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Tags court cases , donald trump , Michael Flynn , perjury cases , Robert Mueller , William Barr

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Old 1st June 2020, 11:22 PM   #761
TahiniBinShawarma
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Can anyone here tell me the process of a 302? They go, question someone, and write one up from memory?
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Old 1st June 2020, 11:36 PM   #762
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Sullivan and the DoJ filed their briefs today.

Perhaps unsurprising, I find the DoJ brief rather uncompelling. The majority of it was written as if it was addressing the issue after a decision on the motion to dismiss, rather than regarding a writ of mandamus when the judge had yet denied the motion to dismiss.

The DoJ acknowledges that:
Originally Posted by DoJ
Before a court may issue the writ, three conditions must be satisfied: (i) the petitioner must have 'no other adequate means to attain the relief he desires'
There seems to be at least a reasonable arguement that this condition is not yet satisfied because the motion has not yet been denied by Sullivan. It obviously possible Flynn will get his dismissal by... waiting. Neither the DoJ nor the Flynn brief provide a compelling reason he needs immediate relief. And if you say "the proceedings are expensive", doesn't every appellant want immediate relief for financial reasons? And yet writs of mandamus are rare.

Looking at Fokker, Sullivan looks very boxed in with regards to the final result, but I think there's a decent chance of him getting to probe around the edges a bit before he gets to that result. But the draw of the panel looks fair, and I won't be outraged if they don't let him proceed at all.
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Old 1st June 2020, 11:42 PM   #763
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Originally Posted by Beeyon View Post
The Statement of Offense doesn't have to "hold up". It's just a favor Flynn does for the prosecution as part of the plea deal. If you don't "like" that, put up some precedent where an error in the plea deal stipulations resulted in the plea deal being overturned.


!
A plea deal does not get overturned.

Regarding the diplomats being expelled and sanctions being different

Even the special counsel’s report also distinguished between sanctions and other retaliatory measures, stating that Executive Order 13757 “imposed sanctions on nine Russian individuals and entities,” but then noting that “the Obama Administration also expelled 35 Russian government officials and closed two Russian government-owned compounds in the United States.”

Mueller’s team distinguished between sanctions and other retaliatory measures by, for instance, stating that “on December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.”

Also in the report “On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities. A third time Mueller repeated this distinction, stating Flynn “spoke with the Russian government when the Obama Administration imposed sanctions and other measures against Russia in response to Russia’s interference in the 2016 presidential election.”


Also shortly after Strzok and Pientka questioned Flynn, Flynn publicly refuted media reports that he had discussed sanctions with Russia. I had “a brief discussion of the 35 Russian diplomats who were being expelled by Obama in retaliation for Moscow’s alleged interference in the 2016 campaign. ‘It wasn’t about sanctions. It was about the 35 guys who were thrown out,’” Flynn stated.


What were these "other measures?" As everyone knows and understood, even Mueller and their team, it was the diplomatic expulsions. Even Obama stated they were different.

Lets give you the benefit of the doubt. Well before Mueller, and shortly after the FBI interview, Flynn stated they were different. So you'd have a hard time proving criminal intent to lie when in his mind they were different.
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Old 1st June 2020, 11:45 PM   #764
Beeyon
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Originally Posted by TahiniBinShawarma View Post
You think there is reasonable doubt but,

"The transcript we do have heavily implies that it was requested. "

And that implication could be wrong. You don't have proof. You can be confident of whatever you wish.
I did say up at post #747: "I think a reasonable person would conclude outside the court room that he did make those requests in an earlier call." In life people come to conclusions without proof beyond a reasonable doubt. I'm sure in your life you've concluded that someone did a crime without proof beyond a reasonable doubt in hand.

I also think that the evidence would be enough to come to a positive conclusion based on a preponderance of the evidence standard, as there is no counter evidence beyond Flynn's recent, self-contradicting, and self-interested testimony that he did not make the request.

Counter evidence would be more appreciated than further sophistry.

Last edited by Beeyon; 1st June 2020 at 11:45 PM. Reason: typo
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Old 1st June 2020, 11:46 PM   #765
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Originally Posted by Beeyon View Post
Sullivan and the DoJ filed their briefs today.

Perhaps unsurprising, I find the DoJ brief rather uncompelling. The majority of it was written as if it was addressing the issue after a decision on the motion to dismiss, rather than regarding a writ of mandamus when the judge had yet denied the motion to dismiss.

The DoJ acknowledges that:

There seems to be at least a reasonable arguement that this condition is not yet satisfied because the motion has not yet been denied by Sullivan. It obviously possible Flynn will get his dismissal by... waiting. Neither the DoJ nor the Flynn brief provide a compelling reason he needs immediate relief. And if you say "the proceedings are expensive", doesn't every appellant want immediate relief for financial reasons? And yet writs of mandamus are rare.

Looking at Fokker, Sullivan looks very boxed in with regards to the final result, but I think there's a decent chance of him getting to probe around the edges a bit before he gets to that result. But the draw of the panel looks fair, and I won't be outraged if they don't let him proceed at all.
Probe around the edges how?
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Old 1st June 2020, 11:54 PM   #766
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Originally Posted by Beeyon View Post
I did say up at post #747: "I think a reasonable person would conclude outside the court room that he did make those requests in an earlier call." In life people come to conclusions without proof beyond a reasonable doubt. I'm sure in your life you've concluded that someone did a crime without proof beyond a reasonable doubt in hand.

