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Choose Sullivan’s legal professionals trace at ‘motive to query’ DOJ’s motives in new Michael Flynn case submitting; DOJ fires again

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Washington, D.C. District Court docket Choose Emmet Sullivan’s legal professionals issued an exceedingly rare response on his behalf to the D.C. Circuit Court docket of Appeals on Monday, explaining that the decide hadn’t dismissed the case towards former nationwide safety advisor Michael Flynn — as requested by each federal prosecutors and Flynn’s legal professionals after a mountain of exculpatory information surfaced — partly as a result of “uncommon developments” offered a “motive to query” the Justice Division’s motives.

Minutes later, the DOJ submitted its personal filing calling for the case to be dismissed, and slamming efforts to maintain the prosecution alive by doubting the DOJ’s integrity. The appellate courtroom had invited the DOJ to weigh in on the matter.

“This Court docket ought to situation a writ of mandamus compelling dismissal,” the DOJ wrote, in a submitting signed by Solicitor Common Noel Francisco. “Underneath Articles II and III of the Structure, the energy to prosecute belongs to the Government, not the Judiciary. Federal Rule of Criminal Procedure 48, learn towards the backdrop of that constitutional precept, required the district courtroom to grant the federal government’s movement to dismiss the indictment with prejudice as a result of that movement was unopposed.”

That rule of process states: “The federal government might, with depart of courtroom, dismiss an indictment, info, or criticism.”

“That language doesn’t authorize a courtroom to face in the way in which of a dismissal the defendant doesn’t oppose, and some other studying of the Rule would violate each Article II and Article III,” the DOJ mentioned. “Nor, beneath the circumstances of this case, might the district courtroom assume the function of prosecutor and provoke felony prices of its personal.” Sullivan has floated the possibility of holding Flynn in contempt for perjury, primarily based on his statements throughout his responsible plea to 1 rely of constructing false statements to the FBI, which Flynn now seeks to retract.

The DOJ concluded: “The district courtroom plans to topic the Government’s enforcement determination to in depth judicial inquiry, scrutiny, oversight, and involvement. Underneath the Supreme Court docket’s and this Court docket’s precedents, it’s clear and indeniable that the district courtroom has no authority to embark on that course.”


The DOJ went on to warn that Sullivan and his appointed amicus “might not conduct evidentiary proceedings primarily based on hypothesis concerning the authorities’s motives.”

The amicus appointed by Sullivan, retired federal decide John Gleeson, has openly criticized the Trump administration’s dealing with of Flynn’s case, elevating issues that he was chosen to improperly bolster Sullivan’s efforts to maintain the Flynn case going regardless that each the federal government and defendant need it dismissed. In 2013, Gleeson himself held that “the federal government has near-absolute energy beneath [the Federal Rules of Criminal Procedure] to extinguish a case that it has introduced” — however he has since apparently changed his opinion.

FILE - In this Feb. 1, 2017 file photo, National Security Adviser Michael Flynn speaks during the daily news briefing at the White House, in Washington. The Democrat-led House oversight committee launched an investigation Tuesday into whether senior officials in President Donald Trump’s White House worked to transfer nuclear power technology to Saudi Arabia as part of a deal that would financially benefit prominent Trump supporters. The proposal was pushed by former National Security Adviser Michael Flynn, who was fired in early 2017, but it has remained under consideration by the Trump administration despite concerns from Democrats and Republicans that Saudi Arabia could develop nuclear weapons if the U.S. technology was transferred without proper safeguards. (AP Photo/Carolyn Kaster)

FILE – On this Feb. 1, 2017 file photograph, Nationwide Safety Adviser Michael Flynn speaks throughout the each day information briefing on the White Home, in Washington. The Democrat-led Home oversight committee launched an investigation Tuesday into whether or not senior officers in President Donald Trump’s White Home labored to switch nuclear energy know-how to Saudi Arabia as a part of a deal that might financially profit outstanding Trump supporters. The proposal was pushed by former Nationwide Safety Adviser Michael Flynn, who was fired in early 2017, nevertheless it has remained into account by the Trump administration regardless of issues from Democrats and Republicans that Saudi Arabia might develop nuclear weapons if the U.S. know-how was transferred with out correct safeguards. (AP Photograph/Carolyn Kaster)

The responses got here after Flynn’s legal professional, Sidney Powell, had filed an emergency writ of mandamus to the D.C. Circuit Court docket of Appeals final month searching for the fast removing of Sullivan from the case, saying that beneath appellate precedent set by the 2016 “United States v. Fokker Companies” case, Sullivan or his alternative should dismiss the prosecution. Powell additionally cited Sullivan’s weird feedback, together with his suggestion that Flynn might have been tried for “treason” and his obvious lack of familiarity with some facts of the case.

