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: /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: /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: /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
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