Flynn case -thought I'd say a few words this evening about a few things, one of which is Flynn's case. So first, I'm going to give you guys links to the briefs that were most recently filed in the trial court -Judge Sullivan's court- in the case. This isn't about the mandamus. /1
Last week the amicus Judge Sullivan appointed, retired judge Gleeson, filed a brief explaining he thinks Sullivan should deny the DOJ motion to dismiss because the reasons are a "pretext" for helping a friend of DJT and "gross abuse." His brief is here:drive.google.com/file/d/1bz563W… /2
Yesterday, DOJ & Flynn filed briefs in response to Gleeson's brief. Gleeson now has the chance to file another brief in response to theirs which is due on June 24th, then DOJ/Flynn can file more briefs back against his on June 26th. DOJ's brief is here: drive.google.com/file/d/1Dpi0D3… /3
All three - Gleeson, DOJ & Flynn have until July 2 to also file briefs if they want to address anything that the other amici groups (like mine) filed. Sullivan has also set a hearing for July 16 at 11:00 am. Flynn's brief responding to Gleeson is here:drive.google.com/file/d/1MLldSx… /4
Gleeson's brief, as our friends @shipwreckedcrew and @ProfMJCleveland have written, is basically a 70 page screed about Orange Man Bad and Barr is undermining the Rule of Law (everyone panic!) and Sullivan should be a white knight and fix all that. 🙄/5
He says Rule 48 gives Sullivan a roving commission to "do right" & get to the bottom of all the Terrible, Horrible, No Good, Very Bad stuff that is going on because a plea is the end of a case as everyone knows (wrong), & here's a bunch of questions you should definitely ask. /6
Oh & by the way, don't hold Flynn in contempt, but definitely enhance his sentence after you reject his totally bogus & probably illegal attempt to w/draw his guilty plea because he is totes guilty & stuff, so he deserves to be punished. Party on dude! Love, John Gleeson. /7
I exaggerate, but seriously not by much. It is an unhinged & completely inappropriate pleading, & should have been beneath the dignity of a retired judge to write in several places, but Gleeson is apparently suffering from stratospheric levels of TDS, so he's off the rails. /8
There is a reason that Judge Henderson on the Court of Appeals called him "intemperate." This pleading is truly amazing. He personally attacks Barr and DJT with wild accusations & unsupported claims & illogical inferences. /9
In response to this, DOJ decided to mostly take the high road. It's pleading reads like: "Okay, we're going to explain this again. Please pay attention this time." They aren't rude, but they are clear that Gleeson is wrong on the facts, the law, his theories; basically all./10
There is some really nice legal analysis in this brief that I won't bore you guys with, but suffice it to say that the arguments & the articulation are really very fine in several places. It's sophisticated lawyering, worthy of the Solicitor General's office. /11
DOJ does not dignify Gleeson's personal attacks on DJT or Barr, instead pounding it's argument that "You just can't go there" because - no less than - the Constitution says what the role of the Executive and Judicial branches are & that precludes exactly what Gleeson proposes./12
And in doing so, they unload a ton of Supreme Court and appellate cases making it crystal clear that the separation of powers argument is the driving force here & that's just all there is to it, so stop fooling around & dismiss the case already. /13
By ignoring the nonsense DOJ is not so subtly conveying that whatever Sullivan does going forward, it's NOT going to engage w/that stuff. This reflects back the argument on the mandamus in the Court of Appeals that DOJ can refuse to agree to an invasion of its Art. II power. /14
DOJ rejects as nonsense - which it is - that somehow the plea is the dividing line ending the prosecutor's power and/or empowering the court to decide whether the case should continue. /15
Interestingly, DOJ does spend a chunk of pages on the contempt issue, telling Sullivan that the facts here don't satisfy two elements of that offense - intent and actual obstruction to the court's proceedings. This part of the brief is lawyerly, but dry. /16
The overall impression of DOJ's brief: It is low-key, firm, stick to the issues, polite but no nonsense. It's clearly saying: we seriously think the amicus is on the wrong path, Judge; we suggest you don't take his recommendations & run with them. /17
A couple of points from a defense lawyer's perspective. DOJ effectively concedes that Sullivan could in theory punish Flynn for perjury as part of his sentence. I think that is incorrect & unconstitutional under the Booker case. However that is DOJ's standard position on it. /18
In terms of the Brady/disclosure issue, DOJ put in a long footnote to say it doesn't agree w/Flynn that there was misconduct in w/holding the materials that US Attorney's Jensen's review has uncovered (or otherwise). It gives credit to Sullivan for his Brady disclosure order. /19
Our amicus group gave Sullivan credit for this in our brief as well. It really can be said that in part his Brady order has lead to the uncovering of the facts favorable to Flynn on the materiality issue. /20
