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10 August 2020

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walrus

Robert,

Thank you once again for your cogent description of what is being done to Gen. Flynn. Watching the behaviour of the Court feels like watching the dissection of a living animal without anaesthetic.

akaPatience

Thank you so much for this thorough and easy-to-understand explanation Mr. Willmann - I truly appreciate it.

Chuck Light

It seems natural to me that the En Banc panel would raise the issue of impartiality, as Flynn has raised it since he changed his legal representation, and specifically raised it as an issue in his Petition for Mandamus.

28 USC 455(b)(5)(i) raises IMHO a more interesting question, and one that I raised earlier. Did the original appellate panel make Judge Sullivan a "party" to the Petition for Mandamus by demanding that he officially respond to Flynn's Petition? If it did, did that "status" confered by FRAP Rule 21 authorize Judge Sullivan to petition for rehearing en banc pursuant to FRAP Rule 35. If he does not become a "party" to the Mandamus Petition pursuant to FRAP Rule 21, was he ever authorized to seek en banc review?

And if Judge Sullivan became a "party" pursuant to FRAP Rule 21, does 28 USC 455(b)(5)(i), require him to disqualify himself from further participation in the underlying criminal action? In other words, did the original appellate panel, by its order to Judge Sullivan that he respond to the Petition for Mandamus pursuant to FRAP Rule 21, put Judge Sullivan in the position of having to recuse himself because of his compelled status as a "party" to the mandamus proceeding.

Keith Harbaugh

Thank you for this clear and detailed account of the issues.

The oral argument can be heard at
https://www.youtube.com/channel/UCa63PLarrn0AmtHw-ooYtuw

If there is a problem with that, try this:
https://www.cadc.uscourts.gov/internet/home.nsf/Content/Announcement+-+Listening+to+Oral+Argument+-+In+re+Michael+Flynn+-+June+12+2020

Graham in Madison, WI

Four years ago I had considerable faith and trust in the federal judiciary and the ability of federal judges to set aside personal politics and act according to the law. Same with the FBI for whom I had a great deal of respect.

Now I have zero faith and trust in the courts and view them as Deep State show trials. And the FBI I view as the new Cheka.

I didn’t go from having unquestioning faith and trust in these hallowed institutions to completely losing faith and trust in them. I went from revering them to considering them evil and my enemy.

I don’t think I’m not alone in feeling this way though I don’t think it even matters at this point. It’s a completely rigged globalist puppet show. We can’t go back to our comfortable naïveté and must remember to not be the first person to stop clapping.

strateshooter

the lesson of Michael Flynn is very sadly this..
do not ever talk to the FBI without a lawyer present.
They are a political hit gang for those in power nota law enforcement agency.
Seriously folks , DO NOT talk to the FBI EVER without a lawyer present.
Also...MAKE DAMN SURE THE INTERVIEW IS TAPED.

Jim

Live now on C-SPAN

https://www.c-span.org/video/?474473-1/michael-flynn-perjury-dismissal-case-rehearing&live


-30-

J

Ah yes, the American Coup D'Etat, that Judge Sullivan seems to be a part of. They tried to get rid of POTUS Trump, and they tried to bury General Flynn.

Let's see who these American Coup D'Etat personnas are so far:

Barak Obama
Loretta Lynch
James Comey
Hillary Clinton
John Podesta
Huma Abedin
Susan Rice
Aaron Zebly
Valerie Jarrett
Ben Rhodes
Sally Yates
John Brennan
James Clapper
Debbie Wasserman Schultz
Evelyn Farkas
Susan Powers
Andrew Weissmann
Mary Jacoby
Rod Rosenstein
Robert Mueller
Andrew McCabe
Peter Strzok
Lisa Page
Nellie Ohr
Bruce Ohr
Jeannie Rhee
James Baker
Steven Schrage
Judge Sullivan

And the kicker, this Coup D'Etat began in 2015, as soon as the moment President Trump began his Presidential Campaign.

I look forward to the Coup Plotters all being rounded up and criminally prosecuted.

TV

Over the years, I've been acquainted with a few police.
They've all said the same thing:
"Don't talk to us without a lawyer."
EVERYTHING you say will be used against you.

