The court of appeals orders that Judge Sullivan respond in 10 days about the motion to dismiss in the Michael Flynn case


By Robert Willmann

In a short order on 21 May 2020, the federal Court of Appeals for the D.C. Circuit said that Emmet Sullivan, the trial court judge in the Michael Flynn criminal case, shall:  "file a response addressing petitioner's request that this court order the district judge to grant the government's motion to dismiss filed on May 7, 2020 …."

What is eye-catching is that the court of appeals is focusing only on the motion to dismiss, and not the other issues regarding the appointment of John Gleeson as an amicus curiae to oppose the motion to dismiss and to gin up a contempt case against Flynn, and the transfer of the case out of Judge Sullivan's court–

The order cites the court of appeals opinion, U.S. v. Fokker Services B.V., which was discussed here on SST a couple of days ago in connection with the petition for a writ of mandamus filed by Flynn in the court of appeals [1].  That opinion resulted in a mandamus order against a federal trial court judge who denied a request to waive the statute of limitations that was part of a deferred prosecution agreement between the government and a defendant.  The opinion applied the principle that the executive branch has broad discretion to decide whether to file a criminal charge, which one to file, and whether to dismiss it, unless a charge is repeatedly filed and dismissed in order to harass a defendant, or the defendant objects to the dismissal.  The discussion about having to get "leave of court" to dismiss a criminal case under Federal Rule of Criminal Procedure 48 is on pages 11-12 of the Fokker opinion–

Another item of interest in the order by the court of appeals is what it does not say. There is no mention of a lawyer who will represent the interest of the trial court judge in a response to the application for a writ of mandamus.  In the Fokker case, the court of appeals had two lawyers act as amicus curiae to argue in support of the trial judge's decision during that proceeding.  But who is going to write and file a response in support of Judge Sullivan's position?  Will it be John Gleeson, whom Sullivan appointed as an amicus curiae to oppose the dismissal of Flynn's case?  Are Sullivan's law clerks going to do it?

Keith Harbaugh has commented that in light of the existing law supporting the motion to dismiss Flynn's case, something else may be going on behind the curtain regarding Judge Sullivan's actions.  I think that there is, but of course it is difficult to figure out.  Sullivan appears to have personal animosity against Flynn, which can also make him susceptible to influence by others.  It might be worse than that.

I thought of something recently regarding the fact that it was John Gleeson who was appointed to oppose the dismissal of Flynn's case and to address a possible contempt action against Flynn.  But I have to do some more research on it.




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26 Responses to The court of appeals orders that Judge Sullivan respond in 10 days about the motion to dismiss in the Michael Flynn case

  1. Terence Gore says:
    “In 2019, a federal jury convicted Flynn’s business associate, Bijan Kian, on two felonies: conspiracy to violate lobbying laws and failure to register as a foreign agent for Turkey. Flynn was scheduled to testify against Kian but changed his story at the last minute, causing problems for the prosecution. The judge later tossed the verdict, saying the prosecution didn’t prove its case.
    As part of an overall deal with federal prosecutors, Flynn was never charged in connection with his lobbying for Turkey. It seems unlikely that he ever will”
    I don’t know much about this aspect of the Flynn Saga

  2. blue peacock says:

    The DC Circuit court wants Sullivan to explain himself. That will be instructive as to why he wants Gleeson to provide a third party opinion of why Flynn should be charged with perjury.
    This is one aspect of Flynn that seems a bit shady but very much in line with how DC trades in influence peddling. Apparently he was paid by Turkey to use his influence and put together a media campaign to get Gulen extradited to Turkey.