I also think that the evidence would be enough to come to a positive conclusion based on a preponderance of the evidence standard, as there is no counter evidence beyond Flynn's recent, self-contradicting, and self-interested testimony that he did not make the request.

Counter evidence would be more appreciated than further sophistry.
Well of course you think a reasonable person would agree with you. There doesn't need to be counter evidence when you have no evidence to prove the allegation.
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Old 2nd June 2020, 12:02 AM   #767
Beeyon
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Originally Posted by TahiniBinShawarma View Post
Even the special counsel’s report also distinguished between sanctions and other retaliatory measures, stating that Executive Order 13757 “imposed sanctions on nine Russian individuals and entities,” but then noting that “the Obama Administration also expelled 35 Russian government officials and closed two Russian government-owned compounds in the United States.”
None of which is relevant to the charging document. An expulsion is a sanction, and the charging document did not specify "sanction".

Quote:
Also shortly after Strzok and Pientka questioned Flynn, Flynn publicly refuted media reports that he had discussed sanctions with Russia. I had “a brief discussion of the 35 Russian diplomats who were being expelled by Obama in retaliation for Moscow’s alleged interference in the 2016 campaign. ‘It wasn’t about sanctions. It was about the 35 guys who were thrown out,’” Flynn stated.
That statement is from mid February. So quite awhile after the White House became aware of the investigation and Flynn plausibly could've gotten his hands on the transcript, he started making a semantic argument. That's an argument only a mother could love.

"Your honor, when the defendant said 'no' to the question of 'did you know that John Doe was in possession of the drugs?', he did so thinking that 'drugs' meant coccaine rather than heroin! His statements after he found out about the investigation show his intent!"

"Your honor, when the defendant said 'no' to the question of 'did you know that John Doe was planning to kill people in a terrorist attack?', he did so thinking that 'people' meant Floridians rather than Californians! His statements after he found out about the investigation show his intent!"
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Old 2nd June 2020, 12:07 AM   #768
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Originally Posted by TahiniBinShawarma View Post
There doesn't need to be counter evidence when you have no evidence to prove the allegation.
The transcript between Kislyak and Flynn is evidence. It may not be proof beyond all doubt, but it is evidence. Evidence doesn't cease being evidence because it's not incontrovertible.

At this point you're basically arguing that the smoking gun in someone's hand after a murder is not evidence. "Someone else could have shoved the gun in his hand and pulled the trigger!" You're engaging in sophistry, not skepticism.
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Old 2nd June 2020, 12:17 AM   #769
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Originally Posted by Beeyon View Post
The transcript between Kislyak and Flynn is evidence. It may not be proof beyond all doubt, but it is evidence. Evidence doesn't cease being evidence because it's not incontrovertible.

You're right, it's not proof. You can imply, guess, feel, whatever you want.
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Old 2nd June 2020, 12:20 AM   #770
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Originally Posted by TahiniBinShawarma View Post
Probe around the edges how?
Probably just ask the DoJ a few questions about their arguments and the grant the motion to dismiss unless something unabashedly abusive comes out.

I imagine two of the questions will be:

"Why has the government not withdrawn its previous pleadings asserting the materiality of Flynn's statements?"

"How does this dismissal with prejudice affect Flynn's March 2017 False statements to the DoJ regarding his work for Turkey which he stipulated to in the plea deal?"

The later is especially important as it plays directly to the DoJ's argument of why rule 48 exists, solely to prevent prosecutorial game playing. If the dismissal with prejudice didn't cover that stuff, Flynn could remain on the hook.
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Old 2nd June 2020, 12:23 AM   #771
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Originally Posted by TahiniBinShawarma View Post
You're right, it's not proof. You can imply, guess, feel, whatever you want.
You'd probably save more face by running away rather than refusing to discuss the evidence.

Edit:

"If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table!"
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Old 2nd June 2020, 12:24 AM   #772
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[quote=Beeyon;13110489]None of which is relevant to the charging document. An expulsion is a sanction, and the charging document did not specify "sanction".


/QUOTE]

The charging document does say sanctions and the statement of offence lists the specific executive order of the sanctions, and contemporaneous news articles make the distinction, and the Mueller report made the distinction, Obama made the distinction, and therefore Flynn made the distinction.

It looks pretty lonely on that island.
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Old 2nd June 2020, 12:34 AM   #773
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[quote=Beeyon;13110489].

That statement is from mid February. So quite awhile after the White House became aware of the investigation and Flynn plausibly could've gotten his hands on the transcript, he started making a semantic argument. That's an argument only a mother could love.
/QUOTE]

In case you haven't noticed, what you find "plausible" doesn't mean anything. There is ZERO evidence for this claim. You just made it up.
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Old 2nd June 2020, 12:47 AM   #774
TahiniBinShawarma
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[quote=Beeyon;13110489]

That statement is from mid February. So quite awhile after the White House became aware of the investigation and Flynn plausibly could've gotten his hands on the transcript, he started making a semantic argument. That's an argument only a mother could love.
/QUOTE]

It's also quite a while after the distinction was made in the press and by Obama. Are you saying that was fake news?

