“Flynn had recently appeared on the far-right outlet Newsmax suggesting that Trump could order “military capabilities” to “rerun an election” in swing states, and that “[m]artial law has been instituted 64 times.” Meanwhile, Arizona GOP Chair Kelli Ward urged Trump to “Cross the Rubicon” and impose martial law to claim an election that the Electoral College, not to mention several dozen court rulings, has now certified he lost.
Public reaction to Flynn’s “coup” proposal — which he’d shared previously through a press release on Twitter from the right-wing group “We The People” (tagline: “Freedom never kneels except for God”) — have been furious and damning.”
“There’s a buffet of sedition statutes (18 U.S.C., sections 2383 through 2385) which have some potential relevance here. Section 2383 makes it a crime to incite or assist in a rebellion against the United States or give comfort to those who incite an insurrection. Section 2384 carries a 20-year jail term for seditious conspiracy, which requires an agreement between two or more people to “overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.” The third provision, 2385, makes it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States.” The statute goes on to criminalize the intentional publication or circulation of any printed matter advocating the desirability of overthrowing the U.S. government. (Thirteen states also have their own laws banning “criminal anarchy.”)
Historically, sedition laws have been used to target critics of the government, and some of those prosecutions have run afoul of First Amendment protections. But the First Amendment does not uniformly protect speech if it incites violence.
Was Flynn inciting violence by proposing the military be used to seize voting machines? During the now-infamous Oval Office meeting, chief of staff Mark Meadows and White House counsel Pat Cipollone protested vehemently, but were there two or more people in agreement to overthrow the government? Was Flynn’s social media campaign a violation of the rule against circulating any printed matter advocating the overthrow of the government?
This is where the current sedition laws begin to seem inadequate to the task of responding to Flynn’s unprecedented proposal.
First, there is the problem of “sedition against what?” Usually, it’s the sitting government, which means that one could make a strong argument that it’s impossible for Trump to be involved in a seditious conspiracy so long as he’s the sitting President. Second, no one has ever been successfully prosecuted under the sedition statutes for exhorting a sitting president to perform an illegal act, with or without the president’s connivance.”
“The First Amendment protects free speech, but in 1969 the Supreme Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)
Martial law is not mentioned in the Constitution. Nor is it authorized by any act of Congress. The Supreme Court has never directly held that the federal government has the power to impose martial law. Although the Insurrection Act allows the president to use armed forces to “suppress” an insurrection and restore immediate law and order upon the request of a state legislature or governor, an 1878 law called the Posse Comitatus Act otherwise forbids the use of the military for domestic law enforcement. A criminal statute puts members of the military who prevent or attempt to interfere with voters “exercising the right of suffrage” at risk of going to prison for up to five years.”
“A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split 2-1 along ideological lines.
The majority opinion, penned by Trump appointee Neomi Rao, said allowing the case to continue would intrude on the executive branch’s prerogatives to control criminal prosecutions. Rao said even scheduling a hearing — as Sullivan had done for next month — was improper under the circumstances because there was no good reason to doubt the government’s decision to reverse course.”
“Rao’s majority opinion leans heavily on the “presumption of regularity” often afforded to executive branch decision-making — the notion that courts should presume prosecutorial decisions are made in good faith. Through this lens, Rao and Henderson concluded, the Justice Department’s discovery of new evidence that cast doubt on Flynn’s guilt should be treated with deference.
Wilkins, an Obama appointee, issued a sharply worded dissent. The government’s U-turn in the case, he said, was so abrupt that a judge could reasonably question it.
“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote.
Wilkins also complained that his colleagues were departing with normal federal court practice by prematurely intruding in the affairs of a district court judge who had not yet ruled.”
“A former judge selected to advise on a path forward in the criminal case against Michael Flynn is accusing the Justice Department of exercising a “gross abuse of prosecutorial power” to protect an ally of President Donald Trump, distorting known facts and legal principles to shield Flynn from a jail sentence.
The former federal judge, John Gleeson, skewered Attorney General Bill Barr’s handling of the case, describing it as an “irregular” effort that courts would “scoff” at were the subject anyone other than an ally of Trump. The 82-page excoriation featured a painstaking reconstruction of the Flynn case and accused DOJ of contradicting its own arguments and precedents to justify dropping the case against Flynn.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” Gleeson wrote. “Indeed, they are preposterous.””
