Reading the appellate en banc opinion as Judge Sullivan readies a hearing in the Michael Flynn case


By Robert Willmann

The 10 judges on the District of Columbia Court of Appeals eligible to rehear a three-judge panel's decision in favor of Michael Flynn's petition for a writ of mandamus cancelled the panel's prior ruling with an 8-2 vote.   Flynn's attorneys have decided they will not ask the U.S. Supreme Court whether it will agree to hear that mandamus action.  In the trial court, Judge Emmet Sullivan has set a hearing for oral argument on the request by the Department of Justice to dismiss the criminal case against Flynn.  The hearing is scheduled for Tuesday, 29 September 2020, at 11:00 a.m. eastern time. 

All of the judges eligible on the D.C. Circuit Court of Appeals to participate in a rehearing of the mandamus action did so as a group called "en banc".  Eight judges decided to deny all the relief requested by Flynn, with seven of them agreeing on a majority opinion, plus one who filed a concurring opinion.  Two judges wrote dissenting opinions.  The primary author of the majority opinion was not revealed, as the generic term "per curiam" was used.  The decision and opinions were handed down on 31 August 2020, and were made available here on SST that day [1].

Reading past the language on the surface of the en banc majority opinion makes it clear as to what was going on.  The opinion is carefully designed to minimize the chances that the supreme court would decide to hear the mandamus case at this stage of the proceedings.  Neither the law applicable to a federal government's motion to dismiss under Rule of Criminal Procedure 48(a), nor the facts of Flynn's case in the trial court, were discussed at all.  Not one time.  Nothing.  Only a passing reference was made to harms to Flynn and the Department of Justice (DOJ) if a mandamus order was not issued, but those harms were waved away as either being speculative or no big deal.  A real issue exists about whether Judge Sullivan was disqualified or should be recused from presiding over the case.  However, the supreme court would probably not think that the issue by itself would justify getting involved in the case.  The 8-judge majority smiled and said that the mandamus action was premature, since Sullivan had not yet ruled on the motion to dismiss.  That is a position that has a certain logic to it, if what has occurred in the trial court is ignored.  They also minimized and blew by the evidence of Sullivan's partiality and bias, and refused to remove him as the judge presiding.  And they allowed John Gleeson to continue as an outside lawyer and "friend of the court", to argue against dismissing the case.

You can now see why Sidney Powell, and the other two lawyers representing Flynn, decided not to approach the supreme court at this time. The en banc majority opinion was sanitized to the extent that an analysis of the government's motion to dismiss, and the circumstances in which a judge might grant or deny it, was nowhere to be found.

The 7-judge court of appeals opinion both liked and disliked speculation.  When Sullivan's lawyer said at oral argument that he might end up granting the motion to dismiss, which is speculation, that became a reason to support the decision to deny mandamus (opinion, page 7).  When the DOJ argued that there would be harms to the constitutional separation of powers if mandamus was not granted, that was not a reason for a mandamus, and was "speculative" (page 10).  When Flynn and the DOJ argued that trial court activity might result in intrusive questions into executive branch decision-making, discovery procedures, and additional charges of a criminal nature, that was "speculative and may never come to pass" (page 11).  Your tax dollars at work.

D.C. Circuit Judge Thomas Griffith wrote a short concurring opinion to try to give himself, and the other seven, some cover.  He went along with the rationale that Sullivan had not yet ruled on the motion to dismiss, but was the only one of the majority of eight who even mentioned — in a diplomatic way — that under existing law the case is to be dismissed–

"Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time".

The 7-judge majority opinion did some signalling to Judge Sullivan.  One example is on page 12–

"Nothing in this decision forecloses the possibility of future mandamus relief should the District Court’s disposition of the motion to dismiss or other order violate the separation of powers or some other clear and indisputable right. We need not and do not now pass on the issues that might be presented by such a mandamus petition …."

That statement is not as reassuring as it sounds.  One of the elements of the federal mandamus doctrine is that "the party seeking issuance of the writ has no other adequate means to attain the relief he desires".  The majority opinion kicked off its discussion on page 5 by quoting from a 1967 supreme court decision:  "A petition for a writ of mandamus 'may never be employed as a substitute for appeal' ".  That broad principle is limited by the right to a mandamus order if you have no other "adequate" means to get the relief you desire.  

