What a 1924 case from Montana says about dismissing the Flynn prosecution

[westwall]

The kind of judicial review blocked by the lower appeals court.

What about dismissing the charges completely?

"The Government has urged (and some commentators have opined) that Judge Sullivan has little choice but to grant the motion. The conventional view holds that it is necessary to distinguish between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. The Government argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies in part on forty-year-old dicta in the sole Supreme Court case interpreting Rule 48(a). There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”

But the Government’s position—and the Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted precisely to deal with the situation that has arisen in United States v. Flynn: Its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors’ attempt to abandon a case."

Why Do Rule 48(a) Dismissals Require ‘Leave of Court’? | Stanford Law Review

On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump's former Na

www.stanfordlawreview.org

but rather to guard against dubious dismissals of criminal cases

Dubious cases should be dismissed.

It's far from a dubious case. Flynn pled guilty after all.

What was the crime they were investigating again?

Counterintelligence investigations don’t need crimes. It’s not a law enforcement action.

Oh? What did he plead guilty to? Why was there a counterintelligence operation launched when there was no evidence of nefarious behavior on the part of the Trump campaign?

I could understand it if it were the shrilary campaign who actually DID collude with foreign spies.

But not Teump.

So why aren't you screaming about the shrilary and her provable crimes?

 

[colfax_m]

The kind of judicial review blocked by the lower appeals court.

What about dismissing the charges completely?

"The Government has urged (and some commentators have opined) that Judge Sullivan has little choice but to grant the motion. The conventional view holds that it is necessary to distinguish between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. The Government argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies in part on forty-year-old dicta in the sole Supreme Court case interpreting Rule 48(a). There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”

But the Government’s position—and the Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted precisely to deal with the situation that has arisen in United States v. Flynn: Its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors’ attempt to abandon a case."

Why Do Rule 48(a) Dismissals Require ‘Leave of Court’? | Stanford Law Review

On May 7, 2020, the Department of Justice asked District Judge Emmet G. Sullivan to dismiss the felony charge against President Trump's former Na

www.stanfordlawreview.org

but rather to guard against dubious dismissals of criminal cases

Dubious cases should be dismissed.

It's far from a dubious case. Flynn pled guilty after all.

What was the crime they were investigating again?

Counterintelligence investigations don’t need crimes. It’s not a law enforcement action.

Oh? What did he plead guilty to? Why was there a counterintelligence operation launched when there was no evidence of nefarious behavior on the part of the Trump campaign?

I could understand it if it were the shrilary campaign who actually DID collude with foreign spies.

But not Teump.

So why aren't you screaming about the shrilary and her provable crimes?

He plead guilty to 18 USC 1001. Counterintelligence is aimed at identifying what foreign intelligence is doing on US soil. That would include knowing who they’re talking to and what they’re saying.

 

[Toddsterpatriot]

That’s not a requirement of the law.

A non-material lie about a phone call during a politically motivated investigation into a non-crime, not a crime.

 

[Toddsterpatriot]

That would include knowing who they’re talking to and what they’re saying.

They knew who he talked to and what they said.

Where was the crime in the call or referred to in the call?

What, no crime? Thanks for playing.

 

[berg80]

"The full U.S. Court of Appeals for the D.C. Circuit is hearing Tuesday arguments in the extraordinary dispute between Michael Flynn and his judge. The dispute centers on whether the judge is required to drop Flynn’s case now that the Justice Department has requested it be dismissed.

The D.C. Circuit has already halted an order from a three-judge panel from its bench directing the judge, U.S. District Judge Emmet Sullivan, to immediately drop the case."

Full DC Court of Appeals Hears Flynn Dispute With His Judge

The full U.S. Court of Appeals for the D.C. Circuit is hearing Tuesday arguments in the extraordinary dispute between Michael Flynn and his judge. The dispute centers on whether the judge is required…

talkingpointsmemo.com

 

[berg80]

A non-material lie about a phone call during a politically motivated investigation into a non-crime, not a crime.

I see. So the incoming NSA lies to the FBI about the subject of a conversion with a foreign diplomat from an adversarial country that just interfered with our election on Trump's behalf. And instead of warning the diplomat to never do anything like that again he tells the diplomat to subvert the policy of the sitting admin. And that's not a problem for you? That explains a lot.

 

[westwall]

A non-material lie about a phone call during a politically motivated investigation into a non-crime, not a crime.

I see. So the incoming NSA lies to the FBI about the subject of a conversion with a foreign diplomat from an adversarial country that just interfered with our election on Trump's behalf. And instead of warning the diplomat to never do anything like that again he tells the diplomat to subvert the policy of the sitting admin. And that's not a problem for you? That explains a lot.

Only he didn't lie as the FBI agents themselves reported. Then a higher up bureaucrat altered the 302 so that they could make the claim. That is a crime. In fact the ONLY crimes we see in the Flynn case are from the GOVERNMENT.

 

[Toddsterpatriot]

A non-material lie about a phone call during a politically motivated investigation into a non-crime, not a crime.

I see. So the incoming NSA lies to the FBI about the subject of a conversion with a foreign diplomat from an adversarial country that just interfered with our election on Trump's behalf. And instead of warning the diplomat to never do anything like that again he tells the diplomat to subvert the policy of the sitting admin. And that's not a problem for you? That explains a lot.

So the incoming NSA lies to the FBI about the subject of a conversion with a foreign diplomat from an adversarial country that just interfered with our election on Trump's behalf.