Tell me what were those "other things" besides the sanctions? Because if you can't come up with anything........
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Old 2nd June 2020, 01:42 AM   #775
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Originally Posted by TahiniBinShawarma View Post
https://www.politico.com/news/2020/0...sa-bill-285387

Trump


“I hope all Republican House Members vote NO on FISA until such time as our Country is able to determine how and why the greatest political, criminal, and subversive scandal in USA history took place!”

"And Rep. Steve Scalise (R-La.), House Republicans’ top vote counter, has said he will push members to oppose the bill until they get more information about the Justice Department’s probe into Russian meddling in the 2016 election. A report from the DOJ inspector general found the department abused the FISA process when it surveilled Carter Page, a former adviser to the Trump campaign, as part of that investigation"
Talk is cheap - especially for Trump.
Come back when there is an actual plan to reform FISA.
I'm still waiting for Trump's heatlhcare plan.

Meanwhile Barr is fighting tooth and nail to have the FISA process extended as is.
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Last edited by The Great Zaganza; 2nd June 2020 at 01:43 AM.
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Old 2nd June 2020, 07:09 AM   #776
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Originally Posted by The Great Zaganza View Post
Talk is cheap - especially for Trump.
Come back when there is an actual plan to reform FISA.
I'm still waiting for Trump's heatlhcare plan.

Meanwhile Barr is fighting tooth and nail to have the FISA process extended as is.
But Barr is also a Trump crony who does whatever his boss wants.

Makes your head spin.
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Old 2nd June 2020, 01:58 PM   #777
TahiniBinShawarma
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Originally Posted by Beeyon View Post
You'd probably save more face by running away rather than refusing to discuss the evidence.

Edit:

"If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table!"

I know you have no issue with the 302. It's been stated here that the 302's match the hadwritten notes of the agents present, when in fact they do not.

"According to the FD-302, the agents asked petitioner whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; petitioner stated that he did not recall such a conversation. Id. The agents’
handwritten notes do not reflect that question being asked or petitioner’s response. See Doc. 198-13, at 2-8.
The final FD-302 also reports that petitioner incorrectly stated that, in earlier calls with Kislyak, petitioner had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at
5. Petitioner indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you
stand[] and what’s your position.” Id. The final FD-302 also states that petitioner was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect petitioner being asked that question or giving that response. See
Doc. 198-13, at 2-8."

In light of Lisa Page's unorthodox editing involvment after the fact, and well after the usual 5 day window of typical 302 proceedure, there is sufficient doubt about whether the 302 accurately reflects the interview of Flynn.
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Old 2nd June 2020, 02:14 PM   #778
Beeyon
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Originally Posted by TahiniBinShawarma View Post
Originally Posted by Beeyon View Post
None of which is relevant to the charging document. An expulsion is a sanction, and the charging document did not specify "sanction".
The charging document does say sanctions and the statement of offence lists the specific executive order of the sanctions, and contemporaneous news articles make the distinction, and the Mueller report made the distinction, Obama made the distinction, and therefore Flynn made the distinction.
I feel confident that I've made my case to anyone interested, and given the downright grotesque and convenient standards of evidence you're working with (you're beyond convinced that a few isolated documents define how a later charging document uses a broad term, while simultaneously denying the unambiguous and uncontested implications of the Flynn-Kislyak transcript with regards to the UN votes), I think there's no point allowing you to distract this conversation further on this point.

So let's say you're right. That circa early 2017, when someone asked about "sanctions", Flynn assumed they meant only the executive order sanctions. Did Flynn accurately represent the facts to the FBI?

Originally Posted by 302
The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK surrounding the expulsion of Russian displomats or closing of Russian properties in response to Russian hacking activities surrounding the lection. FLYNN stated he did not
Originally Posted by Transcript, December 29 2016
FLYNN: So, you know, depending on, dependning on what uh, actions they take over this issue of the cyber stuff, you know, where they're looking like thy're gonna, they're gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that, you know, the information that they have and all that, but what I would ask Russia to do is to not - is - is - if anything - because I know you have to have some sort of action - to, to only make it reciprocal. Make it reciprocal. Don't - don't make it- don't go any further than you have to. Because I don't want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

Originally Posted by TahiniBinShawarma View Post
Originally Posted by Beeyon View Post
That statement is from mid February. So quite awhile after the White House became aware of the investigation and Flynn plausibly could've gotten his hands on the transcript, he started making a semantic argument. That's an argument only a mother could love.
In case you haven't noticed, what you find "plausible" doesn't mean anything. There is ZERO evidence for this claim. You just made it up.
I did not make any claim. I'm starting to think that you're arguing in bad faith here by suggesting that I claimed this happened. Anyone can see from the quote that I was noting that this was a possibility, and that this possibility weakened the argument.

That possibility is not irrelevant or meaningless. How do we know this? Because if Flynn had been making those statements prior to the interview, it would improve the quality of those statements as evidence. Your blanket refusal to address this point doesn't make it any less true.

Originally Posted by TahiniBinShawarma View Post
Originally Posted by Beeyon View Post
That statement is from mid February. So quite awhile after the White House became aware of the investigation and Flynn plausibly could've gotten his hands on the transcript, he started making a semantic argument. That's an argument only a mother could love.
Tell me what were those "other things" besides the sanctions? Because if you can't come up with anything........
I have no idea what "other things" you're referencing. Tighten it up man. You're becoming incomprehensible.
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Old 2nd June 2020, 02:25 PM   #779
Beeyon
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Originally Posted by TahiniBinShawarma View Post
I know you have no issue with the 302. It's been stated here that the 302's match the hadwritten notes of the agents present, when in fact they do not.

"According to the FD-302, the agents asked petitioner whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; petitioner stated that he did not recall such a conversation. Id. The agents’
handwritten notes do not reflect that question being asked or petitioner’s response. See Doc. 198-13, at 2-8.
The final FD-302 also reports that petitioner incorrectly stated that, in earlier calls with Kislyak, petitioner had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at
5. Petitioner indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you
stand[] and what’s your position.” Id. The final FD-302 also states that petitioner was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect petitioner being asked that question or giving that response. See
Doc. 198-13, at 2-8."

In light of Lisa Page's unorthodox editing involvment after the fact, and well after the usual 5 day window of typical 302 proceedure, there is sufficient doubt about whether the 302 accurately reflects the interview of Flynn.
To be clear, you're citing the defense's earlier motion to dismiss. I think an honest person would've made that clear.

The judge reviewed this question and disagreed.
Originally Posted by MEMORANDUM OPINION, December 16 2019
Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15.
...
the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes. See, e.g., Gov’t’s Surreply, ECF No. 132 at 4; Def.’s Reply, ECF No. 133 at 20.
So when you say that the 302 don't match the notes, you're contradicting Judge Sullivan's overt conclusion.
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Old 2nd June 2020, 02:28 PM   #780
TahiniBinShawarma
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Originally Posted by Beeyon View Post
I feel confident that I've made my case to anyone interested, and given the downright grotesque and convenient standards of evidence you're working with (you're beyond convinced that a few isolated documents define how a later charging document uses a broad term, while simultaneously denying the unambiguous and uncontested implications of the Flynn-Kislyak transcript with regards to the UN votes), I think there's no point allowing you to distract this conversation further on this point.

So let's say you're right. That circa early 2017, when someone asked about "sanctions", Flynn assumed they meant only the executive order sanctions. Did Flynn accurately represent the facts to the FBI?







I did not make any claim. I'm starting to think that you're arguing in bad faith here by suggesting that I claimed this happened. Anyone can see from the quote that I was noting that this was a possibility, and that this possibility weakened the argument.

That possibility is not irrelevant or meaningless. How do we know this? Because if Flynn had been making those statements prior to the interview, it would improve the quality of those statements as evidence. Your blanket refusal to address this point doesn't make it any less true.



I have no idea what "other things" you're referencing. Tighten it up man. You're becoming incomprehensible.
“on December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.”"

What "other measure?"

“On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities. A third time Mueller repeated this distinction, stating Flynn “spoke with the Russian government when the Obama Administration imposed sanctions and other measures against Russia in response to Russia’s interference in the 2016 presidential election.”

What other measures?

You can hand wave away news articles, Obama, Flynn, Mueller, making the distinction all you want, it does not make the distinction any less relevant because you refuse to acknowledge it's existence. If there was no distinction you would list these "other measures." Since you insist you are right and everyone else is wrong.
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Old 2nd June 2020, 02:35 PM   #781
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Originally Posted by Beeyon View Post
To be clear, you're citing the defense's earlier motion to dismiss. I think an honest person would've made that clear.

The judge reviewed this question and disagreed.


So when you say that the 302 don't match the notes, you're contradicting Judge Sullivan's overt conclusion.
No I'm citing the Justice Departments recent filing to the appelate court.

If you are claiming the notes DO reflect those questions and answers, cite the notes verbatum for the relevant questions and answers.

If you can't show the notes reflecting those questions and answers, then Sullivan had a bad day, because it would clearly mean the notes don't match the 302.
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Old 2nd June 2020, 02:48 PM   #782
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Originally Posted by TahiniBinShawarma View Post
“on December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.”"

What "other measure?"

“On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities. A third time Mueller repeated this distinction, stating Flynn “spoke with the Russian government when the Obama Administration imposed sanctions and other measures against Russia in response to Russia’s interference in the 2016 presidential election.”

What other measures?

You can hand wave away news articles, Obama, Flynn, Mueller, making the distinction all you want, it does not make the distinction any less relevant because you refuse to acknowledge it's existence. If there was no distinction you would list these "other measures." Since you insist you are right and everyone else is wrong.
It is bold, but transparent, that you would accuse me of hand-waving away material when you openly refuse to address the points I make.

I indicated that I was willing to proceed in the conversation assuming you were correct, and yet you wish to continue discussing this point. I think that unambiguously demonstrates that you do not want to honestly discuss the issue, but I'll ask again:

So let's say you're right. That circa early 2017, when someone asked about "sanctions", Flynn assumed they meant only the executive order sanctions. Did Flynn accurately represent the facts to the FBI?

Originally Posted by 302
The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK surrounding the expulsion of Russian displomats or closing of Russian properties in response to Russian hacking activities surrounding the lection. FLYNN stated he did not
Originally Posted by Transcript, December 29 2016
FLYNN: So, you know, depending on, dependning on what uh, actions they take over this issue of the cyber stuff, you know, where they're looking like thy're gonna, they're gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that, you know, the information that they have and all that, but what I would ask Russia to do is to not - is - is - if anything - because I know you have to have some sort of action - to, to only make it reciprocal. Make it reciprocal. Don't - don't make it- don't go any further than you have to. Because I don't want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

----


Originally Posted by TahiniBinShawarma View Post
No I'm citing the Justice Departments recent filing to the appelate court.

If you are claiming the notes DO reflect those questions and answers, cite the notes verbatum for the relevant questions and answers.

If you can't show the notes reflecting those questions and answers, then Sullivan had a bad day, because it would clearly mean the notes don't match the 302.
You're correct re: the citation. Mea culpa.

Also, the burden is on you to establish that the notes do not do what the judge says they do. Sorry.

Last edited by Beeyon; 2nd June 2020 at 02:52 PM.
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Old 2nd June 2020, 05:04 PM   #783
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Originally Posted by Beeyon View Post
It is bold, but transparent, that you would accuse me of hand-waving away material when you openly refuse to address the points I make.

I indicated that I was willing to proceed in the conversation assuming you were correct, and yet you wish to continue discussing this point. I think that unambiguously demonstrates that you do not want to honestly discuss the issue, but I'll ask again:

So let's say you're right. That circa early 2017, when someone asked about "sanctions", Flynn assumed they meant only the executive order sanctions. Did Flynn accurately represent the facts to the FBI?





----



You're correct re: the citation. Mea culpa.

Also, the burden is on you to establish that the notes do not do what the judge says they do. Sorry.
You want me to point to the notes and say "see they didn't ask this question or response?"

Ok,


https://www.scribd.com/document/4330...e-Re-Flynn-MTC

Exhibits 1 and 2

Nowhere do they ask Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to sanctions or expulsions.

Nowhere is Flynn asked whether Kislyak described any Russian response to his request about the U.N. vote on Israel.

Certainly that is a material change from what the 302's state, regardless of Sullivan's conclusion.
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Old 2nd June 2020, 05:41 PM   #784
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Originally Posted by TahiniBinShawarma View Post
You want me to point to the notes and say "see they didn't ask this question or response?"

Ok,


https://www.scribd.com/document/4330...e-Re-Flynn-MTC

Exhibits 1 and 2

Nowhere do they ask Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to sanctions or expulsions.

Nowhere is Flynn asked whether Kislyak described any Russian response to his request about the U.N. vote on Israel.

Certainly that is a material change from what the 302's state, regardless of Sullivan's conclusion.
I can't read the notes, do you have a source with a transcribed version?

It's interesting that you use the word "change." To me, a change is "Flynn said X" to "Flynn said Y." The failure of the notes to document every aspect isn't a change per se, though it could definitely be an issue.

Do you have any case where the underlying notes omitting a feature ruined their evidentiary value? Sullivan said that the notes "track" the 302, which indicates a general consistency rather than a line by line correlation. It's not clear that line by line consistency is necessary. Further, Pientka has said that the 302 is accurate, which further buttresses their evidentiary value.

I'm still inclined to believe a judge's determination as to a "a material change" rather than an anonymous poster or a defendant's advocate. I don't think an omission alone is enough to show that he messed up.
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Old 3rd June 2020, 01:14 PM   #785
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The DoJ is unleashing the Drug Enforcement Administration to investigate non-drug related crimes associated with the Floyd protests.

https://www.documentcloud.org/docume...-Protests.html

Unconventional surveillance for the commoners, JusticeTM for the elites.
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Old 3rd June 2020, 01:18 PM   #786
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Originally Posted by Beeyon View Post
The DoJ is unleashing the Drug Enforcement Administration to investigate non-drug related crimes associated with the Floyd protests.

https://www.documentcloud.org/docume...-Protests.html

Unconventional surveillance for the commoners, JusticeTM for the elites.
Wrong thread.
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Old 3rd June 2020, 03:00 PM   #787
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Originally Posted by Ziggurat View Post
Wrong thread.
Says the person who in this thread suggested that Barr lacked the political capital to even begin reforms to protect others from the DoJ/FBI techniques used against Flynn.

He's spending capital mighty freely on other things. To deny that this reveals his preferences is absurd.
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Old 3rd June 2020, 03:27 PM   #788
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Originally Posted by Beeyon View Post
Says the person who in this thread suggested that Barr lacked the political capital to even begin reforms to protect others from the DoJ/FBI techniques used against Flynn.

He's spending capital mighty freely on other things. To deny that this reveals his preferences is absurd.