  3. David Habakkuk says:

    Terence Gore,
    On the Turkish angle, with regard to Flynn, more may have emerged since, but two posts by Larry from July last year are an indispensable starting point.
    (See ; .)
    Without wanting to be excessively complacent, I think that two long comments of mine in the discussion of the second post have stood the test of time reasonably well.
    It is a major problem in regard to Flynn, that people want to turn him either into a demon or hero, when anyone reasonably interested in the truth, rather than pursuing one agenda or another, should be able to see that – as indeed our host pointed out in an incisive comment on a recent thread – he is neither.
    The appalling treatment he has received at the hands of the conspirators, and the encomia to him as some kind of heroic strategic genius, are equally detached from reality.
    For a particularly emetic instance of the latter approach, see a recent article in the ‘Tablet’ by Lee Smith, at
    It is disappointing to see Smith, who has done so much useful – indeed one might say, indispensable – work on ‘Russiagate’, write such despicable twaddle.
    One of my purposes in my comments on Larry’s second piece was to try to bring to people’s attention the crucial importance of the lawsuits in which Ed Butowsky became involved, as a result of his – inadvertently – being the recipient of disclosures by Ellen Ratner of what Julian Assange had told her.
    For an update on the current ‘state of play’, see the ‘Third Amended Complaint’ submitted on 11 March by Ty Clevenger, in the case which Butowsky bought against Michael Gottlieb, and some of his worst ‘co-conspirators’ in the MSM, at )
    This, I am complacent enough to think, vindicates what I wrote in the discussions of Larry’s second post.
    It seems to me that Clevenger is a first-class ‘ferret’ – and that is meant as a really serious compliment. But I do wish he could engage the services of a proper proof-reader!

  4. Terence Gore says:

    Blue Peacock
    I’ve been hearing both positive and negative on the Gulen movement for years but like many things I don’t feel I have a good handle on it.
    mostly positive article on gulen
    a nothing to see here article on graham fuller
    Flynn’s ties to an anti gulen documentary
    a negative article on graham fuller

  5. Keith Harbaugh says:

    It turns out there is quite an argument to be made supporting Judge Sullivan’s actions:
    A problem with that argument is its selectivity on which facts it chooses to mention.
    On the legal side, I have no idea how valid their arguments are.
    Nonetheless, its authors clearly have done it lot of research.
    It is possible (I would think likely) Sullivan’s response to the circuit court will mimic the Lawfare arguments.

  6. Deap says:

    Kieth, keeping in mind Lawfare is a bastardization of the law and warfare – weaponizing the legal system for partisan gain, the arguments they offer are value judgements; not a legal arguments: ……As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it. ,/i>
    Two part test:
    1. is the request for dismissal in the public interest
    2. Is the request for dismissal tainted by impropriety or bad faith
    The underlying case itself is clearly not in the public interest. The underlying case is tainted by impropriety and bad faith. OrangeManBad is not yet a compelling legal argument. Except perhaps in District of Columbia federal courts or the 9th Circuit. But this would not survive further judicial review on appeal.

  7. Jack says:

    Sullivan hires Wilkinson.

    Interesting choice of lawyers. Wilkinson’s clients have been David Petraeus, Philippe Reines + Hillary Cheryl Mills, Jake Sullivan, Heather Samuelson during the Clinton email investigation.
    She’s married to David Gregory = former moderator of Meet the Press and a CNN analyst

  8. Jim says:

    1] Someone lawyers up when they have been charged with a crime, or might be, or afraid they might be.
    2] Someone lawyers up when they want to sue someone.
    3] Or if they’re being sued.
    Which of the three doors might Judge Emmett Sullivan be entering, hiring former DOJ Attorney Beth Wilkinson? [hint: #2 & #3 aren’t applicable here]
    Reference to Ed Butowsky and efforts to destroy him — for trying to get to the bottom of the 2016 emails published by Wikileaks, [embarrassing to Clinton, Democrats, Podesta, etc.], including as this relates to the Seth Rich affair — this scandal, poses obvious questions.
    Coordinated media and Democrat-operative attacks [collusion] on EB [whom he is suing], to silence him for trying to expose that Seth Rich willingly, apparently, took DNC emails and gave them to Wikileaks.
    Regards Flynn, and all the various and sundry investigations, including Mueller’s, Schiff’s, and previous ones of Clinton and emails by FBI. . . .
    What is being covered up? What is the thing that is supposed to be hidden from us?
    How many tentacles does this have?
    Is it just the fact that DNC emails were provided to WikiL by DNC staffer? And not result of “Russian Hacking” — which, thus is the great curve ball to keep us on treadmills of confusion?
    And from this, all the rest of the ongoing nonsense springs?
    DNC & Clinton’s email fiasco continues to live in infamy. Her chief of staff while Sec. of State was Cheryl Mills, an attorney.
    Mills’ lawyer has been Attorney Beth Wilkinson, who was previously a DOJ attorney. During FBI investigation called Mid Year Review, on Clinton. She was Mills’ fixer.
    Sullivan has presided over a Judicial Watch lawsuit for access to Clinton emails, based on FOIA.
    Mills, during depositions, represented personally by Beth Wilkinson.
    If it is accurate the DNC/Clinton email fiasco and leaks to WikiL are at the core, or one of the cores of this ongoing morality play, for lack of a better term. . . then Beth Wilkinson would have an inherent conflict of interest in representing anyone — if, as a former DOJ official, she was involved with, viz. the Clinton affair, a conspiracy to obstruct justice, with the DOJ, perhaps? I don’t know.
    Sullivan, by the looks of things, is currently obstructing justice. . .in the Flynn matter, or to be kind, is playing for time.
    If the above is true, Beth Wilkinson — will she be his fixer, as she was in the Clinton email scandal involving Mills?
    Wilkinson represented now-Supreme Court Justice Kavanaugh during the Senate hearings.
    She helped prosecute Timothy McVeigh.
    In the Clinton email matter, she represented four of her top aides during the FBI investigation – that is, not just her chief of staff Mills.
    “Four of Hillary Clinton’s closest aides appear to have adopted an unusual legal strategy, hiring the same ex-Justice Department attorney to represent them in the FBI’s investigation of Clinton’s private email server.
    “Beth Wilkinson, a well-connected former assistant U.S. attorney. . . .Lawyers are barred from simultaneously representing people who may have conflicting interests in an investigation, or who would say something negative or potentially legally harmful about the lawyer’s other clients, experts say, although some such conflicts can be waived by the clients.” This according to April 1, 2016 story.
    “They’ve hired her because she knows everyone in main Justice,” said Joseph diGenova, a former U.S. attorney-turned-right-leaning legal commentator. “She has very good personal relationships with all the political and career people in the Justice Department, so that’s very smart on their part.”
    And this April 1, 2016 story says:
    DiGenova questioned why the DOJ would greenlight the arrangement in the first place, arguing that it “presents an amazing conflict of interest” and allows for coordination of stories.
    “If it’s a serious case, you don’t run the risk of having all sorts of collusion between people — it’s just not done,” said diGenova. “If the department has accepted that, that tells me they’re walking down the line of not bringing a case, because they’re not serious if they have accepted that arrangement . . . .They’ve thrown in the towel.”
    1] The DOJ created and accepted this nonsense in 2016.
    2] Will the US Court of Appeals, which is demanding answers from Sullivan, accept Wilkinson as his fixer in 2020?
    3] Is #1 part of Special Counsel John Durham’s scope?

  9. Fred says:

    It is truly a sad state of affairs when a federal judge needs a lawyer to expalin his legal decisions in this case to his bosses in the Appellate Court. The Court of Appeals to take this move for the insult it is and grant the writ of mandamus immediatley and dismiss the case with prejudice itself, and make Judge Sullivan show up in person to explain himself.

