Circuit Court orders judge in Flynn case
- Thread starter TUMe
- Start date
You said it wouldn't get this far. I thought Dred Scott about slavery?It’s going en banc. This is Dred Scott. Only someone personally biased would think this decision was appropriate. It is an attack on the rule of law.
It is an attack on the way the system has worked and was upheld a short time ago. This makes the judge the judge the prosecutor, the judge, and the jury. It presumes guilt without the prosecutor thinking a crime was committed.
Is the confession similar to evidence of guilt discovered via a search warrant obtained through an unethical or misleading request? I assume this is the reasoning here. Not the actual law but the reasoning.
Politics aside, I support the general idea of confessions/pleas being thrown out when obtained through FBI misconduct. Given the power of the federal government I would like to hear from those who support the opposite side here. There’s is no double jeopardy in play here at least to my knowledge. The Fed’s are still able to bring a case for the criminal activity.
Politics aside, I support the general idea of confessions/pleas being thrown out when obtained through FBI misconduct. Given the power of the federal government I would like to hear from those who support the opposite side here. There’s is no double jeopardy in play here at least to my knowledge. The Fed’s are still able to bring a case for the criminal activity.
I think it should be up to a jury to decide if there was FBI misconduct, similar to a jury deciding if a police officer committed any violations of protocol. The fact that this came from the top down of the executive branch without the person who pled guilty actually having to appeal subverts the ability of the judicial branch to interpret the law and punish guilty / exculpate the innocent.
It's dangerous for the FBI to be able to obtain information / confessions through unethical means, but it's also dangerous for the executive to be able to end proprietorial procedures against his own administration for reasons that he declares just or unjust since it's not really his job to play arbiter those decisions. That goes for all executives by the way. Not just Trump. I would say the same for Clinton or Obama.
You might want to consider, since we continue to see exculpatory evidence trickle out in this case, that experienced judges are often times all too well aware that prosecutors have information that cannot and should not be released to the public, lest it damage the rule of law and the public’s view of our elite law enforcement functions. The motivations of the Attorney General may not be political at all. They may very well be the decisions that any lawyer who aspires to be a good steward of the public trust in DOJ might have to make to preserve the Departments ability to convince juries in the future about an issue you really care about. It’s pretty clear that, guilty or not, there’s a paper trail proving Flynn was targeted for his political views. You air that laundry on low stakes, not only do you open the door for every two bit criminal to argue bias and every small town corrupt mayor to argue political targeting, you also make it difficult to win large cases where the Republic might truly be threatened.It’s going en banc. This is Dred Scott
Secondarily, it will have a profound chill on who will seek to participate in government transition and embolden the sliver of career professionals who might wish to stonewall or even entrap incoming administrations they disagree with, whether through traps of a criminal, administrative, ethical or regulatory nature. Finally, it will make incoming leaders reluctant to begin establishing ties with foreign governments between the election and the inauguration. There’s issues here beyond the facts of the Flynn case and outside the boundaries of the authority of a single judge to decide. If you think Trump has bungled our relationship with our allies, then you probably don’t want a new administration, if there is one, waiting three months to get started repairing those ties out of fear some rogue FBI agent is setting them up or bitter elements inside DOJ repeat what happened here
Thus, if you think Flynn is innocent, it should be dropped. If you think he is guilty, the misconduct is such that it may not taint this result, but could result in significant obstacles to get convictions in future cases. Either way, the dismissal makes good public policy sense. As for the law, the judicial over reach into the functions of the executive for political purposes is plain and unambiguous. The dismissal should be entered.
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Only if you ignore entrapment completely. More and more evidence keeps coming out that there was a conspiracy at the highest level to get Flynn. Do I like him? No but I don't like government going out to get someone by dirty means.
You're ignoring the point that he actually committed these crimes and admitted it. It's not like they coerced an innocent person to admit to a crime. Stop trying to defend people trying to gut our democracy and selling it to the highest bidder at a profit. That's all Trump and his cronies are doing. Just because they duped you with their illegal immigrants are stealing your jobs, POC are to blame for everything, and democrats want to take your money and give it to people that don't deserve it, OH, and that the Great Pumpkin knows anything about running a business and building an economy. 3.5 years- highest deficit EVER, highest unemployment EVER, he's gotten man handled by Xi in the trade deals. The only thing Trump knows how to do is take advantage of the bankruptcy system to cheat people out of the money their owed.
