U.S. attorney somewhere who knows how things work, is a popular source on Twitter for sorting out deep-state messaging. He thinks the bell is tolling, or maybe the seat is on fire for Wray, based on the firing of Sally Yates' successor, FBI chief legal counsel Dana Boente, a longtime government lawyer who was brought in to help clean up after Yates. According to Conservative Treehouse, which has a deep dive into the matter:

Finally, the DOJ has moved to remove one of the biggest background corrupt officials within the FBI. According to multiple media sources FBI chief legal counsel Dana Boente was forced to resign on Friday. Finally, sunlight has removed a very corrupt player.
In prior positions as U.S. Attorney for Virginia; and while leading the DOJ National Security Division; and then later shifting to the FBI as chief legal counsel under Chris Wray; Dana Boente was at the epicenter of corrupt intent and malign activity toward the Trump administration.

It's long and complicated, but the picture isn't a pretty one. The short story is that whenever investigators tried to get to the bottom of FISA abuse and White House spying on the Trump administration - and always seemed to run into roadblocks, lost documents or other administrative-state and dog-ate-my-homework excuses, Boente was involved.

Recent documents have left him exposed, and now there's no excuse to keep him. It's also bad news for Wray, who has had him as his right-hand man . . .

I wouldn't be upset.