Read on Twitter
In advance of Flynn hearing, Flynn will not joining video conference.
Significantly, Jocelyn Ballantine is NOT representing USG here. She's the one who has made some representations that will blow up shortly.
Sullivan: not going to focus whether live case or controversy. Circuit already decided. Not going to focus on perjury, at this point. Parties' positions and Gleeson's positions are crystal clear.
Thus far Sullivan is not questioning whether this "new" evidence was actually new. It's not, but he's not questioning that.
Sullivan: Sentencing already commenced in this case already a year and a half ago. Only bc court was concerned that Flynn get full benefit of cooperation, sentencing commenced in December 2018.
During that hearing, extensive colloquy abt circumstances of FBI interview.
During that hearing, extensive colloquy abt circumstances of FBI interview.
Gonna interject to note I'm so old I remember when every single member of the frothy right was thrilled when Flynn got assigned to Sullivan bc Sullivan goes to such lengths to protect rights of defendants.
Sullivan says Flynn elected not to fully cooperate w/Govt.
Flynn's lawyers will object to that representation.
Flynn's lawyers will object to that representation.
Sullivan reminds that he already decided these were material lies.
Sullivan now describing how DOJ already rejected Flynn's renewed challenge to his prosecution from Carter Page DOJ IG, bc it was relevant.
Sullivan notes he has not ruled on a slew of pending motions. IN ALL OF THEM, DOJ has taken the exact opposite view of what they hold here. Main DOJ approved some of those, including the first revised sentencing memo.
Sullivan: Suffice it to say case was remanded to me by en banc court.
Not getting into the Circuit rulings.
Not getting into the Circuit rulings.
Sullivan cites Gleeson's arguments that the historical reason to prevent politically corrupt dismissals, and did not distinguish between opposed and unopposed MTDs.
Sullivan repeats that the court did not intend that Judges serve as a mere rubber stamp
[Corrected tweet]
[Corrected tweet]
Sullivan cites Gleeson's several reasons for a judge to reject MTD: pretext and gross abuse.
Someone is being picked up in the background of one of the people not muted (that is, USG, Flynn, or Gleeson). In other words someone is ignoring Sullivan.
Note: one thing Sullivan is doing is reading into the transcript what each side has already argued.
I'm guessing he's got a very good reason to do that.
I'm guessing he's got a very good reason to do that.
Now it's clear that the people talking in the background are with Flynn, bc there was a reference to "recommend your dismissal."
Sullivan now reviewing DOJ claims abt materiality, about which DOJ has flipflopped on submissions not withdrawn by DOJ.
One thing Sullivan quotes is a claim from DOJ that the FBI wanted to do an investigation no matter what.
Except SINCE THEN, DOJ has submitted evidence that multiple people at FBI shot down requests to do an interview (from new star witness William Barnett).
Except SINCE THEN, DOJ has submitted evidence that multiple people at FBI shot down requests to do an interview (from new star witness William Barnett).
In other words, since DOJ claimed that the FBI wanted to interview Flynn no matter what, DOJ has submitted MULTIPLE pieces of evidence that disproves that.
Sullivan notes that he already agreed with DOJ's prior argument that Flynn's lies were material.
Sullivan: Gonna ask if govt has any objections?
USG: Largely accurate. Some points don't know whether you want us to address them now. Disagree w/your honor's assessment--
[and then I got cut off, or they did]
[and then I got cut off, or they did]
And we're back.
USG: Summary comprehensive, generally accurate, 4 points.
1) DC Circuit doesn't go as far as suggested, case not moot until court rules. Whether Article III requires granting MTD. [Not DCCircuit said there was a C&C]
USG: Summary comprehensive, generally accurate, 4 points.
1) DC Circuit doesn't go as far as suggested, case not moot until court rules. Whether Article III requires granting MTD. [Not DCCircuit said there was a C&C]
USG: Not suggesting court is rubber stamp.
[That's funny. Bc Jeff Wall sure came pretty close to that at the Circuit.]
[That's funny. Bc Jeff Wall sure came pretty close to that at the Circuit.]
USG: What court cannot do is second-guess whether there's pretext or favoritism.