“This “unmasking” is part of a very secretive process of deciding who gets to see the names of Americans on transcripts of intercepted foreign communications and raw intelligence. Thanks to an annual transparency report from the Office of the Director of National Intelligence, we know that this happens a lot. According to the latest transparency report, the National Security Agency (NSA) unmasked the names of 10,012 U.S. citizens or residents in 2019 in response to requests from another agency.”
“Americans deserve more transparency on how this unmasking process works—and a better explanation of why all these people keep requesting unmasking and what happens to that information. This may well be a “routine” process, as so many officials insist, but that doesn’t mean that we as citizens should accept the status quo. People insisted the Page warrants were part of a routine process, too, and it turned out that the routine itself was broken.”
“The decision to toss out Flynn’s case is, to put it mildly, controversial. The DOJ is saying, implicitly, that they can’t prove that Flynn committed the crime he already confessed to, or that it’s simply not worth prosecuting even though he already pled guilty. Either scenario is, well, odd.
On the surface, there’s only one reason to drop this case: politics. Trump, and his Attorney General Bill Barr, think the Russia investigation was bogus to begin with. Flynn’s lawyers, for their part, have insisted that the FBI mishandled the investigation and entrapped him.”
“I reached out to eleven legal experts. While there wasn’t a perfect consensus, every expert agreed that the DOJ’s decision was highly unusual at best and an attack on the rule of law at worst.”
“After announcing that the Justice Department was dropping the criminal case against Michael T. Flynn, the former national security adviser, Attorney General William P. Barr was presented with a crucial question: Was Mr. Flynn guilty of lying to the F.B.I. about the nature of phone calls he had with the Russian ambassador to the United States?
After all, Mr. Flynn had twice pleaded guilty to lying about them.
“Well, you know, people sometimes plead to things that turn out not to be crimes,” Mr. Barr said in an interview with CBS News. Then he went even further and described the infamous calls during the Trump presidential transition as “laudable.”
Mr. Trump and his allies now accuse the F.B.I. of framing Mr. Flynn, which is part of the president’s broader campaign to tarnish the Russia investigation and settle scores against perceived enemies ahead of the November election.
Their revisionist narrative is in stark contrast to the view held three years ago not only by top F.B.I. management but also by senior White House officials. Mr. Flynn, the officials said then, had lied to Vice President Mike Pence and other aides about the nature of his calls to the ambassador, had lied repeatedly to F.B.I. agents about the calls, and might have made himself vulnerable to Russian blackmail.”
“The motion is 20 pages long and operates on a complex argument that, among other things, Flynn’s lie was not a crime because the Justice Department has determined that the counterintelligence investigation against Flynn was itself not justified. The interview did not have a proper basis and was not “conducted with a legitimate investigative basis and therefore [the government] does not believe Mr. Flynn’s statements were material even if untrue.”
This is an extraordinary argument from the Justice Department. In general, (as Reason has noted previously when writing about the Flynn case) the FBI and Justice Department have very wide latitude under federal statute to determine whether a lie is “material” to an investigation. That Flynn lied about contacts with the Russian government during an investigation by the FBI about possible Russian infiltration or manipulation of the 2016 presidential election would seem, to the average layperson, to be a “material” lie. Indeed, one footnote acknowledges that the court has already deemed Flynn’s statements to be “material” to the investigation, but that was before new disclosures about the way the Flynn interviews were being handled.
Shea writes of Flynn’s calls to Kislyak: “The calls were entirely appropriate on their face. Mr. Flynn has never disputed that the calls were made. Indeed, Mr. Flynn, as the former Director of Defense Intelligence Agency, would have readily expected that the FBI had known of the calls—and told FBI Deputy Director McCabe as much.”
This motion is being perceived as a sign of deep corruption in the Justice Department to protect Trump and people around Trump, because it’s extremely unlikely such a motion would happen otherwise. Former federal prosecutor and current defense attorney (and Reason Contributing Editor) Ken “Popehat” White took to Twitter to note that this would never, ever fly for any other defendant
t’s right to be deeply critical of federal statutes criminalizing lying to federal agents. It’s right to be deeply critical of the archaic Logan Act being brought up against Flynn to try to punish political speech. But there’s no sign that this is anything but a special deal for Flynn, and the Justice Department is bending over backward to justify it. Calls for changes to federal laws? None to be seen here. The FBI will continue to attempt to trap others in lies and prosecute them.”