What’s going on with Judge Sullivan? [Part III]
[NOTE: Trying to write about the Flynn case and Judge Sullivan is like swallowing an elephant whole and trying to digest it. Maybe several elephants. And I need to do it prior to June 1, when Sullivan (and/or his lawyer?) is supposed to answer to the court on the writ of mandamus. In the meantime, I’m trying, but this is far more perfunctory a treatment than I intended. There’s a lot more to be said, but I’ll leave it at this post – for now.
A reminder: here’s Part I. Here’s Part II. Here’s a post that deals with Flynn’s original lawyers’ conflict of interest as well as the FARA issues in the case. Also, see this for more background. And in particular see this as well as this about the “secret side deal” in which both the prosecutor and Flynn’s original attorneys illegally kept the deal about protecting Flynn’s son secret, so that they wouldn’t have to reveal it later in subsequent trials in which Flynn testified for the state against others who’d been accused. A huge outrage, and only revealed in late April, in documents Flynn’s defense lawyers suddenly “found” after the Jensen investigation probably motivated them a bit more strongly to turn them over voluntarily.
And a question for all you lawyers out there: do you know whether the Brady disclosure rules apply to defendants who have pled guilty, or just to those who’ve been tried? I’ve found a few tremendously long law articles on the subject, but they are fairly old, and rather than plow through all that outdated material, I’m looking for a short and current answer.]
During Flynn’s December 18, 2018 sentencing hearing, Judge Sullivan suddenly began talking about Flynn’s possible treason. This was a turning point in the trial that signaled to everyone that Sullivan was going off the deep end in his pique at Flynn – probably through a combination of rage and politics, as well as hubris and the desire for the spotlight. But it also signaled that Sullivan wasn’t even aware of the facts of the case.
Is Judge Sullivan also – as Ace puts it today, relying on a lawyer named Robert Barnes – stupid? Is he dependent on his clerks, and has he hired the lawyer to answer the writ because he’s unable to come up with any justification for his actions? I don’t know for sure, and it wouldn’t be possible to tell from his written work, which could be the product of clerks. But some of Sullivan’s remarks during that December 18, 2018 hearing, and in particular what he said about treason, certainly make me suspect that cognitive problems – whether long-term or recent and age-related – could indeed be part of the mix.
So that’s go back to the treason-talk episode. Sullivan said (p. 33 of the transcript) [emphasis mine]:
Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid[e]. I can’t minimize that.
Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.
I mean, arguably, that undermines everything this flag over here stands for [indicating]. Arguably, you sold your country out.
Flynn had filed a FARA document prepared by lawyers who were supposedly the best in the field, paid a hefty sum for that service, and all he was accused of was making some false statements on the complex forms, not even necessarily intentionally. Most importantly of all, he ended his connection with all of that before he was serving as the National Security Advisor to the president.
Either Sullivan’s outrage was so hot that he made a stunning error there, or he didn’t even know the facts of the case in the first place. I think both were true.
In the middle of the tirade, Sullivan mentioned incarceration once again, and added that even after Flynn offers help with the other case, Sullivan might still incarcerate him. He also mentioned the usually-moribund Logan Act, and the prosecutor hastened to respond that they aren’t considering charging Flynn with that.
Then Sullivan suggested a recess, for Flynn to think over whether he wants to be sentenced now or to wait till he has totally fulfilled his obligation to help the government (by testifying against his two associates indicted for FARA violations). What else could Flynn say at that point but that he wanted a delay? It was clear that if he was sentenced by Sullivan that very day, it would be to prison, no matter what the lawyers – including the prosecutor – might be recommending.
But right before they recessed, Sullivan got so angry that he couldn’t resist one more dig, and that was this (p. 35):
[SULLIVAN]: …is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on [Flynn’s] part?
MR.VAN GRACK [prosecutor]: The government did not consider–I shouldn’t say– I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.
