U.S. Solicitor General Noel Francisco Responds to DC District Court – Refutes Arguments Presented by Flynn Judge Emmet Sullivan…

The DOJ has responded to the DC District Court invitation to file a brief in support of intervention by the appellate court. [pdf available here] In an unusual move the response from the Department of Justice comes directly from the office of the United States Solicitor General, Noel Francisco.

The DOJ points out the Judge has no standing to violate Article II and Article III of the U.S. Constitution in an effort to anoint himself as prosecutor, judge and jury of a criminal case outside of his judicial authority. “The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” Francisco argues.

Additionally, rules of criminal procedure “do not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading would violate both Article II and Article III” the DOJ writes.

Here’s the Full Brief:

 

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366 Responses to U.S. Solicitor General Noel Francisco Responds to DC District Court – Refutes Arguments Presented by Flynn Judge Emmet Sullivan…

  1. Brant says:

    Sundance may have addressed this previously, but are Sullivan et al trying to set some sort of international “constitution” precedence that would, in future, supercede our constitution?

    Is there something along these lines/attempts that Sullivan et al are using that is in some UN based global “constitution”? Obviously I am against anything like this if they are doing it. But if they are doing it, that makes the US based constitution resolution of this that much more important and horrifyingly scary if Sullivan et al do succeed.

    Liked by 8 people

    • humaweiner says:

      This corrupt democrat, Sullivan, is trying, in vain, to delay the total financial destruction of Eric Holders law firm, like Enron destruction.

      Liked by 20 people

      • Ken Lawson says:

        Even bigger than protecting Holder’s firm is the fact that he’s simply trying to delay until after the election Flynn from being able to share publicly what he knows that will damage the Obama administration. If he can keep this case from ending before the election the information stays quiet and doesn’t harm the Deep State’s goals to undermine Trump’s reelection.

        Liked by 13 people

        • drinks on me says:

          nonsense. as if some legal technicality is holding back the wave that is crushing the DS. the more attention this case gets now the better for public awareness. be patient and pay attention, justice is being served.

          Liked by 3 people

          • jeff montanye says:

            one would think so. it will hardly take five months for the judges above sullivan to swat him down. maybe during the interim the competing-for-news riots will cease to have novelty value.

            Liked by 2 people

        • divingengineer says:

          I believe I read that Flynn is under a gag order. I would love to hear him sing like a bird the second that order is lifted.
          Sullivan may have more treachery yet to be employed.

          Liked by 1 person

    • gary says:

      kinda hard to do that with armed americans standing in the way.

      Liked by 3 people

    • rondonmonson says:

      He may be trying to muddy the waters because he has guilt somewhere down the line, and is hoping a Biden win would “STALL” what Barr and co. are doing. After all, he was {maybe still is} a FISA Judge !! Something here is fishy if you ask me.

      Did he take a bribe ?

      Liked by 5 people

      • botchedcasuality says:

        This is a thread link to a letter directed to Sullivan or to the public. https://radiopatriot.net/2020/05/16/dear-judge-sullivan/
        It’s scandalous and even sharing it makes me feel that I am contributing to character assassination based on hearsay. I can’t claim that it is factual but it does drop several details to reflect inside knowledge from what I surmise was a consulting relationship with Elijah Cummings. Specific claims of both Men skimming money from Howard University, Hiding alleged stolen art for Elijah as part of an Insurance scam.
        Having a secret deal with the Prosecutors in the Flynn case. Helping to cover up (lose the file) of his son’s crime of raping and beating a thirteen year old and leaving her badly injured.
        There is plenty more, including incriminating RR, If there is even a crumb of truth this guy must be removed.

        Liked by 2 people

        • sturmudgeon says:

          botchedcasuality.. IF this “John” person is real, and if his/her accusations in that letter are based in facts… then Sullivan is in a LOT of trouble… PROVIDING Barr is really interested in ‘Justice’, and is not just ‘a lot of talk’.

          Liked by 1 person

    • Merkin Muffley says:

      I think Sullivan is simply making it up as he goes along. Lawfare told him to stall, so he’s stalling.

      Liked by 7 people

      • hokkoda says:

        The simplest answer…

        Liked by 3 people

        • dbobway says:

          I have to add 1 thing. Somebody told Judge Sullivan what to say.