One tough aspect of this is that Flynn cannot do a regular "direct appeal" until the case ends in the trial court with a final judgment.  If Judge Sullivan denies all of Flynn's requests, pushes forward to sentencing, and puts him on probation or sends him to prison, he cannot start a direct appeal until all of that happens.  Thus, if Sullivan denies the motion to dismiss fairly soon and Flynn immediately files a new mandamus action in the court of appeals, the D.C. Circuit could again refuse to issue a mandamus order by saying that he still has an "adequate means" to attack the denial of the motion to dismiss by a regular appeal after the case concludes in the trial court.

On 24 June 2020, the three-judge panel ruled 2-1 for Flynn and ordered Sullivan to grant the government's motion to dismiss.  Even though the date the mandamus order would have officially become effective had not arrived, Sullivan could have granted the dismissal immediately, because when a mandamus action is filed in a court of appeals, activity is not automatically suspended in the trial court.  An appellate court would have to make a separate order "staying" some or all activity in the trial court first, which did not happen here.  But Sullivan did nothing.  He waited until the last minute before the mandamus order became effective, and illegally filed his request for a rehearing en banc on 9 July 2020.  He had no authority to file a motion for rehearing.  The 7-judge majority opinion tap danced to get around this problem by saying on page 4, "An active member [singular] of the court also made a sua sponte suggestion that the case be reheard en banc".

On 31 August 2020, the en banc court of appeals denied a mandamus, ruling in Judge Sullivan's favor.  This time he did not wait, and the very next day became busy as a bee.

On 1 September 2020, Sullivan said that an order denying mandamus relief will become effective automatically 21 days after it was issued.  He told the parties to file a joint status report by 21 September about setting a briefing schedule and a time for oral argument. 

The parties replied early on 4 September and asked for an expedited schedule with no more briefing necessary.  Sullivan agreed to it and ordered John Gleeson to file his reply brief as amicus curiae by 11 September, since it was not filed earlier because the mandamus action was pending. 

On 6 September Sullivan wanted the DOJ, Flynn, and Gleeson to deliver to his office by 10 September three printed courtesy copies of some specific documents they had previously filed with the trial court clerk.  This was unusual given the electronic filing system in the federal courts.  The documents were to be:  "… submitted in binders, three-hole punched, with single- sided pages. All exhibits shall be tabbed and indexed for ease of reference. The parties shall deliver to Chambers three courtesy copies of any future filing, including exhibits, in connection with [docket number] 198 the Government's motion to dismiss".  These paper copies would likely be for Sullivan and his law clerks. 

On 10 September, Flynn's attorneys bundled up into one filing the petition for a writ of mandamus, the reply brief in that action, the opposition to a rehearing en banc, and transcripts of the oral arguments before the three-judge panel and the en banc judges.  These were filed with the clerk of the trial court to further add to the record there.

Then the fun started. 

The DOJ became irritated after the court of appeals scoffed at its argument about the separation of powers between the executive and judicial branches.  Determined to maintain control over its own turf, which includes the discretion to file and dismiss federal criminal charges, the DOJ released more exculpatory and mitigating material last week that should have been turned over to Flynn by the FBI or Robert Mueller and the Special Counsel's Office.  Flynn promptly filed it with the trial court clerk on 24 September as part of a supplement to the agreed motion to dismiss the case.  There are redactions.  The main document had five attached exhibits.  Because scanned exhibits can take up a lot of disk space, only exhibit 5 is included here, which has text messages from July 2016 to May 2017.  The main document also has some text messages inserted in it–

On 24 September, the DOJ filed a supplement to its motion to dismiss with the trial court clerk.  Attached as an exhibit is a 13-page summary of an interview with FBI agent William Barnett (who came with a lawyer), in the standard "302" form.  The interview was conducted on 17 September 2020, two and a half weeks after the en banc court of appeals denied the madamus.  With a straight face and in bureaucratic language, the DOJ said–

"… we noted that beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting an ongoing review of the FBI investigation that led to charges in this case. … Pursuant to that continuing review, an interview was recently conducted of the former case agent, SA William Barnett, who handled the counterintelligence investigation of Mr. Flynn, and was thereafter assigned to the Special Counsel’s Office investigating Russian interference in the 2016 Presidential Election".