USG: Materiality standard, objective one. Doesn't matter whether USG actually misled. Critical point here is those are cases whether evidence sufficient to sustain jury verdict. Whether COULD not whether SHOULD convict defendant.
Mooppan: If USG was convinced--convinced!!--that FBI went out and asked questions they knew just to set up defendant that they had to prosecute.
Kohl: Allegations that we would operate with corrupt political motive.
[HAHAHAHAA. Ask Roger Stone abt that.]
Didn't happen here. US Attorney's office decision was right call for right reasons.
[HAHAHAHAA. Ask Roger Stone abt that.]
Didn't happen here. US Attorney's office decision was right call for right reasons.
Kohl claims they're happy to explain why they moved to dismiss the case.
He may regret that.
"Once govt finds evidence of wrong-doing, our responsibility to do investigation."
He may regret that.
"Once govt finds evidence of wrong-doing, our responsibility to do investigation."
Again, DOJ IS ON THE RECORD saying there was no abuse.
Kohl now citing Bill Barnett, whose 302 is riddled with contradictions, unless you're WaPo, he claims that that call didn't change his assessment.
Again Barnett ignored 4 pieces of evidence.
Again Barnett ignored 4 pieces of evidence.
Kohl: Normally those accusations alone would be game over for prosecution. Notes that have been discovered showed that SCO prosecutors met with DOJ and observed that Flynn had a bad memory.
LOLOL. This is hilarious.
LOLOL. This is hilarious.
Once we got HPSCI transcript, do you think he lied, arg he lied, it's a close one.
JIM COMEY WAS GONE BEFORE THE MOST IMPORTANT EVIDENCE CAME IN.
JIM COMEY WAS GONE BEFORE THE MOST IMPORTANT EVIDENCE CAME IN.
Kohl: We ultimately have to prove this case w/witnesses. There is no recording of what Flynn said.
Sullivan: Are you saying there's no recording of what Flynn said.
Kohl: There is a write-up of the interview.
Sullivan: Are you saying there's no recording of what Flynn said.
Kohl: There is a write-up of the interview.
BREAKING: DOJ JUST HELD THAT THEY CAN'T PROSECUTE PEOPLE W/O A RECORDING OF THEIR LIES.
Kohl: Are we going to call Pete Strzok?
[Note, there are DOJ notes that show exactly what Flynn said. Those witnesses are not compromised.]
Now Kohl claiming that Pientka mislead FISC.
[Note, there are DOJ notes that show exactly what Flynn said. Those witnesses are not compromised.]
Now Kohl claiming that Pientka mislead FISC.
Kohl: Or do we call Andy McCabe, who was fired because he lied. We'd be put in position of calling Andy McCabe.
[Note, once McCabe wins his lawsuit, that won't be a problem.]
[Note, once McCabe wins his lawsuit, that won't be a problem.]
Again, KOHL IS LYING abt the scope of witnesses here.
But hey, it's only a court.
But hey, it's only a court.
Kohl again relies on Bill BArnett.
Barnett either pretends not to know or, um, didn't tell the truth abt what the evidence shows.
Again, unless you're the Washington Post
Barnett either pretends not to know or, um, didn't tell the truth abt what the evidence shows.
Again, unless you're the Washington Post
Sullivan: Letter sent by Flynn's current atty to AG, in June 2019, are you familiar with letter?
Kohl: Not specifically.
WOWOW. Kohl claims he doesn't know how Sidney Powell ordered this shitshow up.
Kohl: Not specifically.
WOWOW. Kohl claims he doesn't know how Sidney Powell ordered this shitshow up.
Here's the letter Sullivan is referring to: https://www.courtlistener.com/recap/gov.uscourts.dcd.191592/gov.uscourts.dcd.191592.122.2.pdf
Sullivan: She makes a number of requests, one she requests new counsel, to review entire Flynn case. She makes a number of other requests. What I want to ask you to address is propriety of this letter. Not a lot of public discussion abotu this letter.
Note, I discussed it, and then much later the NYT did (tho w/o noting I had).