          Liked by 2 people

          • hokkoda says:

            I honestly think he has cracked. The rulings make no legal sense. The non-rulings make no legal sense. His complete whitewash of the materials sent to him by Jensen – none of this did I read about in his brief – shows he is probably humiliated by it. He also tried to defend calling Flynn a traitor, and I have zero doubt that the DC Circuit knows why Contreras was recused by them. It’s odd that he keeps dragging out sentencing for Flynn.

            He’s reacting like the Star Trek robots when they try to reconcile their programming with the paradox presented to them… pfzzzt! Breakdown.

            Liked by 3 people

            • dbobway says:

              hokkoda,
              That is how these people operate. Drama from make believe. Reality doesn’t deliver their message. As a young man, Hollywood delivered some movies that predicted our future. Network, The Man who fell to earth( It took me 3 pages on Duck Duck go to find this).
              Both of these movies describe both sides of the lenses of television, we are seeing today.
              It is an illusion, performed by people who want to deceive you,
              in order to control your life.
              The media aren’t as good at it than we are stupid to believe it.

              Like

      • Mr e man says:

        Obama told him to stall and to look at charging Flynn with perjury.

        Liked by 2 people

    • Janus says:

      I think it’s much simpler than your theory: Judge Sullivan et al, are trying to force Trump to pardon Flynn rather than the case being dropped–with prejudice–by the DOJ, thus exonerating Flynn of all charges. This is important because if Flynn’s integrity is left intact and the persecution against him shown to be politically biased, it makes him eligible for government service–assuming he wished to do so.

      THAT terrifies Obama and the Ruling Class because Flynn knows where the bodies are buried and now has a planet-sized grudge against his enemies to nurse. But if Flynn is pardoned, the stigma of the pardon would preclude any future government work.

      Liked by 3 people

    • sturmudgeon says:

      Brandt.. interesting thought..

      Liked by 1 person

    • He is trying to protect America’s first Black President from scrutiny. He has always seemed to be a good judge, but he is off the rails now. It is very sad for him that this will be the first thing that you read about him from here on out. He has a solid case of TDS.

      Liked by 1 person

  2. inspectorudy says:

    I think some are trying to put too much treachery into Sullivan’s actions. I believe from his courtroom antics and outbursts this is an old man who has had his “Dignity” insulted after he went too far with his personal diatribes against Flynn. He is making a bigger mistake by trying to subvert the Constitution with his reading of the law. He will be smacked down and his humiliation by any law-abiding person will be real. However, he will be a hero to the American hating leftists just as antifa thugs are becoming.

    Liked by 6 people

    • lmk408 says:

      inspectorudy: I think some are trying to put too much treachery into Sullivan’s actions. I believe from his courtroom antics and outbursts this is an old man who has had his “Dignity” insulted after he went too far with his personal diatribes against Flynn.

      Really? Maybe. But, considering all of the Trump Derangement Syndrome in that court…I’d have to say, “Nah,” he’s fighting alongside the globalists, imo, and dragging this injustice out as far as he/they can (better for Biden or whoever they nominate).

      Liked by 7 people

    • sturmudgeon says:

      nope… he has something unpleasant in his pants..

      Liked by 1 person

  3. Sullivan is going “Full Biden”.

    Liked by 4 people

  4. nimrodman says:

    Well, I hope President Trump has muscled these Governors into having lots of National Guard deployed and actually clearing the streets by the time Gen Flynn gets sprung

    Because there’s gonna be a lot of lib’rul butt-hurt and face-melt rage over it, may get them back in the streets over it

    Liked by 6 people

    • KENT PRITCHARD JR says:

      Both the DOJ brief and Judge Sullivan’s brief were very well-written and neither addressed political considerations that, while intriguing, are not helpful to the legal analysis. Having said that, the DOJ argument blows Wilkinson out of the water. The district court (judicial branch) simply has no authority to deny the DOJ (executive branch) decision to drop the case or, for that matter, to criminalize (and prosecute) an application to withdraw a guilty plea.
      Unfortunately, the logical result of the inevitable dismissal will likely be Impeachment 2.0.

      Liked by 1 person

      • mike walkup says:

        So if it goes to the Supremes…….John Roberts .

        Liked by 2 people

        • KENT PRITCHARD JR says:

          CJ Roberts may be the tiebreaker on the close call cases but the Mandamus order should NOT be appealed in General Flynn’s case. Judge Sullivan, if aggrieved by the Mandamus order (e.g. DCCCA directs him to dismiss case) would need to secure a stay of that order (based on liklihood of success) or refuse to comply with it. In either case, he would have an impossible battle on his hands.