SRW

Strateshooter:
My comment is make damn sure you don't lie to the FBI

Chuck Light

Other possible lessons of Michael Flynn. Do not plead guilty if you are not guilty. Do not lie to the FBI. Do not lie to an Article III Judge. Do not conceal financial dealings with foreign countries (Turkey) while at the same time serving as National Security Adviser. Do not promise to cooperate with a federal investigation if you do not mean it.

I am sorry if I offend. I know I do not believe in the "Deep State," and perhaps, as Graham says, I am naive in still believing in the institutions of government. But I don't think so. I would ask Graham, with all due respect, if you believed in our institutions four years ago, what changed?

blue peacock

SRW

Should the FBI & DOJ lie? What should happen when they do so?

We have the case of that in the Russia Collusion hoax. Which brings up another question can the DOJ prosecute themselves?

We'll find out soon enough.

Fred

SRW,

Should we ask for the transcript they already have of the conversation they are inquiring about to ensure verbatim compliance to their questions or just refer them to their tape library?

Keith Harbaugh

The scheduled one hour court session (20 minutes per side) ended up lasting three hours fifty minutes.
https://youtu.be/97dE1_3e2Po

Things seemed to go so badly for getting the writ of mandamus granted that Sidney Powell, in her closing two minute statement at the very end of the session,
sounded like she was close to tears.
Sad.
She's worked really hard on this, and she, like many of us, feel very badly about what has happened to General Flynn
Whatever that is, justice it isn't.

Jim

"Some circumstantial evidence is very strong, as when you find a trout in the milk."

Obviously, none of this should have occurred, and it did, and where will it end, and how will this persecution of Flynn end?

The En Banc rules, for today: no more than an hour of arguments allotted, the docket said -- but, today -- was nearly four times that.

This court -- that did not go over by a few minutes but instead by a few hours. This signals a few things, most obvious being it became a spectacle, and the presiding judge today, despite his clean voice and solicitousness, ran amok and called it a hearing.

Having listened to the entire drama, based on what was said by judges, it seem to me that: via Mandamus Writ; or otherwise/some other mechanism, --- that. . . the Circus Act called Emmett Sullivan will be removed from the case, at minimum.

In other words, Sullivan will become "disqualified" by some means: either on his own, soon, or by his peers.

Unlike previous hearing of 3-judge appeal panel, today, the US Solicitor General, Jeff Wall, arguing for the Government/DOJ, for Mandamus Writ, was asked point blank by one of the ten En Banc Judges: should Sullivan be removed from case owing to bias as Writ alleges.

Wall said yes, because the appearance of bias -- owing to fact Sullivan requested the En Banc appeal hearing himself [instead of dismissing the case when the 3-judge appeal panel ordered him to do] -- and, thus Sullivan de-facto became a party.

Thus Sullivan is inherently vested in an outcome and unfit to continue. [Put another way: Sullivan went judge shopping.]

Thus making Sullivan a de-facto Party to the fiasco he created.

Sullivan's lawyer today, Beth Wilkinson, the least impressive attorney at this hearing, in my view: all she could say to counter that was that DOJ did not file the Writ, to imply the DOJ lacks standing.

Judge Henderson, [who with Judge Rao, voted 2-1 to issue the Writ previously,] told Wilkinson today that her request for En Banc used a section of court procedure that is specifically for a Party to a dispute.

Wilkinson had to stand there and absorb the humiliation of being told by Henderson that Wilkinson's egregious mistake notwithstanding: Sullivan "is not a party" to the Mandamus proceeding, as a matter of law. [ouchie]

Henderson was telling Sullivan's lawyer: you are an idiot.

And telling her: you proved you are an idiot.

At one point Henderson, in reference to this, said, quoting Thoreau: "Some circumstantial evidence is very strong, as when you find a trout in the milk."

Having grown up on a dairy farm, and having ridden in many a milk truck to collect the bulk milk of farmers in the region -- I was humored by her using this quip.

Although they are not supposed to, some farmers, at least as recently as the 1960s -- I can attest -- would add many gallons of water to the milk in their large bulk collection milk tank -- and thus get paid not just for producing milk but the weight of the water they would add.