As I noted, this is one thing Barr may be trying to hide. https://www.emptywheel.net/2020/07/27/hjc-should-ask-bill-barr-why-it-would-do-irreparable-harm-if-he-had-to-explain-his-actions-in-the-flynn-case/
As I noted, this is one thing Barr may be trying to hide. https://www.emptywheel.net/2020/07/27/hjc-should-ask-bill-barr-why-it-would-do-irreparable-harm-if-he-had-to-explain-his-actions-in-the-flynn-case/
Sullivan: raises questions abt motive for a number of things that have happened in this case.
Kohl just minutes ago claimed that he didn't know about this letter. Now claiming it wasn't based on this letter.
Sullivan: DO you know that for a fact or are you speculating?
Kohl: I do not know one way or another. I have spoken w/AG abt decisions in case.
Sullivan: DO you know that for a fact or are you speculating?
Kohl: I do not know one way or another. I have spoken w/AG abt decisions in case.
Kohl: not clear to me why problem that a lawyer raises problems in prosecution.
Sullivan: Do you know if there was a response to this letter?
Kohl: Not to my knowledge. We will get back to you.
Sullivan: Do you know if there was a response to this letter?
Kohl: Not to my knowledge. We will get back to you.
Sullivan: She says, we appreciate your attention to these matters.
Sullivan: I'd like to know what any further communication between AG, Rosen, and attorney for Flynn.
Powell interrupts.
Sullivan: I didn't ask you.
Powell interrupts.
Sullivan: I didn't ask you.
Kohl: Those sort of communications, whether we would produce that is something I would have to talk to leadership.
Sullivan: I certainly don't sit here and say no reasons to respond.
Sullivan: I certainly don't sit here and say no reasons to respond.
Powell: Only response was from Van Grack denying Brady. I did same thing writing letter to Holder in Brown.
Sullivan: Have you had discussions w/President about case?
Powell: I have not otherwise than an update to what happened in it.
Sullivan: Any discussions, yes or no.
Powell: I can't discuss that. Would be PROTECTED BY EXEC PRIVILEGE.
Powell: I have not otherwise than an update to what happened in it.
Sullivan: Any discussions, yes or no.
Powell: I can't discuss that. Would be PROTECTED BY EXEC PRIVILEGE.
Sullivan: You're purporting to invoke Exec Privilege, not to discuss comms with President.
Sullivan: how'd you provide update?
Powell: in person w/counsel to President. Jenna Ellis, and President himself.
!!!!!!!!!!!
Sullivan: how'd you provide update?
Powell: in person w/counsel to President. Jenna Ellis, and President himself.
!!!!!!!!!!!
Powell says her only request was that he not issue a pardon..
Sullivan: how many other discussions?
Powell: not that I would recall. I've had a number of discussions w/POTUS. NYT says 5> They have better number than I have. Couldn't tell you number of times.
Sullivan: how many other discussions?
Powell: not that I would recall. I've had a number of discussions w/POTUS. NYT says 5> They have better number than I have. Couldn't tell you number of times.
Sullivan: Was that within the last two weeks?
Powell: after MTD and after writ of mandamus entered.
[She's being REALLY dodgy on timing]
Powell: after MTD and after writ of mandamus entered.
[She's being REALLY dodgy on timing]
Powell: I never discussed this case w/POTUS until recently when I asked him not to issue a pardon.
Sullivan: When you wrote letter, Flynn repped by C&B. Ethically appropriate knowing represented by other counsel?
Powell: Flynn had already terminated C&B.
Powell: Flynn had already terminated C&B.
Sullivan: What else would you like to put on record.
Powell: All orders appointing Gleeson, Amicus, request to strike all of that briefing, and exhibits, he's not a party, no legit role in this case. No court ever appointed special prosecutor.
Powell: All orders appointing Gleeson, Amicus, request to strike all of that briefing, and exhibits, he's not a party, no legit role in this case. No court ever appointed special prosecutor.
Powell: Move to disqualify court and urge that it recuse itself immediately, unprecedented to have someone who actively litigated, further evidence of bias, did not act forthwith. Allowed filing by atty for Peter Strzok, dirtiest agents in history of FBI.
Sullivan: Took very seriously remand of en banc.
Sullivan explaining he wanted to be certain that mandate had returned, that's reason court issued scheduling order.
Sullivan explaining he wanted to be certain that mandate had returned, that's reason court issued scheduling order.
Sullivan: You're objecting to a date that you and everyone else agreed to.
Powell claims that Gleeson has completely ignored disclosures in last month.
YOU MAY REGRET THAT SIDNEY BC THE EVIDENCE SHOWS PETE STRZOK PROTECTED YOUR CLIENT.
YOU MAY REGRET THAT SIDNEY BC THE EVIDENCE SHOWS PETE STRZOK PROTECTED YOUR CLIENT.
Powell says she's making a motion RIGHT NOW that he should recuse.
Sullivan: You probably should have filed it, but you didn't. I'm not going to address on oral representation. I'll afford you an opportunity to do that.
Sullivan: You probably should have filed it, but you didn't. I'm not going to address on oral representation. I'll afford you an opportunity to do that.
Powell: We will file --
Sullivan: What's your next point?
Sullivan: What's your next point?
Powell finally holds that Flynn was happy to prosecute. Van Grack wanted Flynn to lie. We established that w/fliings.
[Note, in fact her filings show that Flynn DID lie, and Barr intervened the day that C&B would have been able to defend themselves.]
[Note, in fact her filings show that Flynn DID lie, and Barr intervened the day that C&B would have been able to defend themselves.]
Powell: That's it for the objections. I have other arguments to make.
Sullivan: Afford Gleeson oppty on primary arguments.
Sullivan: Afford Gleeson oppty on primary arguments.
Gleeson: No objection to summary.
Sullivan: FTR I've read somewhere that I appointed you after discussing this matter with you. Have we ever discussed this case?
Gleeson: No, first time I've had pleasure of addressing court.
Sullivan: FTR I've read somewhere that I appointed you after discussing this matter with you. Have we ever discussed this case?
Gleeson: No, first time I've had pleasure of addressing court.
Sullivan: If court were to deny motion, what would next step be, to allow him to attempt to withdraw plea, alleging incompetent assistance of counsel? Parties working to see if they could agree on what could be said.
Sullivan: What should the court do?
Kohl: MTD withdraw plea has not been resolved. We're aware as you are that Motions to Withdraw are to be liberally granted.
Kohl: MTD withdraw plea has not been resolved. We're aware as you are that Motions to Withdraw are to be liberally granted.
Kohl cites sullivan saying he had never accepted guilty plea from someone who said he wasn't guilty. A lot of litigation since then. In this case, I just don't even know of a situation where court took defendant to sentencing where he claims innocent.
Kohl: I know Flynn claims duress.
Cites the letter making clear that Govt did not make promise to Flynn. That's concerning if there are unofficial agreements that court hasn't had oppty to review, also concern abt conflict.
Cites the letter making clear that Govt did not make promise to Flynn. That's concerning if there are unofficial agreements that court hasn't had oppty to review, also concern abt conflict.
Kohl is basically arguing Flynn's case, not what the status of the negotiations w/C&B. He actually gets a few details wrong.
Mooppan, fact that motions to withdraw, why no real way to proceed. There'd be no prosecutor.
Mooppan, fact that motions to withdraw, why no real way to proceed. There'd be no prosecutor.
Mooppan: Only in issue of contempt. No case where private prosecutor can prosecute.
[Except contempt is on table here.]
[Except contempt is on table here.]
Sullivan: next question would have been, can govt point to any case in history of justice identical to this case where indiv pled under oath, under penalty of perjury, admitted his guilt. and proceeded to sentencing.
Kohl: When it was discovered there was this wrong-doing.
[Again, DOJ is on the record there was no wrong-doing.]
[Again, DOJ is on the record there was no wrong-doing.]
Let it be observed that Jocelyn Ballantine is not here, and she would not be able to say much of what Kohl is saying bc it's not true.
Sullivan: On what authority could court deny motion w/o prejudice?
Mooppan: Motion be granted, case be dismissed. Not constitutional requirement for that, given everything govt has discovered.
Sullivan: you're not advocating for either/or.
Mooppan: Motion be granted, case be dismissed. Not constitutional requirement for that, given everything govt has discovered.
