Email Ken Stallings   A Tale of Two Justice Systems

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A moral system of justice requires that everyone be subject to the same process, devoid of favoritism, bias, or malice.  Much has been written about the grave injustices of what has been done to General Michael Flynn.  But, apart from the highly questionable methods used to entrap him were insights into stark disagreement from those who investigated him, with many DOJ and FBI officials stating that they never believed Flynn was deceptive, much less lied to the FBI team.  Now, we can add a new layer of sordid intrigue to the situation.

According to an article published on 24 April 2020 by the Federalist, sources within the FBI are claiming that FBI general counsel Dana Boente worked hard to prevent the court from obtaining exculpatory evidence.  These documents were delayed by years through Boente's efforts to hide them, and were only recently released to the court under seal from public release.  It must be added that Boente is one of the DOJ officials who signed one of the FISA spy warrant applications against Carter Page.  One should note how the same small circle of people keep cropping up as more details emerge of the Obama-era espionage against the Trump campaign.

Add this latest intrigue to the ongoing controversy about the FBI "losing" the original draft of the Form 302, that is the FBI's report of the interview done with Flynn.  Instead of the original 302, what the FBI has given to the court is one they admit was a second draft.  The problem is that the FBI's own agents report that the revised 302 given to the court was not written by the agents who actually conducted the interview, but was instead written well after that interview by none other than the disgraced Andrew McCabe.  Again, that small circle of the associates keep coming up again and again.

Flynn's legal issues went beyond just a highly questionable FBI investigation effort.  He was also victimized by an incompetent, yet highly paid, initial legal defense team.  This original team of Covington & Burling LLP, drained Flynn of his limited finances, and pressed him to plead guilty to a so-called lesser charge of lying to the FBI investigation team.  Noted former DOJ attorney Sidney Powell became Flynn's attorney years after the DOJ's case was filed in court, and after so much evidence of corruption in the DOJ process was revealed.  Once Powell became Flynn's attorney, the entire spectacle changed abruptly and significantly.

Powell went on the offensive, seeking to have Flynn's plea deal withdrawn, and force the DOJ to either drop the weak case against Flynn, or prove their case in court.  The DOJ has been successfully pressing the presiding judge, Emmet Sullivan, to retain the plea deal, and drag the case on for years by requesting multiple delays in the sentencing date.  Normally, if a defendant wishes to withdraw a plea deal and take his chances in court, the judge grants the request.  Sullivan's conduct in this trial has been particularly troubling, starting with his public vilification of Flynn, where he actually accused Flynn of treason during a pre-trial hearing.  It was a statement so incendiary that even the DOJ lawyers working the case pressed Sullivan to withdraw the remarks, which he did.

Normally, a judge who leaps to such intemperate remarks on the court record removes himself from the case, or declares a mistrial, but Sullivan refused to do that.  Sullivan has also repeatedly delayed the sentencing hearing while at the same time refusing to allow Flynn to advance the case to a normal trial.  This has kept Flynn in a years' long legal limbo, a gross denial of the Constitutional requirement of a fair and speedy hearing.

Sullivan also made a bizarre accusation against Sydney Powell of "plagiarizing" the language she used in a legal brief that she filed years' prior in the case of former Alaska Senator Ted Stevens.  Powell was Stevens' attorney in that case, one that ironically the same Emmet Sullivan dismissed because the DOJ violated the requirement to turn over all exculpatory evidence to the defense.  Sullivan was quick to act for justice in that case against Ted Stevens, but has been strangely weak amid worse corruption in this Flynn case.

Sullivan's public admonishment against Sydney Powell is bizarre because there has never been any requirement for a lawyer to cite previously written language from an historical brief.  Plagiarism is an academic concept, not applied to legal proceedings, where the same language is used often.  A courtroom is not a faculty review board!  Beyond that, Sullivan's incendiary comments were wrong, as Powell did cite her sources in that legal brief.  Ironically, the source for that language that Powell used in her brief on behalf of Michael Flynn was Sydney Powell!  Powell cited her own previously filed legal language, and that is all that is required to meet even the most stringent of academic requirements.  Apparently, Sullivan' real beef with Powell was that lawyers are not supposed to bring to light that a judges' actions in one case stands is sharp opposition to his conduct in another case, with both cases dealing with the exact same legal situation -- the DOJ withholding exculpatory evidence.  Seems most clear that Judge Sullivan doesn't like the public being informed of his grossly disparate conduct.  Unable to refute the cold and fair logic of Powell's legal brief, Sullivan tried instead to resort to demagoguery from the bench.

