Wednesday, June 3, 2020

Russiagate: Sullivan Pushback Resisted

"Shipwreckedcrew" at Red State put down the twitter long enough to write an essay on just how bad Judge Sullivan's response to the appeals court demanding he explain his incomprehensible decision to resist dismissing the charges against Gen. Flynn: The Filing by Judge Sullivan With The Circuit Court Is A Joke.
More than anything else, the submission seeks to retain what Judge Sullivan believes are the prerogatives of the District Court, which is to get the first crack at writing whatever it is he feels entitled to write about Gen. Flynn and the DOJ motion, and once he’s done the Circuit Court can grade his work. Until then, Judge Sullivan seems to be saying “Butt out!!”

I’m not going to cover the ground already well-worn by others and give you a full “briefing” on the arguments made by Wilkinson on Judge Sullivan’s behalf. I will refer to the DOJ brief filed several hours after Judge Sullivan’s submission where warranted, but I’m not going to take on an analysis of that brief here – that’s a separate task that will require some effort because that brief is a serious piece of legal analysis that simply sweeps the board of all the pieces Judge Sullivan and the left-wing Anti-Trump/Flynn pundits think are in play.

Instead, I’m going to simply go to some key points in the Sullivan filing – key because they are so outrageous and unsupported by authority – and point out the issues as I see them.

First – and this really surprised me – Wilkinson made a blatant mis-statement of fact on P.1 when she baldly claimed that Judge Sullivan had found the “false statements” made by Gen. Flynn to the FBI were “material.” I wrote a lengthy earlier article on this topic, and I encourage you to read it if you want a more comprehensive analysis.
. . .
Wilkinson’s failure to address the totality of Sullivan’s comments during the hearing , and only pointing to his “finding” of materiality is prima facia “bad faith” and borders on both judicial misconduct on the part of Judge Sullivan to have allowed this to be written, and ethical misconduct by Wilkinson to have written what she did without addressing this glaring inconsistency of WORDS THAT CAME OUT OF HER CLIENT’S MOUTH!!
Sean Davis at da Fed, In Appellate Brief, DOJ Unloads On Behavior Of Rogue Judge In Flynn Case  Ace analyzes Sean's piece and summarizes The DOJ's Memo In the Sullivan Matter: "This Guy's a Fucking Retard. Just Look At Him."
Okay not really but for just one split-second I conjured a magical universe for you in which they might have said that.

Still, they're not impressed with Emmet Sullivan's Joe-Biden-level of mental acuity.
John Sexton at Hot Air thinks Sullivan is just stalling for time, Judge Sullivan Asks For Time To Consider Dismissal, DOJ Says It Should Happen Now. Alas, the system is such that stalling is built in.
It’s not clear when the appeals court panel will decide how to respond to the conflicting claims. They have a choice between letting judge Sullivan reach a decision in his own time knowing that decision can be appealed to them later. Or they can simply agree with the DOJ that Sullivan is out of his depth already and order him to dismiss the case now.

I have no clue of how the Court of Appeals will rule but when they initially gave Judge Sullivan 10-days to explain himself, the sense of the order was that they thought he was doing something out of the ordinary and needed to explain himself. It wasn’t a friendly request it was an order. We’ll have to wait and see if Sullivan’s attorney has changed their mind.

However this turns out, this is only a 3-judge panel from the DC Court of Appeals. So if either side is unhappy with the decision, they can appeal it to the full court. Whichever way this goes, it could drag on for several more weeks unless one side or the other blinks.
Meanwhile Flynn continues to bleed money, and all the lawyers and judges get paid. Paul Bedard at WaEx reminds us that Michael Flynn judge refused outside opinions he now seeks
The federal judge fighting the Justice Department’s bid to drop charges against Michael Flynn blocked the type of outside opinions he is now seeking to punish the former Trump national security adviser with.

District Court Judge Emmet Sullivan rejected 24 amicus briefs, or third-party “friend of the court” filings, claiming they aren’t allowed in criminal cases, according to court records.

In one of those, Sullivan responded in December 2017, “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases … The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules.”

Flynn's lawyer, Sidney Powell, documented the 24 cases in a filing last month with the court and shown below.

But now, the judge wants one to help in his effort to keep the case going against Flynn, who has pleaded guilty to lying to the FBI. . . 
Speaking of amicus briefs, Twitchy, ‘It’s time for General Flynn’s nightmare to end’: Sen. Tom Cotton to file amicus brief with DC Circuit Court of Appeals
At Da Caller, Anders Hagstrom gives us The Possible Reasons Mike Flynn’s Judge Hired His Own Attorney
First, Sullivan may be concerned that any explanation for his actions could be used against him as proceedings move forward, Ellis wrote for Fox News. Wilkinson is a veteran defense attorney and would be a great help in a prolonged legal battle with the DOJ.
. . .
Other legal experts have a more benign reading of Wilkinson’s hiring, however. Experts representing Harvard, Berkeley, and the anti-Trump Lincoln Project submitted a brief urging Sullivan not to grant the DOJ’s dismissal. In their eyes, the case had already been decided once Flynn pleaded guilty, and the DOJ is not attempting to bully Sullivan into reversing a case for partisan reasons.
. . .
The DOJ argues there is grounds for dismissal because the FBI never had enough basis to bring Flynn in for the interview which led to his being charged with lying to the FBI. “The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” U.S. attorney in Washington, D.C. Timothy Shea wrote in a court filing.
Sundance, Oral Arguments Scheduled – Flynn’s Attorney, Sidney Powell, Interview With Lou Dobbs… "Moments after this interview ended the DC Circuit Court scheduled oral arguments on the writ of mandamus for Friday June 12, 2020, at 9:30am EDT."