BTW, Trump's campaign strategy is a compilation of episode plots from South Park.
No one but the judiciary should decide if it was dirty. For this to be entrapment it has to have two elements: government induction of a crime and a defendant's lack of predisposition to engage in criminal conduct. If Flynn wanted to argue entrapment he should have done it to the court just like any other citizen would have to. The President of the United States shouldn't be allowed to step into literally any federal criminal proceeding and shut it down just because he thinks it's unfair. That's not for him to decide. That's for judge / jury to decide. That goes doubly when it's former members of his own administration and campaign.
If a judge or jury had decided that Flynn was a victim of entrapment or conspiracy by the FBI then Trump should have had the right to discipline the offenders at the FBI in whatever manner was most fitting and Flynn should have had the right to sue the federal government. But none of that should have happened before Flynn proved his case to Congressionally appointed judges.
Has the FBI argued that their conduct in obtaining the plea were unethical ? Not an individual agent but the Bureau itself? Such conduct by the Bureau must be discouraged and punished at practically all costs given the power the Fed’s have over us citizens. Again...this isn’t a political argument but a broader one based on misconduct by the most powerful organization in this country. Much like a search warrant obtain by unethical means my position is any evidence / plea obtained through misconduct should be thrown out. Now...if the Fed’s want to press charges against Flynn I know no reason why they couldn’t proceed. That protects the justice angle and also provides safeguards against federal misconduct.
Can you imagine the outrage if Obama had ordered Comey to stop all investigations into Clinton? TUMe? I can imagine your double standard in these types of things is set to full on fake outrage. Funny thing is through all the investigations by the FBI and House, not a single actual criminal charge filed against Hillary. Can't say the same about Trump's buddies though...
No immigrants stole my job. I am retired and doing well, thank you.
It is amazing how the left finds problems with people who disagree with them but are able to justify just about any action taken by their side, including destroying portions of major cities.
To get back on topic. None of those poster deny the evidence of tampering that is revealed everyday in more detail, but can see every possible flaw in simply dropping a case that is based on bullied plea.
If, as is very well possible, Biden is elected, it will be interesting to see how many defend everything he does. Or maybe not, maybe they us the 25th Amendment to bring in a more liberal president.
It is amazing how the left finds problems with people who disagree with them but are able to justify just about any action taken by their side, including destroying portions of major cities.
To get back on topic. None of those poster deny the evidence of tampering that is revealed everyday in more detail, but can see every possible flaw in simply dropping a case that is based on bullied plea.
If, as is very well possible, Biden is elected, it will be interesting to see how many defend everything he does. Or maybe not, maybe they us the 25th Amendment to bring in a more liberal president.
The burden of proof of governmental misconduct in a criminal investigation is on the accused. Misconduct was never proven in court. If it was, the judge would have reached a not guilty verdict.
But hasn't the unethical part already been tossed? Wasn't the claim that the FISA warrants were illegally obtained because of misinformation on the request? (Or was that Stone? Or any one of the dozens of other Trump cronies indicted?). If the criminal activity were limited to Flynn then maybe there's a case...but there are dozens involved, dozens who have already plead guilty and convicted and sentenced. The numbers who have already plead guilty is an indication of a greater cover up. Our DOJ is so corrupt right now, they don't care. It's not better than the Soviet Union or the eastern bloc back in the day or the corrupt South American countries that would look the other way when it came to the big drug cartels. This is way worse than Watergate.
What nonsense! You mention something that did not happen, you assume my response to it, then you IMAGINE my response to if it had happened. Let me imagine what happened when Bill Clinton and the AG of the United States had the Tarmac Summit. You forget the insurance policy.
