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>> former u.s. attorney and university of michigan professor barbara mcquade joins us to discuss the michael flynn perjury case. the court of appeals for the d.c. circuit judge to. can you start by reminding viewers why it was before that panel yesterday? guest: this is very much a process case. of the-judge panel district of columbia court of forals had granted a motion an extraordinary remedy that tells a judge you must do something or not do something, and they directed the judge in the michael flynn case to dismiss the case. what happened yesterday is the full court, all 10 judges were eligible to decide this case and reheard it. they started over. host: during that hearing, michael flynn's attorney argued

that the u.s. district court judge overstepped his authority in not allowing the justice department to dismiss that case. do you think that the judge, judge sullivan, overstepped his authority? that: he hasn't yet, and is the reason this case is being heard. it is an unusual posture and that after pleading guilty, michael flynn, the justice department is dismissing the case. for that reason, the judge is required to do permission to dismiss a case. to hearuled a hearing, more about it before rendering a decision. the lawyer for michael flynn then leapfrogged that decision and went to the court of appeals to say he must dismiss, he has no discretion. that is what it was about, yesterday. even if the court ultimately

decides the case, it is proper -- the go -- to go the routine route of having the trial judge make the decision, and then appealing that decision if you don't like it. otherwise, every defendant is going to run to a court preemptively when they sense that a judge is going to rule against them. host: we want to give viewers a sense of what it was like in the court yesterday or at least what it sounded like, this hearing, streamed online. we carried it on c-span. this is michael flynn's lawyer, sidney powell, arguing on behalf of her client yesterday. [video clip] >> general flynn is a defendant without a prosecutor, in litigation without any controversy between the actual parties to the case. instead of properly granting dismissal that is required as a matter of law, judge sullivan denied two defense motions opposing any -- at all, appointed mr. gleason to usurp the job of the prosecutor, raised the sort of perjury and contempt charges over flynn's head and sallied forth to right

the wrongs he perceived. -- the job ofoted the united states attorney is otherwise occupied. in adding these unconstitutional burdens of process to punish michael flynn, judge sullivan discarded any semblance of the unbiased impartial adjudicator this court extolled in the 2019 chapter of that case saga. as a cornerstone of any system of justice with the label. host: barbara mcquade, some legal terms there but among the things, she said general flynn is a defendant without a prosecutor. in our legal system, how can a case keep going if the justice department a longer wants to prosecute that case? guest: ordinarily it is the prosecutor who has sole discretion, and for good reason. it is good to know resources, priorities and other factors, but the caselaw law that was relied upon in one of the key

pieces of language in that case is that the prosecution is entitled to a presumption of regularity in the absence of evidence to the contrary. in this case it is full of very unusual evidence. you have a case for the evidence is strong, the defendant pleads guilty. when he starts showing some discomfort with that, the judge asks him if he still wants to plead guilty, and he says yes he does and when a new attorney general comes along, throws out the work of the special prosecutor and says we are going to dismiss the case, i think that the rule that requires permission of the court is that the judge should not be a rubberstamp but should inquire deeper into the reasons for the dismissal. therney powell argued that sole purpose of the rule is to grant harassment of defendant. there is also case law that says the judge has to protect the

public from a corrupt process, so that seems to be what judge sullivan is endeavoring to do by having this hearing. if you should rule against michael flynn and the government by refusing to dismiss the case, that could be an appealable issue. there is no prosecution left, he pled guilty. billy thing left is to dole out the sentence. with usrbara mcquade, to talk about the michael flynn perjury case. happy for you to join the discussion. we would love to hear your questions and comments. republicans, (202)-748-8001. democrats, (202)-748-8000. .ndependents, (202)-748-8002 as folks are calling in, you listened to this and heard the judges questioned back and forth. are there any tea leaves to be read on how you think the larger panel of justices -- of judges

will come down in this case? guest: i do. based on the questioning, it appeared that the hardest -- the hardest questions were for michael flynn's lawyers and they asked the party to focus on the idea that michael flynn had no adequate alternative remedy what is an of -- which is one of the requirements and it should be used only sparingly and rarely. i didn't hear a satisfactory answer for that, why can't we just send this case back to judge sullivan, let him make his party and then if either is unsatisfied, they can appeal to the court. are -- there are a majority of the judges who feel the panel below got it wrong. that combination of factors suggests a strong likelihood that this case will go back to judge sullivan, and it will

allow judge sullivan to make his ruling. host: if somebody doesn't like whatever the decision is that comes from this panel, can this ruling be appealed up to the supreme court? guest: this one can. they would have to seek permission to go to the supreme court. the supreme court does not hear every case as a matter of right. it chooses cases it thinks present interesting legal questions. i don't know that this is that kind of case. perhaps if michael flynn is dissatisfied with the result here, he would seek permission for the supreme court to hear that case. that would further delay things and at the end of the day, that could be his strategy. as long as he can delay things past the election, he can make it more politically palatable for president trump to grant him a pardon, which may be all he wants anyway. even if a judge dismisses the case, if he does so without