[SULLIVAN]: All right. Hypothetically, could he have been charged with treason?
MR.VANGRACK: Your Honor, I want to be careful what I represent.
[SULLIVAN]: Sure.
MR.VANGRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it…
One day after that sentencing hearing, which ended without a sentence being pronounced, Andrew C. McCarthy wrote this [emphasis mine]:
…[I]t’s tough to fathom how a judge could spin such a thing into treason when (a) the foreign power, Turkey in this case, is a NATO ally (at least technically), (b) General Flynn was not a U.S. government official when he acted as Ankara’s agent, (c) the prosecutor did not think it was an important enough crime to charge against Flynn, (d) Flynn is a decorated 33-year combat veteran who has written a book detailing a strategy for defeating America’s actual enemies, and (e) the prosecutor, in fact, has proposed a sentence of no jail time for the process crime that was actually charged in the case.
After calling a brief time-out in the proceedings, a contrite Judge Sullivan returned to the bench and retracted his loopy treason comments. All in all, it was a disgraceful performance: Flynn’s is not a complicated case, yet Sullivan failed to have a grip on basic facts.
When they all returned after the recess, Sullivan realized his error and backpedaled and even apologized as well as trying to pretend it was no biggee, as I described in Part I. What had happened with Sullivan during that recess? I have a feeling that someone had informed him of his error – perhaps one of his clerks – and he realized that he’d stepped in it.
And I very much doubt that any of this has had the effect of making Sullivan less angry at Flynn. I think the embarrassment made him even more angry, more motivated to blame Flynn, and more determined than ever not to let him off.
I believe that’s still operating with Sullivan right now. His actions since Barr’s DOJ pulled out of the case have been so outlandish, so egregious, so obviously incorrect in legal terms, that I think he has indeed reached Captain Ahab levels.
Again, that doesn’t mean that’s all that’s going on with Sullivan. Not at all. I think politics is part of it. I think he’s also angry at Powell (I might write more about that later), at Barr, and of course at Trump. I think he’s gotten a lot of encouragement and assistance from a bunch of legal leftists and/or Trump-haters such as Judge Gleeson, who wrote the editorial in the WaPo egging Sullivan on.
But I also think Judge Sullivan has had the rug pulled out from under him at the moment, finally. Till now, he has held all the power and exercised it as he sees fit. He has come down hard and sometimes irrationally not only on Flynn, but on Sidney Powell as well (for example, with a ridiculous accusation of plagiarism when her cite was a hyperlink rather than being done traditionally).
I don’t think Sullivan expected the higher court to respond to the writ of mandamus the way it did, and why would he? It’s highly unusual to even answer such writs, and it’s perhaps unprecedented to ask the judge in the case to personally respond. I don’t think he’s at all prepared to justify his actions. I don’t even think he is aware of any legal justification, except what others (such as Gleeson: “The Flynn case isn’t over until the judge says it’s over”) have provided. Sullivan’s clerks may even be throwing up their hands and saying “don’t look at me; I can’t defend your cockamamie actions.”
No wonder he hired a lawyer to help.
I vote for the Ace version. You beat me to it. “Dumb as a box of rocks” sounds about right. Senility is another possible excuse.
Jonathan Turley has argued in front of him and said he was satisfactory in those cases. I doubt he’s an abidingly unintelligent man, though he may have been a mediocre lawyer. He did earn a living practicing law for 11 years before he was appointed to the bench. My wager would be losin’ it. He’s rather young for that at 73, but recall Jeffrey Hart was 74 when he started making peculiar utterances.
Art Deco:
Basically, I think he’s slightly losing it cognitively but also that this case has unhinged him emotionally.
It is my understanding that Brady material — that is, any favorable, “material” evidence in the prosecution’s possession that is exculpatory, must be disclosed, pre-trial, during trial, or even post-trial. The scope of the duty to disclose is pretty broad: if the prosecution possesses it, they must disclose it.