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Old 4th June 2020, 10:11 AM   #789
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Originally Posted by Washington Post
The U.S. Court of Appeals for the D.C. Circuit will consider on June 12 whether the judge has the power to examine and put on hold the Justice Department’s plan to drop its long-running prosecution of Flynn, who pleaded guilty to lying to federal agents about his pre-inauguration contacts with the Russian ambassador to the United States.
The timing of this is worth noting. Sullivan has required Gleeson to submit his brief by June 10, and Flynn/DoJ are to submit theirs by June 17. So the hearing will not interfere with the initial amicus briefing. Also, the hearing likely being prior to the Flynn/DoJ briefing might help Sullivan; 'Please your honors, we really think that these issues raised should not go unanswered..."

Last edited by Beeyon; 4th June 2020 at 10:14 AM.
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Old 4th June 2020, 06:18 PM   #790
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Originally Posted by Beeyon View Post
The timing of this is worth noting. Sullivan has required Gleeson to submit his brief by June 10, and Flynn/DoJ are to submit theirs by June 17. So the hearing will not interfere with the initial amicus briefing. Also, the hearing likely being prior to the Flynn/DoJ briefing might help Sullivan; 'Please your honors, we really think that these issues raised should not go unanswered..."

I believe since this issue is before the appeals court, there will be no filings on the original date. There may or may not be a stay order. Too busy to check, but I don't even think that is needed.
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Old 4th June 2020, 06:51 PM   #791
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Originally Posted by TahiniBinShawarma View Post
I believe since this issue is before the appeals court, there will be no filings on the original date. There may or may not be a stay order. Too busy to check, but I don't even think that is needed.
That's an interesting possibility.

Normally nothing happens at the district court during the appeal because the district court rendered a final opinion. Obviously not the case here.

A brief Google search didn't produce any conclusive results, but I did see a couple cases referencing a defendant asking for a stay during the higher court's consideration of the writ of mandamus. That would kinda suggest that the show will go on if Flynn didn't ask Sullivan for a stay (and it appears he did not).

The circuit court's order doesn't mention a stay explicitly.
https://www.cadc.uscourts.gov/intern...0-5143LDSN.pdf

I have no confidence either way. Any opinion from a lawyer would be welcome.
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Old 4th June 2020, 07:11 PM   #792
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Originally Posted by Beeyon View Post
The timing of this is worth noting. Sullivan has required Gleeson to submit his brief by June 10, and Flynn/DoJ are to submit theirs by June 17. So the hearing will not interfere with the initial amicus briefing. Also, the hearing likely being prior to the Flynn/DoJ briefing might help Sullivan; 'Please your honors, we really think that these issues raised should not go unanswered..."
Originally Posted by Beeyon View Post
That's an interesting possibility.

Normally nothing happens at the district court during the appeal because the district court rendered a final opinion. Obviously not the case here.

A brief Google search didn't produce any conclusive results, but I did see a couple cases referencing a defendant asking for a stay during the higher court's consideration of the writ of mandamus. That would kinda suggest that the show will go on if Flynn didn't ask Sullivan for a stay (and it appears he did not).

The circuit court's order doesn't mention a stay explicitly.
https://www.cadc.uscourts.gov/intern...0-5143LDSN.pdf

I have no confidence either way. Any opinion from a lawyer would be welcome.
The whole thing is highly irregular. Although I'm assuming the final decision being considered is the appointment of the amicus, which would be on hold pending review by the higher court. Which is why no stay was asked for or ordered.
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Old 4th June 2020, 11:44 PM   #793
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Originally Posted by TahiniBinShawarma View Post
I'm assuming the final decision being considered is the appointment of the amicus, which would be on hold pending review by the higher court. Which is why no stay was asked for or ordered.
IANAL, but I am about 99.99% certain that the amicus thing wouldn't be treated as a "final decision" by any court in this country.

I guess we'll find out in 5 days!
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Old 5th June 2020, 03:15 AM   #794
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Originally Posted by Beeyon View Post
IANAL, but I am about 99.99% certain that the amicus thing wouldn't be treated as a "final decision" by any court in this country.

I guess we'll find out in 5 days!
You are 99.9% wrong. You are mixing terms like "final decision" when you are talking about "final judgement."

Sullivan's appointment of an amicus is something "final" that can't be remedied at the district level. In going back and reading your initial respone, I notice you seem to think that an appeals court only gets involved after a final judgement at trial. That is not the case at all.


"Normally nothing happens at the district court during the appeal because the district court rendered a final opinion."


This is not an appeal of final judgement. The Writ of Mandamus is petitioning the appeals court because there is only one legal action to do at this point. The only controversy before the court was created by Sullivan in appointing the amicus. Which is why not only will he lose, but he will probably get pulled from the case.


'Please your honors, we really think that these issues raised should not go unanswered..."

And this statement is exactly why. In the U.S. legal system, the judge is an impatial arbitrator, not an advocate. Nor does he have the power to prosecute. Nor are amicus briefs allowed anywhere in criminal district cases. Sullivan knows the latter and we know he knows because he has denied them several times in this case before.
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Old 5th June 2020, 09:48 PM   #795
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Originally Posted by TahiniBinShawarma View Post
In going back and reading your initial respone, I notice you seem to think that an appeals court only gets involved after a final judgement at trial. That is not the case at all.

