The @GenFlynn dismissal has revealed the ugly side of the liberal legal establishment.
Rather than use the case as a launching point for further criminal justice reform, they are aggressively arguing for Judge Sullivan to overrule DOJ and put Flynn behind bars.
A thread.
Rather than use the case as a launching point for further criminal justice reform, they are aggressively arguing for Judge Sullivan to overrule DOJ and put Flynn behind bars.
A thread.
You've probably seen the news about ~2000 former DOJ lawyers demanding Barr's resignation over the Flynn case.
Two signatories are former professors of mine: Neal Katyal (@neal_katyal) and Paul Butler (@LawProfButler). Katyal taught me criminal law, Butler criminal procedure.
Two signatories are former professors of mine: Neal Katyal (@neal_katyal) and Paul Butler (@LawProfButler). Katyal taught me criminal law, Butler criminal procedure.
The day after DOJ dismissed @GenFlynn's case, @neal_katyal had an op-ed in the NYT, absolutely lambasting Barr.
I hugely respect my old professor: great teacher, brilliant guy, and a top Supreme Court litigator.
But this op-ed was a disaster.
nytimes.com/2020/05/08/opi…
I hugely respect my old professor: great teacher, brilliant guy, and a top Supreme Court litigator.
But this op-ed was a disaster.
nytimes.com/2020/05/08/opi…
The thesis: dismissing the Flynn case "embeds into official US policy an extremist view of law enforcement as the enemy of the American people."
This couldn't be further from the truth.
This couldn't be further from the truth.
On the contrary, it fits the highest ideals of law enforcement.
Criminal justice reformers have rightly complained that prosecutors take their duty to see justice done in the courts with a grain of salt.
Here, DOJ, after a thorough review, tossed a bad conviction.
Criminal justice reformers have rightly complained that prosecutors take their duty to see justice done in the courts with a grain of salt.
Here, DOJ, after a thorough review, tossed a bad conviction.
There's tons of legal scholarship about why innocent people plead guilty - @shonhopwood (another Georgetown grad) is particularly strong on this point.
Katyal waves it away by saying - "well, Flynn had money and connections."
Never mind that he's been nearly bankrupted.
Katyal waves it away by saying - "well, Flynn had money and connections."
Never mind that he's been nearly bankrupted.
This is remarkable coming from someone left-of-center.
The "outrage" is not the conviction or exoneration - but the view that federal law enforcement is "a deep threat to the American people?"
It's amazing that anyone claiming to be a liberal could write this.
The "outrage" is not the conviction or exoneration - but the view that federal law enforcement is "a deep threat to the American people?"
It's amazing that anyone claiming to be a liberal could write this.
Two obvious points:
1) A critique of the actions of a small clique of bad cops is not a critique of entire federal law enforcement apparatus. @Comey is not an avatar for the entire FBI.
2) Have we completely memory-holed J. Edgar Hoover?
1) A critique of the actions of a small clique of bad cops is not a critique of entire federal law enforcement apparatus. @Comey is not an avatar for the entire FBI.
2) Have we completely memory-holed J. Edgar Hoover?
Next, Katyal suggests that DOJ's decision to release additional Brady material was "unusual," and asserts that there was "no smoking gun, no withheld exoneration."
This is an incredibly tendentious reading. As I've explained elsewhere - the recently released texts show that Peter Strzok was worried about "completely re-writing" the 302 of @GenFlynn's interview.
That's clearly Brady on a false statement charge.
That's clearly Brady on a false statement charge.
The documents DOJ released also exonerated General Flynn on materiality. @shipwreckedcrew explained this very well in this thread.
Here's the worst part of the @neal_katyal op-ed.
He suggests that DOJ stuck with its position that Flynn lied.
That's false. It's literally on page 2 of the DOJ brief: they do not believe they can prove Flynn made false statements beyond a reasonable doubt.
He suggests that DOJ stuck with its position that Flynn lied.
That's false. It's literally on page 2 of the DOJ brief: they do not believe they can prove Flynn made false statements beyond a reasonable doubt.
This is just crazy town.
US Attorney Jensen and AG Bill Barr conclude - with reason - that there's no basis to continue to prosecute Flynn.
Nevertheless, Katyal sees Trump's hand behind all of this - intentionally trying to destroy institutions.
Where is this coming from?
US Attorney Jensen and AG Bill Barr conclude - with reason - that there's no basis to continue to prosecute Flynn.
Nevertheless, Katyal sees Trump's hand behind all of this - intentionally trying to destroy institutions.
Where is this coming from?
Katyal suggests that the Judge Sullivan should "interfere" DOJ's decision to drop the Flynn case.
At best, this is misleading; at worst it's lawless.
At best, this is misleading; at worst it's lawless.
As I explained previously, binding DC Circuit law gives Judge Sullivan nearly zero discretion on this point.
If DOJ doesn't think charging someone serves the interests of justice and dismisses the charges, that's all she wrote.
If DOJ doesn't think charging someone serves the interests of justice and dismisses the charges, that's all she wrote.
Katyal suggests that Judge Sullivan should convert the motion from a motion to dismiss *with* prejudice to one *without* prejudice.
This is legal jargon that determines whether a future DOJ could bring back these charges.
This is legal jargon that determines whether a future DOJ could bring back these charges.
Lawfare did an article on this question.
They cited *zero* authority for the notion that a judge can convert a 48(a) motion to dismiss *with* prejudice into one *without* prejudice.
This is lawlessness in the service of keeping Flynn in legal jeopardy.
lawfareblog.com/justice-depart…
They cited *zero* authority for the notion that a judge can convert a 48(a) motion to dismiss *with* prejudice into one *without* prejudice.
This is lawlessness in the service of keeping Flynn in legal jeopardy.
lawfareblog.com/justice-depart…
Finally, Katyal ends with a call to "protect[] our democracy."
How about this.
We don't prosecute men when their guilt can't be proven beyond a reasonable doubt.
And we don't encourage unelected district court judges to disregard precedent to keep them in legal jeopardy.
How about this.
We don't prosecute men when their guilt can't be proven beyond a reasonable doubt.
And we don't encourage unelected district court judges to disregard precedent to keep them in legal jeopardy.
I'll deal with @LawProfButler in a bit, with a continuation of this thread, but for now, FIN
I covered the Butler signature in this thread:
