Striper Talk Striped Bass Fishing, Surfcasting, Boating

     

Left Nav S-B Home Register FAQ Members List S-B on Facebook Arcade WEAX Tides Buoys Calendar Search Today's Posts Mark Forums Read Right Nav

Left Container Right Container
 

Go Back   Striper Talk Striped Bass Fishing, Surfcasting, Boating » Striper Chat - Discuss stuff other than fishing ~ The Scuppers and Political talk » Political Threads

Political Threads This section is for Political Threads - Enter at your own risk. If you say you don't want to see what someone posts - don't read it :hihi:

 
 
Thread Tools Rate Thread Display Modes
Old 05-13-2020, 09:32 PM   #1
Pete F.
Canceled
 
Join Date: Jun 2003
Location: vt
Posts: 13,067
Judge Sullivan part 2

IN A SENTENCING MEMO, THE GOVERNMENT ACCOUNTS FOR FLYNN’S FAILED COOPERATION AND REFUSAL TO ADMIT GUILT
In the wake of Sullivan’s order, the parties moved towards sentencing in January. The government got two continuances before submitting their revised motion, one in December and another in January, to get all required approvals for their sentencing memo. That means prosecutors on the case went to great lengths to approve their recommendation for prison time.

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range. The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

I’ll return to that memo, but the key point is that Judge Sullivan specifically gave Bill Barr’s DOJ time to ensure that the chain of command approved their supplemental sentencing memo.

Before Flynn responded to that revised recommendation, they asked for a continuance to allow them to withdraw Flynn’s guilty plea, specifically citing prosecutors’ recommendation for prison time.

Because Flynn submitted his supplemental sentencing memo after beginning the process to withdraw his guilty plea, they were stuck arguing in it both that Flynn should get credit for admitting guilty but also arguing that he was not guilty.

The government reply, submitted as Barr started the process to replace Jessie Liu, is the one that alerted everyone to the shenanigans that Barr was up to. Whereas the initial supplemental motion — which had been delayed twice to get approval — recommended prison time, this one reverted back to supporting probation, the position the government had adopted before Flynn had reneged on both his cooperation and his guilty.

FLYNN BLAMES HIS GUILTY PLEAS ON HIS COVINGTON LAWYERS
As noted, Flynn cited the recommendation for prison time in asking to withdraw his guilty plea(s). Flynn based his request to withdraw his guilty plea on a claim that his very competent Covington lawyers were both conflicted and incompetent. He then submitted what was originally called a supplement — which made no new arguments — which they subsequently corrected to note,

1 This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

In response to a second request for more time on its filings, Judge Sullivan issued an order that reflects where he’ll likely go now: he raised the prospect of an evidentiary hearing to determine whether there is good cause to set aside his guilty plea.

Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d).

From that moment forward, it became clear that Sullivan would put Flynn back under oath.

On February 9, prosecutors made things still worse, by asking Sullivan to waive Covington’s attorney-client privilege with respect to Flynn so they could assist prosecutors in rebutting his claims that they were incompetent. From that point forward, it became clear that not only Flynn, but his very credible former lawyers, would be testifying about the prosecution.

On January 29, just two days before Bill Barr would replace Jessie Liu with his flunky and around the same time he ordered Jeffrey Jensen to review the Flynn prosecution, Flynn submitted what he billed as his real supplemental motion to withdraw, doubling down on the claim that his former lawyers were responsible for his guilty pleas, he wasn’t.

As I noted at the time, the motions in conjunction created new risks for Flynn: in particular, his motion to withdraw included a sworn declaration that conflicted with three past sworn statements from him:

December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
He lied about several conversations with Sergey Kislyak about sanctions
He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
He was satisfied with the services his attorneys had provided
No other threats or promises were made to him except what was in the plea agreement
December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
He lied about several conversations with Sergey Kislyak about sanctions
He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
He was satisfied with the services his attorneys had provided
He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
During his interview with the FBI, he was aware that lying to the FBI was a federal crime
June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.
To make things worse, as often happens with exhibits Sidney Powell introduces, the actual record undermined claims Flynn made. For example, Flynn included a document that showed Covington gave him more warnings about conflict than he admitted to in his declaration, thereby making it clear his sworn declaration didn’t match the record accompanying it.

FLYNN REPEATS HIS CLAIM HE WAS RAILROADED
That same day Flynn submitted his most substantive motion to withdraw his guilty plea, January 29, he also submitted a motion to dismiss his prosecution. It was basically a repeat of the request made months earlier as part of the Brady request, pointing to irregularities in the Carter Page FISA application as the primary justification to make the motion anew.