  10. Keith Harbaugh says:

    Another question is:
    Just who is going to pay for this “high-powered lawyer”?
    High-powered lawyers command, and demand, high fees.
    And Washington lawyer’s fees are notoriously high.
    There are three options:
    1. Judge Sullivan himself (seems unlikely).
    2. The U.S. court system (i.e. the U.S. taxpayer). Do they have a budget for such?
    Is there no end to the lengths to which they will go in order to get Flynn?
    3. The Resistance. But this opens up obvious ethical questions. And makes it hard to maintain the fiction that he is unbiased.

  11. Tyler says:

    Late stage Imperial Decline is a hell of a ride, I tell you.
    The other branches have allowed the judiciary to turn itself into the branch of Wise Philosopher Kings in black dresses, and therefore should not be shocked when they decide that reality is whatever they decide it is. This has been the ongoing state of affairs since the 14th AMD became the “Do whatever I wanted to do anyway” amendment and our entire ethical framework as a civilization became wrapped around “equality”.
    Sullivan just hired outside counsel to make his response to the appeals court, which as far as I can see is just another insane twist on an already wild ride. Its patently obvious he is taking orders from somewhere else trying to either run out the clock on Flynn or get Trump to the point where he lays down the pardon and the Left can go into not at all coordinated spasms of apoplexy over how the flag is falling to distract from the fact Biden has dementia.
    None of us live in a real country anymore.

  12. CK says:

    So you can only conceive of three reasons for a person to “lawyer up”?
    How about this: A badged employee of the government wish to ask you a few question. Just to help in their investigation of something or another. So you go in to be interrogated. Your interrogator has 20 years of employment and has done several interrogations a week for those 20 years. It is your first time being interrogated.
    A smart person asks for a lawyer immediately. You are the pine rider for the little sisters of the poor and the interrogator is Nolan Ryan. You are Rudy the waterboy and the interrogator is Dick Butkus. You are a mook a skell, just another low life.
    As a general rule, you get yourself a lawyer first before you answer anything. This is something General Flynn knew and ignored.
    But, But, BUT I am innocent, I have nothing to hide, it is a citizens duty to “help” legitimate authority, I dindunuffin … innocence is irrelevant. All of us have our secrets and our private things and you can become a liar to legal authority quicker than you can imagine just by one wrong word, or one nervous twitch, or a simple hesitation, even an ambiguity in your wording of some innocuous answer to some “unimportant” question.
    You can ask the Colonel how interrogation works he spent many years honing his art.

  13. turcopolier says:

    You mistake me for someone else. I was never an interrogator or investigator.

  14. CK says:

    @The Colonel
    My apologies, I thought you were in humint gathering during your military career.

  15. For how an innocent person can be caught in a perjury trap, read Chapters 18 and 19,
    “The FBI Comes Calling” and
    “Investigated By Mueller, Harassed By Congress”
    of K.T. McFarland’s book “Revolution”.
    It only costs $9.99 at Google Play Store and IMO, is well worth it for those two chapters alone.
    (Hope that endorsement for the book is okay in context.)

  16. turcopolier says:

    I was but not as an interrogator or investigator. Infantry, Special Forces, Clandestine HUMINT, military diplomat, manager of all of those as well as a practitioner. Interrogation is an enlisted or warrant officer MOS thing. Ever been in any of these?