Sullivan: you're not advocating for either/or.
Mooppan: Motion is for with prejudice. Express request, and we do stand by that. As a constitutional matter we don't think constitution compels that case be dismissed.
Sullivan: Shouldn't future AG be able to prosecute on uncharged criminal conduct.
Mooppan: With or without prejudice is only wrt charged, separate FARA count would not be affected.
Kohl: I know you were presented w/Statement of Offense, it looks like FARA violations. Specific back and forth on Statement. Defendant insisted on removing language.
Kohl: I know you were presented w/Statement of Offense, it looks like FARA violations. Specific back and forth on Statement. Defendant insisted on removing language.
Kohl: because he never admitted to that intent part, never admitted under oath he knowingly filed FARA filing. Some of what you presented isn't quite what it appeared, future prosecutor go forward on FARA.
Sullivan: Court addressed materiality in December. Defendant never asked me to reconsider that.
Mooppan: Question is whether WE DOJ thinks materiality. Issue on Brady is different.
Kohl: Such a good question. December 2018. You'll remember you read SoO.
Kohl: Such a good question. December 2018. You'll remember you read SoO.
Kohl now claiming that Sullivan's questions about materiality.
THIS IS SUCH BULLSHIT!!!
Flynn's lies hid his consultation w/Mar-a-Lago. And DOJ is on the record saying it, in 2019.
THIS IS SUCH BULLSHIT!!!
Flynn's lies hid his consultation w/Mar-a-Lago. And DOJ is on the record saying it, in 2019.
Kohl: Could we prove what was presented to your honor, there was a series of docs thru Jensen review.
[This documents were not new. He's lying.]
[This documents were not new. He's lying.]
Kohl is now making statements that are inconsistent with the public record.
Kohl: "He didn't even view CH as justification for interview." Under the Logan Act, not CH.
Wow. This is utterly false. This conflicts with Strzok's notes, Priestap's notes, all contemporary testimony.
Kohl: "He didn't even view CH as justification for interview." Under the Logan Act, not CH.
Wow. This is utterly false. This conflicts with Strzok's notes, Priestap's notes, all contemporary testimony.
Kohl now moving the ball.
The question was NOT NECESSARILY whether Flynn compromised.
This literally conflicts with all the record. All of it.
The question was NOT NECESSARILY whether Flynn compromised.
This literally conflicts with all the record. All of it.
Here's what those Priestap notes say: the goal was to see if Flynn would lie.
And that's what EVERY OTHER WITNESS also said.
https://beta.documentcloud.org/documents/20391774-170124-priestap-notes-mtd
And that's what EVERY OTHER WITNESS also said.
https://beta.documentcloud.org/documents/20391774-170124-priestap-notes-mtd
Kohl is literally lying. But by all means he should keep running his mouth to add to the sanctions against him.
Flynn's lies impeded the investigation because he was lying to hide his coordination with Mar-a-Lago.
Flynn's lies impeded the investigation because he was lying to hide his coordination with Mar-a-Lago.
Sullivan: Some who would argue Monday Morning QBing. What we could have done better. Articulate steps. New team of attys. Appointed by new Ag, w/o any participation whatsoever by previous attorneys. What inferences should court draw?
Sullivan: Second part, wouldn't it have more appropriate to file motion to reconsider?
[Sullivan is pissed he wrote 100 pages they ignored]
[Sullivan is pissed he wrote 100 pages they ignored]
Kohl: I know it seems like such a reversal, from December. That is, as we say, bc Defense moved to withdraw. Do we have evidence to prove. Operating under assumption court would go forward on normal process.
Kohl: Of course independently AG ordered investigation after 3 IG findings knocked out our witnesses.
Kohl is now claiming there's a Brady issue, which conflicts with what DOJ has said.
Kohl is now claiming there's a Brady issue, which conflicts with what DOJ has said.
Kohl: I don't want court to think we operated with political motive. Lack of predicate. Asking for records that aren't logical Step.