You keep insinuating that the left is destroying cities behind the BLM movement, when there is hard evidence that alt-right groups like Boogaloo have been mobilizing in places, including Minneapolis, to incite the destructive riots and make it look like the peaceful protests destabilized. And why is BLM considered a left wing movement? It should just be a societal movement. The ones who politicize it, like Trump, do so to create racial tension to get his base to fortify even more based on racial lines.
I don't deny that there MAY have been governmental misconduct. I deny the fact that Flynn, or his lawyers, or Bill Barr, or Donald Trump ever proved to a federal judge that Flynn's investigation met the two requirements for entrapment:
1. A governmental induction of a crime.
2. The defendant's lack of predisposition to engage in criminal conduct.
That's how a trial with an entrapment defense would go with any other citizen. Flynn shouldn't be held to a lower standard than anyone else. In fact, a man of his standing and position should be held to a higher degree of accountability.
The left would be, for example, Democrat mayors. The Seattle mayor has backed a Summer of Love. We see odd love in burning things down. She has partially backed off of that but still continues to support a independent portion of the city. Similar experience in Minneapolis. In fact, all the cities where there is trouble have Democrats leadership cheering them on.
It's fun trying to parry the attacks from several of you. You make several assumptions from me being laid off by foreign labor to me being a Trump fan. I guess then that you think I voted for him. In fact, I felt neither candidate was qualified in 2016 and would be a one term president. I guess if I was a big fan, I would have voted for him. In fact, I voted third party. Not because I agreed with Johnson, but because instead of the usual 1% he got 5% and there should have been a message but neither party got it.
Trump has made some mistakes on the virus, but not as bad (per capita) as Italy, Spain, and France. Most countries have made mistakes and suffered. I give him a C for shutting down incoming Chinese while Nancy was calling it racist and earned an F minus. Trump is his own worst enemy. Shamefully one of the two will be elected.
Anyway, I will say what I think because that is the way America works and also Crossfire.
That’s because the FBI withheld evidence. It’s the JD’s role to reign in misconduct but the Bureau. The obvious problem is individual citizens don’t have the money and power and resources to fight the Bureau. Uncovering FBI misconduct isn’t an available avenue to you or I. We’ve seen alarming conduct from agents within the Bureau over the past few years. Given the power of that agency we should all take notice.
If Flynn broke the law then prosecute him. Nothing in this decision prevents his prosecution.
It's the justice department's job to reign in the misconduct, but that still leaves the second pillar of entrapment to be decided by the courts. Did Flynn have a prior disposition to commit a criminal act. If so, it doesn't matter if the FBI had misconduct he's still guilty. That's why it shouldn't have been dropped (unless the prosecutors thought they couldn't prove he had a prior disposition to commit the criminal acts, which hasn't been stated). I'm all for the JD reigning in misconduct, but that's done through agency discipline (maybe even criminal discipline of investigators) and policy changes not through dismissal of possibly valid criminal charges against suspects.
Wrong. You don’t have to prove entrapment. It’s a defense. You need only some evidence to proffer so that a reasonable juror could make a factual determination that entrapment occurred.
But it doesn’t matter anyway. Flynn never claimed he was entrapped. He took a plea deal after he agreed to plead guilty to avoid prison time after his lawyers bankrupted him and he couldn’t afford a trial. That happens in hundreds of courtrooms across the country every single day, sadly to some people who are factually and/or legally innocent of the crime he was charged. The type of thing that Democrats think is so prevalent that they have made it part of their platform. These arguments are a classic case of justice for us, not for you.
If you haven’t noticed, the prosecutors are saying they can’t prove any of it.
From the US DOJ:
Entrapment is a complete defense to a criminal charge, on the theory that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.
Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932). Nor does the government's use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion, United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); pleas based on need, sympathy, or friendship, ibid.; or extraordinary promises of the sort "that would blind the ordinary person to his legal duties," United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991). See also United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984) (inducement shown only if government's behavior was such that "a law-abiding citizen's will to obey the law could have been overborne"); United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) (inducement shown if government created "a substantial risk that an offense would be committed by a person other than one ready to commit it").
Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant "was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime." Mathews, 485 U.S. at 63. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: "the ready commission of the criminal act," such as where a defendant promptly accepts an undercover agent's offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.