Was the (supposed) lie material to the investigation into the imaginary conspiracy to interfere with the election? Did he lie about the election? About the interference?
Did they discuss owing a favor for those ICBMs (intercontinental ballistic memes)?

And instead of warning the diplomat to never do anything like that again

The diplomat interfered? Link?

he tells the diplomat to subvert the policy of the sitting admin.

Guess they should have charged him with "subverting the policy of the sitting admin", right?

 

[berg80]

Only he didn't lie as the FBI agents themselves reported.

Please stop repeating that lie as it has been debunked dozens of times.

"Lawyers for the special counsel’s office said Flynn’s seemingly guileless demeanor did not change the fact that he was lying — which Flynn himself admitted.

"Those misimpressions do not change the fact — as the defendant has admitted in sworn testimony to this District Court — that he was indeed lying, and knowingly made false statements to FBI agents in a national security investigation," they wrote."

Trump says FBI said Flynn didn't lie to them. That's untrue

In his first interview since being cleared of criminally conspiring in Russia’s 2016 election interference, President Do

www.politifact.com

 

[berg80]

Was the (supposed) lie material to the investigation into the imaginary conspiracy to interfere with the election?

At the time, as Sally Yates testified to last week, the investigation Flynn was caught up in was over Russia's decision not to retaliate against the sanctions Obama imposed after saying publicly they would. Try to keep up.

 

[berg80]

"Multiple judges on the U.S. Court of Appeals for the D.C. Circuit suggested Tuesday that the “integrity” of the judicial branch was at stake in the dispute between Michael Flynn and the judge presiding over Flynn’s case.

“The integrity and the independence of the courts is also encroached here,” Judge Cornelia Pillard told DOJ attorney Jeffrey Wall at Tuesday’s hearing, “The separation of powers is protecting Article III courts, also.”

The full circuit court is currently considering whether Flynn’s judge, U.S. District Court Judge Emmet Sullivan, is obligated to immediately dismiss Flynn’s case, now that the Justice Department wants it dropped, or if Sullivan has some discretion to further review the DOJ dismissal request."

Appellate Judges To DOJ: Is Court’s ‘Integrity’ At Stake In Flynn Dispute?

Multiple judges on the U.S. Court of Appeals for the D.C. Circuit suggested Tuesday that the “integrity” of the judicial branch was at stake in the dispute between Michael Flynn and the judge…

talkingpointsmemo.com

 

[Toddsterpatriot]

Was the (supposed) lie material to the investigation into the imaginary conspiracy to interfere with the election?

At the time, as Sally Yates testified to last week, the investigation Flynn was caught up in was over Russia's decision not to retaliate against the sanctions Obama imposed after saying publicly they would. Try to keep up.

So he should have been charged with "stopped Russian retaliation"?

You're making less sense as time goes by.

 

[westwall]

Only he didn't lie as the FBI agents themselves reported.

Please stop repeating that lie as it has been debunked dozens of times.

"Lawyers for the special counsel’s office said Flynn’s seemingly guileless demeanor did not change the fact that he was lying — which Flynn himself admitted.

"Those misimpressions do not change the fact — as the defendant has admitted in sworn testimony to this District Court — that he was indeed lying, and knowingly made false statements to FBI agents in a national security investigation," they wrote."

Trump says FBI said Flynn didn't lie to them. That's untrue

In his first interview since being cleared of criminally conspiring in Russia’s 2016 election interference, President Do

www.politifact.com

No, it hasn't. In fact every time the IG looked he found MORE support that Flynn didn't lie.

Follow your own advice, loser.

 

[Lesh]

I understand why the whole article can't be pasted here but one needs to read it in its entirety to understand the point being made. I'll try to pull out the salient points.

"Franklin Woody was accused of embezzling federal funds. His grandfather was Missoula’s first mayor and a district judge, while Woody’s father was close friends with the governor and had served as Montana’s assistant attorney general. After Woody’s indictment, the federal prosecutor argued that the case against him should be dismissed.

The judge deciding whether to grant the government’s motion to dismiss the prosecution found his hands tied. The government’s reasons for dropping the case, he said in a 1924 ruling, “savor altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity.” Nonetheless, he acknowledged, “the district attorney has absolute control over criminal prosecutions.”

That case helped lead to the federal rule that is at issue in Flynn’s case, Rule 48(a) of the Federal Rules of Criminal Procedure. Ultimately, the Supreme Court adopted the requirement currently found in Rule 48(a) — that the government obtain “leave of court” for a dismissal. That change, as Frampton observes, “armed the district judge with a powerful tool to halt corrupt or politically motivated dismissals of cases."

A three-judge panel of the appeals court voted, 2-1, to order the immediate dismissal of the case; on Tuesday, the full appeals court will reconsider that ruling. The outcome should be clear. The “leave of court” requirement in Rule 48(a) was designed to protect against corrupt or politically motivated dismissals that could undermine our nation’s criminal justice system — arguably the very kind of dismissal sought here."

https://www.washingtonpost.com/opinions/2020/08/10/what-1924-case-montana-says-about-dismissing-flynn-prosecution/?hpid=hp_save-opinions-float-right-4-0_opinion-card-d-right%3Ahomepage%2Fstory-ans

Given the facts of the case it's obvious the appeals court should deny the government's motion for dismissal for the very reasons Rule 48(a) was adopted. To prevent cases being dropped "to halt corrupt or politically motivated dismissals of cases."

Good find