Behind the bland language, the DOJ was striking back after the court of appeals rejected the mandamus.  To boost the evidence in support of its motion to dismiss, the DOJ arranged for Barnett to be interviewed, even though it could have been done earlier and before the motion to dismiss was filed on 7 May 2020.  Larry Johnson noticed the interview summary and discussed it [2].  Here are the DOJ supplement and the interview–

Judge Sullivan ordered on 23 September 2020 that John Gleeson can participate in the oral argument as a friend of the court (and against dismissing the prosecution).  As was discussed here on SST, Gleeson was in the U.S. Attorney's Office for the Eastern District of New York when Andrew Weissmann was hired in 1991 to work there [3].  Weissmann became the main deputy to Robert Mueller during the special counsel's Russia investigation starting in May 2017.  In my opinion, Gleeson will try to present what amounts to a defense for Weissmann and the Mueller group, because a dismissal of the Flynn prosecution will discredit the Mueller investigation and may create more options for legal civil action against members of Mueller's office; personnel at the FBI, CIA, and DOJ; and Flynn's former lawyers at the large law firm of Covington & Burling.

Judge Sullivan may not announce a decision at the end of the court hearing.  He may instead say that he is taking it under advisement and a written ruling will be issued later.  How much later?  The court of appeals signalled in the 7-judge opinion that they "trust and expect the District Court to proceed with appropriate dispatch".  If Sullivan wants to delay, he may wait until sometime after the November election.  If he grants the motion to dismiss at the hearing or soon thereafter, it would be surprising, and run counter to his previous behavior.

An interesting item is standing by the side of the road.  It concerns whether Flynn can jump over the court of appeals and apply directly to the U.S. Supreme Court if the motion to dismiss is denied.  Supreme Court Rule 20 allows it, but with tight limits–

"1. …To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court".

The hearing will be by teleconference.  The public can listen to the hearing by dialing certain telephone numbers.  How many people can listen through each number is not known.  It will probably be like rolling the dice to get a phone connection.  Sullivan's order about the hearing states–

"Minute Order as to Michael T. Flynn. The motion hearing scheduled for September 29, 2020 at 11:00 AM shall now take place via Video Teleconference (VTC). The Courtroom Deputy Clerk shall contact the parties to provide the dial-in information. The public and media may listen to the hearing by dialing in to one of the following teleconference numbers and entering the access code when prompted: 877-336-1839 (access code 5524636); 888-363-4734 (access code 6114909); 877-336-1839 (access code 1429888); 877-402-9753 (access code 2090166); 888-557-8511 (access code 4140864); 888-273-3658 (access code 1773796). Persons joining via teleconference will be automatically muted and will not be heard by the Court or participants in the hearing. Signed by Judge Emmet G. Sullivan on 9/25/2020. (lcegs3) (Entered: 09/25/2020)".





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15 Responses to Reading the appellate en banc opinion as Judge Sullivan readies a hearing in the Michael Flynn case

  1. Babak makkinejad says:

    Robert Willmann
    I take it that this is an example of how Law can be abused to miscarry Justice.
    And to this example, one could also add numerous cases of the so-called National Security Federal Courts whose judges more often as not, as the grapevine goes, rule for the goverment.
    Are such cases artifacts of the Cold War (one must become more and more like the monster one wishes to destroy) or, are they manifestations of latent potentialities of the American Legal System, now allowed to fester in an age of decline?
    If one sets the date 1880 as the date at which the United States became a country of Respect for the Rule of Law, has the United States entered again into a period of disrespect for the Rule of Law?
    The potentates of yore in the Middle East used to strip people of their property and wealth on a whim, is this the American way of accomplishing that? Through a never-ending Federal Judicial Proceedings, all the while mentally torturing a poor bloke by dragging things for years?
    The potentates of yore were more merciful, in my opinion.