Please note: I’m a civil attorney, and have no experience in criminal law. But I think what I’ve written is the current law with respect to Brady and exculpatory evidence.
There is a lot to digest, Neo, but I do agree with you on one critical point. I don’t think Judge Sullivan ever expected to have to answer to a higher court on a mandamus petition. He clearly thought he was in total command in his courtroom and, even if Sidney Powell filed for mandamus, he never in a million years expected anything than the routine dismissal.
I am, however, perplexed that he hired a “well connected” lawyer rather than one with a specialization in appellate or particularly mandamus practice. My off the cuff theory on that is based on reading that Beth Wilkinson was particularly closely connected with people at DOJ. I think perhaps that means that she’s been hired to inform Judge Sullivan about whether Justice intends to file a pleading supporting Flynn’s petition. If they join in, then he’ll cave. But I don’t see how he can do otherwise anyway.
Michael Towns:
I found some older articles I looked at very quickly, that seemed to say it was limited to non-guilty pleas (trials) and that in a guilty plea people waived the right to it. I also saw something from last year (can’t remember the name of the case) where SCOTUS refused to hear a case on the subject.
It all seemed unclear, though.
Thank you Neo and commentors who know about this stuff, this is so far beyond my knowledge and experience that I had no idea what was going on. Now, after reading each part I have a little bit better idea and I am looking forward to seeing how this all plays out. In the world I want to live in Flynn will win and require apologies from many. Maybe some civil legal recourse too and last thing, if all of this cooked up stuff against Trump and Flynn were know to be frauds and the lawyers were paid by the government as they kept the fraud alive, isn’t that breaking the law?
The argument by Team Mueller is that he pleaded guilty, so any further review of the evidence is irrelevant and a waste of judicial system resources. He’s guilty! He admitted it! The prosecutors’ hurry-up offer of no jail time was clearly intended to keep Flynn and Covington from pushing their demand to see the evidence, not to mention Brady materials.
Sullivan had ordered that all exculpatory materials be provided for his review, but I think Van Grack had failed to produce the materials cited by Jensen. Tsk, tsk. Bad prosecutor!
Neo has once again provided an elegant, coherent, and thorough analysis.
I still think that Beth Wilkinson was not hired to provide a persuasive argument to the DC Circuit, but rather to be sure that Sullivan did not make a mistake, recognizing that you can make a mistake by lying or by telling the truth, but very rarely by changing the subject. Let’s see what the filing says. I think it will mirror Sullivan’s walk back from his treason comments. He just wants to ask questions.
Another thing that is going on here is the disciplining by the superior courts of the district court judges who have embraced the resistance. The precedent in the DC Circuit is very clear: Fokker. Sullivan had no business keeping alive a criminal proceeding that the DOJ had decided to abandon because it was improperly founded. Justice Ginsberg issued a similar opinion for a unanimous Supreme Court a few weeks ago. SCOTUS is about to severely cut back nationwide injunctions by district courts, unless the district judges show some self restraint. This is a project of the superior federal judiciary, and Judge Sullivan put himself at ground zero for all the reasons that Neo has identified.
Judge Sullivan reminds me of Mark Steyn’s first judge in the lawsuit climate change scientist, Michael Mann, filed against Steyn and National Review in 2012. That too was quite complicated and is still ongoing. Steyn counter-filed an anti-SLAPP suit.
______________________________________________________
“SLAPP” is legal jargon for “strategic lawsuit against public participation” – that’s to say, where litigious types like Mann use legal threats to take their opponents out of the game on public-policy matters, as Mann has done in British Columbia and Minnesota and elsewhere. Anti-SLAPP legislation was enacted in DC to put a swift end to these kinds of cases. But a combination of a poorly drafted law, an incompetent jurist and an unsatisfactory appeals process have made DC’s anti-SLAPP law dysfunctional and capricious.