While adding water would lower the butterfat content of the milk by diluting it, and thus lessen the per pound payment [based on total pounds and butterfat content expressed as a percentage], farmers would pull this Trick after the milk collector had taken a sample of the milk [to measure butterfat content]; and then the farmer would, then: throw in the water -- on the sly -- while the milk collector was putting the sample in the truck for safe keeping -- when the milk collector wasn't looking, as it were.

In Thoreau's time, 1850s, even though indoor plumbing was just beginning to be introduced in cities, in rural areas, this did not happen on farms until decades later.

Thus water was obtained using a pump well and/or at nearby stream or pond.

There may not have been direct evidence a sly farmer was cheating, but: "Some circumstantial evidence is very strong, as when you find a trout in the milk."

In other words: they and we all know Sullivan was cheating Flynn.

And one of the judges, Henderson, told Sullivan's lawyer --right to her face today -- that Henderson knows that Sullivan knows that Henderson knows Sullivan was as guilty of cheating Flynn as a cheating farmer is when watering down the milk.

In other words, Sullivan is corrupt, is what Henderson was saying.

One way or another Sullivan will no longer hear anything else on the Flynn case, it would seem to me.


-30-

Chuck Light

And then again, Jim, you could be wrong. I'm not saying you are, but you may be filtering what you hear through cotton stuffed in your ears.

There were 10 judges today, Jim, and you refer to one. Could that be the one you liked the most?

mcohen

Really confusing.Is en banc a kind of white wine that goes with fish.

Fred

Keith,

Sydney Powell sounded frustrated as the judges sounded like professional bureaucrats wanting a process to procede to a ruling that would then have an inevitable appeal that would then overturn whatever Sullivan ruled and too bad if it damages the appellant in the intervening years. Other than Sydney most of the judges sounded no smarter than you or I
And many were making academic arguments on "hypothetcals" and sounded like members of Congress showboating for their constituents to keep their approval ratings up.

blum

There were 10 judges today, Jim, and you refer to one. Could that be the one you liked the most?
Posted by: Chuck Light | 12 August 2020 at 02:00 AM

Appreciated! Cakewalk expected?

The En Banc rules, for today: no more than an hour of arguments allotted, the docket said -- but, today -- was nearly four times that.

In spite of the fact that Robert wrote this above in his first paragraph. Meaning you didn't even have to delve deeper into unfamiliar legal matters.

The second order, filed on 5 August 2020, said that each lawyer can argue for 20 minutes in the rehearing en banc, which is a consideration of the mandamus by all of the active judges eligible to take part, and which starts it back at square one.

Here is a partial I suppose biased transcript, considering the usage of "Flynn's lawyer".

Judge Merrick Garland: I assume you agree even if the Supreme Court had decided an issue, you can't mandamus a judge this way?

Flynn's lawyer: This is under Rule 48(a). He is intruding into the Article II power, which he can't do. Around Docket 200 we requested again the dismissal.

Judge Garlard: So the panel just got it wrong? Flynn's lawyer: It was my fault for not pointing it out.

Flynn's lawyer: When the government walks in and says "I quit," it's over. They are the only ones who can prosecute. The court can't continue on its own. But Judge Sullivan has done so for three months, effectively.

Chuck Light

What has always bothered me about this Mandamus petition is that Flynn's counsel and the DoJ keep referring to the Motion to Dismiss as a "charging" decision. In doing so, they rely extensively on United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016).

But language from Fokker leads me to the opposite conclusion:

"The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive's charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution's charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant's guilt and determining the appropriate sentence. Fokker Servs.,818 F.3d at 737 (emphasis added)."

The DoJ Motion to Dismiss was filed after adjudication, and just prior to sentencing. Flynn was (rightly or wrongly) adjudicated guilty when he plead guilty in open court before Judge Sullivan. He then again admitted his guilt at his aborted sentencing hearing, when Judge Sullivan "suggested" that he continue to cooperate with the Mueller Investigation in order to improve his chances of no prison time. People can argue about whether Judge Sullivan overstepped his authority during that hearing, but there is no doubt that Flynn was adjudicated guilty by his own admission on more than one occasion. The only thing remaining for Judge Sullivan to do was to pronounce sentence.