          Liked by 1 person

  5. Blind no Longer says:

    I can hardly wait for General Flynn to testify about everything he knows and why Obama and handlers went after him. That’s the congressional hearing I’m waiting for!

    The secrets that will be revealed, will be better than any James Patterson novel! It’s a house of cards…for real. Now I know where all these Hollywood writers get their ideas.

    Liked by 11 people

  6. dufrst says:

    The Court of Appeals should overrule Sullivan but the Swamp is deep. My cynicism leads me to believe that Flynn fate will be left to the hands of Justice John Roberts.

    Hopefully before it gets to that ignominious end, Trump grants the pardon to put an end to this miscarriage of justice!

    Liked by 2 people

  7. toolnut says:

    Maybe I’m making too much of this but at the bottom of page two under Factual Background of the DOJ response they state: “When they spoke, the petioner asked Kislyak not to escalate tensions in response to the sanctions…” However it is my understanding that they spoke about the expulsion of the Russian agents and not the sanctions. See Margot Cleveland’s article on TheFederalist.com concerning the Flynn Kislyak transcripts.

    https://thefederalist.com/2020/06/01/new-flynn-transcripts-confirm-mueller-team-lied-to-the-court-and-the-country/

    After reading TheFederalist article it strikes me as odd that this response still refers to them discussing escalation with regards to sanctions. Wouldn’t they know it was escalation to the expulsion of the diplomats? Why would they phrase it this way? Like I said maybe I’m reading too much into this. It just struck me as odd.

    Liked by 3 people

  8. fillemup01 says:

    How in heaven’s name can a judge (and judges are supposed to be impartial, aren’t they?) decide to become judge, prosecutor, and jury, and maintain hid impartiality. He is a repugnant lib and a totally insane idiot, but I repeat myself.

    Liked by 5 people

    • gary says:

      we don’t know what is going on behind the scenes. the judge has obviously associated himself with lawfare, by their pressure,or his choice. i think he’s blackmailed. something is at stake for the lawfare cucks. it’s big.

      Liked by 4 people

    • Reloader says:

      It seems to me that it has been documented that some judges were put in place specifically because they had actions in their pasts which would make them quite vulnerable to blackmail.

      That this judge is being blackmailed by none other than the previous stinking occupant of Our White House.

      And that therefore the judge must fall on his sword, expend every option he has, and end his career in the attempt to keep the Hero General incarcerated, at all costs.

      Like

  9. Chip Bennett says:

    You know that old saying: when you have the facts, pound the facts; when you have the law, pound the law; when all else fails, pound your shoe.

    Lawfare did nothing more than make a giant, slapping polyurethane sound. The Solicitor General just spanked them into next week with the facts AND the law.

    Liked by 8 people

  10. joeschmoe45 says:

    Can someone with a law background tell me if the appeals court rules on this and the case is thrown out, is it over over? Can it be appealed to a higher court?

    Liked by 1 person

    • Who knows? Did anyone ever think that we would be discussing this legal mess; whether it’s constitutional or not?
      So, hey, if it’s not constitutional, apparently it doesn’t make a damn bit of difference…just do whatever you feel like doing when you get into the office on any particular day and tell your clerks’ to write up something creative and bingo…go file it!

      Liked by 1 person

    • gary says:

      we’ve entered into the surreal. thejudge has taken this into the twilight zone. he has no standing. if its thrown out,sullivan is done. except………what lawfare is going to do to him for not sentencing flynn a year ago and screwing this up.

      Liked by 1 person

    • jbowen82 says:

      Yes, it could be appealed to an en banc panel of the entire court or to the Supreme Court (or both), but it’s very unlikely to be accepted by either one.

      Liked by 1 person

      • lumoc1 says:

        I do not think that Judge Sullivan can appeal a ruling by The U.S. District Court For The District Of Columbia.

        Liked by 1 person

        • jbowen82 says:

          You mean the US Circuit Court. He’s the district court. Of course he can, the same way almost everyone does, by writ of certiorari to the US Supreme Court. Now, I think it would be very, very, very likely to be denied, but nothing would stop him from submitting a writ.

          Like

    • Mike says:

      The DOJs filing to withdraw makes it so that none of this can be dragged back out again. The judge is simply refusing to accept that as is. Once someone finally rules on that there will be no chance of these dirt bags going after Flynn a second time.