The incompetent jurist was one Natalia Combs Greene, a slapdash judge who among other idiocies in her judgments couldn’t tell one defendant from another. She ruled against our anti-SLAPP motion to let the case move to trial. Which it would have done had not Mann hit the pause button by amending his complaint. By then I’d exposed his fraudulent claim to be a Nobel Laureate, and so he and his lawyers wished to rewrite their complaint to take out the false claim. Judge Combs Greene said okay, in essence giving him a do-over.
At that point, she decided the case (that her crappy court chose to accept) was all just a bit too complicated for her to handle so handed it off to Judge #2. Several convoluted procedures followed but the thrust of it is this – because the judge accepted the amended complaint after she ruled on the original complaint, the DC appeals court punted. The whole thing was moot and we had to start back at square one.
https://www.steynonline.com/6475/year-three-begins
______________________________________________________
As of this date Mann v. Steyn (2012) is still not settled, though Steyn has legally requested the case be expedited. Three of his defense witnesses have died and Mann seems unwilling to press his side with alacrity.
The process is the punishment.
–Mark Steyn
And so it seems with Flynn.
Nice work and thanks very much for picking it apart for all of us, Neo. It will be interesting to see how it plays out, the current is starting to pick up and there are fewer meanders now to confuse things. We’ll see what the falls ahead look like.
I suppose we’ll never know whether there were influences at work outside of Flynn’s courtroom environment within his political/social sphere that are providing thoughts on direction or strategy. And although I’ve seen some material on Sullivan’s personal / family life, I haven’t seen any professional reporting drawing attention to it.
The progressives crow that Flynn is “Guilty, forever!” in the same way that Trump is forever impeached. The case has collapsed to dust under the weight of its own fraud in both instances, and all that’s left to do is hold the trophy aloft to claim victory, while pretending that it isn’t made of plastic, coated with cheap, shiny pot metal.
Neo, not sure if you found this one yet.
So apparently, as late as 2007, “One facet of current discussions of Brady in the context of guilty pleas, though, is distinct from discussions of Brady in the trial setting.Brady v. Maryland and its progeny clearly impose a due process duty on prosecutors to disclose in cases in which guilt is determined through trial. In contrast, whether Brady applies when guilt is determined by guilty plea has been and continues to be uncertain.”
Kevin C. McMunigal, “Guilty Pleas, Brady Disclosure, and Wrongful Convictions”
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1713&context=caselrev
There’s also this more recent one from 2013: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4913&context=flr
“Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining” by Michael Petegorsky.
Michael Towns:
Thanks. I’ll take a look. My guess is that it’s still unclear. My guess is also that SCOTUS may not want to take the question up because it could wreak havoc with the plea bargain system and would end up overloading the courts with post-guilty-plea Brady requests.
Seems to me that, at present, it may be that all a prosecutor needs to do is scare the crapola out of a defendant while simultaneously hiding the exonerating evidence, get the accused to falsely plead guilty, and then the prosecutor is home free. Do you think that’s correct?
Neo–the answer to the question is, it happens every day, but the defense usually is crawling all over the evidence, too, and blowing up prosecutors’ cases. The burden of proof plus the reasonable doubt standard are strong weapons for the defense. Under the reasonable doubt standard, if a juror thinks the accused is probably guilty, that juror should vote to acquit. That is why the prosecutors have gone with plea bargains, and guilty defendants usually like them, too.
Flynn and Covington were handicapped by the classified information/ counter-intelligence aura around this situation. Look at how many documents in the Russia hoax were redacted, and then when the material was declassified, it blew up the hoax. Nunes was vilified because he wrote accurate summaries. Schiff was lionized because he peddled baloney.
Flynn still isn’t free to tell his story. Team Mueller was able to play this game because Flynn and his lawyers have had one hand tied behind them. Look at the way the prosecutors hid the 302 and the transcripts from Flynn and Covington.