But there is an inherent conflict in what DOJ is saying. If the new materials are exculpatory because they undermine an essential element of DOJ's proof -which they do- then they have to have been Brady material the whole time & they clearly weren't disclosed until recently. /21
W/holding Brady material is prosecutorial misconduct - even if it isn't intentional. Brady isn't a device to punish prosecutors for behaving badly; it's a due process mechanism for making sure defendants get a fair trial. It imposes a duty to discover on the prosecutors. /22
The duty to discover extends to the prosecutor's file & to the materials held by the investigative agency assisting in the prosecution that are part of the investigative file. (So not necessarily to all materials held anywhere by that agency.) /23
In Flynn's case, there's no doubt FBI is the investigative agency assisting in his prosecution & that the documents & information pertaining to the materiality issue were part of the investigative file. And, it's clear they are exculpatory & were not disclosed. /24
And, it's clear they were recently disclosed BECAUSE they are exculpatory. So, on what basis actually is DOJ saying there's no prosecutorial misconduct? It can only be that it wasn't intentional by the actual prosecutors because they were misled by FBI about the information. /25
That may excuse the individual prosecutors from having engaged in ethical violations (assuming they in fact undertook their obligation to discover seriously), but it doesn't matter for purposes of Brady whether the prosecutors personally acted intentionally or not. /26
It's the government of the United States prosecuting federal criminal cases, not prosecutors personally. That has to be the rule or else law enforcement (and intell) agencies would just lie to prosecutors about exculpatory facts (which they sometimes do) to avoid disclosure. /27
So, DOJ is really saying the SCO & DC US Attorney's Office & DOJ didn't previously violate Brady or Sullivan's order because those entities didn't know or perhaps didn't realize that the materiality info was there and/or was exculpatory, which isn't 100% of the test, however. /28
But, eliding over that point avoids a difficult discussion by DOJ & skirts the issue that Sullivan is certainly entitled to inquire into whether his Brady order was complied with by DOJ/FBI or not, even if he must dismiss the case against Flynn. /29
And, it could even be that the prosecutor's just missed the issue or had no reason to inquire on the predication of the investigation - because to be honest it's going to be once in a blue moon that that's even in play. But that doesn't fully resolve the Brady analysis. /30
As you guys know, I'm under the weather with a medical issue, so I'm going to take a break now. I may get to my analysis of Sidney Powell's brief for Flynn later tonight, or it may have to wait until tomorrow. But we'll definitely be hitting the materiality issue again. /31
Took me longer than I thought to get back. Between the Bell's Palsy itself & the meds' side effects & the limitations it creates (I can only use my right eye), it's slowing me down. But, I'm back now to give you a picture of Flynn's response to Gleeson's brief. It's a doozy. /32
First, Sidney basically says (I know it's more than Sidney, but I'm just going to say that cause it's shorter for Twitter), right out of the box: "We're only filing this because you said to; but we are preserving all our objections that this whole thing is actually a mess." /33
She flat out says Sullivan exceeded his authority by asking for amici and appointing Gleeson & that Gleeson acted like a wild man personally attacking Flynn, Barr and DJT. She points out that Gleeson basically ignores all of the info uncovered by Jensen. Which he def did. /34
It's a difficult position for a lawyer to be in telling a judge he's exceeded his authority. Even harder than telling him he's wrong on the facts/law. It can be tricky. You have to assert the client's rights & positions really regardless of whether the judge likes it or not. /35
This is why some lawyers, especially some former prosecutors, just do not make good defense lawyers. As a defense lawyer, you really sometimes have to stand up to a judge and tell them they are wrong or are doing something wrong. It can be intimidating. /36
You also have to be respectful of the judicial institution, of course. A problem can come in either when the judge deems legitimate advocacy to be disrespectful when it isn't, or if the lawyer fails to sufficiently assert the client's interests in the face of judicial error. /37
Sidney is walking that line in several places. She accuses Sullivan of shedding his judicial impartiality with respect to Flynn. This is a serious accusation. She ties it to the earlier statements about treason & appointing Gleeson to act as a "special prosecutor. /38
Those facts give her the hook to argue Sullivan isn't acting objectively & therefore to exhort him to reconsider his steps. To make the argument directly is high-wire at a minimum; some would say reckless; & others, disrespectful. It's consistent with her aggressive advocacy. /39