Sullivan then went on to write that, by pleading guilty, that Michael Flynn had waived his Constitutional rights, writing that Flynn's previous guilty plea, "effectively bars him from raising claims based on any evidence obtained in violation of the Fourth Amendment," and then added a truly Kafkaesque addition that Flynn must "establish that the requested information is favorable," noting that Flynn's legal team had failed to do so.  Sullivan conveniently omitted the glaring truth that the DOJ had continued to withhold the exculpatory evidence, and that Flynn's defense team was relying upon statements made by members of the DOJ that the hidden evidence was exculpatory.  Sullivan was effectively requiring that Flynn's defense team somehow steal the evidence from the DOJ and prove it was exculpatory prior to Sullivan ordering the DOJ to turn it over as the law requires done!  It was a ruling that sent shockwaves throughout the body of legal scholars.

All of this sordid mess stands in sharp contrast to the experiences of one Andrew McCabe.  The DOJ has formally said they will not even charge McCabe with lying to FBI investigators, nor for lying to Congress.  He's been given a pass,  despite the truth that his lies to the DOJ and Congress are without any question, and are repetitive in their nature.  But, for McCabe, he's been allowed to get away with actions worse than lying under oath.  McCabe appears to have hidden the original Form 302 written after the Flynn FBI interview, and replaced it with one he wrote.  Obviously, the concern is how much selective editing did McCabe conduct, and how severely did those changes steer a corrupt criminal case against Michael Flynn?

This conduct should itself justify a criminal charge filed against McCabe.  And for proof that McCabe did this, one only needs to look at the DOJ's very own sentencing memorandum that it filed with the federal court.  That DOJ brief included footnote 32, which documented that the FBI's Form 302 given to the court was dated 22 August 2017.  But, the date that the Flynn interview happened was on 24 January 2017, almost exactly seven months before the date of the Form 302 given to the court.  FBI policy is that the Form 302 is to be written immediately after the interview is conducted.  After all, the 302 is intended to be an accurate record of the interview itself.    In addition, there are February 2017 text messages written by Peter Strzok to Lisa Page that asked, "Also, is Andy good with the F 302?"  Strzok was one of the two FBI agents who conducted the Flynn interview, and so he would have been the one to at least co-write the original Form 302.

So, it is clear that within a month of the January interview, the original Form 302 was not only written, but submitted to Andrew McCabe, and sufficient time had passed for Strzok to ask what McCabe's feedback on that Form 302 might be.  Remember the earlier comment about the same small circle of people?  We're talking about the same Peter Strzok here, the man at the center of so much surrounding the Trump espionage campaign.

All of this has people increasingly worried that there are two systems of justice in America.  One system seeks to punish people who anger the "wrong" people.  The other system overlooks the same behavior, or worse, from those who are part of a legal system that seems more concerned with appeasing political masters than in seeking justice.  Meanwhile, the reason we have a DOJ is to pursue legal justice, and that singular purpose looks increasingly forgotten.

Perhaps that worry, as justified as it is, really isn't the worst trend.  The worst trend may well be that the level of corruption within our justice department is making it easier for people who are part of the corruption to escape justice.  If the rot in the system is severe enough, the sunlight required to correct it is withheld.  There reaches a critical point where there are too many people heavily invested in protecting their careers, and knowing that if the public learns the truth, then the people will demand a wholesale dismantling of the corrupt system.  That means everyone part of the corrupt process is at least fired, and many criminally prosecuted.

Emmet Sullivan is supposed to be an independent voice in all of this.  This is why we have three branches of government -- to check and balance each one out.  As a judge, and member of the judiciary, Sullivan had the power to force the DOJ to account for the missing original Form 302, but that would require Sullivan to work as an independent arbiter.  Sadly, if the judge acts more like a representative of the executive branch, and less like an independent and objective force, then the system rubber stamps the corrupt process, vice clean it out.

Vice impetuously labeling Flynn a traitor to his country, Sullivan should have instead walked into the court room devoid of prejudice.  Having destroyed any semblance of objectivity, Sullivan should have then recused himself from the Flynn case and allowed the District Court to appoint a new judge.  Having tainted his own objectivity, what interest does Sullivan now hold to vigorously pursue justice, and force the DOJ to turn over the evidence that Flynn's attorney, Sidney Powell, is convinced exists within the DOJ's hidden records.  If Flynn gets a fair day in court and is then exonerated, it would make Sullivan's intemperate remarks all the more tainted.

Years ago, Sullivan could have forced that fair day in court, by telling the DOJ they had two weeks to produce the original Form 302, or else he would dismiss the case against Flynn with prejudice -- thus killing the DOJ's efforts to pressure Flynn into bankruptcy and compose false narrative to allow the DOJ to advance their espionage campaign against the Trump administration -- the true target of the Justice Department.  Instead, Sullivan has been content to allow the DOJ to play out Mike Flynn's case for over three years.

What we already know is plenty tainted enough.  And now we learn that this corruption includes the DOJ stonewalling hard legal requirements to immediately turn over exculpatory evidence to the defense, and instead keep it secret for over three years!  That's hardly justice.  It violates every fiber of due process of law.  Worse still, it further shows America is no longer fit to describe itself as a place of "equal justice under the law."

-- Ken Stallings

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