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Full DC Circuit Shifts Mike Flynn Analysis Back to What It Should Be: Unusual Remedy

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The full DC Circuit just announced it will rehear Mike Flynn’s petition for a writ of mandamus on August 11.

That they’re doing so is no surprise. Neomi Rao’s opinion threatened to overturn not only precedent on mandamus, but also on false statements cases. The decision was all the more radical insofar as it granted relief to DOJ, which had not asked for it.

What’s notable is that the Circuit is shifting the analysis back to where it should have been in the first place.

When the panel of Karen Henderson, Neomi Rao, and Robert Wilkins first invited briefing on this issue, they focused on whether US v. Fokker required Judge Sullivan to dismiss the case, as the government moved.

Today’s order instructed the parties to be prepared to address whether there are not other adequate means to attain the relief desired, which goes to the core of writs of mandamus (which are only supposed to be available if something like an appeal is unavailable).

Even Karen Henderson suggested in the last hearing that Flynn did have other means of relief — an appeal of any decision that Sullivan actually makes (it has yet to be determined whether, by delaying the decision on whether to dismiss the case, Sullivan has taken an action at all).

Flynn will have a much harder time making this argument, as he can appeal whatever decision Sullivan makes. The government, however, will be in a much more awkward place, because they’re arguing — having not filed for a writ — that they’ll face irreparable harm if they have to show up for a hearing before Judge Sullivan, a ridiculous claim yet nevertheless one Rao seized on to be able to rule for Flynn. It’s unclear whether this new frame — which is what the court should have reviewed in the first place — will even leave space for the government to make that argument.

Which might mean Billy Barr will have to explain why DOJ flip-flopped even though nothing had changed from the time his own DOJ called for prison time for Mike Flynn.

Jeff Wall Admits that Any Scrutiny of DOJ’s Motion to Dismiss Flynn Prosecution Will Cause Irreparable Harm to Bill Barr

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The hearing in Mike Flynn’s petition for a writ of mandamus just ended.

The key takeaway, given the make-up of the court, is that for the majority of the hearing, Judge Karen LeCraft Henderson seemed clear that it was too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

But the notion this might involve ruling for DOJ is the most interesting part of this hearing. Flynn filed the petition, not DOJ. Powell’s argument for Flynn was predictably flimsy, self-contradictory, and false. Even Judge Neomi Rao, who will clearly rule for Flynn, seemed to be struggling to find a way to agree with Flynn.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

When Robert Wilkins pointed out that DOJ had not filed this petition, Wall basically asked for a mulligan, the opportunity to file their own mini-writ of mandamus. Judge Henderson responded by asking (as she had more generally) why this case shouldn’t proceed under regular order, in which when DOJ missed the opportunity to file their own writ, they can’t be granted a mulligan to do so after the fact.

Along the way, Wall and Powell both repeatedly misrepresented the status of the case. More importantly, both claimed DOJ’s motion was very detailed, without noting that it also made false claims, claims on which DOJ has reversed itself at the Circuit level. That will matter in a hearing, which may be why Wall was so insistent that a hearing would do real damage to DOJ.

As noted, given Henderson’s questions for the bulk of the hearing, the Circuit will likely deny this petition. But the most striking takeaway is how panicked Wall was that DOJ might be asked to explain itself.

Setting the Scene: Today’s Flynn Hearing

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I’m still doing household chores so haven’t read the Judge Emmet Sullivan response and government and Flynn reply briefs at the DC Circuit in Mike Flynn’s petition for a writ of mandamus as closely as I would have liked.

But before today’s hearing, I wanted to recall what the posture is.

The question before the Circuit should be whether Flynn is entitled to any help at the DC Circuit. It should be whether Sullivan has taken an action that is so egregious — and so injures Flynn — that it merits the DC Circuit weighing in to overturn Sullivan’s action.

The only action Sullivan has taken, though, is appointing an amicus, something that is soundly within normal judicial discretion.

The Circuit — with a panel including the shamelessly hackish Neomi Rao — ordered the sides to brief whether Sullivan had to grant DOJ’s motion to dismiss right away, what should be a premature question in any case. Effectively, Flynn has argued that DOJ had a reason to dismiss the prosecution and DOJ has argued that this is a separation of powers issue (in both its response and reply, the government has argued against what it argued before Sullivan and what Bill Barr has conceded publicly). Even while strictly arguing the mandamus issue (including the DC Circuit’s approach to Roger Stone’s similar premature petition for mandamus, which was properly rejected), Sullivan’s response also raised the outstanding allegations against Flynn on his Turkish influence peddling.