Underneath “Fokker,” prosecutors’ determination to drop a case will be overruled solely in excessive circumstances. Powell asserted, citing the case, {that a} “district courtroom can not deny the Authorities’s movement to dismiss as a result of the decide has ‘a disagreement with the prosecution’s train of charging authority,’ resembling ‘a view that the defendant ought to stand trial’ or ‘that extra critical prices needs to be introduced.'”

Moreover, Powell mentioned that beneath “Fokker,” judges can not dispute the “conclusion that further prosecution or punishment wouldn’t serve the general public curiosity.” (“We’re unaware … of any appellate determination that truly upholds a denial of a movement to dismiss a cost” on grounds that dismissal wouldn’t serve the “public curiosity,” the D.C. Circuit said within the Fokker case.).


After reviewing Powell’s request, the appellate courtroom took the extraordinary step of ordering Sullivan to answer, and he in flip retained outstanding D.C. legal professional Beth Wilkinson — who wasted no time in asserting that the just about unprecedented posture of the case had met the “Fokker” commonplace.

“The distinctive info of this case warrant analysis by the trial decide earlier than any overview by this courtroom,” Wilkinson’s group mentioned in Monday’s submitting on behalf of Sullivan, referencing the excessive commonplace for the granting of a writ of mandamus, or order to compel the decrease courtroom to behave, earlier than there was a remaining determination on the deserves of the case. “For now, it suffices to say that the weird developments on this case present not less than a believable ‘motive to query’ the ‘bona fides’ of the federal government’s movement.”

Wilkinson continued: “Whereas this courtroom noticed in ‘Fokker’ that separation-of-powers rules restrict a decide’s function in reviewing the federal government’s charging selections, it additionally defined that completely different separation-of-powers concerns might exist the place the district courtroom already accepted a plea and was continuing to sentencing. Lastly, the weird info of this case elevate not less than a believable judicial query, anticipated by ‘Fokker,’ whether or not the presumption of regularity for prosecutorial selections is overcome.”

FILE - In this Dec. 1, 2017, file photo, Michael Flynn, center, arrives at federal court in Washington. A judge set a sentencing hearing for Michael Flynn after rejecting arguments from the former Trump administration national security adviser that prosecutors had withheld evidence favorable to his case. (AP Photo/Susan Walsh, File)

FILE – On this Dec. 1, 2017, file photograph, Michael Flynn, heart, arrives at federal courtroom in Washington. A decide set a sentencing listening to for Michael Flynn after rejecting arguments from the previous Trump administration nationwide safety adviser that prosecutors had withheld proof favorable to his case. (AP Photograph/Susan Walsh, File)

Ryan Fayhee, an legal professional at Hughes Hubbard & Reed who beforehand served as a prime prosecutor and nationwide safety official on the DOJ, instructed Fox Information the appellate courtroom would possibly discover a motive to dismiss the relevance of the “Fokker” case. “Fokker” involved a deferred prosecution settlement, and “not a realizing and voluntary responsible plea,” Fayhee mentioned. “In that case the decide’s function was ministerial and restricted as to whether the Speedy Trial Act might be prolonged within the curiosity of justice; it didn’t take into account whether or not the Justice Division might dismiss a case post-plea (an unprecedented and novel situation); nor whether or not a district courtroom decide might provoke a contempt continuing as is being thought-about right here.”

The DOJ has reversed course and pushed for dismissal within the Flynn case ever since explosive, newly unsealed evidence emerged in April documenting the FBI’s efforts to focus on Flynn — together with ex-FBI counterintelligence head Invoice Priestap’s handwritten memo debating whether or not the FBI’s “objective” was “to get him to lie, so we are able to prosecute him or get him fired.”

The paperwork additionally indicated that anti-Trump ex-FBI agent Peter Strzok pushed to maintain the Flynn case alive in early January 2017, regardless that profession bureau officers wished the matter closed.