“whether the Brady disclosure rules apply to defendants who have pled guilty, or just to those who’ve been tried?”
https://www.crimeandconsequences.blog/2020/05/26/five-bad-arguments-for-gen-flynn/: “In United States v. Ruiz, 536 U.S. 622 (2002), Justice Breyer, writing for a unanimous Court, held that Brady is a trial right and that the defendant has no right during plea negotiations to the production of impeachment material (an important form of exculpatory evidence). Over the last 18 years, a number of appellate courts (not including the DC Circuit so far as I know) have considered whether other forms of exculpatory evidence must be disclosed at the negotiation stage, and, on the reasoning of Ruiz, a majority have decided that it does not.”
>. Seems to me that, at present, it may be that all a prosecutor needs to do is scare the crapola out of a defendant while simultaneously hiding the exonerating evidence, get the accused to falsely plead guilty, and then the prosecutor is home free. Do you think that’s correct?
Yes
That is correct
Plus the whole point of getting the defendant to plead guilty under oath is to cripple later appeals that the plea was made under duress. That is Federal judge imposing that requirement
Good thread on this subject by Twitter handle @Techno_Fog: https://twitter.com/Techno_Fog/status/1266054760651784194
Perhaps the judge plays dress up and goes around yelling Off with his head!
“the defense usually is crawling all over the evidence, too, and blowing up prosecutors’ cases.”
Except this defense team from Eric Holder’s law firm. Coincidentally I’m sure.
I strongly agree with Neo and others who say that there is certainly an emotional component to the Judge’s behaviour, and not necessarily cognitive difficulties of any kind. Reductively speaking, after all of Neo’s analysis, it appears to be just another case of Trump Derangement Syndrome spilling over on General Flynn. It all reminds me of my father’s best religious joke – with apologies to my Methodist friends in advance. A devout Quaker owned a troublesome and recalcitrant horse who kicked him one day a bit harder than usual. In fury, the Quaker said to his horse, “I am a Quaker and therefore I cannot curse thee, and I cannot beat thee, but I can sell thee to a Methodist and he will curse thee and he will beat thee.”
A judge involved in accident, or caught taking a bribe or being taken to court for any matter should get a lawyer. The principle is the same as a doctor not treating himself.
That, however is not the case here.
A judge make ruling and is expected to have done legal reasoning to justify it. He is supposed to make findings off fact, and findings of law. Look at many rulings and you see this.
Let me pick one which is both educational and funny. Bradshaw vs Unity Marine C , https://law.justia.com/cases/federal/district-courts/FSupp2/147/668/2409194/
Notice how the judge goes through all his logic? You can also look up the video of that trial of a cop who jumped up on a car and fired through the window. Th3e judge not only gave his ruling and produced a writtten ruling but he explained his ruling in court.
So there are three issues brought up in the mandamus request. The request for amici briefs, the appointment of Gleeson and the charge of bias. Like all rulings, the Judge Sullivan is supposed to have his legal reasoning done when he issues the order. As for the bias charge, that is for the purpose of recusal. There might be disciplinary actions but those are down the line and not relevant in this reply.
In the end that means that by hiring an outside lawyer, Judge Sullivan did not have his ducks in a row and now needs help fixing them. In other words he is admitting his incompetence.
Another corroborating fact is that the fact the appeals court asked for a reply. That means that they are giving serious consideration to granting it, and no courts don’t ever ignore writs. It is just that they often deny them without a second look. A smart judge would have granted the motion to dismiss, and then reply toi the court that the issue is moot.
I suspect that the reason that the judge asked for the briefs is that he is dumb. He wanted briefs and arguments, in case he was missing something, before he ruled.
To me that is not that much of a thing, I would rather be in front of an honest dumb judge with smart clerks than a dishonest smart judge.
“I would rather be in front of an honest dumb judge with smart clerks than a dishonest smart judge”
How about a dishonest dumb judge? We seem to have this question a lot, fool or knave when the answer is “and”.