All of which is to say the arguments (Flynn, DOJ, and Sullivan will have have 15 minutes to argue) likely won’t be addressing the legal issues that should be before the court, and Flynn and DOJ have already made claims that aggressively conflict with the record in this case. One detail Flynn has relentlessly obscured is what information was available before Flynn allocuted to his guilt a second time; basically everything that is public already was known to him.

Add in the fact that DOJ is now claiming that a judge cannot stop DOJ from dismissing a prosecution of the President’s buddy for no good reason, and we should expect that today’s hearing will pose a grave risk to the rule of law in this country.

You can stream the hearing here.

“In truth, I never lied;” Mike Flynn’s Materially Conflicting Sworn Statements

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Amid the discussions of what may happen in the DC Circuit’s review of Mike Flynn’s petition for a writ of mandamus, Judge Emmet Sullivan’s instruction to amicus John Gleeson to review whether Flynn should be held in criminal contempt for perjury has been lost. Indeed, the DC Circuit did not include that part of Sullivan’s order in its order to Sullivan to address Flynn’s petition; it addressed only the question of whether Sullivan must grant the government’s motion to dismiss.

Because few people understand the full scope of Flynn’s conflicting sworn statements — not just before Sullivan but also before the grand jury — I’m reposting and elaborating on that list.

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Three comments about this. First, Flynn has suggested — and his supporters have focused on — that prosecutors promised that Jr wouldn’t be prosecuted. Flynn’s declaration actually stops short of saying prosecutors made this promise.

Second, note that Flynn’s sworn statement conflicts with statements he made to the FBI after his January 24, 2017 interview. For example, his claim not to remember his calls with Kislyak conflicts with 302s cited in the Mueller Report that describe what went on in the calls (though the report cites heavily, though not exclusively, to the one from November 17, 2017, which is the one in which Flynn claims he just repeated what Covington told him to say).

Finally, while Flynn didn’t back off his admission he lied in his FARA filing specifically in his declaration, he does claim that he answered Covington’s answers about his work for Turkey truthfully. In notes that Flynn himself already made public, however, it’s clear he did not, for example where he told his attorneys that the op-ed he published on election day was done for the campaign’s benefit, not Turkey’s.

And his attorneys made much of the fact that he claimed the project started off as being about business climate, which conflicts with his claim that the project was always about Gulen.

DOJ has 600 more pages from Covington (500 pages of evidence and 100 pages of declarations from its lawyers) disputing the claims Flynn has made about him. The timing of DOJ’s motion to dismiss strongly suggests Flynn’s boosters knew they had to act before that Covington material became public. But even without that, Flynn has already provided evidence that Flynn lies to his attorneys resulted in a false FARA filing.

I have no idea whether this will even play into filings at DC Circuit. But unless DC Circuit moves Flynn’s case to another judge (and possibly even then), the case for perjury is still out there in multiple sworn filings.

Mueller Says He Still Exercises the Full Authority of a US Attorney

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Mueller’s team has submitted the supplemental brief Judge Henderson ordered the day after Matt Whitaker was appointed, explaining whether his appointment affects Andrew Miller’s challenge to a subpoena he got back in June.

As to the issue at hand (whether his subpoena of Miller is legal), Mueller says Whitaker’s appointment changes nothing, because everything being challenged pertains to his May 17, 2017 appointment, not anything that happened since.

The President’s designation of Acting Attorney General Matthew G. Whitaker on November 7, 2108, has no effect on this case.

[snip]

All of those arguments turn on the May 17, 2017 appointment of the Special Counsel and the legal and regulatory frameworks that existed at the time of appointment. None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal.

But the brief is interesting because it is the first opportunity Mueller has had to lay out how he understands what happened and how Whitaker’s appointment affects his authority.

As to what happened, Mueller makes no contest that Jeff Sessions resigned.

On November 7, 2018, Attorney General Jefferson B. Sessions resigned from office

Democrats in the House are contesting that, but Mueller is not.

Nor does Mueller question the validity of the OLC conclusion that Whitaker’s appointment is legal.

The Office of Legal Counsel has determined that the designation of the Acting Attorney General is valid as a statutory and constitutional matter. See Office of Legal Counsel, Designating an Acting Attorney General (Nov. 14, 2018), https://www.justice.gov/olc/file/1112251/download. I

None of that is surprising. He works for DOJ and it’s not his place to challenge what DOJ says about DOJ.