On February 12, prosecutors responded to that motion pointing out there was nothing new here. Flynn’s response was repetitive and included a misleading timeline full of claims that contradict claims they’ve made elsewhere. The motion ignored that Flynn waived these complaints when he pled guilty the second time.

The government repeatedly claims that Mr. Flynn waived his right to constitutional protections when he pled guilty. ECF No. 169 at n.3. But, Mr. Flynn’s plea cannot stand, and the government cannot use it as both a shield for its misconduct and a sword to sentence Mr. Flynn. His plea was infected with constitutional error which rendered it neither knowing nor voluntary and in violation of Mr. Flynn’s Sixth Amendment rights. See ECF No. 162-2. As Mr. Flynn argued in his Motion to Withdraw Plea, ECF No. 151, even if it were a validly contracted plea, the government breached the contract the moment Mr. Van Grack filed the government’s supplemental sentencing memo which withdrew its motion for downward departure and its recommendation of probation. See ECF No. 150 at 3 (“In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. . . . [T]he government now withdraws both requests.”).

AS PROSECUTORS PREPARE THEIR COVINGTON ARGUMENT, BILL BARR PREPARED HIS “NEW” INFORMATION
As noted, on February 9, prosecutors took steps to be able to prove that Covington, in fact, gave Flynn exceptionally good advice. They asked for a series of delays while they did that. According to the schedule set by Judge Sullivan, prosecutors would have proposed a briefing schedule to lay all that out last Friday, possibly in a motion including some of the details from the 600 pages of evidence obtained from Covington that (the record already shows) would substantiate that Flynn gave them incorrect information for his FARA filing and repeatedly brushed off warnings about conflict.

During the delay, Covington did find 6,000 new records on top of the 600,000 documents they had already provided. Given the Bates numbers of documents filed last week, there’s no reason to believe those exhibits were included in these newly discovered documents.

As that was happening, prosecutor Jocelyn Ballantine handed over, drip-by-drip, the documents that Jeffrey Jensen “analyzed.”

Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

None of this discovery correspondence said the documents were new to prosecutors, only that Jensen had reviewed them. They were, nevertheless, the documents that Timothy Shea claimed were “new” as his basis for flip-flopping on DOJ’s position on the case.

EMMET SULLIVAN HAS SIX DECISIONS TO MAKE, NOT JUST ONE
Many, perhaps most, people who’ve commented in the last week have noted that Emmet Sullivan has the prerogative whether to accept DOJ’s motion or not. It’s true he has that authority. But he actually has up to six different decisions pending, as follows:

Whether to accept or reject DOJ’s motion to dismiss
If Sullivan accepts DOJ’s motion to dismiss, whether he does so with or without prejudice
Whether to accept or reject Flynn’s motion to withdraw his pending withdraw of guilty plea, motion to dismiss, and waiver of privilege for Covington (to which DOJ has consented)
Whether to hold an evidentiary hearing or ask for briefing on Flynn’s motion to withdraw
Whether to accept or reject Flynn’s motion to dismiss his prosecution
Whether and if so how to sentence Flynn based on fully briefed sentencing memoranda
Sullivan would not get to most of these without, first, deciding what to do about DOJ’s motion to dismiss. And if he rejected DOJ’s motion to dismiss, he would obviously reject Flynn’s motion to dismiss, just like he already rejected that argument. Though if Sullivan does reject DOJ’s motion to dismiss, sentencing is fully briefed and he could move immediately to sentencing.

Moreover, Flynn’s multiple conflicting sworn statements are before this court whether or not Sullivan rejects DOJ’s motion to dismiss. And he could reach that decision — or at least order briefing on the Covington evidence Flynn clearly wants to keep hidden — without (or before) weighing in on DOJ’s motion to dismiss.

Which is likely one of the reasons Sullivan is taking his time before he issues the next scheduling order.

Update: I should have put this quote on behalf of Chris Wray in several posts before this one. But basically, the FBI has already put it into the public record that the stuff DOJ claimed was “new” last week had already been reviewed by DOJ IG and John Durham’s inquiry.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

Frasier: Niles, I’ve just had the most marvelous idea for a website! People will post their opinions, cheeky bon mots, and insights, and others will reply in kind!

Niles: You have met “people”, haven’t you?

Lets Go Darwin
Pete F. is offline  
 

Bookmarks

Thread Tools
Display Modes Rate This Thread
Rate This Thread:

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 07:22 AM.


Powered by vBulletin. Copyright ©2000 - 2008, Jelsoft Enterprises Ltd.
Please use all necessary and proper safety precautions. STAY SAFE Striper Talk Forums
Copyright 1998-20012 Striped-Bass.com