  2. exiled off mainstreet says:

    The new material reveals what a travesty of justice this case has become. Trump made the mistake of not backing up his best national security advisor who knew where all the bodies were buried and bowing to “conventional wisdom” in this case. This has seriously weakened his presidency and, if he loses, will perhaps be the major reason for his defeat, since the dismissal of Flynn created the opening for the whole fiasco and seriously limited Trump’s ability to craft a more reasonable foreign policy independent of the “deep state.”

  3. Jim says:

    This evening almost three hours ago a few more documents were filed by Flynn’s lawyer, on the docket.
    One document indicates that on Feb. 2, 2017, two days after acting AG Sally Yates was fired, but while Flynn was still the N.S. Advisor, Stzrok began authorizing National Security Letters [7 in total], targeting Flynn.
    These NSLetters claim that they are to obtain information because of events from May 2016.
    Deja Vue all over again.
    In other words, to create the illusion of an investigation of Flynn, as this had already been investigated and there was zip zero and nada on Flynn. [To claim he is an agent of a foreign government; that is: FARA + Logan Act “2 Things” a separate hand-written note from those investigating Flynn in 2017, a document also filed tonight on docket states]
    Below is from the redacted FBI “Summary of National Security Letters Issued in CROSSFIRE RAZOR” on Flynn, from Feb. 2017, filed tonight on court docket:
    [[“The FBI is predicating the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, a senior foreign policy adviser for the Donald J. Trump campaign circa May 2016, made statements indicating he is knowledgeable that the Russians made a suggestion to the “Trump team” that they could assist the Trump campaign with an anonymous release of information during the campaign that would be damaging to Hillary Clinton and President Barack Obama.” ]]
    It includes this: [[The memoranda authorizing the issuance of these NSLs, the language of which are nearly identical with respect to justification, were titled “CROSSFIRE RAZOR, FOREIGN AGENTS REGISTRATION ACT – RUSSIA.” The memoranda further state: “A Full Foreign Counterintelligence investigation of the subject, a U.S. Person, was authorized in accordance with the Attorney General Guidelines. The FBI opened a Full Investigation based on an articulable factual basis that reasonably indicates an individual may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to national security.”]]
    And this: [[ The memoranda sought electronic transactions records for accounts associated with Michael T. Flynn, because Flynn was a “Foreign Policy Advisor to the Trump Campaign and has previous travel to Russia and may have been in a position to receive a suggestion from the Russians that they could assist the Trump campaign.” ]]
    In addition, Stzrok’s lawyer filed what amounts to a grievance against Flynn’s attorney; also tonight on docket. In the form of a letter to Sullivan.
    Stzrok’s attorney said Flynn’s attorney is violating Sullivan’s order against Powell — by filing this.
    Stzrok’s attorney is saying Powell was not supposed to file anything else per Sullivan — that is, not until all Brady material has been filed; and Stzrok’s lawyer claims that dates appended in hand writing to some of the Stzrok hand written documents are forgeries because those dates have been appended to them.
    Stzrok’s lawyer in this is Aitan B. Goelman.
    Goelman is also complaining about Stzrok text messages now part of the docket, alleging those texts, apparently filed on docket by Powell: “have nothing to do with Flynn’s case, or more broadly, with the Department of Justice.”
    And thus the morality play masquerading as a judicial proceeding wanders hither and yon to a great many places.

  4. Chuck Light says:

    And yet, Lt. Gen. Flynn, with full knowledge of his own actions, pleaded guilty to lying to the FBI. Not once, but at least three times. Before a Magistrate Judge, and at least twice, once verbally and once in writing (his plea agreement) before Judge Sullivan.
    And yet, given the opportunity to be sentenced in December, 2018, he took the invitation of Judge Sullivan to continue to cooperate fully with the Special Counsel in order to (apparently) improve his chances of receiving a lesser sentence.
    Query: Was Lt. Gen. Flynn stupid when he first pleaded guilty, or did he just become stupid at a later point?

