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USA v. Flynn: Agonies Even Kafka Could Not Have Imagined
I will try my best to be very professional and civil and courteous and respectful in reporting this news about General Flynn’s case, but it will not be easy. I note that as a member of the Bar, I have a continuing ethical duty of respect to all Courts. I will also note that, especially in recent years considering the truly inexplicable decisions of some “Obama Judges” (Yes, Virginia, there are such things, and they have wreaked much damage since the President took office) it has been more and more difficult to maintain that respect for some members of the Judiciary who are clearly out of control.
I am similarly constrained in reporting the Monday news that Judge Sullivan has denied what appeared to be Sidney Powell’s 99-percent certain-to-be-successful motion to compel the sleazy, contemptible, ruthless, and diabolical government prosecutors to do their duty and to produce much material they’ve obviously hidden from General Flynn — material he clearly should have had before he pled guilty while represented by lawyers who, at the very least arguably, had serious conflict of interest problems.
Here is the entry of the order on the docket which, I must note, is all I have knowledge of personally at this time, as I have not read the 99-page order which accompanied it (I hope to do so shortly and will render a fuller report after that study is completed.):
ORDER as to MICHAEL T. FLYNN denying 109 Defendant’s Motion to Compel Production of Brady Material and for Order to Show Cause; 111 Defendant’s Motion to Compel and for Order to Show Cause; 112 Defendant’s Sealed Motion to Compel the Production of Brady Material and for an Order to Show Cause; 113 Defendant’s Sealed Motion for an Order to Show Cause; 124 Defendant’s Motion to Compel Production of Newly Discovered Brady Evidence. Signed by Judge Emmet G. Sullivan on 12/16/2019. (lcegs3) (Entered: 12/16/2019)
If my views are not fairly clear from the words above, I have made my views known, loud and clear, both here — The Kafkaesque Persecution of Gen. Flynn — and elsewhere. It would have been hard to understand this ruling before the recent IG report of Mr. Horowitz; after the grotesqueries and downright illegal conduct revealed there, it is — trying to be professional here — quite simply incomprehensible.
If, after studying the Court’s opinion, I am persuaded I am being a bit hasty in this judgment, I will be the first to admit it, and will do so in a follow-up piece right here. However, I will say this at this point in time late on the 16th of December 2019, after seeing what our government has done to a man who served his country in uniform for over 30 years, some of them in combat, and who rose to the rank of Lt. General, and also seeing how the leaders of one of our established political parties have delivered year after year after year of now-thoroughly discredited abuse in an attempt to destroy the President, I and 63 million other Americans voted for, I am beginning to have the kind of thoughts I never thought I would have about the future of our beloved Nation.
I must wonder just how much more our institutions, designed by the greatest gathering of geniuses in history who are undoubtedly spinning in their graves at the conduct we are seeing on all sides, can withstand.
God bless America, and a special prayer that He will give General Flynn and his family the strength to survive this terrible, ongoing nightmare his own country has brought down on him.
Published in Law
Does Flynn have any recourse remaining? I know Trump can pardon him. I hope he will eventually. But I had so wanted to see the truth of the matter publicly established.
Thanks Jim. I appreciate your thoughts and welcome any others.
I am infuriated, disgusted, and frankly a little bit scared.
Totally with you there, Anne. Also demoralized. What a nightmare this all is.
Also an attorney, I had read Sydney Powell’s filings with care. In light of the fraudulent prosecution of the late Alaska Sen. Stevens as a precedent, I was fully expecting at best, an outright rejection of Gen. Flynn’s guilty plea and dismissal with prejudice of all charges, and at worst, a discovery order and further postponement of sentencing with room for further proceedings.
So to say I am surprised at the judge’s rejection today of any and all requests for relief and additional discovery is a vast understatement. Haven’t read the ruling yet, but will be interested to find it.