What’s more interesting (though not at all controversial) is that Mueller maintains he still has the full authority of a US Attorney.

Similarly, by regulation, the Special Counsel has and continues to “exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6; see United States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as [a] regulation is extant it has the force of law.”).

He relies on US v. Nixon to lay out what it will take to withdraw that authority: changing the regulations he operates under.

Perhaps most important, though, is that Mueller argues that Whitaker’s appointment cannot change the validity of the subpoena (and, one would assume by extension, anything else) that occurred before Whitaker’s appointment.

Because the subpoenas here issued under the signature of the Special Counsel’s Office long before the change in the identity of the Acting Attorney General, that change cannot affect the validity of the subpoenas. And the designation of a different Acting Attorney General while the case is on appeal cannot vitiate the district court’s order holding Miller in contempt.

This would seem to suggest that if Mueller has anything banked — sealed indictments or complaints — then he holds that nothing changes their validity or the DC District’s authority to preside over them.

He also maintains that he retains the authority to appear before the Court.

Second, the change in identity of the Acting Attorney General has no effect on the Special Counsel’s authority to appear in this case. The Special Counsel continues to hold his office despite the change in the identity of the Acting Attorney General.

This would be what he would need to unseal any existing indictments.

None of that is that controversial. But it does make it clear that he views his authority to continue unchecked even with Trump’s hatchet man in place.

In Thursday Hearing, Mueller’s Team Gets Specific about What They Can Do without Whitaker’s Pre-Approval

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Yesterday, the DC Circuit held a hearing on Roger Stone aide Andrew Miller’s challenge of a grand jury subpoena. To make it crystal clear that the issues may have changed when Trump forced Jeff Sessions’ resignation the day before, the very first thing Judge Karen Henderson did was to instruct the sides to “Argue this case as if it were being argued yesterday morning.” She said then that they’d probably ask the lawyers to brief how Matt Whitaker’s appointment changed things, and today the panel ordered 10 page briefs, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.” Those briefs aren’t due until November 19, suggesting there won’t be an immediate resolution to Miller’s testimony.

But it was just as interesting how the Whitaker hiring may have influenced what the parties said yesterday.

Whitaker’s nomination undermines the Miller/Concord challenge to Mueller

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

Dreeben lays out the scope of what Mueller can do with Whitaker in charge

I’m more fascinated by subtle ways that the nomination may be reflected in Michael Dreeben’s comments, though.

In their response to Miller’s challenge, Mueller’s team laid out that they had close supervision from Rod Rosenstein, but they didn’t get into specifics. It describes how the Attorney General receives information (in the form of urgent memos), and the AG can demand an explanation and intervene if he finds an action to be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

The Special Counsel readily meets this test. The Attorney General receives a regular flow of information about the Special Counsel’s actions; he can demand an explanation for any of them; and he has power to intervene when he deems it appropriate to prevent a deviation from established Departmental practices. The regulation envisions deference by requiring the Attorney General to stay his hand unless he determines that an action is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 C.F.R. § 600.7(b) (emphasis added). But while the Attorney General must “give great weight to the views of the Special Counsel,” id., the provision affords the Attorney General discretion to assert control if he finds the applicable standard satisfied. This authority—coupled with the Attorney General’s latitude to terminate the Special Counsel for “good cause, including violation of Departmental policies,” 28 C.F.R. § 600.7(d)—provides substantial means to direct and supervise the Special Counsel’s decisions.

And the brief describes how Mueller has to ask for resources (though describes that as happening on a yearly basis) and uphold DOJ rules and ethical duties.

The Special Counsel is subject to equally “pervasive” administrative supervision and oversight. The Attorney General controls whether to appoint a Special Counsel and the scope of his jurisdiction. 28 C.F.R. § 600.4(a)-(b). Once appointed, the Special Counsel must comply with Justice Department rules, regulations, and policies. Id. § 600.7(a). He must “request” that the Attorney General provide Department of Justice employees to assist him or allow him to hire personnel from outside the Department. Id. § 600.5. The Special Counsel and his staff are “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.” Id. § 600.7(c). And, each year, the Attorney General “establish[es] the budget” for the Special Counsel and “determine[s] whether the investigation should continue.” Id. § 600.8(a)(1)-(2). The Attorney General’s initial control over the existence and scope of the Special Counsel’s investigation; his ongoing control over personnel and budgetary matters; his power to impose discipline for misconduct or a breach of ethical duties; and his authority to end the investigation afford the Attorney General substantial supervision and oversight, which supplements the Attorney General’s regulatory power to countermand the Special Counsel’s investigative and prosecutorial decisions. [my emphasis]

Significantly (given the Calebresi argument) the Mueller team briefed that US Attorneys are also inferior officers, though they get to act without pre-approval.