"Normally nothing happens at the district court during the appeal because the district court rendered a final opinion."

This is not an appeal of final judgement.
I'm not sure why you'd think that, given that my actual post says:

Originally Posted by Beeyon View Post
Normally nothing happens at the district court during the appeal because the district court rendered a final opinion. Obviously not the case here.
It's still obvious.

Originally Posted by TahiniBinShawarma View Post
Which is why not only will he lose, but he will probably get pulled from the case.
We'll see. I think there's a good chance Sullivan would lose a typical appeal if he tried to sentence Flynn despite the government's motion to dismiss. But the writ of mandamus has so much higher a bar I think there's a good chance they allow him to reach a final opinion/decision/judgement/work product. It also seems extremely unlikely that he'll get pulled. You should note that this Fokker case that keeps getting cited also included a request for a judge reassignment, and the circuit court explicitly declined to reassign that guy despite "the district court volunteer[ing] opinions about Fokker’s conduct."

Originally Posted by TahiniBinShawarma View Post
Nor are amicus briefs allowed anywhere in criminal district cases. Sullivan knows the latter and we know he knows because he has denied them several times in this case before.
Sullivan's denial of amicus briefs actually undermines your argument. If amicus briefs were absolutely forbidden from criminal cases, then why would anyone ever request to file them?

Your unqualified assertion that amicus briefs are never allowed in criminal district court cases appears to be blatantly false according to the Sullivan brief.
Originally Posted by Sullivan Brief
4 See, e.g., United States v. Church, Crim. No. 95-173, Dkt. 49 (D.D.C. Dec. 19, 1995) (Kessler, J.) (appointing ACLU “sua sponte … to participate in the pleadings on defendants’ motion to dismiss” indictment); United States v. Clarke, Crim. No. 06-102, Dkt. 410 (D.D.C. Mar. 20, 2009) (Bates, J.) (inviting Federal Public Defender to file amicus brief regarding costs for Rule 15 depositions); United States v. Jackson-White, Crim. No. 13-91 (D.D.C. July 21, 2013) (Berman Jackson, J.) (minute order) (appointing Federal Public Defender “as an amicus curiae concerning the matters raised in the government’smotion to correct sentence”); United States v. Pitts, Crim. No. 19-49 (D.D.C. July 30, 2019) (Sullivan, J.) (minute order) (appointing ethics counsel as amicus to address “appropriate referrals for discipline” of prosecutor for acknowledged misrepresentations); United States v. Suggs, Crim. No. 07-152 (D.D.C. Nov. 6, 2015) (Huvelle, J.) (minute order) (appointing Federal Public Defender as amicus to address government’s contention that defendants lack standing to challenge certain evidence).

5 See, e.g., United States v. Arpaio, Crim. No. 16-1012, Dkt. 243 (D. Ariz. Oct. 4, 2017) (granting amicus briefing on scope of President’s pardon power); United States v. Matthews, 11 F. Supp. 2d 656, 663 (D. Md. 1998) (evaluating amicus briefing on First Amendment implications of prosecution); United States v. Mullet, 868 F. Supp. 2d 618, 624 (N.D. Ohio 2012) (evaluating amicus briefing on intersection of Hate Crimes Prevention Act and Religious Freedom Restoration Act); United States v. Pac. Gas & Elec. Co., Crim. No. 14-175, Dkt. 952 (N.D. Cal. Dec. 5, 2018) (inviting California Attorney General to submit amicus brief addressing potential criminal liability under state law); United States v. Vargas, Crim. No. 13-6025, Dkt. 55 (E.D. Wash. Oct. 18, 2013) (inviting Electronic Freedom Foundation to submit amicus brief to address defendant’s motion to suppress).
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Old 6th June 2020, 07:19 AM   #796
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Originally Posted by Beeyon View Post



Sullivan's denial of amicus briefs actually undermines your argument. If amicus briefs were absolutely forbidden from criminal cases, then why would anyone ever request to file them?
.

A December 20, 2017, Minute Order by Sullivan denies such a motion with a detailed explanation:


MINUTE ORDER. This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party. The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. The Court recognizes that the movant sincerely believes that he has information to share that bears on this case, and that, understandably, he wishes to be heard. Options exist for a private citizen to express his views about matters of public interest, but the Court's docket is not an available option. The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in
this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. The movant states that he disagrees with the similar Minute Order issued by Judge Berman Jackson in Criminal Case Number 17-201, but the
contrary legal authority on which he relies is neither persuasive nor applicable. Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor. If the individual seeks
relief from this Court's rulings, he must appeal the rulings to the United States Court of Appeals for the District of Columbia Circuit.
Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3)
(Entered: 12/20/2017). [Emphasis added.]

Did Sullivan lie when he said,

"The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases"

Or was it because the briefs were in Support of Flynn? As opposed to his current stunt?
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Old 6th June 2020, 07:33 AM   #797
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Originally Posted by Beeyon View Post
I'm not sure why you'd think that, given that my actual post says:



It's still obvious.