It's a "your mileage may vary" issue as to whether it's an effective strategy. It's hard to say how a judge will respond to being directly called out this way. Some judges roll better w/strongly worded advocacy than others, sometimes differently by case. /40
What's certainly true here is that Sidney thinks the appointment of Gleeson under all the circumstances was inappropriate (I agree w/her on that) & she is thus obligated to say so in some way. It's a ticklish argument even w/mildly worded advocacy. /41
It will be interesting to see if/how Gleeson responds to her comments in this regard when he files his next brief next week. I am genuinely curious to see if he addresses it at all. /42
Sidney strongly advocates that Gleeson's brief is a smear & unconscionably ignores the exposure of truth & necessary correction of error that the DOJ's motion to dismiss represents. /43
Like DOJ's brief (and my group's amicus brief), she goes through the separation of powers argument & cases and concludes Sullivan really doesn't have a choice but to grant leave to dismiss & Gleeson is just missing the mark. /44
She points out that DOJ SHOULD BE correcting problematic cases & gives examples of where it has, including one that Judge Sullivan himself commented on & dismissed last year. /45
She has a strong discussion of Morrison v Olson, which is a famous Supreme Court separation of powers case involving the old "Independent Counsel" statute, which the SCt upheld over a classic dissent by Scalia. His dissent has over time become seen as the better analysis. /46
She calls the case against Flynn "politically motivated" & damaging to the rule of law & our institutions & now even the Constitution, insisting that "This illegal outrage must stop now."/47
She argues that since the parties agreed to the dismissal, there is no real "case or controversy" before the court, which is a requirement for a federal case, & based on a recent SCt case (Sineneng) that Sullivan can't use amicus curiae to go around the parties. /48
The case and controversy argument is an interesting one - at least for lawyers! I both agree & disagree with that argument, depending on exactly what is meant. Under the doctrine, a lack of case or controversy means the court has no jurisdiction to render a judgment. /49
This clearly isn't correct here; for 1 thing, Flynn wants the court to have jurisdiction to enter the dismissal. What is really meant is something more like, there's no ACTIVE case or controversy. But, that doesn't deprive the court of power to figure out whether it agrees. /50
This was sort of the Court of Appeals' judges' view last week in the oral argument - surely the trial court can ask for briefing & a hearing to make a ruling. How can that be foreclosed? Still, in a broader sense, the lack of case or controversy argument is sort of right. /51
It's really just a different way of saying the same thing as the separation of powers argument, which is that it's up to the Executive branch to decide when the case is "over," not the judicial branch's job. /52
Sidney also argues that Sullivan lacked authority to appoint Gleeson IN ORDER TO PROSECUTE the case. This is absolutely correct. The argument in the Court of Appeals got subtly changed into whether he had the power to appoint an amicus at all. Different argument. /53
She also focuses on an issue the Court of Appeals raised: What can the trial judge evaluate? And, can it further develop the factual record of the case? Which Gleeson had hinted in a motion to Sullivan that he wanted to do (& which I thought made the mandamus 100% necessary.) /54
The Flynn brief, of course, argues - correctly - that the judge cannot (thru amicus or not) develop the factual record; it must restrict it's review to the record of the case and the reasons for the motion to dismiss put forward by the DOJ. /55
Sidney then gives a full 3 pages of cases where dismissals or mandamus were entered in cases after guilty pleas or sentencing. She flat out says there's no existing authority for Sullivan to deny the motion to dismiss & requiring more briefing/proceedings is error. /56
Turning to the contempt issue, Sidney says changing a plea, esp w/new counsel (who doesn't have a conflict!) can't be contempt or perjury, & basically "get real." She points out that 20% of actual innocence cases involve guilty pleas. (A disgrace for sure.) /57
She finally takes the pleading thru a long discussion & factual presentation about Crossfire Hurricane, Crossfire Razor, Spygate, the FISA abuse scandal, etc. All of which will be familiar to the Right, but likely news to everyone else. /58
She links this into why DOJ is correct about "materiality" being a problem in Flynn's case & so much so that it undermines the plea and any prosecution of the case. I can follow it because I know the case & law so well, but it's going to be dense going for anyone who hasn't. /59
Finally, in a nice bit of business, the brief concludes on a long quote from one of Gleeson's cases from when he was the trial judge basically applauding a prosecutor for doing the right thing in dismissing a case before him. /60