Miller asserts that the Special Counsel has the authority to make final decisions on behalf of the United States because the regulation “nowhere require[s] the Special Counsel to seek approval or get permission from the [Attorney General] before making final decisions about who to investigate, indict, and prosecute.” Br. 22. That was also true of United States commissioners—who could issue warrants for the arrest and detention of defendants—but who nonetheless “are inferior officers.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 353 (1931). And it is true for United States Attorneys, 28 U.S.C. § 547, who are also inferior officers. See Myers v. United States, 272 U.S. 52, 159 (1926); Hilario, 218 F.3d at 25-26; United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999); United States Attorneys—Suggested Appointment Power of the Attorney General— Constitutional Law (Article II, § 2, cl. 2), 2 Op. O.L.C. 58, 59 (1978) (“U.S. Attorneys can be considered to be inferior officers”).3 Few inferior-officer positions require a supervisor to review every single decision. See, e.g., Edmond, 520 U.S. at 665; C46 n.22. Thus, the Special Counsel’s authority to act without obtaining advance approval of every decision cannot transform the Special Counsel into a principal officer, requiring presidential appointment and Senate confirmation.

[snip]

More recently, Congress has enacted legislation allowing for the appointment of U.S. Attorneys by the President, with the advice and consent of the Senate, 28 U.S.C. § 541(a); by a court, id. § 546(d); or by the Attorney General, id. § 546(a)—the latter two appointment authorities manifesting Congress’s understanding that U.S. Attorneys are inferior officers. And every court that has considered the question has concluded that U.S. Attorneys are inferior officers. Thus, to the extent that the Special Counsel “can be accurately characterized as a U.S. Attorney-at-Large,” Br. 17; see 28 C.F.R. § 600.6 (Special Counsel has the “investigative and prosecutorial functions of any United States Attorney”), the Special Counsel, like any U.S. Attorney, would fall on the “inferior officer” side of the line.

This latter argument doesn’t address the Miller/Concord claim that Mueller should have been Senate approved, but that’s part of why the Whitaker appointment is so damaging to this argument.

Compare all that with what Dreeben did yesterday. He specifically listed things that prosecutors — whether they be AUSAs or US Attorneys (though a later argument could point out that AUSAs need the approval of a USA) — do all the time: seek immunity, make plea deals, and bring indictments.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

Dreeben later specified specifically what they’d need to get pre-approval for: subpoenaing a member of the media or, in some cases, immunizing a witness.

We have to get approval requires just like US Attorneys do. If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

But otherwise, per Dreeben’s argument yesterday, they wouldn’t need Whitaker to pre-approve most actions, including indictments — only to respond to an urgent memo by saying such an action was outside normal DOJ behavior.

Given my suspicions that John Kelly may be the Mystery Appellant challenging a Mueller request, Dreeben’s very detailed description of US v. Nixon’s assumptions about special prosecutors is particularly notable. His comments were intended to use US v. Nixon to support the existence of prosecutors with some independence. He very specifically describes how US v. Nixon means that the President can’t decide what evidence a prosecutor obtains in an investigation.

The issue in that case was whether a dispute was justiciable when the President of the United States exerted executive privilege over particular tapes and a special prosecutor was preceding in court in the sovereign interests of the United States to obtain evidence for a pending criminal case. And the President’s position was, I’m President of the United States. I’m vested with all executive authority, I decide what evidence is to be used in a criminal case. This is just a dispute between me and someone who is carrying out on a delegated basis a portion of my authority, it is therefore not justiciable. And the Supreme Court’s reasoning was, well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions. That authority is vested in the Attorney General who is the representative of the United States as sovereign, in court. And he, exercising the powers under 28 USC 515, 533, and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down, but acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers and those powers enabled him to go into court and to meet head to head in an adversarial proceeding the President’s claim as President that particular tapes were covered by Executive Privilege as against the sovereign’s claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case. [my emphasis]

None of this is a revolutionary interpretation of US v. Nixon. But the mystery dispute pertains to Kelly’s testimony — or some other move on the part of the White House to dictate what Mueller can and cannot do — then the language is notable, particularly given that two of the judges in yesterday’s hearing, Judith Rogers and Sri Srinivasan, have been the judges working on the mystery appeal.