      Liked by 1 person

    • dayallaxeded says:

      If that appeals court rules that Sulliedvan must dismiss there should be no further appeal. Perhaps Sulliedvan will attempt a petition to SCOTUS, but since he’s not a party to the case, he should have no standing to do so. The necessary impartiality of the judiciary should prevent it, as Sulliedvan can’t be aggrieved in the legal sense either way.

      Like

    • Clayton W. Barnett says:

      I don’t think the appeals court can throw the case out themselves. What they will do is send the case back to the district court and order the judge to dismiss the case.

      Like

      • hokkoda says:

        They could also remove Sullivan and appoint a new judge to dismiss the case.

        From what the knowledgeable people here have written, we shouldn’t get optimistic about Flynn’s writ being granted. However, if it is, the Appeaks court could let Sullivan try to save face by vacating his orders wrt the amicus curiae and ordering him to dismiss. Or, I suppose they could remove him and appoint a new judge with orders to dismisss.

        Liked by 2 people

    • KENT PRITCHARD JR says:

      After a dismissal, there would be no appeal since both prosecution and defense joined motion.

      Liked by 1 person

    • Janus says:

      Not a lawyer, but I read that if the case is dismissed by Sullivan or whomever, it will over because the DOJ dropped the case–with prejudice–meaning, once dropped, it cannot be re-litigated again (this was done to prevent a Democrat Administration from picking the case back up again in the unlikely event Trump lost re-election).

      Liked by 1 person

  11. Bubby says:

    Read the thread. Good summation for us non legal types!

    Liked by 1 person

    • hokkoda says:

      They could also decide pretty quickly because of the unnecessary pain and additional legal burden placed on Gen Flynn by the delay. Sullivan’s response states several rulings he has not yet made…illustrating how he is dragging this out…and then says basically “hey I’ll get around to ruling on this stuff eventually, and Flynn can appeal then, so what’s the rush?”

      It’s been weeks already…

      Liked by 1 person

  12. The American Patriot says:

    You guys understand why Furher O declared war on America? This is part of the reason.

    Like

  13. Kerry_On says:

    Emmet has clearly received his marching orders. His talking points are lifted directly from Obama’s “leaked” speech on the subject. Knowing the S.O.P. of the deep state, it is not a stretch to assume they may have some really nasty stuff to hold over Emmet’s head to ensure his compliance. The D.S. is keenly aware of the existential threat General Kelly poses. He has direct knowledge of treasonous malfeasance (re: Isis & Islamic Terrorism), both in the Obama administration in particular and D.C. in general. In essence, he has been told “We need to delay the inevitable outcome as long as possible, so you WILL die on this hill” (metaphorically speaking). He has no legal ground to stand on and he knows that the appeals court is going to make him look the complete fool and leave his legal reputation in tatters but he has his orders.

    Liked by 3 people

  14. Julian says:

    So does this response from Solicitor General Francisco confirm we have a relatively high level appointment at the DOJ who is definitely not a part of the Swamp Club?!?

    Wow. Knew there had to be one. At least one. (At a high level).

    Like

    • hokkoda says:

      I think having the SG respond sends a clear message to the Court that DOJ is not only not messing around, they are prepared to take this Constitutional issue to the SCOTUS which is where the SG argues cases.

      Like

  15. Retired IG says:

    I just love all of the comments I read here. I am finally getting a REAL education. I read as much of the brief as I was able (I got kicked off the pdf). I
    In do not know who is holding Judge Sullivan’s control file, but those that do are breathing fire on him. The Judge has gone rogue in response to that pressure.
    I would suggest to Judge Sullivan to hire a willing food and water taster before he imbibes another drop of the Kool Aid he’s been drinking. His house is probabl being blasted non-stop with HIGH wirelesss electronic impulses. His phones tapped etc. Just to drive him insane. And he probably doesn’t doesn’t even know this is happening to him.
    Pretty sad that those who have his Control File are so willing to destroy his life’s work and reputation. Are somehow forcing him to act like a BUMBLING IDIOT. When those who hold his Control File KNOW THAT THE FLYNN CASE IS ALL ABOUT THEM. I am praying for Judge Sullivan. I believe he is being used by his Master’s.
    And you, Obummer, Holder, and the rest of you in on this FLYNN SCHEME and using Sullivan as your tool – FORK YOU TOO..