Then, when the final sentencing day was at hand, the DoJ ran in with a FRAP Rule 48(a) Motion to Dismiss, which caused all of this mishegoss. And everyone is claiming this is a "charging" decision and citing to Fokker, which says that adjudication of guilt and sentencing are uniquely judicial functions.

I don't understand how we got to calling this post-adjudication Motion a "charging" decision, given Fokker's apparently clear language. Does anyone have an idea? Neither appellate panel seems to have addressed this.

Chuck Light

smoke

@ Jim - Thank you for that colorful explanation of Judge Henderson's saying, with which I was unfamiliar.

I listened as far as the trout and a little further, then gave up. Too much repetitive legal trade talk for non-lawyers. Henderson was the only judge who sounded openly sympathetic to the legal abuse of Flynn. Garland sounded like he was poking around for a legal or process cause to reject mandamus.

Meanwhile, for any non-lawyer who has followed the developing case against Flynn, surely the only conclusion is that he remains caught in an unjust trap that has abused the principles and powers of the justice system. No matter how the minutiae of legal process are turned and squeaked by how many justices.

Jim

The Irony of the En Banc yesterday is:

1] most but not all of the ten judges kept shrieking about the potentiality of making it "easy" to obtain Mandamus Writ viz. when a judge goes off the reservation.

2] the most used word yesterday was Fokker -- a decision designed to keep judges from going off the reservation, a la Sullivan in the Flynn case -- which decision many of yesterday's judge's seemed unable to grasp its pertinence to Flynn case.

In other words, they shrieked about the routinization of Mandamus; while, simultaneously -- many of them -- expressing disdain for the Fokker decision -- that prevents judges from being [or slyly trying to be de-facto] prosecutors, among other things, a la Sullivan.

These above En Banc judges -- they apparently hate Fokker as it limits them, and they hate anyone using Mandamus to reign them in -- when they leave the reservation and go off into la la land, a la Sullivan.

This bit of ignorance at their hypocrisy or just plain stupidity or perhaps their fragmented consciousnesses block their rational faculties, on this.

And this was plain as day yesterday.

Henderson understood this hypocrisy as did Judge Rao, the two that voted to grant Flynn Mandamus.

I suspect the Chief Judge, presiding at Tuesday's United States Court of Appeals for the District of Columbia Circuit Em Banc, Padmanabhan Srikanth "Sri" Srinivasan may have conceptualized this glaring hypocrisy as well.

Yet no one brought this up.

The closest we got to this elephant in the room, or if you prefer, fish in the milk pail, was Henderson.

Powell did not bring this up; she should have in her two minute closing statement, since some of what she said at that point was cutting no ice with the ten, anyways.

Wilkinson -- this would be the last thing she would have wanted to bring up, as it cuts to the heart of why she and her client are charlatans.

"Sri" Srinivasan wrote the Fokker decision.

He know what it means. [In February Srinivasan replaced Merrick Garland as the DC appeals chief judge; Garland remains on the appeals bench, among the lower lights yesterday.]

The dimmest bulb was one of the two women Obama appointed to this circuit, circa 2013.

This one misrepresented Sullivan's actions viz. Flynn at the atrocious December 2018 sentencing hearing of Flynn, when Sullivan accused Flynn of being a traitor and selling out his country and so on and so forth.

But rather than rehashing this one's ignorance on what actually happened at that sentencing hearing. . . the larger and key point is that this one . . . by what she said yesterday, demonstrated her own bias against Flynn.

It is now a fact that the government [DOJ] had no case against Flynn, that is, no legal nor lawful predicate to investigate him, thus, the persecution of Flynn, not tethered to any law enforcement purpose or function. At all.

Had this one read and understood the record before her, this one would not have made the outrageous statement yesterday, to the effect that ---- if it wasn't for Judge Sullivan that day, you would have been sentenced!. . .

This glaring blunder of this one, broadcast live on CSPAN.

This one's actions yesterday, perfectly preposterous.

This Circuit is as close as there is to a "farm team" for future US Supreme Court justices. Including those that have tried and failed to get there, i.e., Bork and Garland.

https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit

Henderson referred to Sullivan as an "old hand" -- giving him deference and praise and saying he would do the right thing, during June 24 Mandamus hearing, when she and Rao told Sullivan to dismiss the case against Flynn. Wilkins objected in the 2-1 appeals court order.