  17. Jack says:

    I agree with your conclusion.
    I’m not sure it is the 14th amendment that is the proximate cause. I would argue that the 17th amendment did more for centralization which IMO inevitably has led to the symbiotic relationship between big business and big government. A veritable oligarchy.
    I’m also not certain that it has to do with ideology either as there’s not been any opposition to this centralization by either the left or right. While I get that “socialism” is the boogeyman for the right, the reality is that the biggest socialists are the ostensibly “capitalist” Wall St financiers who have socialized their speculative losses at every turn. Why are the “right” so silent to this when the scale is so gargantuan?
    IMO, the problem is much more deep rooted. It is societal. The attitudes and proclivities of our society began a dramatic and steady shift over the last 50 years and it has only accelerated. Values have changed and we see it across the board from our politics to our economy.
    Over the last 50 years, for example, the majority of food production, processing and distribution became consolidated into a handful of large corporations. All aspects of it from agricultural inputs to processing and distribution. This consolidation along with close financial relationships between these corporations and the political system has enabled massive corporate welfare and cartelization. Trump for example, has pushed massive taxpayer payments to the large multinational agribusinesses to the tune of hundreds of billions. So this is not an ideological divide. Both the left and right have enabled this under the rubric of supporting the “small family farm”.
    Market consolidation has taken place in practically every segment with one of the most insidious being the consolidation in media. Couple that with Citizens United and the financialization of economy where financial speculation is where the biggest “wealth” creation takes place and we can see the erosion in our societal value system. From business to politics it’s all about immediate personal gain.
    Where in history can we find a dominant power that voluntarily dismantled it’s productive capacity to ship it to an enemy state? All so that the financial and political elite could personally gain in the short term. This can all be traced back to the trend of centralization, IMO.
    The wars we have fought in the past decades as well as our large garrisons around the world at tremendous cost both financially and in lives have brought what national benefit? We’ve been in Afghanistan for 19 years to what end? Military spending continues to rise not because there’s a strategy but because of the huge benefits to the vested class. The massive expenditures on various boondoggles engendered by the financial gains for the few in the revolving door.
    As blue peacock noted in another thread and I agree wholeheartedly is that our society is now easily propagandized with fear. Both 9/11 and the Wuhan virus exemplifies how easily Americans will voluntarily support increased authoritarianism. Take for example the Patriot Act, where with the exception of one senator, everyone voted for it without any qualms on its implications for constitutionally protected civil liberties. And that senator, Russ Feingold was a Democrat. The authoritarians are counting on this partisan and faux ideological divide among the citizenry.
    Where does this lead? IMO, more authoritarianism. The constitution cannot be a bulwark when citizens no longer have the will to sacrifice and defend its precepts.

  18. Tyler says:

    Someone described the current situation as the Inner (Democrat) and Outer (Republican) Parties coming to parity, with identity politics (IDPOL) being pushed so hard because its not really giving up any of the real power. All of Leftism has been consumed by globohomo jihad, with Chomsky and Zizek, those hardcore leftists, throwing their support behind Joe Biden (D-MBNA).
    We can get into “No True Scotsman” fallacies all day, but the reality is that the “Right” in America isn’t the Right. One only needs to look at how the Republicans have treated Kris Kobach and Steve King to see that they aren’t really serious about doing anything. Its the same dog and pony show for the rubes every election year where “I’m just like you!” driving around a pick up truck and then terrified to speak out against Drag Queen Story Hour. I voted for Tribune of the Plebs proscribing my cultural foes and got LOWEST BLACK UNEMPLOYMENT EVER – trust me, I’m not happy.
    Yeah, the 17th AMD didn’t help things but the 14th AMD and the religious pursuit of “equality” is basically the driving force behind Western Civ right now. We sacrificed freedom of association because “discrimination”. We’re currently on the path to sacrifice freedom of speech because of some notions of “hate speech”.
    The nature of the Left in this country is to double down, and they’re not going to stop anytime soon. Everything, including this Flynn indictment, is process over purpose. “Flynn plead guilty, he perjured himself!” they cry, pretending that the FBI didn’t threaten his son and lie about what they had on him. You can see this on a meta scale with the quarantines in the blue states – we are going to release murderers but bureaucrats WILL NOT be challenged when they say the lockdowns will go on for infinity. Imagine what happens when something serious goes down. Fun fun.

  19. CK says:

    “Ever been in any of these?”
    This is the second time over the last several years that you have asked me this.

  20. turcopolier says:

    Am I supposed to remember you? What was the answer?

  21. CK says:

    I have no idea which of the commenters here you choose to remember,
    nor what criteria would make one memorable.
    I have never been in any of the areas you listed.