    Liked by 1 person

  16. Padric says:

    So much of Sullivan’s actions in all this simply don’t make sense. Yeah, we’ve learned the guy likely got his talking points from an episode of Rachel Maddow. Yes we know he read a former judge’s WaPo piece and then decided to name him amicus. I’m talking beyond all that though.

    I find it hard to believe that he didn’t know about Fokker precedent. I mean, it’s from his own circuit for crying out loud. Given all the motions and efforts Sidney has gone through, it doesn’t take much thought at all to realize that failing to rule on an unopposed motion to dismiss with prejudice would illicit a Mandmus request from her or at a bare minimum the DoJ in order to protect Separation of Powers so it’s not like he couldn’t have seen the logical progression of things.

    And while it is possible he was simply trying to delay until after the election, that still doesn’t make sense. Once he filed the amicus order, the Mandamus request was going to be almost immediate. There’s no way the DC Circuit refuses it. They can’t. It’s literally a case that is 99^% based on their own previous precedent. They have their own power they would need to protect.

    So why go through all this? Then it dawned on me that maybe it’s one of three things. Either he did see all this coming and simply doesn’t want to be the judge on record as having been the one to dismiss it, allowing him to retain his resistance bona fides. Or, maybe he knew he was caught between a rock and hard place. With the release of the exculpatory info to the public, everyone knew the DoJ’s case was illegitimate. But Sullivan has his own separate problem in that regard. Remember, he asked for the original transcripts and when Van Graack told him “You don’t need to see those, we’re not basing our accusations off of those”, simply said OK and let it go. Never bothered to ask “Well, if you’re accusing him of lying, then what ARE you basing it on?”. So when everyone knows the case is illegitimate and knows he didn’t press them on the basis for their charge, he now appears to be either stupid or complicit. But remember, at that point Sullivan doesn’t know what more Jensen and Barr know, only that they know Flynn was set up and Van Graack ain’t on the case anymore. That begs the question: Did Sullivan and Van Graack have an agreement behind closed doors? Remember, some of the evidence presented was done in person and not released to the public at that time. Did the two of them have discussions beyond the viewing of evidence?

    If so, then that’s really the only thing that makes sense to me. By appointing Gleeson amicus, he’s inviting the argument that the dismissal is politically motivated and falls under the narrow reading of Rule 48 so that he can protect himself from any allegations of wrong doing on his own part. Going after Gen. Flynn for perjury allows him and others to label him a liar, so nobody would believe any argument from him to the contrary. So the only logical answer to why somebody who would absolutely know better would do something so boneheaded is that he wasn’t acting out of stupidity, he was acting out of desperation or fear.

    But, being that I am notorious for trying to understand why people do things, that brings me to my third possible explanation and one that I try to remember all the time. My father used to chuckle at me when he’d see me banging my head against the wall trying to find the answer to something like this and would simply point out the obvious to me:

    “Son, it doesn’t matter how smart someone is. Sometimes, people just do stupid things”.

    Like

  17. minnesotamike55 says:

    I saw a large protester sign last week in Minneapolis that said “justice long delayed is justice denied”.

    Think there will be any looting and burning in support of general Flynn?

    Liked by 1 person

  18. Trygve says:

    So, what’s next? Is the ball back in Sullivan’s court again? How many days has he been given to respond?

    Like

  19. Pegon Zellschmidt says:

    Five more months and then Judge Sullivan will make his decision whether to allow DOJ to drop the case….or to hang Flynn.

    Like

    • Tuduri says:

      A black judge with his knee on a white man’s neck slowly trying to asphyxiate him? The judge knows people are watching yet he persists in following a corrupt, unconstitutional agenda.
      I really don’t believe that race is an issue here. It’s more likely political as many here have pointed out already. But the optics are awful.

      Like

  20. Harvey Lipschitz says:

    Three court cases here

    The State vs Flynn which has filed for withdrawal
    Judge Sullivan vs Flynn

    The Writ of Mandamus

    When is the Judge planning on filing charges?

    Will the appellate court drag Sullivan in for testimony?

    The Amicus Squirrel lawyer is not a party in State vs Flynn.

    Like

  21. Chacuri Llano says:

    W.H.O. is dictating B.H.O’s marching orders? W.H.O is really running this show+++? If they get away with this one… WHO would be their next victim of the U.N? Many countries and millions of humans are paying and suffering for this NEW NORM / UN agenda!

    Like

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