Days later, on Jan. 24, 2017, Strzok and mysterious, little-known FBI agent Joe Pientka interviewed Flynn within the White Home and questioned him about his calls with Russia’s then-Ambassador Sergey Kislyak. As a result of these calls had been already recorded and within the FBI’s possession, and since the FBI had already cleared Flynn of any wrongdoing in the calls, the DOJ has instructed Sullivan that any misstatements Flynn uttered concerning the calls had been immaterial and couldn’t moderately give rise to a felony prosecution.


“Was [Sullivan] required to grant the federal government’s post-plea movement to dismiss, and reverse his findings that Mr. Flynn’s false statements to the FBI about his contacts with Russia had been materials, with none inquiry into the info set forth in, and surrounding, the federal government’s submitting?” Wikinson requested the appellate courtroom in Monday’s submitting.

Through the White Home interview, Flynn instructed the brokers “not likely” when requested if he had sought to persuade Kislyak to not escalate a brewing struggle with the U.S. over sanctions imposed by the Obama administration, in keeping with a later, contested FD-302 witness report ready by the FBI weeks after the interview. Flynn additionally reportedly demurred when requested if he had requested Russia to veto a U.N. Safety Council decision that condemned Israel’s settlements within the West Financial institution.

Within the different, Priestap’s observe advised a attainable objective on the White Home interview was to get Flynn “to confess to breaking the Logan Act” when he spoke to Kislyak throughout the presidential transition interval. The Logan Act has by no means been efficiently utilized in a felony prosecution and has a questionable constitutional standing; it was enacted in 1799 in an period earlier than telephones, and was meant to stop people from falsely claiming to symbolize the US authorities overseas.

Priestap’s memo conspicuously surfaced solely this month, regardless that the Justice Division and FBI had been under an obligation to show over all related, doubtlessly exculpatory supplies to Flynn’s authorized group since February 2018. Lawyer Common Invoice Barr had appointed U.S. Lawyer Jeff Jensen to overview the DOJ’s dealing with of the Flynn case, and Jensen apparently unearthed the paperwork.


FILE - In this June 27, 2018, file photo, Peter Strzok, the FBI agent facing criticism following a series of anti-Trump text messages, walks to gives a deposition before the House Judiciary Committee on Capitol Hill in Washington. Strzok, whose anti-Trump text messages fueled suspicions of partisan bias will tell lawmakers July 12 that his law enforcement work has never been tainted by political considerations and that the intense congressional scrutiny of him represents “just another victory notch in Putin’s belt,” according to prepared remarks obtained by The Associated Press.(AP Photo/J. Scott Applewhite, File)

FILE – On this June 27, 2018, file photograph, Peter Strzok, the FBI agent going through criticism following a sequence of anti-Trump textual content messages, walks to offers a deposition earlier than the Home Judiciary Committee on Capitol Hill in Washington. Strzok, whose anti-Trump textual content messages fueled suspicions of partisan bias will inform lawmakers July 12 that his regulation enforcement work has by no means been tainted by political concerns and that the extreme congressional scrutiny of him represents “simply one other victory notch in Putin’s belt,” in keeping with ready remarks obtained by The Related Press.(AP Photograph/J. Scott Applewhite, File) (Copyright 2018 The Related Press. All rights reserved)

“It’s uncommon for a felony defendant to assert innocence and transfer to withdraw his responsible plea after repeatedly swearing beneath oath that he dedicated the crime,” Wilkinson’s group mentioned. “It’s unprecedented for an Appearing U.S. Lawyer to contradict the solemn representations that profession prosecutors made time and time once more, and undermine the district courtroom’s authorized and factual findings, in shifting on his personal to dismiss the cost years after two completely different federal judges accepted the defendant’s plea.”

Flynn sold his home amid stress from prosecutors, who additionally advised they may cost Flynn and his son for violations of the Overseas Brokers Registration Act (FARA) except he pleaded responsible to 1 rely of constructing false statements to FBI brokers. Sullivan has mentioned he’s additionally reviewing whether or not Flynn knowingly lied to the courtroom as a part of the statements he made throughout his plea. Whereas Flynn acknowledged he didn’t correctly disclose his work with Turkey, as required by FARA, he wasn’t charged with that conduct. (FARA prosecutions have elevated sharply in recent times after many years of non-enforcement; The New York Occasions has reported, citing the Justice Division, that “from 1966 till 2015, the Justice Division pursued solely seven FARA circumstances.”)