  22. vig says:

    Where in history can we find a dominant power that voluntarily dismantled it’s productive capacity to ship it to an enemy state? All so that the financial and political elite could personally gain in the short term. This can all be traced back to the trend of centralization, IMO.
    This is not quite as it happened,, Jack. Dismantling and shipping? Tax wise whatever was left may have been written of at that point in time. Enticements may have helped a lot to simply leave whatever production ground behind and move it to a different space? Starting slowly with whatever parts could be bought much cheaper if produced somewhere else. And why not buy new machines in the process and built a new factory there after a while? Not the least once you realized that the relevant factor manpower was a lot cheaper there?

  23. Fred says:

    ” Imagine what happens when something serious goes down.”
    Lots of psuedo conservatives will be “shocked” to discover reality when many of the thin blue line they love to lionize decide “my pension” is much more important than “your rights” and see, I’ve got a valid executive order from the Govornor; a red flag order from the court, and so on. Then things may get “fun, fun”.

  24. Tyler says:

    “Nor what criteria would make one memorable”.
    A 405 bench press.
    That’s it. That’s all you need.

  25. David Habakkuk says:

    A further update on the proceedings in which Ed Butowsky is involved.
    Central to his case against Michael Gottlieb et al, and to a lot else, are the attempts by Ty Clevenger to get the FBI to produce material they clearly have relating to Seth Rich. On this, there is a mass of documentation available on the ‘Courtlistener’ site, with key filings accessible without payment.
    (See .)
    Yesterday (25 May), Clevenger filed a ‘Notice of Supplemental Evidence’, relating to his deposition on 20 March of former Assistant U.S. Attorney Deborah Sines, who had been in charge of the investigation of Rich’s murder.
    This was accompanied by a transcript of the deposition, actually taken in connection with Butowsky’s parallel case against David Folkenflik et al, which runs to 126 pages. This case has also generated a lot of fascinating material – see .
    And the new material also needs to be read in conjunction with the letter on ‘Outstanding Discovery’ which Eden P. Quainton, who is acting for Butowsky in the case brought against him by Seth Rich’s brother Aaron, sent to the judge in that case on 27 March.
    (See )
    The background to Clevenger’s deposition of Ms. Sines is the way that she was roped in to the attempts by Michael Isikoff, the ‘Chief Investigative Correspondent’ at ‘Yahoo News’, who among his other claims to notoriety has been one of the ‘stenographers’ for Christopher Steele, to bolster the FBI cover-up over Seth Rich.
    According to a ‘Newsweek’ report of the ‘investigation’ (LOL!) Isikoff published last year, as a ‘podcast’, under the title ‘Conspiracyland’:
    ‘Deborah Sines, the U.S. federal prosecutor who was previously in charge of Rich’s case, told Yahoo News the Russian foreign intelligence service (known as SVR) circulated a “bulletin” designed to look like a real intelligence report that falsely claimed Rich was an FBI informant. The document stated Rich was headed to inform the FBI about crimes involving Hillary Clinton on the night of his death, and was killed by a squad of assassins working for the former secretary of state. In reality, Rich was heading home late at night after a few drinks with colleagues.
    ‘“To me, having a foreign intelligence agency set up one of my decedents with lies and planting false stories, to me that’s pretty outrageous,” Sines, who retired last year, said. “Maybe other people don’t think it’s that outrageous. I did … once it became clear to me that this was coming from the SVR, then that triggers a lot of very serious [questions about] ‘What do I do with this?’”
    (See .)
    The ‘Notice of Supplemental Evidence’ submitted by Clevenger provides page references for some key points in the transcript of the deposition. On pps. 38-9, Clevenger picks up a key part of what Ms. Sines was quoted as having told Isikoff:
    ‘There were allegations that someone, maybe more than one person, was trying to invade Seth’s Gmail account and set up a separate account after Seth was murdered. And the FBI was looking into that. I presumed they were trying to create a fake Gmail account and get into Seth’s Gmail account so they can dump false information there.’
    In response, Ms. Sines says that she said it, that it was the truth, and that it was not just a matter of ‘presumed.’
    The exchanges that follow start:
    Q. Do you know whether – or did – Aaron Rich might still have been accessing that account?
    A. I don’t – I don’t know what Aaron was doing then.
    Q. If we were to provide evidence that Aaron, in fact, was logging into his brother’s accounts and altering data after Seth’s death, would that be relevant to your murder investigation?
    I have not yet had time to digest what follows, or indeed to read the deposition in full.
    What is clear is that these exchanges need to be seen in the context of item D4 in the list of ‘Outstanding Discovery’ letter: ‘A list of all accounts belonging to Seth Rich deleted by You or of which the contents were partially or wholly deleted by you.’ Justifying the request, Eden P. Quainton writes: ‘Defendants have a good faith basis for believing Aaron has deleted relevant information.’
    However, while I think I was right in my initial assumption that the Isikoff ‘investigation’ was part of a ‘limited hangout’ strategy, of the kind I think is being rather effective in diverting people from looking into some of the most crucial aspects of ‘Russiagate’, I now think the deceit here was different from what I had initially thought likely.
    It seemed to me possible that the background to what Ms. Sines said to Isikoff – which was in obvious tension with earlier FBI claims not to have investigated the Rich case, or possess documents relating to it – was that the accounts had been tampered with by people from the Agency.
    A possible purpose of this would have been to ensure that when the attempt to conceal Seth Rich’s laptop, and information about his email accounts, was finally abandoned, what would be found would not be evidence suggesting he was responsible for the DNC leaks, but rather material supporting the ‘narrative’ that the material was ‘hacked’ by the Russians.
    To achieve this result, it would have been likely that material would have needed to have been both removed, and added.
    If however, as now seems eminently possible, there had been tampering by Seth’s brother, a range of interesting possibilities need to be considered; although, obviously, there is no reason why both he and the FBI should not have been attempting to ‘doctor’ this crucial evidence.
    And different hypotheses about who was doing precisely what, when, and why would seem likely to have major implications for many key matters to do with ‘Russiagate’ – including, crucially, the case that Aaron brought against Butowsky.
    How all this may impact on Clevenger’s attempts to get the FBI to admit the obvious, and produce some of the materials they clearly have about Rich, or cogent reasons why they should not have to do so, remains to be seen.
    It clearly has not helped that Butowsky has had horrendous health problems, detailed in the ‘Response to Non-Motion, and the declaration he produced to back it up, filed on 21 May, in the case against Folkenflik et al. It appears that a hip operation gone wrong has left him still lacking a functioning hip.
    These problems have clearly created very great difficulties, not least in relation to his side of the crucial ‘discovery’ process – and both sides, obviously, are interdependent: the ability of Butowsky’s lawyers to extract material is related to their ability to provide it.
    This has been unfortunate in many ways, although it does now seem from Quainton’s letter that the requests put to Aaron Rich, and others may already be in the process of blowing the cover-up over Seth Rich to pieces.
    That said, I think that when, hopefully, as once happened with the Dreyfuss affair, those who have tried to obfuscate the truth are defeated and put to shame, Butowsky is likely to emerge as one of the heroes of this affair.
    Hardly a flawless hero, doubtless, but then, in the real world, and certainly in regard to Dreyfuss, the most important ‘truth-tellers’ are often not ‘sainted angels.’