Edited to add: here is a link to the Memorandum Opinion:
http://cdn.cnn.com/cnn/2019/images/12/16/144.flynn.brady.denial.opinion.12.16.2019.pdf
Thank you for this. I am not a lawyer, but this whole thing seems very corrupt. I had thought that Judge Sullivan – with his previous experience with what seem to me to be sleazy prosecutors – would be ideal to see this through to some sort of justice. I was even more optimistic when Sidney Powell signed on as Flynn’s lawyer. I read her book and she too, seems to know where the bodies are buried.
Today’s ruling- after all the revelations of corrupt behavior exposed by the Horowitz report – came as a real blow to my hope for Justice.
I pray that Gen Flynn can sustain himself and his family through this and I am disgusted that I am part of a country putting him through it.
I look forward to any new insights you can give us.
Thanks for update. I would be very interested in hearing your take on the judge’s opinion once you’ve had time to read it.
This is the link carried by techno fog on twitter–https://t.co/SsPhPTCNLh?amp=1 takes you to the entire 99 page opinion. I should note that techno fog and Margot Cleveland, who writes for The Federalist, have been invaluable resources throughout the various (painful) steps of the Flynn case. I will be looking to Prof. Cleveland for her impressions after she reads the opinion, and will definitely be reading my copy ASAP. Sincerely, Jim.
Kind of (unfortunately) ironic that suppression of Brady materials was an issue in Powell’s representation of an Enron defendant and the Ted Steven’s prosecution as outlined in her book Licensed to Lie.
@jimgeorge:
Thanks, I also found a link in CNN’s story and edited my post to add the link. Will be interested in digesting it and seeing what others make of it as well.
Undercover Huber has been doubtful about whether Flynn would succeed, though he has no doubt the general was railroaded. The problem is that Flynn has twice entered a guilty plea. It will be interesting to see in light of this decision whether Flynn tries to withdraw the plea.
It is hard to realize that the country you love is nothing like you thought it was but is instead just a corrupt Democrat machine where laws are just window dressing for the desires and whims of those in power. Sadly I learned this lesson years ago but I see the hurt in many of the Trump voters today.
I think his guilty plea was the cry of someone who had been pushed beyond his ability to withstand by the overwhelming power of our government. He had already had to sell his house to pay for lawyers and I think his first lawyers had a real conflict of interest in wanting to avoid a trial.
I can only hope that Sidney Powell can sort this out and get some sort of justice.
Very disappointed to hear this but Judge Sullivan seemed to be anti-Flynn from the beginning. I’ll be interested to hear your thoughts @jimgeorge along with Margot Cleveland and Ms. Powell herself. Hope there’s a ways he can withdraw his plea. I there a way the Judge could stop this?
My first reaction in reading 1/2 of the opinion, relating to Flynn’s pre-Powell representation, was “ineffective assistance of counsel.”
If you do not understand why he plea guilty then you have never been on the wrong side of the government. They take everything, all your resources and leave you with nothing. Then they come with a plea of X years or we will put you away for the rest of your life then go after your friends, family, whatever they think you value to sweeten the pot. You take the plea just so the pain and destruction of all you known will stop. Just to stop the pain to your family. The government has infinite resources and you have none to defend with.
This is the truth.
I haven’t read the opinion but am familiar with the prior pleadings. Flynn’s lawyer Powell was trying to carry off a tricky manuever – seeking discovery (which from a public perspective is a good thing) but not, or at least not yet, trying to withdraw Flynn’s guilty plea. Her other course of action would have been to try to withdraw Flynn’s plea based on, among other things, ineffective and conflicted prior counsel (the Judge would need to approve the plea withdrawal at this point in the proceedings) and call the government’s bluff – are they really intending to go to trial and willing to provide the additional discovery that would entail? Federal judges in my experience have very healthy egos, don’t like feeling manipulated, and having their time wasted. The Judge here may be sending a message – stop playing around and seek to withdraw the plea. Admittedly, at this point the whole situation is pretty murky.
When I see Tulsi Gabbard get shut down during a debate and Trump unable to withdraw a few hundred troops from some country, I think that there are very powerful forces acting behind the scenes. When I see Sen. Richard Burr (R) fail to show interest in corruption of the intelligence community he oversees and he rejects a reformer to head DNI, I think that there are very powerful forces at work. When a judge and AG seem to disregard justice to protect an institution, I again think that power forces, unelected forces are work.