After everything that has happened over the last 4 years, I am surprised that anyone here thinks that Sullivan hired Wilkinson in anything but a formal way. I am sure Wilkinson’s services are being provided for a nominal fee.
This smells like a Lawfare operation. We have seen it over and over again. Go read Susan Hennessey’s Twitter stream. Read Ben Wittes’s blog posts. Those folks are Coup Central, flying the national security flag as they try to reverse an electoral outcome not to their liking. I have the feeling that this crew wants to be sure that any ex parte communications with Sullivan are buried as deep underground as possible. I think Wilkinson is there to provide supervision of the judge’s efforts to explain himself and to make sure that there is no whisper of collusion. As with his treason rant, Sullivan just wants to ask questions.
I want to know who is paying Wilkinson. Amadeus 48 may have this right. If the Lawfare types are smart, at this point Sullivan will dismiss the case as requested, tell the Appeals Court the question is moot, and they’ll hope to keep the connections private.
Ugh. Susan Hennessey and Ben Wittes. I intensely dislike them, but especially Hennessey. She’s been unhinged on Twitter for months. She was probably a shoe-in for some plum Clinton Administration job. She’s been angry, bitter, and raving mad ever since November 2016.
Regarding the Brady question, it seems that many law professors having been pushing for it to apply to pre-trial pleas but it doesn’t apply due to that 2002 SCOTUS opinion. However, prosecutorial misconduct itself is a broader category than the narrow Brady subset. It’s general prosecutorial misconduct on many levels of the Flynn case that has caused DOJ to move to dismiss charges. So thank goodness for that.
Whether Brady applies to plea bargaining is in dispute — but Sullivan’s own pre-trial order required full disclosure of exculpatory material.
If a defendant is contemplating a plea deal and asks the prosecutor to represent under oath that there are no undisclosed Brady materials: (a) would a prosecutor ever give such a representation; (b) if the representation were found to be false, (i) would the plea deal be enforced anyway; and (ii) would the defendant have any other recourse for fraud?
I think he’s slightly losing it cognitively but also that this case has unhinged him emotionally.
A highly emotional septuagenarian who does not have some sort of clinical diagnosis (as in manic-depression or Alzheimer’s) is a bird I’m not sure I’ve ever encountered.
Owen–a fundamental question is, who wants the plea deal?
As I read the Flynn situation, Covington was about to really press to get the 302 and the transcripts–which Team Mueller had so far refused on national security/means and methods grounds–when Van Grack came up with the proffer/no jail time deal. In retrospect, you can see that was intended by Team Mueller to avoid having to fight over the 302 and the transcript and, even worse, the December case-closing memo. I think Team Mueller bluffed Team Flynn into the plea deal with no jail time to avoid having to disclose how weak their case was. Team Mueller wanted a plea deal badly. After Flynn pleaded guilty, they could bury everything.
Now that it has been declassified, we can see that the 302 had nothing about means and methods, and in fact, even after weeks of editing, it isn’t a particularly damning summary of Flynn’s interview. I don’t think true transcripts of the Flynn-Kislyak calls have ever been provided either, but everybody agrees that the substance of the calls was a nothing-burger. The December case-closing memo is a bombshell. Team Mueller had no case, and the Kislyak telephone calls didn’t give them one. That is why Jensen recommended abandoning the prosecution.
This prosecution should have never been brought and should be abandoned. If Sullivan were (a) honest or (b) keeping up with the class, he would know that.
Amadeus 48. Agree that the prosecution was very flimsy: just a way to take Flynn off the board, discredit Trump and amplify the RussiaRussiaRussia noise machine. Agree also that as I understand it neither the defense nor the court has ever seen the 302 or the transcript of the Flynn-Kislyak telephone call. How can one determine if a crime (of lying) even exists, if one cannot examine both the “underlying truth” (the transcript) or the record of what Flynn said about it? There’s no there, there. How Covington got bamboozled and coerced into persuading their client that this was the least-bad deal, is perhaps the most interesting part of a story that is yet to be revealed. I think Flynn (and Powell) will bring a strong case for malpractice, once the criminal case is dismissed.