Instead of abiding by that court order, Sullivan went judge shopping.

Any praise of him, either by Henderson or any of the other nine sitting En Banc, yesterday, gone with the wind.

The fact is: we are at this point: prima facie evidence . . . system broken.

Thus, any speculation of what might be or should be could be said, about what might happen: at best, crapshot.

This is a rotten egg.

How do you spoil a rotten egg?

PS
One of Sullivan's former bosses, the ex-Chief Judge of the United States District Court for the District of Columbia, Richard Roberts, resigned abruptly in 2016.

[[Federal Judge Retires As 'Bad Lapse In Judgment' With 16-Year-Old Surfaces]] the March 18, 2016 NPR headline says.

https://www.npr.org/2016/03/18/470852225/federal-judge-retires-as-bad-lapse-in-judgment-with-16-year-old-surfaces

As the story goes, this occurred decades earlier when he was a prosecutor, long before being the chief judge, etc.

My favorite lines from story: [[Federal appeals court Judge Karen LeCraft Henderson signed a letter this week to certify Roberts was "permanently disabled from performing his duties as a United States District Judge in regular active service."

Judges who serve at least 10 years and then retire under the disability statute are eligible to receive full salaries for the rest of their lives. In several past cases, retirement by a judge also put a halt to possible misconduct probes the judiciary launches of its own members.]]

and this: [[Henderson signed off as "acting chief judge" of the U.S. Court of Appeals for the D.C. Circuit because the chief, Merrick Garland, recused himself. A courthouse spokeswoman declined multiple requests from NPR to provide a reason for Garland's recusal. On Wednesday, Garland was nominated by President Obama to fill an open seat on the U.S. Supreme Court.]]

I am not saying the DC district court's ex chief judge, who was 27 at the time, was a sexual predator; the then 16 year old, now in her 50s, however is. She pushed this to the end and got nowhere.

https://www.deseret.com/utah/2020/6/12/21289570/utah-supreme-court-sex-abuse-law-federal-judge-richard-roberts-terry-mitchell-joseph-paul-franklin

Perhaps Gleason might intervene at this late hour on her behalf, or Wilkinson -- where is ME TOO?

But, at the end of the day, it is for prosecutors and only prosecutors to bring charges and prosecute. And when a prosecutor ends a prosecution, no matter at what stage, the fat lady has sung. Absent prosecutor misconduct, a judge is a potted plant. At this point.

[there is no doubt that Flynn was adjudicated guilty by his own admission on more than one occasion. The only thing remaining for Judge Sullivan to do was to pronounce sentence]

Sullivan never got that far. And even if he had, it was not for him to decide whether to continue a prosecution. Sullivan does not agree that absent prosecutor misconduct he is a potted plant at this point. He was hoping Gleason and Wilkinson would sow him a garden. And thus Mandamus Writ.

Courts “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties." This is from May 2020 Supreme Court decision written by Ginsburg.

In short: “[C]ourts are essentially passive instruments of government,” she wrote.

Getting back to Roberts; he was also famous for denying the public the opportunity to take a look-see at some potentially very embarrassing material about people in high places. A decision the supreme court upheld.

The below snippet, from Wikipedia:

[[Montgomery Blair Sibley, the last lawyer for the late Deborah Jeane Palfrey, sued Roberts for his prolonged failure to file his request to have a gag order lifted, that forced him to keep Palfrey's customer list private. Palfrey was a prominent arranger of trysts with high class call girls, and her client list is believed to be packed with highly placed Washington insiders.]]

https://en.wikipedia.org/wiki/Richard_W._Roberts

They protect their own: Flynn, never a member of that CLUB?

-30-

Jocko dundee

@Jim
“These above En Banc judges -- they apparently hate Fokker as it limits them, and they hate anyone using Mandamus to reign them in -- when they leave the reservation and go off into la la land, a la Sullivan.”

fwiw, three en banc judges, besides Henderson and Rao voted for Fokker, so maybe you should be more specific as to whom the “shriekers” were exactly.

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