What is and was obvious was that you thought the amicus breif was still happening on the 10th because Sullivan hadn't rendered a "final opinion."

For you to think the amicus would happen on the 10th with a Writ of Mandamus pending leaves your words to be interpreted in no other way than which I did.


"Normally nothing happens at the district court during the appeal because the district court rendered a final opinion. Obviously not the case here."

Yes, it is the case here, for exactly the reasons I've stated. This is not an appeal, it is a writ. And nothing can happen at the district level until it is resolved. It is perfectly "normal" other than the reasons for the writ, the procedure is normal.

Last edited by TahiniBinShawarma; 6th June 2020 at 08:47 AM.
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Old 6th June 2020, 09:44 AM   #798
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Originally Posted by TahiniBinShawarma View Post
Did Sullivan lie when he said,

"The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases"
No, because the FRCP do not literally set forth procedures for amicus briefs.

---

Originally Posted by TahiniBinShawarma View Post
What is and was obvious was that you thought the amicus breif was still happening on the 10th because Sullivan hadn't rendered a "final opinion."

For you to think the amicus would happen on the 10th with a Writ of Mandamus pending leaves your words to be interpreted in no other way than which I did.


"Normally nothing happens at the district court during the appeal because the district court rendered a final opinion. Obviously not the case here."

Yes, it is the case here, for exactly the reasons I've stated. This is not an appeal, it is a writ. And nothing can happen at the district level until it is resolved. It is perfectly "normal" other than the reasons for the writ, the procedure is normal.
You appear to be asserting that district court proceedings are frozen during the consideration of the writ of mandamus.

I am not extremely confident that you are wrong, but I strongly suspect it.

If the filing of a writ of mandamus necessarily meant that cases were stayed, one might expect such a rule to be true across all our court systems. Instead at least Texas, Alabama, Florida, Minnesota, and South Carolina courts do not stay cases based on writs of mandamus alone.

Originally Posted by Smith Law Group
But once the mandamus petition is on file, more is required to stay the order being complained about. Merely filing the petition is not sufficient.
Texas Rule of Appellate Procedure 52.10 addresses this issue. The rule authorizes the relator—the party seeking mandamus—to file a motion to stay the underlying proceedings or for any other temporary relief pending the appellate court’s action on the petition.
https://appealsplus.com/does-filing-...-courts-order/
Originally Posted by Alabama Rules of Appellate Procedure Rule 21
(f) Effect on Trial Court Proceedings. The petition for a writ under this Rule shall not stay proceedings in the trial court unless the trial judge or an appellate court shall so order.
https://judicial.alabama.gov/docs/li...rules/ap21.pdf
Originally Posted by Rule 9.100, Florida Rules of Appellate Procedure
(a) Applicability. This rule applies to those proceedings that invoke the jurisdiction of the courts described in rules 9.030(a)(3), (b)(2), (b)(3), (c)(2), and (c)(3) for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction; and for review of nonfinal administrative action.

No provision has been made for an automatic stay of proceedings
https://rules.floridaappellate.com/rule-9-100/
Originally Posted by Rule 121.Mandamus and Prohibition
The filing of a petition for extraordinary relief does not automatically stay the proceedings in the lower court.
https://www.revisor.mn.gov/court_rul...e/rcap/id/121/
Originally Posted by Plum Creek Development v. the City of Conway, South Carolina Supreme Court
The filing of a notice of appeal does not automatically stay a writ of mandamus.
https://www.sccourts.org/opinions/di...m?caseNo=24886

And I also found a judge's order from a district court in the eastern district of Michigan saying...

Originally Posted by Order, USDC EDM
Numerous decisions in the Sixth Circuit, and other circuits, reflect that the filing of a petition for a writ of mandamus does not operate as an automatic stay of proceedings in the district court. For this reason, petitioners who desire a stay of proceedings in the district court while the petition for writ of mandamus is under review file a motion for stay of proceedings along with the petition for writ of mandamus.
https://www.govinfo.gov/content/pkg/...v-40185-21.pdf

So, I do not understand why you are so confident that a motion for writ of mandamus causes an automatic stay in the lower court's proceedings.
We shall see on the tenth.
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Old 6th June 2020, 11:11 AM   #799
TahiniBinShawarma
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[quote=Beeyon;13116081]No, because the FRCP do not literally set forth procedures for amicus briefs.

---


/QUOTE]

They don't set forth proceedures because as Sullivan once said.


"The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases"

"Does not provide"

"Options exist for a private citizen to express his views about matters of public interest, but the Court's docket is not an available option. "

He turned on a dime, and is talking out of both sides of his mouth to suit his agenda.


"individual who has pled guilty to a criminal offense. For the benefit of the parties in
this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. "

What rules was he referring to? We all know the answer.
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Old 6th June 2020, 11:23 AM   #800
TahiniBinShawarma
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Originally Posted by Beeyon View Post
So, I do not understand why you are so confident that a motion for writ of mandamus causes an automatic stay in the lower court's proceedings.
We shall see on the tenth.
Because the writ is specifcally asking the appellate court to vacate the decision appointing Gleeson.
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