Three legal matters: the Supreme Court, Michael Flynn, and FBI DOJ documents

  Flynn_setting1

By Robert Willmann

Three legal matters worthy of attention are here this week of 8 July 2018. 

1.  U.S. Supreme Court nomination 

A nomination should be made today to the U.S. Supreme Court to take the place of Judge Anthony Kennedy, who will be leaving the court this year.  As the media speculates on who will be officially announced at 9:00 p.m. Eastern time tonight, the number being considered was said to be four, if the NY Times newspaper is at all correct:  Thomas Hardiman, Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge [1].

In my opinion, neither Kavanaugh nor Kethledge would be good nominees.  For example, Kethledge was the author of the decision of a three-judge panel of the 6th Circuit Court of Appeals that said a search warrant was not required before getting cellular phone location data to use in a criminal case [2].  Fortunately, the Supreme Court agreed to consider that case, and reversed it recently on 22 June 2018 by a 5-4 decision.  Judge John Roberts wrote the opinion for the majority, but the "conservative" judges, including Neil Gorsuch, did not think that a warrant was required.  

Although the issue of abortion, even though important, dominates all the talk on mass media, more important to the foundation of the country are questions such as search and seizure, detention without trial, disclosure of government documents and information to the public (without the new trend of "redactions"), jury trials, and uses of and limits on the police power (the use of force domestically by a government).

2.  Gen. Michael Flynn (Ret.) court hearing

Judge Emmet Sullivan, who is now presiding over the Michael Flynn criminal case in federal court in Washington D.C. after Judge Rudolph Contreras recused himself, set a hearing for a "status conference" to be at 10:00 a.m. on Tuesday, 10 July, and wants Gen. Flynn to attend.

Judge Contreras conducted the hearing at which Flynn pled guilty, and then bailed out.  He was appointed to the Foreign Intelligence Surveillance Court (FISC) on 19 May 2016 and his term expires on 18 May 2023 [3].  This might be a factor in his recusal.  Also, more recently, text messages of FBI agent Peter Strzok revealed that he was/is a friend of Judge Contreras.  Probably still hidden from the public and likely from Gen. Flynn himself is information about the FISC surveillance warrants directed at one or more persons associated with the Trump presidential campaign, and any relationship between Strzok, his paramour — former FBI attorney Lisa Page, who has resigned — and Judge Contreras.  

3.  House Committees want FBI and Dept. of Justice documents

For more than a year, the U.S. House Intelligence Committee has been trying to get documents from the FBI and Department of Justice (DOJ), by both letter requests and by subpoena.  As some documents were disclosed, it became obvious that more information was needed, and on 24 October 2017, a joint investigation was started by both the Intel Committee and the House Judiciary Committee.  After partial compliance, blacking out some information by "redactions", and tap dancing by the FBI and DOJ, the whole House passed a resolution on 28 June 2018 that the documents should be provided by last Friday, 6 July.  They apparently were not all produced.

The resolution lays out a good timeline and history of the attempts by the House committees to get documents and information out of the FBI and DOJ, and concludes with–

"Resolved, That the House of Representatives insists that, by not later than July 6, 2018, the Department of Justice fully comply with the requests, including subpoenas, of the Permanent Select Committee on Intelligence and the subpoena issued by the Committee on the Judiciary relating to potential violations of the Foreign Intelligence Surveillance Act by personnel of the Department of Justice and related matters".

The investigations by Congress are legitimate because of what has been disclosed about FBI and DOJ conduct during and after the 2016 presidential campaign–

http://www.congress.gov/bill/115th-congress/house-resolution/970/text

http://www.congress.gov/115/bills/hres970/BILLS-115hres970eh.pdf

Meanwhile, FBI agent Strzok has apparently been subpoened to testify publicly this Thursday, 12 July, before a joint hearing of the House Judiciary and the Oversight and Government Reform Committees, the topic being:  "Oversight of FBI and DOJ Actions Surrounding the 2016 Election: Testimony by FBI Deputy Assistant Director Peter Strzok"–

http://judiciary.house.gov/press-release/strzok-to-testify-before-the-house-judiciary-and-oversight-committees/

Will Strzok appear, or will he redact himself from the hearing?  

 

[1]  New York Times article on possible Supreme Court nominees–

http://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-nomination.html

[2]  Opinion by Raymond Kethledge on cellular phone location data–

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0089p-06.pdf

[3]  Members of the Foreign Intelligence Surveillance Court–

http://www.fisc.uscourts.gov/current-membership

 

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