I think Sullivan is forcing him to withdraw his guilty plea before allowing any more on this. We discussed this over at Althouse and I think that is what is going on.
If you find yourself saying: yes, regardless of support for or against Flynn, it would be fair and in the correct course of justice for all relevant evidence to be known to both the public and defense…. Then ask yourself why isn’t that view held by AG Bill Barr?
Attorney General Bill Barr was granted the power to declassify all five of the examples cited above which directly relate to the prior DOJ and FBI motives in their investigation of Michael Flynn…. there are many, many more. Yet, AG Bill Barr has done nothing to provide that fulsome discovery.
AG Bill Barr doesn’t need a court order to provide the truth. Currently the prosecution of Michael Flynn is directly under Bill Barr’s authority. Heck, the President of the United States has authorized Bill Barr to declassify any/all material that may be needed in the honest search or truth and justice. And Bill Barr has done absolutely nothing.
That is from CTH.
https://theconservativetreehouse.com/2019/12/16/ag-bill-barr-chooses-to-protect-rosenstein-over-full-
disclosure-in-flynn-case/#more-178759
I think it was worse. The first law firm had a conflict of interest. They had drafted his FARA plea and the co-defendant who fought the case won on a directed verdict.
That first law firm worked a deal to drop the FARA charges in exchange for Flynn pleading guilty on false statement charge. Thus the conflict. The charges involving the firms earlier work are dropped and unrelated charges are accepted. Presumably a non-conflicted firm would have fought the false statements charge and thrown the first firm under the bus.
Is there no higher court that the matter can go to? And after all, Flynn should be able go to SCOTUS, right?
Excellent brief analysis by Prof. Cleveland in the Federalist this morning– Judge In Flynn Case Decides to Ignore Mounting Evidence of Prosecutorial Abuse —including this statement:
It would appear that Gen. Flynn’s options are, all of a sudden, extremely limited, to put it mildly.
A very, very sad and tragic outcome and a victory for the jackboots in the Justice Department.
Sincerely, Jim.
Very good analysis by Cleveland. Thanks for linking. She does a good job explaining the jam Flynn is in because of his two earlier guilty pleas. It is a shame he didn’t dump his lawyers after the first plea. Judge Sullivan handled Senator Stevens’ trial but the difference is that Stevens plead not guilty and went to trial while Flynn took a plea and maintained it under direct questioning from Judge Sullivan. I think Flynn’s only option is to try to withdraw his plea but he may not be able to succeed at this point.
I’m not clear on the mechanics of withdrawing one’s plea, why he would refuse, whether it could be denied if he tried.
Because the judge twice accepted the plea, even though the second time around he invited Flynn to withdraw it, he may reject an attempt to change his plea now. If the judge took that course of action I believe his decision can be appealed. This piece from Scott Johnson at Powerline provides more context
I know what you are saying is true and correct. But, wow, what a miscarriage of justice this is! If a defendant wants or needs to change his or her plea, that should not be a problem at any time.
Leaders provide groups of people with solid goals that everyone is working together to achieve. What’s missing in the justice system are effective leaders who keep everyone in the system working toward the most just outcome at all times. There should never be any other consideration in play.
I think he has to argue prosecutorial misconduct and convince the judge. His second plea is a problem.
There is nothing to prevent the President ordering that the Brady materials be turned over. He, not the attorney nor the FBI is the chief executive. The people who are refusing to hand them over work for him.
This is where I am very curious. The judge asked if Flynn wanted to withdraw his guilty plea and Flynn declined. Why would Flynn do that? Was he actually guilty of lying? Does anyone know what it was that Flynn said to the FBI that was a lie? Way,way back VP Pence also accused Flynn of lying on or about Flynn’s conversations with Russians. Is it possible ( a question for our lawyers) that Judge Sullivan would have been more amenable to Flynn’s Brady request if he had changed his plea to Not Guilty?