The back-channels in DC are overwhelming.
At my law school reunion two years ago I was ranting about Rosenstein, Comey, and Mueller to a classmate who has been in DC for 40 years and had been a high federal appointee in GOP administrations. She brought me up short by observing, “You know, all these people are our social friends, and if you were in DC they would be your friends, too. There is a long way to go before I am prepared to believe they are promoting injustice.”
Now, this person is also friends with Bill Barr. The fractures here are Dreyfus-like.
As long as prosecutors are immune from any real punishment for malfeasance, the sort of stuff Flynn is experiencing will continue.
A crooked prosecutor(s) may, in a very extreme situation, get fired, but they keep their pension and most likely can continue to practice law, or in the case of lawyers well connected within the sewage of the District of Columbia, get hired on at a big fat salaries at some hot shot law firm or lobbyist group.
It’s really a win win for crooked lawyers / prosecutors in DC.
(Mike Nifong, the crooked prosecutor in the Duke lacrosse case was an exception; he spent one day in jail and was disbarred. One could argue however that his punishment was a joke, considering what he did, and worse, what he intended to do to three college lacrosse players; that is, imprison for rape three innocent people. )
As for lousy judges, ditto for them as well; they may lose their jobs – but not their pensions – or perhaps receive a meaningless reprimand (you know, like Congress holding Eric Holder in contempt; a waste of time).
There simply are two standards of justice in the USA; those for the well connected to the Federal bureaucracy – esp. if one is a liberal / progressive, and one for the unwashed masses.
I don’t expect any of the prosecutors in the Flynn case or on the Mueller team to receive any punishment at all, irrespective of the magnitude of their wrongdoings. After all, they are lawyers and they will “play” the legal system until all is clear.
Coming soon to a station near you, expect to see them working for big $$$$ at some lobbyist group or DC law firm.
James DeLong. Do you think Sullivan was doing the pro forma thing regarding Brady?
Did he really expect it or was he checking a box? In an ideal world, when a judge finds the prosecution withheld Brady material, he’d arrest and jail the entire crew.
Is there evidence Sullivan was upset about the withholding and at least scolded the prosecution?
For example, I don’t think the crooked prosecutors were ever punished in the Ted Stevens case even though Sullivan decided that Stevens had been framed. Of course, the election was over and it was safe to posture.
And Ted was dead.
Yes, a prosecutor is under a continuing duty to disclose Brady material morning, noon, and night, in perpetuity. If a prosecutor discovers anything favorable to a defendant, even if it’s twenty years after the person pleaded guilty, they are always duty-bound to disclose this evidence to the defendant.
John Tyler:
What happened to one of the FBI agents in the Stevens case? It seems that James Comey (yes, that James Comey) spoke harshly to her. I say “her” because it was a woman, and as of June 2016 she was still employed by the FBI.
The prosecutors were investigated, one killed himself, and I think that two of the others were temporarily suspended and then reinstated.
RigelDog
If the prosecutors fail, and are busted, all I have heard is they get a sympathy card from the local bar association. “Better luck next time.”
Is there any reason besides professional courtesy–any procedural reason, any administrative reason–that a bar association could not disbar a prosecutor for withholding exculpatory material?
And when somebody’s been in prison for years and decades due to prosecutorial misbehavior…what is the penalty visited on the prosecutor, or his estate? I know, I know. But it should be something.
Defendants are not allowed to withhold an alibi on the grounds that disclosing it will allow the prosecution to tweak the charges–such as the guy was out of town that week so we have to change the date of the alleged offense.