  5. Keith Harbaugh says:

    We must be aware that the Jensen investigation itself has come under attack:
    There Marcy Wheeler puts forward what she asserts are devastating inconsistencies in the documents from the Jensen investigation.
    If her points are not competently rebutted, they will severely damage public confidence in the Jensen investigation.
    And surely Sullivan is aware of her points, and Gleeson will use them in the hearing on 9/29, either explicitly or implicitly.
    And Wall will probably lack time to adequately rebut them.
    I lack the time, patience, and expertise to adequately rebut them myself.

  6. Fred says:

    It gets better all the time. Strzock’s lawyer is upset since it is becoming clear there was zero probable cause of opening a counterintellegence investigation against Flynn and it is probably a crime to boot. Note the timing on when that “insurance policy” got opened, then did nothing, then well, as you see from all of Judge Sullivan’s redactions here:
    Quick, Trump’s taxes! Has that 46% Biden supporting group caught on to the press’s 3 card monty process yet?

  7. Horace says:

    What legitimacy is left? Those who hate us Americans the most do not live in Moscow, Beijing, or Tehran. They live in New York City, Washington DC, and Hollywood.

  8. Jim says:

    Slack Jaw
    [[given the opportunity to be sentenced in December, 2018, he took the invitation of Judge Sullivan to continue to cooperate fully with the Special Counsel]]
    This is the Slack Jaw version of what went on that day.
    Anyone that actually reads this transcript of this hearing would discover the above is at best a poor and at worst a nonexistent summary of that.
    The judge accused the general of being a traitor to his country, being a foreign agent, and Sullivan threatened Flynn with 15 years in jail, — all that based on nothing.
    Query: Was Sullivan stupid when he said that or did he just become stupid at a later point?
    IT is fine to believe based on nothing that Flynn is “guilty” based on nothing.
    It is not fine for government to make something up based on nothing.
    And ruin peoples’ lives based on nothing.
    On this basis and others USA constitution was created and written.
    Our constitution, a legal document at heart of our civilization, designed to STOP government from among other things: framing innocent men and women from the likes of which Flynn is being persecuted.
    Query: Was Loretta Lynch, Barry, Yates, Mueller, Rosenstein, Weissmann Stupid when they [and Biden] all said Logan Act on Flynn — and then did not ask a Grand Jury to indict him for this?
    If they believed Logan Act applied, their only option was to charge him with crimes, in court.
    And show their evidence, and let a jury decided, period. All done in public, as law demands.
    So: Why a “A Full Foreign Counterintelligence investigation of the subject” Lt. Gen. Michael Flynn? instead?
    To ask the question is to answer it.

  9. Chuck Light says:

    Jim: As I recall, Lt. Gen. Flynn, on Election Day in 2016, wrote an Op Ed criticizing a Turkish Cleric living in the United States, and received at least a half million dollars ($500,000) for the work he performed. He claimed at the time that he wrote the Op Ed on his own initiative, when in fact he was working for and was paid by a Dutch company with direct links to the Turkish Government.
    According to an article in The Hill, Lt. Gen. Flynn did not disclose his relationship with the Nation of Turkey until March, 2017, when his firm belatedly filed a FARA disclosure regarding that representation. And he later admitted he lied in the FARA disclosure:
    In March 2017, Flynn and his consulting firm retroactively registered as foreign agents working on behalf Turkey.
    In a Dec. 2017 legal filing, though, Flynn admitted lying in the March filings to the Justice Department, including by falsely stating that the Flynn Intel Group did not know to what extent the Turkish government was involved in the project and that the op-ed was written on his own initiative.
    Please correct me if I have gotten any of these facts wrong.
    You make much of Judge Sullivan’s comment that Flynn sold out his country, but to me, at least, and to many others, that is exactly what he did. While working for the incoming administration, he took a bunch of shekels from a dictator to try and get a Turkish Cleric deported, did not disclose his relationship to the foreign government dropping coin in his pocket, and then when confronted admitted he lied on a document he completed “under penalty of perjury.”
    In my view, and I believe in they eyes of many others, Lt. Gen. Flynn got it easy, when they only charged him for lying to the FBI. He swore an oath to the Constitution, and sold it all for a few hundred thousand dollars.

  10. turcopolier says:

    Chuck Light
    As a retired officer (as opposed to a former officer) he was still bound by his oath, as am I.

