By Robert Willmann
To bring events up to date in the Michael Flynn criminal case, a starting point is the hearing of 29 September 2020 on the motion filed by the Department of Justice to dismiss the prosecution. A transcript does not supply parts of a communication that also provide meaning, such as the tone, pitch, and loudness of speech, and the facial expressions and body language of participants. Nor does it show the reactions of those listening. But an accurate transcript is useful because it contains the unfiltered words that are said, and sometimes also a brief description of behavior that took place. The first 164 pages are the hearing, and the remaining pages are a machine-generated index–
https://turcopolier.typepad.com/files/michaelflynn_transcript_hearing_on_dismissal.pdf
Today (Monday, 26 October), the Justice Department is to file documents after an unusual order by presiding Judge Emmet Sullivan last Friday, 23 October. It says, in part–
"Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies. It is FURTHER ORDERED that the government's declaration shall identify each exhibit by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits. The government has also filed on the record in this case numerous notices of filing discovery correspondence and Mr. Flynn has generally filed the discovery produced on the record in this case as Exhibits to his supplementary filings…. [T]he government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 that the discovery documents provided to Mr. Flynn and filed on the record in this case are true and correct copies. It is FURTHER ORDERED that the government's declaration shall identify each discovery document by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits. Signed by Judge Emmet G. Sullivan on 10/23/2020. (lcegs3) (Entered: 10/23/2020)".
It has been obvious that Sullivan is not going to rule on the request to dismiss the case until after the presidential election.
A few other things have taken place since the hearing of 29 September, and I hope to describe them in the not too distant future.
I’m confused. The transcript mentions Fokker as a precedent. I thought he is judging this case.
I’m confused. The transcript mentions Fokker as a precedent. I thought he is judging this case.
Posted by: walrus | 26 October 2020 at 08:01 AM
Don’t be, as RW writes:
It has been obvious that Sullivan is not going to rule on the request to dismiss the case until after the presidential election.
see hearing transcript: SCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE, (supported by John Gleeson, amicus curiae)
“under Fokker” refers to this case/decision:
United States v. Fokker Services B.V.
D.C. Circuit Holds that Courts May Not Reject Deferred-Prosecution Agreements Based on Inadequacy of Charging Decisions or Agreement Conditions.
https://harvardlawreview.org/2017/01/united-states-v-fokker-services-b-v/
A really nasty dispute has arisen over the exhibits DOJ provided to Judge Sullivan in support of its motion to dismiss the charges against General Flynn.
For a summary of that dispute, see
https://redstate.com/shipwreckedcrew/2020/10/27/dispute-between-doj-and-strzok-mccage-attorneys-over-their-handwritten-notes-media-ignorantly-misreports-n270719 ,
which contains particular criticism of the Politco article by Kyle Cheney on the matter.
The most recent Flynn/Powell motion (Dkt 261, 2020-10-07) is that Judge Sullivan should recuse himself from the case.
How will Judge Sullivan respond to that request?
Leslie McAdoo Gordon has a detailed analysis of the merits of the motion (she finds it meritorious):
https://thefederalist.com/2020/10/31/heres-why-judge-sullivan-must-disqualify-himself-from-michael-flynns-case/
“Sullivan’s apparent animus toward Flynn’s attorney and his fixation on Flynn being punished demonstrate bias in this case — sufficient to require his disqualification.”