Overall I'd say the brief is pretty good. It's a bit disjointed; it reads like different people tackled different sections. In light of the short time frame & the need to brief & argue the mandamus in the Court of Appeals also, I'm not surprised it reads a little rushed. /61
It's a lot of work to produce such a brief & the defense is always short on resources, especially time, which is an essential requirement for researching/writing/polishing/re-editing/finalizing a brief. /62
Flynn's team here has hit all the bases, don't get me wrong. It's just that with a few more days - or without the mandamus case in the same week - they would have had more time to really polish it up. /63
Turning to the issue of Brady/prosecutorial misconduct, Sidney faults Gleeson for ignoring the issue and/or turning it on it's head. She urges Sullivan to accept the reality that the case is the product of problematic govt behavior & allow the dismissal. /64
This brings me back around to the footnote in DOJ's pleading, which denies what it calls Flynn's "broad allegations" of prosecutorial misconduct. Here, Flynn and DOJ are definitely at odds, it's just not getting in the way of their common interest of dismissing the case. /65
The footnote in relevant part says: "the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office." /66
But, as I discussed, there definitely is a Brady violation if the government has withheld exculpatory information (info tending to show the defendant isn't guilty) from the defense, even if that withholding wasn't intentional. So what is going on? /67
I see several things. First, defense lawyers often interchangeably use the phrases "Brady violation" and "prosecutorial misconduct." Judges will sometimes too, but prosecutors NEVER do. They think they are two different things, & actually they are correct. /68
It is absolutely possible to have a Brady violation w/no prosecutorial misconduct. This can be because the prosecutor has been misled by the investigative agency for example, or simply because human or clerical or electronic error had caused info to be withheld by mistake. /69
The remedy for a Brady violation is almost always disclosure of the information & the opportunity for the defense to make appropriate use of it, sometimes even requiring a new trial. Again, this is because Brady is a due process mechanism, not a disciplinary rule. /70
Here, Barr & company could easily believe (or know) that no DOJ lawyer, including any SCO lawyer, was aware of the lack of predicate for Flynn's interview. This could easily be for numerous reasons. First, the information showing the lack of predicate is exclusively FBI info./71
It appear that some & perhaps all of the info needed to make the materiality judgment, while it was FBI info, wasn't necessarily included in the Flynn investigative file itself, particularly the Priestep notes & the Stzrok/Page texts. Brady only extends to the case file. /72
Practical considerations matter too. In 90% of false statements cases, the materiality element is simply not in question. At all. Even experienced defense lawyers wouldn't question it, much less prosecutors who think they are reasonably relying on experienced FBI agents. /73
And even in those 10% of cases where materiality is a viable defense issue, in 99.99999999999% of them the materiality issue is NOT about whether the investigation itself was invalid or void or non-existent, as is the case in Flynn's case. This is an extra-ordinary case. /74
In 24 years of criminal defense practice, I have had ONE case where there was an issue of whether the investigation/prosecution of the case itself was legally flawed. This is not something that prosecutors are going to focus on as a flaw in their case. Ever. /75
For prosecutors to have realized this was an issue in Flynn's case & inquired whether there was exculpatory information in FBI's possession about it would have been way out of the norm. Only a truly skeptical mind, w/a "show me" attitude would have -maybe- seen the problem. /76
This is what we expect defense lawyers to do. Except, we don't give them the tools to do it. Even in a case w/Sullivan's standing Brady order, this issue didn't get flushed out. This is an example of why "open file" discovery should be legally required, in addition to Brady. /77
Because in addition to the normal factors I've outlined, here you have FBI actively breaking protocols & violating General Flynn's 5th Amendment rights (as I've written about here 👇🏻), so that it had a motive to cover up even if prosecutors did ask. thefederalist.com/2018/12/19/the… /78
So, because of the rules, the law, & normal human behavior, we have a situation where Flynn's rights were definitely violated, there is a Brady violation, Sidney is right about the problems, but DOJ will still say in it's footnote that there's no "prosecutorial misconduct." /79
It's interesting that the footnote says there's no cause to claim misconduct as to the "US Attorney's Office," not the SCO. Is that meaningful? Is it because SCO no longer exists, or isn't in the case any longer, or because DOJ's not taking a position on SCO? Inquiring minds./80