prejudice, that means the case could be brought again, with a new president shall administration as long as the statute of limitations does not expire, and it won't until january of 2022. a nude administration could a new administration could prosecute michael flynn. host: barbara mcquade is joining us via zoom, in michigan. plenty of callers for you already. diana is in new jersey, democrat. caller: good morning. i would like to say that it is great that they are going to review the details of this case, because there is still a lot of background that has been left out of how the attorney general ms. portrayed special -- misportrayed special counsel mueller's findings and how flynn pleaded guilty twice, and only heil barr got appointed did

withdraw his guilty plea. we never got an answer as to why did he lie? if he thought he was doing something innocent and legal, then why did he lie about it? what is all that with saudi arabia, with the arms deals and everything? this needs to be looked at. they say he sold out his country. he really did. they are looking to profit off of this presidency. he has surrounded himself with tax cheats and opportunists, people over there lobbying for russia. host: barbara mcquade. we will give you a chance to jump in. guest: i tend to agree. there are a lot of things that are irregular about this. the lies to the fbi. if you read the mueller report, during the time he was having his conversation with the russians, flynn he wasn't freelancing, he was going back

and forth and talking with high-level members of the trump transition team, including steve bannon down at mar-a-lago. then he was having these conversations. he spoke to russia and said sanctions onbout the same day that president obama and post them. that was an effort to retaliate against russia for interfering with our elections. that raised all kinds of questions, not the least of which is that he was undermining the foreign policy of the united states. to suggest that lying about that was no big deal is, to me, unfathomable. it was a serious crime. what was stated in the motion to dismiss was that this wasn't material to any investigation, because there was no crime to investigate. i believe there was, but even if there wasn't, the fbi has a mission to protect the country against intelligence threats. they had a duty to ask these questions, and the idea that this was all just some witchhunt

to get michael flynn does not strike me as a credible explanation. host: our line republicans. this is frank in new york. good morning. caller: good morning, thank you very much for giving me the time to get on the air. my thing is -- how come president obama said that flynn the north koreans where the two most dangerous things that trump could get into his party? doesn't that stink of high heaven? goter two is i think flynn railroaded with the fbi. nobody has even looked at that. if an african-american pleads it is thea murder, same idea here. i think this is a railroad job. there is something going on in this country, that is hiding flynn from obama. flynn hasn't been able to write

a book about obama, but there is a lot of stuff in his background. why is obama so afraid of flynn? guest: if you're interested in my response, i don't know what goes on in the minds of any of these individuals, but we know from the facts that michael flynn was working on behalf of the government of turkey, and that he failed to notify the united states about that, but he wrote an op-ed on behalf of the dickey -- of the government of turkey. in his plea agreement, he admitted not only was he lying to the fbi, but about that illegal conduct with regard to turkey. it may be that president obama knewhat michael flynn -- that michael flynn was dealing with foreign governments for profit without disclosing that, and feared he would not be the good public servant on behalf of the united states, especially somebody with very sensitive security clearance, we about your contacts with foreign governments, they know something

that our government doesn't know, and it leaves us very susceptible to blackmail. -- on a background investigation, people are investigated for whether they are susceptible to blackmail, because if they are, and you have secrets, someone can use that as leverage to get you to behave in ways that is not in the best interest of the united states. as for michael flynn leading guilty to a crime he did not commit. we have evidence of what he told the fbi during the interview in 2017 which directly contradicts what is on recordings of his conversation with russian -- with russian agents. to say he is not guilty is just wrong. it is objectively recorded. host: one of the headlines coming out of yesterday's hearing, the front page of the washington times, secret evidence seen as kiefer flynn, pointing to the oral arguments and comments made by solicitor

general jeffrey wallace, saying the decision to drop the flynn case based partially on secret evidence. what did you take from that? guest: i don't know that what i heard goes that far, but there was this interesting nugget that came out. this is not mentioned in the motion that went to judge sullivan, that was based on a conclusion that there was no purpose for this investigation, and therefore his lies were not material. what we heard yesterday was the solicitor general said there may be other reasons that an attorney general would want to dismiss a case that he could not reveal to the court. he did not quite go so far to say as -- goof -- go so far as to say that happened here, just in some cases. it is a possibility that what is going on here, some reasons he could be referring to, we know that john durham, the u.s.