THAT'S THE OPPOSITE OF WHAT BARNETT SAID!!! HE SAID IT WAS A LOGICAL STEP>
THAT'S THE OPPOSITE OF WHAT BARNETT SAID!!! HE SAID IT WAS A LOGICAL STEP>
Kohl: Case agent who's been there the whole time he didn't see predicate, it didn't raise any alarm bells. He told SCO there was nothing there. We're not Monday morning QBing, dealing with evidence we're saddled with now.
KOhl: "All this has become known in recent months"
This is a lie. An outright lie. This was all known years ago.
This is a lie. An outright lie. This was all known years ago.
Sullivan: In Ted Stevens case this court moved to dismiss with prejudice. Most compelling reason then was there was a ton of Brady not turned over. This was after trial. Defendant deprived of evidence. That's not what we have here. We don't have a Ted Stevens here.
Kohl: I don't view it like that. We inherited this 16 months after plea, already pled guilty twice, Still standing by his plea. Demands for discovery, even Brady limited solely to sentencing. Really our own review, triggered by MTW.
Sullivan: You mentioned Strzok. I read letter from his attorney, in light of letter, can govt certify that all emails authenticating what's been represented to me as true. I was floored when I saw letter from Attorney.
Kohl: not that we're aware. I'd have to repsond.
HOLY HELL, IT WAS CLEARLY ALTERED.
Sullivan: Question is whether some govt attorney can authenticate. Very unsettling.
HOLY HELL, IT WAS CLEARLY ALTERED.
Sullivan: Question is whether some govt attorney can authenticate. Very unsettling.
Kohl claims to have no fucking idea that Jensen lied about the January 5 meeting. No fucking clue.
Wow.
Wow.
Mooppan: AG's decisions not based on comms w/President or tweets. Further note that most of those tweets say things like Flynn being railroaded. None of those things meet Gleeson's own standard. That's a view whether just or unjust prosecution, don't meet Gleeson's standard.
Mooppan; Chief Exec agreeing for reasons that are not impermissible.
Sullivan: Haven't been thru courts on what weight to give tweets.
Sullivan: Haven't been thru courts on what weight to give tweets.
Kohl: AG says Tweets make his job harder, it makes our job harder, makes correlations that aren't true. Those of us who looked at evidence, notes from people form DOJ, found many docs, that's what drove this decision.
Sullivan: how should court factor that not one Mueller office signed on? What inferences?
Sullivan: Van Grack withdrew shortly before filed.
Mooppan: Not a matter you should give any weight. Approved by AG.
Mooppan: Not a matter you should give any weight. Approved by AG.
Sullivan: Why Fokker binding but not Ammidown?
Mooppan: Fokker did discuss Rule 48.
Mooppan: Fokker did discuss Rule 48.
Mooppan: I don't agree w/history of Rule 48, I disagree with Gleeson's interpretation of that history.
Sullivan: Gleeson, on what authority deny motion w/o prejudice.
Gleeson: You have discretion, it's certainly an oddity, really unprecedented. When govt makes a motion, the default is always w/o.
Gleeson: You have discretion, it's certainly an oddity, really unprecedented. When govt makes a motion, the default is always w/o.
Gleeson: Multiple false statements, multiple conversations with Kislyak.
Gleeson: You should treat this case like you treat like any other. A blizzard of things I'd like to address later. If you grant, grant w/o prejudice. I don't feel like I, as amicus, have a dog in that case.
Sullivan: you've not made evidentiary request.
Gleeson: You don't need one. Part of your job is to ask for the reasons and factual basis for the reasons. They have to be the real reasons.These reasons are so patently pretextual no need.
Gleeson: You don't need one. Part of your job is to ask for the reasons and factual basis for the reasons. They have to be the real reasons.These reasons are so patently pretextual no need.
Sullivan: Would next logical step to be to address motion to withdraw.
Gleeson: I can't believe some of the things I'm hearing. Of course it's the case this court would never accept guilty plea from someone who claims he's innocent.
Gleeson: I can't believe some of the things I'm hearing. Of course it's the case this court would never accept guilty plea from someone who claims he's innocent.
Gleeson: people can't plead guilty and then show up for sentencing and see how the wind was blowing. Get a feel for how the wind was blowing, to seek to withdraw the guilty plea entered twice. That motion has no merit.