You have to make a juror believe that Flynn was induced and that he wasn't predisposed to lie to the FBI or invalidate his plea deal to benefit himself.
If Flynn wanted to appeal his initial plea and sentence he should have been allowed to do so but he should have been sentenced based on the evidence already presented even if it was obtained through some sort of inducement. I'm sure there would have been a nice public defender out there willing to work for him part time every 4th Tuesday of every other month for a couple hours.... just like the kids in some other parts of the country are forced to use. Leave it to a lawyer to argue a double standard of representation... where a poor kid from the inner city should expected to use a public defender but the relatively well off career military man / politician / national security advisor shouldn't be expected to deal with a public defender.
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For those who don’t know or have forgotten, Flynn was fired by Obama after being Openly critical of Obama’s ISIS strategy. Flynn openly stated that Obama’s funding and suppling of moderates in Syria helped create ISIS. Flynn went public about what really happened at Benghazi, exposing Clinton, the CIA, and Obama’s role. After Flynn was hired by Trump, the perpetrators went into full panic mode and devised a plan to get rid of him and compromise Trump. This leads us to the ongoing “Obamagate” Criminal investigation. The DOJ knew they were compromised and their Investigation into Obamagate revealed exactly how they falsified evidence against Flynn. New info came out today. The belated discovery of disgraced FBI agent Peter Strzok’s January 2017 notes raises troubling new questions about whether President Obama and Vice President Joe Biden were coordinating efforts during their final days in office to investigate Trump national security adviser Michael Flynn — even as the FBI wanted to shut down the case.
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Alright. So let’s start with the basics since you’ve never been to law school and never tried a case and why suggestions that we should get rid of law school because we have google are a farce. You’ve got passion, intelligence and a willingness to advocate effectively but that’s about 10% of what it takes to call yourself competent. I appreciate the black letter citations (google that if you don’t understand it) but you’ve got to apply those to the facts correctly AND and understand the mechanics of a courtroom.
I’ve only had two entrapment cases. That defense is disfavored because defendants must essentially admit guilt. And prosecutors are sensitive to that and typically avoid bringing cases where entrapment can be raised successfully due to 5th and 6th Amendment concerns. You don’t see it on TV, but most prosecutors actually screen cases the cops bring and dump the dogs and the unjust.
I’m not quite sure why you quoted all that language or why you think it refutes my statement that entrapment need not be proven by the defendant in federal court.
You don’t have to prove every element. On the contrary, you must only meet the burden of production (some evidence) that entrapment occurred, then the prosecution must prove beyond a reasonable doubt that every element of entrapment did not and could not have occurred.
Example: my client is a Neo-Nazi accused by the ATF agents of selling sawed off shotguns. I need not prove that the two FBI guys agreed to induce me into the crime or the contents of their agreement where they specifically discussed and agreed to try and frame my client. I only need to make a proffer that there are a witnesses or evidence supporting my theory of the defense. I don’t have to prove that I was not pre-disposed to the crime. I only need show that I was more than induced. I only need a witness that will testify that the FBI agent told me that his mother was dying and he needed the client to saw the shotguns off to sell for money for her med care. Then it shifts to the prosecutors to prove beyond a reasonable doubt to the jurors that there was predisposition.
That’s basically how it works but it doesn’t stop there.
Flynn was charged with lying to the FBI. The only thing he admitted to. Everything else was dropped.
Since you quoted Jacobson (you googled and found a source that knew to quote it), here’s the part you want to focus on:
“Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute…. Where the Government has induced an individual to break the law and the defense of entrapment is at issue… the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”
Please tell me how the government would prove beyond a reasonable doubt, under the facts we know in the FBI notes, that Flynn had a pre-disposition to lie to the FBI. On the contrary, they originated the design themselves, went over there under false pretenses to induce him to talk to them to see if he would lie. Then twisted his statements into what they said were lies. This whole thing stinks.
