On Thursday, former acting Attorney General Rod Rosenstein testified to Congress regarding his role in the initiation of the Mueller probe; as I had predicted, he fueled aspirations to “investigate the investigators” of ObamaGate.
I provided the highlights thereof (candidly distilling “commissions and omissions”); unfortunately, Rosenstein was not queried about 302s that undermined his repeated claims of ignorance regarding myriad key-facts.
In any case, I now propose a unique method to probe what Rosenstein said he desired—preclude multiple errors won’t recur—by exposing the genesis of this scandal via exploration of the origin of the Mueller probe.
It is proposed that Judge Emmet Sullivan’s having delayed the Flynn acquittal of Lieutenant General Michael T. Flynn could expose the pathogenesis of ObamaGate by flipping a proverb conjured a half-millennium ago: he can make a silk purse from a sow’s ear.
After he ponders issuing a contempt charge based upon presumed “perjury,” Judge Sullivan could transcend merely endorsing the Flynn acquittal, for he has demonstrated independence when handling politically flammable cases; for example, he has criticized Hillary Clinton, excoriated the IRS, and ripped a “deferred” agreement intended to topple a major corruption prosecution case.
Some challenge his probe of the circumstances leading to his pending potentially prosecutorial decision as politicized, intended to procrastinate; yet, obviously resonating with Sullivan was the op-ed by retired Federal Judge John Gleeson (whose firm had represented Sally Yates), advising that he “appoint an independent attorney to act as a ‘friend of the court,’ ensuring a full, adversarial inquiry.”
Assuredly, comprehensive debate will emerge by juxtaposing the amicus curiae who co-authored this essay with the Justice Department (DoJ) attorneys; enriching the colloquy would be Flynn’s fired lawyers from the Covington and Burling firm (a partner in which is former Attorney General Eric Holder).
Hugh Hewitt has observed that this process should include focusing upon potentially disingenuous input provided by two former acting attorneys general, the DoJ’s overall leader Sally Yates (who ascribed the decision to interview Flynn to the need to explore the Logan Act) and her Assistant for National Security Mary McCord (who guided the impeachment).
Along with other previously divulged transcripts, Hewitt would also wish to unearth fundamental information that remains unknown, such as the completely unredacted Kislyak-Flynn transcript and—per President Trump and lawyer Powell—the unedited [@ 24 minutes] FBI 302 report of the Flynn interview.
As a result of ensuring the Court is provided these crucial data, just as he did last year when he learned of additional information, he may then feel armed to emulate his prior apology for having accused Flynn of disloyalty to America.
Sullivan is thus positioned to rectify personal anguish over the Senator Ted Stevens misfire a decade ago, for the similarities of these two cases are striking: —both seemed destined to end with convictions, either by jury trial or by plea bargain; —both were viewed as politically inspired; and —both targets were exonerated after revelation that the DoJ had exhibited prosecutorial misconduct.
Sullivan wasn’t satisfied with the DoJ’s admission of error, for he mandated public release of a Kafkaesque 525-page probe of its etiology; yet, ultimately, the slap-on-the-wrist outcome was merely that the DoJ suggested two prosecutors (still in the DoJ’s employ) be suspended (for 40 and 15 days).
Furthermore, Sullivan wanted Federal rules to be “changed to ensure prosecutors are more diligent in turning over exculpatory evidence.”
He must lament that the dearth of substance to the Stevens outcome is twofold, however, for the individual penalties were shameful and any intramural educational effort this was to have spurred was certainly lost on Comey’s crew.
Sullivan has now the opportunity to remedy his remedy—invoking his personal precedent—by mandating generation of another in-depth autopsy regarding what transpired; inasmuch as his prior initiative was concurrent with that of the DoJ (which has just initiated an internal review of the Flynn investigation), there is no administrative impediment to another being ordered.
He may have become the Left’s New Hero but, after exhausting these pursuits, he may wish to honor the suggestion of Tom Fitton: “I Would Like Judge Sullivan to Institute Criminal Contempt Proceedings Against the Justice Dept. and FBI Officials” Behind Framing of Flynn.”
And any such Sullivan enquiry would not delay release of the Durham report/indictments projected to emerge during the summer, rather than in the late spring, as Barr had suggested this past December; the delay may be ascribable to the fact that people such as former CIA Director John Brennan haven’t been interviewed and/or to the Corvid-19 pandemic.
Because filings can be amended-by-addition, this snag may be related to an evolving 4D “Prisoner’s Dilemma,“ noting Messrs. Biden, Brennan, Clapper, Comey and Obama have neither refuted the specifics in last month’s “bombshell” revelations nor attempted to shame each other publicly…just yet.
Instead, it appears that, confronted by a boat load of criminal charges, former FBI General Counsel James Baker has flipped and that there’s a mole inside the FBI; as Durham allegedly explores a conspiracy case and U.S. attorney John Bash explores the excessive unmasking, it is plausible that quiet negotiations are ongoing with others who may be cooperating including—but not limited to—the “scum” who were present in the Oval Office on January 5, 2017.
In any case, Defense Attorney Sidney Powell may be correct that the “Proposed Amicus Brief has no place in this Court,” particularly following last week’s unanimous Supreme Court decision restricting judges to basing decisions only upon what has been presented by the parties; absent a “case or controversy,” Judge Sullivan simply cannot envision enlisting an amicus to supplant a prosecutor.
A legal duel has been joined, as Sullivan hired an attorney to comply with the appellate court’s order that he respond to a mandamus petition; meanwhile, as state Attorneys General claim Sullivan must dismiss the Flynn case (without punishing Flynn for ‘perjury’) by honoring prosecutorial discretion, ex-prosecutors have urged Sullivan to probe why the DoJ petitioned to drop the case.
An analysis (and reader comments thereto) is somewhat congruent with this essay, except that it reported oxymoronically that Gleeson’s June 10th submission will report “any additional factual development” despite the prohibition reinforced in a recent 9-0 SCOTUS decision that this type of gambit would violate the party presentation principle (per Justice Ginsburg); indeed, in contradistinction to how this and the Stevens cases are differentiated therein, both were born of excess “prosecutorial zeal” due to withheld exculpatory material.
On the one hand, “termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest” because “the proper administration of the criminal law cannot be left merely to the stipulation of parties”; on the other hand, judicial exercise of discretion must not exceed what would be governed by “separation of powers between the Executive and Judicial Branches of government” [under rule 48(a)].
Sullivan will not rubber-stamp the DoJ, just as long as argument is reassessed without introducing additional facts; the record can be supplemented—focused on analyzing *procedure*—by recapitulating the exhaustive examination emanating from the Stevens matter, applying the half-century old “Goofus and Gallant” problem-solving refrain familiar to generations of children: “I don’t know, so let’s look it up!”