  26. Jim says:

    With former DOJ attorney, Beth Sullivan, having today filed her appearance in DC Circuit Court of Appeals, that’s official.
    She, on behalf of Judge Emmett Sullivan, who she is representing — on Sullivan’s dime, it appears — not the government’s.
    He, notorious of Lt. Gen. Michael Flynn case, as presiding judge in District Court case.
    He who refused to approve DOJ motion to dismiss charge[s] against general.
    DOJ, having determined much prosecutor misconduct, among other things, resulting in Mandamus writ that Flynn’s attorney filed with appeals court.
    And, appeals court demanding/ordering Sullivan to explain his action [or lack of it].
    Attorney Wilkinson’s Tuesday filing, in addition to saying she is Sullivan’s personal counsel in this matter also verifies, it appears, the following:
    She is acting as an “Appellee(s)/Respondent(s)”.
    [Of note: Wilkinson, on the court form, did not check off the box saying she was acting as “Appellant(s)/Petitioner(s).”]
    For what it’s worth, it’s key to understand distinction between “appellant” and “appellee.” This to understand Wilkinson’s role [if any is granted by court] viz. Sullivan in particular. [Keeping in mind this is not a usual type of circumstance because of Mandamus.]
    From Cornell law school, for usual cases viz. appellee and appellant distinction:
    The party against whom an appeal is filed. The appellee usually seeks affirmance of the lower court’s decision. By contrast, the appellant is the party who filed the appeal.
    Suppose P sues D, and wins. D files an appeal. P is the appellee, and D is the appellant. If D wins the appeal, and P appeals, the roles are reversed. D becomes the appellee, and P is the appellant.]]]
    Or, according to US Court of Appeals:
    Appellant/Petitioner — The appellant/petitioner generally is the party who lost in the district court/agency and filed the notice of appeal. The appellant/petitioner generally wants this Court to reverse or modify the judgment of the district court or agency.
    Appellee/Respondent — The appellee/respondent is generally the party who won in the district court/agency. The appellee/ respondent generally wants this Court to affirm the decision of the district court or agency.]]]
    Cornell also says:
    [[[Rule 31. Serving and Filing Briefs
    (a) Time to Serve and File a Brief.
    (1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant’s brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.
    (2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.]]]
    These are normal, usual, basic rules: in a criminal case appellant would be someone accused of a crime; DOJ, the appellee as prosecutor.
    The convicted criminal, the appellant, wants to appeal, and files an appeal; DOJ wants appeals court to affirm conviction, acting as appellee.
    Things appear kind of reversed or upside down or backwards, in a way, in the Mandamus issue, re: Flynn and Sullivan.
    Here, in place of “(1) The appellant must serve and file a brief within 40 days after the record is filed”, we appear to have — instead of Flynn appealing THE DEPARTMENT OF JUSTICE motion to dismiss – rather: appealing THE SULLIVAN refusal to dismiss it.
    Here, in place of “The appellee must serve and file a brief within 30 days after the appellant’s brief is served”, we have instead the the appeals court, as a result of the Mandamus, ordering Sullivan, by June 1, to explain why he’s refusing to approve the DOJ motion to dismiss.
    What’s interesting, however subtle, is that, normally: appellee would file a brief once an appellant has asked court to consider an appeal, and thus, respond to the appellant’s arguments.
    There is no obligation to respond to the appellant, though any good prosecutor would do that, so as to try and debunk it.
    Because of the Mandamus, Sullivan has no choice but to respond.
    And, he must do so in a relative “hurry” — by June 1, instead of the longer time frame court rules allow under normal circumstances.
    It also remains to be seen whether Sullivan’s attorney will be permitted, by appeals court, to act as Apppellee on the judge’s behalf, in this Mandamus process.
    This actually underscores the fact that Sullivan is not a prosecutor and is not acting as one, legally at least.
    He must respond.
    A prosecutor has a choice whether to respond or not, and does so because he or she believes someone is guilty of a crime that a judge or jury had, already, decided was the case.
    Sullivan, by hiring Wilkinson, may be signaling he will respond [if he does not respond, he essentially “defaults” – meaning, it would seem, that he has completely lost control of the actual Flynn case, totally; whether this would then mean his “default” would then require appeals court to grant the DOJ motion? I don’t know.]
    Why hire a lawyer, if not to use her, that is simple logic.
    Might something else be at play, and what might that be? I don’t know either way.

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