Transcribe your podcast

The appellate court argument in Mike case today didn't go so good from Mike Flynn or for Bill Barr, let's talk about that because justice matters. Hell, Glenn Kershner here, so I listened to all four hours of the appellate court arguments today and Mike Flins case, and I'm not going to bury the lead, I think it's pretty clear the appellate court judges will reject the arguments of Mike Flynn and his lawyers, reject the arguments of Bill Barr and his lawyers, and will return the case to Judge Emmet Sullivan so he can simply hold the hearing he's been wanting to hold all along to see whether he should grant the motion to dismiss Mike Flynn's case or declined to grant the motion to dismiss Mike Flynn's case.


Let me boil the legal issue down to its essence, because it's pretty sort of convoluted, the posture that we're in. Usually when a defendant has a case in court and the case is over, if the defendant wants to appeal the case and claim that something went wrong in the trial, the judge made a bad ruling and it prejudiced his right to a fair trial. Well, then the defendant simply appeals it to the appellate court and makes his or her arguments.


However, if something goes on in that trial court and it is so wrong, it is so clearly in violation of established rules or laws, and not only is it clearly wrong, but it will forever deprive the defendant from winning the relief he seeks. I'll talk more about that in a minute. If those two factors are present, then a defendant can file this extraordinary writ, a petition for a writ of mandamus. They can run up to the appellate court and say, we want you to order the judge to do something different because he's violating clearly established rules and laws.


And I will forever be deprived of winning the relief I seek. What relief does Mike Flynn seek? He wants this case dismissed. The judge hasn't yet ruled on the motion to dismiss. All right. So two things can happen if Judge Sullivan holds the hearing. One, he could grant the motion to dismiss. Guess what? Mike Flynn has just won the relief he seeks or he refuses to dismiss the case and sentences Mike Flynn, in which case Mike Flynn gets to appeal and then he can try to win the relief he seeks by getting the appellate court to disagree with Judge Sullivan and say the case should be dismissed.


So for procedural reasons, this is not appropriate for a petition for a writ of mandamus. So this was largely a procedural argument today.


And it's clear that almost all of the judges are siding with Judge Sullivan against Bill Barr and Mike Flynn.


So let me just tick through the way the lawyers performed.


OK, first of all, Sidney Powell, Mike Flynn's lawyer, she's clearly not an appellate lawyer. And it was something of a bloodbath. The judges really were not buying any of her arguments because they were not good legal arguments. They were not sound legal arguments. But she opened her argument, what I think may have been the single worst opening line I have ever heard in an appellate argument. And I've argued appellate cases as a prosecutor for years, first in the military and then as a federal prosecutor with the US attorney's office, including before this court, the D.C. Federal Circuit Court of Appeals.


Here's what she said. Here's how she opened her argument.


She said, you know, members of the court, the defendant, Mike Flynn, he has a case without a prosecutor. And I thought that she know how ironic that opening salvo is, that Mike Flynn's case is without a prosecutor, she's dead right to y because Bill Barr has abdicated his responsibility to prosecute the case. He's walked away from the American people. We no longer have a voice in this court proceeding.


The attorney general and the Department of Justice is supposed to represent us, our interests in criminal prosecutions.


But because Bill Barr migrated over to Mike Flynn's defense camp and is now standing shoulder to shoulder with Mike Flynn trying to tank his case, Sidney Powell is exactly right. Mike Flynn's case doesn't have a prosecutor. And that is what's so disturbing and so wrong. She intended to convey something else, but boy, did she put her foot in her mouth. And frankly, it went downhill from there for Sidney Powell.


I mean, Judge Rogers took her to task on largely procedural grounds, as did Judge Tatel, as did Judge Griffith, as did Judge Millette.


So it really didn't go so well for Mike Flynn's lawyer. Judge Sullivan's lawyer, Beth Wilkinson, actually said very little, which was smart.


Her argument was concise, it was precise. It was right on point. And what she said was a winning argument. It was that you can file for a petition for writ of mandamus because the judge hasn't made a decision in the case. You can only petition for a writ of mandamus if there's some final decision that the judge has made that is in violation of a clearly established rule or law and forever deprives the defendant of the relief he seeks. Judge Sullivan hasn't decided yet.


So you can't mandamus him. That was a winning argument and it seemed to resonate with all the judges.


Let me turn to the acting solicitor general, Jeff Wall. He's a strong appellate advocate.


And if only he would use his skills for good rather than evil, if only he would use his skills as an appellate advocate to further the cause of justice rather than to inflict an injustice on the American people to things that he said that I want to touch on one.


He said what the Department of Justice is really worried about here is, quote, an intrusive inquiry. His words by Judge Sullivan, an intrusive inquiry into the reasons Bill Barr made this decision to dismiss Mike Flynn's guilty plea case.


And I thought to myself, oh, I'll bet you want to avoid an intrusive inquiry because Bill Barr doesn't want his corruption exposed.


He doesn't want the people to know that this was President Trump basically insisting that the criminal justice system be twisted and contorted for the benefit of his criminal associate, Mike Flynn, a man that lied to the FBI, a man that lied to the vice president of the United States about national security matters.


Oh, you bet. The Department of Justice doesn't want an intrusive inquiry by Judge Sullivan. But you know what? The American people would like an intrusive inquiry so we can see with some transparency what the heck is going on inside Bill Barr's corrupt Department of Justice. The other the other thing that was, I think, a low point in the history of appellate arguments made by a Department of Justice lawyer and in this case, the acting solicitor general, that's Jeff Walz title.


A couple of judges, Judge Wilkins and Judge Millette, posed similar hypotheticals. I hope you all are sitting down for this one.


They said, assume the following facts are true, that a defendant and a prosecutor walk in to a courtroom and it's the first day of trial. The prosecutor's ready to go to trial, the whole run up, the several month long run up.


They've been having hearings and the prosecutor assured the court that the government stands ready to prove this case beyond a reasonable doubt.


And then on the day of trial, they walk in the judges on the bench and the defendant hands the prosecutor a suitcase overflowing with cash.


And they talk amongst themselves.


And then the prosecutor says, you know what, Judge? The government moves to dismiss this case.


Obviously, a bribe has just occurred in the presence of the judge in the court itself.


On the first day of trial, the judges asked the acting solicitor general of the United States, surely, surely, Mr. Solicitor General, the judge could inquire about why the prosecutor was dismissing the case and the acting solicitor general of the United States, who's supposed to represent the interests of we the people said, boy, that's a tough one.


That's a close one. But no, Your Honor, the judge may not inquire. So the judge followed up with. So what you're saying is that the judge must help the prosecutor and the defendant close this criminal deal right there in his courtroom? What you're saying, Mr. Acting Solicitor General, is the judge must tacitly participate in this bribery.


What you're saying, Mr. Acting Solicitor General, is that the judge has to let the parties make a mockery of our system of justice. And the acting solicitor general stuck by his guns and said the judge may not inquire. I hope that's recorded as a low point in our criminal justice system, a low point for any Department of Justice lawyer, any prosecutor, any solicitor general for the United States to make that argument.


That is a mockery. It's a mockery of everything we stand for. And we have to remedy this.


Come November. Because these people do not deserve to represent we the people. Folks, I hope you all stay safe. I look forward to talking with you again soon.