Again...a plea obtained by unethical or fraudulent conduct of the FBI should always be vacated. The FBI still has every right to prosecute the matter and should if they can prove a crime was committed. This isn’t a get out of jail free card. It’s a we’re not going to hold a person to a plea if the same were obtained by misconduct of the most powerful agency in the country. The Fed’s are still free to prosecute the crime if one was committed. This is the piece which is being overlooked.
Where to start. I'm going to disregard the first paragraph for various reasons that I don't need to air on this board. I quoted all the language because there are some important elements. Firstly, the fact that Flynn on appeal would need to show that he was induced to lie to the FBI. Per the text, "...the government's use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion"
No one persuaded Flynn to lie. No one coerced him to say that he didn't talk about disregarding sanctions with the Russians. Even if the investigators led him down a line of questioning where they knew he was going to lie, he still had the opportunity to tell the truth. They might have coerced him to take the guilty plea bargain... but that had nothing to do with the fact that he lied to the FBI about his activities and it effected their investigation into other matters. If he wanted to argue that his son was being dangled as a pawn to try to get him to plea then then he can, but that doesn't excuse his lying (not only to the FBI but also on national TV). Their context on their goals of "admission or get him to lie" had more to do with the fact that they knew he didn't know about having been recorded talking to the Russian ambassador. Much like a cop could take you down a line of questioning about stealing a car and trap you in a lie. The only difference is, this lie was part of a conspiracy with Pence, and the administration regarding a huge investigation for the FBI. It didn't just effect one investigation.
Now, the fact that his guilty plea might have been induced, is valid and I would say he should have a chance to change his plea if he chose to; however, that induction does not exculpate him from the initial crime. The government might have used a stratagem of questioning that led him down the path, but the government has a right to do so. Using such tactics often helps them turn small time conspirators into aids in their investigation of bigger conspirators.
If you want to argue that the FBI withheld this evidence, I would point you to the fact that the absence of the evidence had more to do with Flynn switching lawyers and the initial firm not getting the appropriate documents to Flynn's new lawyers.
I don't believe that showing Flynn had a predisposition to commit a criminal act would be hard for any decent attorney considering he committed the act before his son's case was mentioned. No one in the FBI forced him to lie, they just took him into a line of questioning where they supposed he would likely lie because he had already lied to the Vice President about it (they had already interviewed Pence).
To our final point that's what Flynn would have to beat... the fact that his lying about talking to Kislayak wasn't predisposed. Considering he had already lied to Mike Pence, that would surely be hard to prove. He would also have to prove (after the government denied Pence's accusation that they induced him to lie) that the line of questioning that the FBI agents took somehow made him to lie which is improbable. Who benefited from Flynn lying? Surely, Flynn must have benefited in some way or he wouldn't have lied.
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The only argument I can see Flynn's council making is that the investigator might have had some sort of responsibility to the suspect to disclose information the investigators had already gathered. Apparently Bill Barr thinks the investigators were supposed to say, "we know about what you did on _____ date". But that's a poor strategy for investigators to employ in cases where the continued secrecy of information they previously gathered might lead them to faults in a suspects' story which could reveal larger criminal occurrences. The more holes that investigators are able to bring to light between what they actually know happened, and what the suspect says happened can help them get a better sense of what crimes the suspect (or others) might have actually committed.
This quickly becomes a case where you're not allowed to ask questions of the subject that you already know the answer to.... which is just not how investigations work.
This quickly becomes a case where you're not allowed to ask questions of the subject that you already know the answer to.... which is just not how investigations work.
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I would have supported the motion for him to be allowed to change his plea... but the case should have remained open against him. Charges should not have been withdrawn, nor should the case been dismissed.
If the Fed’s can prove a crime was committed then I absolutely agree they should refile and prosecute their case. Might occur under Biden’s JD. I have my doubts given the misconduct of the Bureau but we shall see.
They shouldn't have to refile and go through all the extra expenses related to reopening the case. It should have never been closed. That's just Bill Barr and Trump wasting the people's dime to save their ally.
I don't have an issue with that. The cost to refile for the Feds is minimal. Assume they would need to amend their pleadings based in the evidence which has come to light anyway. I don't see the refiling as any type of hurdle or significant task.