Margot Cleveland, Da Fed, New Flynn Transcripts Confirm Mueller Team Lied To The Court And The Country
The transcripts prove a treasure trove of evidence of the Deep State’s plot to frame Flynn, who pleaded guilty Dec. 1, 2017, to making false statements to FBI agents Peter Strzok and Joe Pientka during a Jan. 24, 2017 interview of Flynn. In a “Statement of Offense” filed that same day with the D.C. District Court, federal prosecutor and Mueller team member Brandon Van Grack “stipulate[d] and agree[d]” that the facts detailed in the Statement of Offense were “true and accurate.”

Van Grack then attested in the Statement of Offense that Flynn knew that “on or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s action intended to interfere with the 2016 presidential election (‘U.S. Sanctions’).”

The Statement of Offense professed that on Dec. 29, 2016, “FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”

According to the Statement of Offense, during questioning by the FBI agents, “FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (‘Russian Ambassador’) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia,” and “also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’S request.”

However, the transcripts released Friday establish that, contrary to the special counsel office’s attestation, Flynn never asked the Russian ambassador to “not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.” In fact, Flynn never raised the “U.S. Sanctions” — defined by the special counsel’s office as the sanctions announced by Obama Dec. 28, 2016, in Executive Order 13757 — with the Russian ambassador at all.

In that executive order, as summarized in a White House press release, Obama “sanctioned nine entities and individuals: the GRU and the FSB, two Russian intelligence services; four individual officers of the GRU; and three companies that provided material support to the GRU’s cyber operations.” The press release also detailed a number of additional Obama administration actions, beyond the sanctions, “in response to the Russian government’s aggressive harassment of U.S. officials and cyber operations aimed at the U.S. election.”

Of relevance to the Flynn case was the State Department “shutting down two Russian compounds, in Maryland and New York, used by Russian personnel for intelligence-related purposes,” and declaring “‘persona non grata’ 35 Russian intelligence operatives.”

While the Obama administration ejected the Russian personnel in response to the Kremlin’s interference with the 2016 election, the expulsions were not part of Executive Order 13757 and thus were not “U.S. Sanctions” as defined in the Flynn Statement of Offense. This distinction matters because the recently released transcripts establish that Flynn did not ask Kislyak to do anything — or refrain from doing anything — in response to the sanctions.
Lock them up!

Reminder from Sundance,  Rod Rosenstein Testifies Tomorrow (today) at 10:00am – What Questions Would You Ask?.
AG Barr has recently said the DOJ/FBI conduct during the first two years of the administration “was abhorrent” and “a grave injustice.” How does that statement reconcile with Barr’s prior comments toward Robert Mueller and Rod Rosenstein when they were the principle decision-makers behind those abuses?

Rosenstein also was in charge of the July 2018 response from the DOJ to the FISA court where both the DOJ and FBI lied to the court about the predicate of the FISA warrant’s validity a full fifteen months after the DOJ and FBI were aware the underlying predicate was built upon fraudulent representations. There’s another several hours.
I'm not as down on Rod as sundance; I see him as an institution man, a person who cared more about the DOJ than right or wrong, but I'd like to see him answer tough questions. He's largely evaded them up to this point. ET takes note, Dana Boente, Last Remaining Signatory of Illegal Spying on Trump Aide, Resigns From FBI.

Chuck Ross at Da Caller, AG Barr: Prosecutor Is Probing Whether Russians Fed Disinformation To Dossier Author Was Steele Dossier largely Russian or DNC disinformation? Well, the Russians really preferred Hillary, despite John Brennan's machinations.
Russia “definitely” interfered in the election, Barr said.

He added that Durham “is looking at the intelligence community’s I.C.A. — the report that they did in December.”

“And he’s sort of examining all the information that was based on, the basis for their conclusions. So to that extent, I still have an open mind, depending on what he finds.”
Fox, DOJ files formal appeal with Supreme Court over House access to Mueller grand jury material. Barr tells House he has no intention of letting them fish in his pond.
“In light of the national prominence of this grand-jury investigation, the separation-of-powers concerns raised by the decision below, and the potential damage that decision could inflict on ‘the proper functioning of our grand jury system,’” said the Justice Department, “this Court’s review is warranted.”

The House committee was given until July 1 to respond with a brief of its own. The issue is not likely to be fully resolved before the Supreme Court begins its new term in October.

After impeachment proceedings months ago, the Trump administration has been reluctant to provide any further documents to the House regarding Mueller’s investigation into Russian interference in the 2016 election.
JD Gordon at Da Caller, Senators Should Expand Trump-Russia Subpoenas To Complicit Activist Groups. Sure; why not?

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