Richard Aubrey: Prosecutors are under an ethical obligation to seek justice, not convictions, and to act in accordance with the law. A Brady violation, knowingly perpetrated, should result in an investigation by the state bar’s Disciplinary Board and could result in sanctions up to and including losing one’s license to practice. It’s just my opinion, but my sense is that the majority of Brady violations are inadvertent.
There is no good excuse for not turning over Brady material. To not do so is simply unethical and unconstitutional. Any prosecutor who thinks otherwise is completely misunderstanding his actual role in a trial, a plea, or an appeal of either of the first two instances. A prosecutor’s job is to try and defend the case on all of the facts, even those that are contrary to the argument he is making. Any fact he is aware of that undercuts his case must be given to the defense, even if they are unaware of the fact itself.
had_the_man on May 29, 2020 at 2:16 am said:
…
Let me pick one which is both educational and funny. Bradshaw vs Unity Marine C , https://law.justia.com/cases/federal/district-courts/FSupp2/147/668/2409194/
* * *
God bless the Great State of Texas and her judges.
Speaking of Brady material –
Judge Contreras accepted the original plea from Flynn and took the prosecutors’ word that the transcript and 302 were irrelevant – we still don’t know exactly why, but he was recused soon afterward when it was revealed that Strzok had ex parte dealings with him.
https://theconservativetreehouse.com/2020/05/29/nothing-inappropriate-dni-john-ratcliffe-releases-wiretapped-flynn-kislyak-transcripts-and-fbi-summaries-cr-cuts-of-those-transcripts/
This is what Obama & his crew were protecting by getting Flynn axed from the NSA.
https://libertyunyielding.com/2020/05/29/concluding-dan-bonginos-point-the-obama-order-that-tells-us-it-was-a-coup-attempt-from-the-start/
You know how people feel about lawyers.
And you know how people feel about politicians.
Consider this: A judge is a lawyer who knows a politician.
A judge said this to me.
So much rot.
Thanks Amadeus 48 for a great note on how the Swamp Social circuit works in reality, and applies to A. McCarthy too:
I was ranting about Rosenstein, Comey, and Mueller to a classmate who has been in DC for 40 years and had been a high federal appointee in GOP administrations. She brought me up short by observing, “You know, all these people are our social friends, and if you were in DC they would be your friends, too. There is a long way to go before I am prepared to believe they are promoting injustice.” … also friends with Barr.
Well, the Dem dirty cops were promoting and continue to promote injustice. But all the top guys are social friends with other top guys – tho NOT Trump, and mostly not Flynn, either.
Probably not John Durham (Trump sometimes tweets him as Bull Durham), either — which seems likely necessary to get more justice.
No indictments, no justice.
Karl Lembke on May 30, 2020 at 2:17 pm said:
You know how people feel about lawyers.
And you know how people feel about politicians.
* * *
Also consider that (too) many politicians ARE lawyers (and not very accomplished ones at that) .
Easy to explain the low approval ratings of congress!
“How Covington got bamboozled and coerced into persuading their client that this was the least-bad deal, is perhaps the most interesting part of a story that is yet to be revealed.”
They weren’t “bamboozled”. They were, however, “coerced” (or “threatened”, though perhaps “bluffed” might be the better term).
That is, they were threatened, in typical style, by Mueller and his thugs that they would be made “complicit” in Flynn’s supposed FARA filing violations (“bogus” because it turns out the violations were—who woulda’ guessed!—non-existent):
https://twitter.com/JohnWHuber/status/1261447227127599106
Key graf:
“The Special Counsel refused to turn over Flynn’s original FD-302 both those times. Instead, they schedule a follow up conference call with Covington for the following week and subtly threaten Covington that they might be a fact witness against Flynn for preparing his FARA filings.”
So they likely felt that they were “over a barrel” and so had to protect themselves at Flynn’s expense.
(“With defense lawyers like these….” or better: “With an SCO like this…”)
Related:
“FBI’s top lawyer, Dana Boente, asked to resign…”
https://twitter.com/seanmdav/status/1266864674219360259