Fox Information has beforehand reported that the newly launched Flynn paperwork forged doubt on whether or not Brandon Van Grack, a Justice Division prosecutor and former member of Particular Counsel Robert Mueller’s Workforce, complied with Sullivan’s order to supply favorable proof to Flynn. Van Grack has since been removed from the case.


Van Grack has lengthy knowledgeable Sullivan that the federal government’s so-called “Brady” obligations, referring to prosecutors’ responsibility to show over exculpatory supplies to defendants, have been met. In an October 2019 submitting, Van Grack denied governmental misconduct and warranted the courtroom that the federal government “has complied, and can proceed to conform, with its discovery and disclosure obligations, together with these imposed pursuant to Brady and the Court docket’s Standing Order.”

What Van Grack didn’t inform the courtroom about – and didn’t present to Flynn – was the newly unsealed January 4, 2017 “Closing Communication” from the FBI Washington Area Workplace, which really useful the FBI shut its investigation of Flynn, as its exhaustive search by means of authorities databases “didn’t yield any info on which to predicate additional investigative efforts.”

Van Grack additionally failed to offer proof to Flynn’s attorneys that anti-Trump former FBI agent Peter Strzok then instantly intervened and instructed the FBI case supervisor dealing with the Flynn investigation to maintain the probe open, adopted by indicators that the bureau would search to research Flynn for attainable violations of an obscure 18th century regulation often known as the Logan Act — which has by no means been utilized in a trendy prosecution.

FILE - In this Dec. 17, 2018, file photo, former FBI Director James Comey speaks to reporters on Capitol Hill Washington. The Justice Department’s inspector general says former FBI Director James Comey violated FBI policies in his handling of memos documenting private conversations with President Donald Trump. (AP Photo/J. Scott Applewhite, File)

FILE – On this Dec. 17, 2018, file photograph, former FBI Director James Comey speaks to reporters on Capitol Hill Washington. The Justice Division’s inspector normal says former FBI Director James Comey violated FBI insurance policies in his dealing with of memos documenting non-public conversations with President Donald Trump. (AP Photograph/J. Scott Applewhite, File)

Nonetheless, Wilkinson argued, it was applicable for Sullivan to nominate third-party amici to offer arguments, provided that the protection and prosecution had been now on the identical facet.

“As a result of the events earlier than him now help the identical aid, Choose Sullivan turned to an strategy utilized by federal courts accorss the nation, in addition to district courts on this Circuit: He appointed an amicus to current counterarguments, and set a briefing schedule giving the federal government and Mr. Flynn the final work.”

“Neither the Federal Guidelines of Legal Process nor the district courtroom’s native guidelines authorize amicus participation in felony circumstances,” Powell wrote in her submitting. “Previous to issuance of its extraordinary Might 12, 2020, order, the district decide adhered scrupulously to the district courtroom’s guidelines, denying some two dozen makes an attempt by third events to intervene or file amicus briefs on this very case.”

It will not be unprecedented for the federal government to efficiently transfer to dismiss a case after securing a conviction. In actual fact, Sullivan himself tossed the conviction of former Alaska Sen. Ted Stevens in 2009, when it emerged the federal government had not produced a slew of exculpatory “Brady” materials.


Sullivan himself has come beneath the microscope, ever since he suggested Flynn might have dedicated treason, within the weird December 2018 courtroom outburst, and seemingly confused key particulars about Flynn’s abroad lobbying work. Extra not too long ago, Sullivan has suggested he isn’t bothered by the FBI’s missing FD-302 witness report of brokers’ January 24, 2017 White Home interview with Flynn that Comey has previously said was ready inside days of the interview, as required by coverage.

“[T]hings occur and paperwork are misplaced,” Sullivan said. “I imply, it simply occurs.”

Former FBI SWAT agent James Gagliano called that a “shockingly cavalier” reaction by Sullivan. Gagliano, who initially defended the FBI’s Flynn probe, has extra not too long ago said Flynn was “railroaded,” after this month’s bombshell revelations.

“The district decide’s manifest confusion concerning the info of this case, accusing Common Flynn of treason and having ‘offered out his nation,’ and his punitive intentions are properly documented,” Powell wrote. Sullivan additionally mentioned he had “disdain” and “disgust” for Flynn’s actions.

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