yovargas wrote:
Huh. So if I'm reading that correctly, Mueller's team found that Flynn's son also committed a crime but, in exchange for cooperation, they would agree to not prosecute that crime. Is that about right? If so..... I don't see anything unethical about that.
I think it is probably more accurate to say that the special counsel's team agreed to no longer investigate whether Flynn, Jr. committed a crime in exchange for Gen. Flynn's cooperation; I don't think we know for sure whether they made a definite determination that Flynn, Jr. had committed any crimes, though he certainly was under investigation (and as a side note, he was one of the main conveyers of one of the more bizarre conspiracy theories, which held that Hillary Clinton ran a child sex ring out of a pizza parlour, resulting in his termination from the Trump transition team see
here and
here). These kind of trade-offs are common in our justice system, particularly in a situation like this when the goal is to get the bottom of an issue of major national concern.
IdylleSeethes wrote:
Weissmann has been in trouble for his behavior before. Besides the 2 cases unanamously reversed by the Supreme Court, he got in trouble on his home court with Judge Sifton in US vs Persico (92 CR 351):
Quote:
AUSA Weissmann's myopic withholding of information must also be viewed in the same context: whille reprehensible and subject, perhaps, to appropriate disciplinary measures...
This should be put into context. It is part of a mob prosecution resulting from an internal war inside the Columbo organized crime family. Several of the defendants were seeking a new trial. In the course of denying that request, Judge Sifton, who was famously testy, wrote "AUSA Weissmann's myopic
withholding of information must also be viewed in the same context: while reprehensible and subject, perhaps, to appropriate disciplinary measures, it does not begin to approach the level of uncivilized and indecent behavior that would necessitate the extraordinary relief which defendants seek." Subsequently, the U.S. Attorney for the Eastern District at the time, Zachery Carter, wrote a letter to Judge Sifton stating:
Quote:
This is to request that you amend your memorandum and order dated February 18, 1997 in the above-captioned case to delete the name of AUSA Andrew Weissmann from the sentence in
which it appears on page 46 of the opinion. We make this request for two reasons.
First, the sentence is inaccurate insofar as it suggests that AUSA Weissmann in particular, among the three trial lawyers and their several supervisors, bears special responsibility for the failure to disclose certain information. In fact, all three trial lawyers presented witnesses who recounted Mr. Scarpa's out-of-court statements, and thus if disclosure was required to impeach the out-of-court declarant, all members of the trial team were equally responsible. AUSA Weissmann was not the lead trial lawyer and was not in a position
more than any other AUSA to make or impose a decision not to disclose information. Moreover, as it occurred to none of them, or to their supervisors, that there was any legal principle compelling disclosure, no one of them in fact made the conscious decision to take the position now criticized by the Court.
The Court may have inferred from a sentence in AUSA Corcellas affirmation, recounted at page 33 of the opinion, that a decision on the issue was made by AUSA Weissmann, and made n the (erroneous) ground that Brady requires the disclosure only of exculpatory information and not, for example, of impeachment material. In fact, however, the exchange described in the Corcella affirmation was a casual conversation between Corcella, who was new to the case in the summer of 1993, and Weissmann, who had until then been the junior member of the trial team.
Weissmann was simply passing on to Corcella the fact, known to other members of the trial team, that Scarpa had been an informant, and in response to her question he reported that neither he nor any of his colleagues or supervisors had previously considered Scarpa's informant status to be disclosable. His response to her, though perhaps inartfully stated or recounted, was not intended to suggest that Brady is
limited to information that serves to exculpate rather than merely to impeach, but that Brady is limited to information that is material to the issues in the case. Until the summer of 1994, well after the trial in this case, when the defense first propounded their theory of materiality in pretrial motions in the
Alphonse Persico case, the prosecutors working on these cases had not considered that Scarpa's informant status might be relevant to the issues in any of these cases.
Second, while the court has determined that the failure to make the disclosure was error, the nondisclosure cannot fairly be characterized as the kind of egregious misconduct that warrants castigating an attorney by name in a published judicial opinion. As the court is well aware, substantial legal authority supports the proposition that disclosure of impeachment material for hearsay declarants is not required; it can hardly be regarded as egregious or unprofessional misconduct for an attorney to follow that authority, even if on the facts of this case this court takes a contrary view.
The letter than goes on to give the legal authority for removing the name. The judge then amended the opinion to remove his name, but a lawyer with an axe to grind against Weissmann provided a copy of the original to a conservative reporter looking for dirt on Weissmann. I'm pretty sure that the conservative sites that have selectively quoted from this opinion in order to attack Weissmann were not overly concerned about the rights of mobsters, before Weissmann became one of the main prosecutors in the special counsel's office.
The full original decision and Mr. Carter's letter can be read
here
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