  11. Keith Harbaugh says:

    Chuck Light: You wrote:
    “Judge Sullivan’s comment that Flynn sold out his country, but to me, at least, and to many others, that is exactly what he did ”
    Let me remind you of a basic fact: many people in Washington have made a very handsome income by whitewashing, to the American public, some very unsavory individuals and regimes.
    Many have blatantly floughted the FARA, without real penalty.
    Do you really think Flynn is the first Washingtotonian who has made money in this fashion?
    I think not.
    But he is surely the first to be threatened with such severe punishment for doing so.
    The allegation is that Flynn did this.
    Perhaps so.
    Or perhaps he was uncertain as to exactly what it required of him.
    In either case, Mr. Light, precisely how does this constitute “selling out ones county”?
    Explain please.


    What is the illegal act here: not having made a FARA disclosure?
    If so, what bearing that has on his oath, I must be missing something here.
    Abrams and Pointdexter also lied to US Congress – did that imply that they broke their oaths as well?
    And so did Reagan.
    [Nixon was only obstructing Justice.]

  13. Chuck Light says:

    Babak Makkinejad: You make a very good point and one that I have been wrestling with all afternoon. Does the crime of making false statements to the FBI, or perjuring oneself on a FARA application, constitute a violation of the Officers’ Oath to “support and defend the Constitution of the United States”?
    I do not know, and for that I am sorry. My feeble recollection was that the oath required a maker to “support and defend the Constitution and the laws of the United States,” and certainly if that was the oath Flynn’s plea of guilty to a violation of 18 USC 1001 would constitute a violation of the laws of the United States.
    If my limited efforts to research this question have yielded anything, however, it would appear that Flynn violated a provision of the UCMJ relating to false statements, Possibly Article 107. And it would appear (again if I read it correctly) that as a retired General officer, Flynn is still subject to the UCMJ.
    Again I apologize if I am wrong about Flynn’s violations of 18 USC 1001 and FARA being a violation of his oath as an officer.
    Regarding Abrams and Poindexter. Abrams got a pardon. Poindexter’s convictions were overturned on appeal, a right which still applies to Flynn in the event he is sentenced for the crime to which he has already pleaded guilty. And unless The Hill made a false report regarding Flynn’s violation of FARA, not only did he fail to properly file, but later admitted that when he did belatedly file, he lied again. On a document which is signed under penalty of perjury. Small crimes, I guess.
    Mr. Harbaugh:
    The answer to your question about FARA is contained in this statement by the US DoJ:
    Two wrongs, or a thousand wrongs, do not make a right, Mr. Harbaugh. Just because others have flouted the laws of the United States doesn’t make it right. And just because others have lied to the FBI, or under oath on official documents, doesn’t make it right.
    Do you really believe that Flynn was so naive as to not know what was required of him as a paid representative of the Nation of Turkey?
    Flynn was a paid representative of a foreign nation while he was acting as the United States National Security Advisor. Would you at least admit that he had a small conflict of interest? In my view he sold out his country. Feel free to disagree.

  14. turcopolier says:

    chuck light
    Retired military people of all ranks, not just generals, are still oath bound and subject to UCMJ. The only question is whether DoD chooses to press charges rather than let the Article 3 courts do so. A commissioned officer cannot be imprisoned and a sentence of imprisonment would require that Flynn be dismissed (expelled) from the Army. None of this is true of Former military people.

  15. Keith Harbaugh says:

    “Would you at least admit that he had a small conflict of interest?
    In my view he sold out his country.”
    I don’t know the exact relevant dates, but for the sake of argument
    I’ll admit the possibility of the conflict-of-interest charge.
    But that, to my mind, does not constitute “selling out one’s country.”
    That would require tangible, specific, harm done to his country in exchange for personal gain of one sort or another.
    Sadly, there have been all to many cases of such by those entrusted with the nation’s secrets.
    But did writing an op-ed favoring one faction in Turkey over the other cause clear, specific harm to America?
    I certainly don’t think so.
    For that reason I think the “he sold his country” charge is way, way over the top. And, in the case of General Flynn, probably reflects an underlying political bias.

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