Notably, along with submitting their brief in that appeal yesterday, Mueller’s team submitted a sealed appendix.

This sealed supplemental appendix may pertain to something Mueller just got, which would suggest that appeal may have everything to do with why Sessions was fired right away.

We’ll learn more when Mueller submits his brief on November 19 (though by then this will likely be ancient history).

But it sure seems like Dreeben was making the first argument about limits to how much Whitaker can tamper in the Mueller investigation.

 

Latif: The Administration Blew Up Habeas with a Detainee They Determined Could Be Transferred

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There are a few more details that need to be readily available about Adnan Farhan Abd al Latif, the Yemeni Gitmo detainee whose habeas corpus petition led DC Circuit Judges Janice Rogers Brown and Karen Henderson to gut habeas. Most importantly, almost two years before the Administration used an unreliable intelligence report to justify his detention, the Bush Administration had determined he could be transferred out of DOD control.

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

JTF-GTMO recommends this detainee for Transfer Out of DoD Control (TRO). JTF-GTMO previously recommended detainee for Transfer Out of DoD Control (TRO) on 18 December 2006.

So on December 18, 2006, DOD determined they should transfer of Latif. On January 17, 2008, they determined they should transfer of Latif. (This is a point Judge Henry Kennedy made in his ruling, citing slightly different documents.) Presumably in January 22, 2010, Latif was among the 30 Yemeni detainees the Gitmo Task Force determined designated for “conditional” detention:

30 detainees from Yemen were designated for “conditional” detention based on the current security environment in that country. They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.

The Bush Administration had designated 15 detainees for transfer; the Obama Administration transferred 6 of those in December 2009, before the UndieBomber attack, Mohammed Odaini got sent back in 2010 after winning his habeas petition, and one more Yemeni got transferred to a third country. Which suggests that Latif is among the unlucky 7 detainees whom both the Bush and Obama Administrations believe could be sent home, if it weren’t for the security situation in Yemen.

In other words, Latif remains in Gitmo because our partner in Yemen, Ali Abdullah Saleh, doesn’t control the country, and because Umar Farouk Abdulmutallab tried to blow up a plane, not because Latif himself represents a big threat.

Nevertheless, the Administration insisted on making a case, based on a dodgy intelligence report, to legitimize their continued detention of a man whom they had already decided could be transferred.

TD-314/00684-02 Is the Document Being Used to Hold Latif

As I laid out here, they did so primarily with an intelligence report from early 2002 that sorted through a large number of detainees turned over to the US by Pakistan in late 2001.

By comparing Latif’s Factual Return to his Gitmo File, we can be almost certain that this report is the cable numbered TD-314/00684-02. Read more →

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

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Benjamin Wittes has been complaining that no one besides Lawfare’s writers is looking closely at the DC Circuit decision in Latif.

Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN’s web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff).

Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence.

So I decided to take a closer look.

At issue is a Yemeni detainee, Adnan Farhan Abd Al Latif, picked up in Pakistan in December 2001 and alleged to have trained with al Qaeda. Judge Henry Kennedy granted Latif’s habeas petition last summer, largely because he found the government’s single most important piece of evidence–an intelligence report of some kind (which I’ll call the Report)–unreliable. The DC Circuit–with Judges Janice Rogers Brown and Karen Henderson in the majority and David Tatel in dissent–remanded the case on the issue of the detainee’s credibility. But on the more important issue–whether Kennedy was correct in dismissing the Report–they overturned the district decision. Here’s Wittes’ description of the evidentiary issue.

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

Here’s my logic: Latif’s Gitmo file makes the same claim the government made in his habeas case: that Latif trained and then fought with al-Qaeda. But that entire report cites just one source–TD-314/00684-02–to make that claim. It cites TD-314/00684-02 to support the following assertions:

While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah.

[snip]

Detainee’s recruiter is assessed to be senior al-Qaida facilitator Ibrahim Muhammad Abd al-Razzaq Baalawi, aka (Abu Khulud). Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar.

[snip]

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

For the remaining assertions regarding Latif’s ties to Al Qaeda, the Gitmo report includes no citation.

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