attorney in connecticut is investigating the origins of the fbi's investigation into russian election interference. it could be that he would have to either confirm or deny the existence of that investigation, or talk about things he found in that investigation. that would certainly be improper. there could very well be classified information in a case like this, about the technique by which they recorded the conversation between michael flynn and sergei. ability forays the the government to tell the judge in chambers or to file a document under seal. they wouldn't have to publicly disclose that, but they could satisfy the court that there is some valid reason for dismissing the case, and not simply some arbitrary reason to benefit an ally of the president. host: just about 10 minutes left with barbara mcquade. if you don't get your call answered in this question -- in the segment, we will continue this discussion in our next half-hour as well.

kathleen is in mississippi, a democrat. good morning. caller: good morning. thank you. thank you for my call. [indiscernible] they manipulate facts. roger stone said somebody in the senate got my back. it's all wrong. thank you. host: barbara mcquade. the role of faisal warrants here -- fisa warrants here. guest: there has been investigation into the use of fisa warrants and the inspector general issued a scathing report about inconsistencies. it appears it is sloppiness on the part of the fbi, which is a

real drop of its obligation to ensure that accurate facts are presented to the court. the most egregious example was an fbi lawyer who altered emailed to give it the opposite meaning of what it had, about whether carter page was an advisor to the trump campaign, was or was not an asset of the cia. it may be that these are innocent mistakes that were case like thisa where the stakes were so high, one would expect the very best in the performance of the fbi, and instead we got a very shoddy job. the inspector general went back later and investigated 26 separate fisa applications and found problems in all of them. they weren't necessarily problems where people's rights were being violated, but sloppiness was being done.

the ability to collect intelligence against people in the united states, for contacts with foreign agents. is required to be scrupulously careful. what does this mean for the flynn investigation? nothing at all. that is related to somebody named carter page and was not used by robert mueller in his investigation. i think there are times when people point to that which is a serious problem to suggest that it means the whole investigation is somehow invalid, and that is not the case. this was a small piece of it. think of it as a huge house with a strong foundation, and somebody built a very small that was on a shaky foundation. the sunroom is bad, but the rest of the house stands. host: outside what it means for michael flynn, can you talk about the larger implications, and why we are tracking this

case as closely. american joseph on twitter rights in, why are we supposed to care about this dead horse? guest: that is a really great question. we should care immensely about it. it is not a dead horse or one single case. it is emblematic of william barr's effort to undo all the work that robert mueller did in his investigation of russian interference in the election. thatis case gets a pass, invites russia and other adversaries to interfere in our elections in the future. we have seen william barr do a in not onlyings, dismissing the flynn case but also intervening in the stone case to recommend a lower sentence, we saw his deputy giving special treatment to paul manafort ads -- as to his place of confinement. we saw the justice department dismiss a case against russian entities that were funding the social media campaign of

propaganda for the 2016 election. if all of that goes to pass, and we say that is not a big deal, then it suggests that it is open season for election interference. the sanctions president obama imposed were intended to say to russia, don't mess with us when it comes to our elections. to then say forget about it says go ahead, interfere with the election, as long as you pick the winner. i think regardless of who russia likes, we want americans choosing the american president. host: one more question from jimbo in california. can the president pardon michael flynn before judge sullivan passes his sentence? guest: yes. president trump pardon michael flynn anytime. as we saw with roger stone, it seems most likely what the president wants to do politically is wait as long as he has to, before extending that political capital, because if he grants a pardon of michael flynn, there will be those who cry out and say this is political cronyism.

what he could do is wait until the day that michael flynn has to report to prison, and then give him a pardon, and that could be months from now. it could even be after the election. on november 4, if president trump wins or loses, he has the power to pardon all the way through the end of his term. host: just a few minutes left, but stick on the lines if you don't get through. we will be joined by former u.s. attorney brett tolman, next to dicken -- to continue discussions on this topic. this is tony, out of fort lauderdale. independent. caller: good morning. i just want to take three different facts. i want to correct the record. michael flynn was not charged with perjury. please stop saying about his perjury trial. he was not charged with perjury. i also want to address this guest's comment that he is facing serious charges, and yet

he was facing no jail time. the plea-bargain had gone -- had gotten rid of the jail time. i want to address, what was the live? flynn said he couldn't remember. -- i am going to plead guilty to avoid jail time. -- we've gotng is here that is-ite so willing to get michael flynn, they are willing to throw away all of the protections. aranda was guilty. miranda was guilty. his conviction got overturned, and we have miranda warnings as a result. civil liberties overall. i don't care about michael flynn and turkey. that is immaterial. this is straight mccarthyism and it needs to stop. host: barbara mcquade. guest: michael flynn admitted twice under oath that he did lie to the fbi.

his crime was false statements. you are correct, it was not perjury. it was false statements. he was interviewed by the fbi and told them lies. he said he sent lee forgot. he discussed sanctions. discuss sanctions with russia? no i didn't, it was just pleasantries. it is implausible that he forgot a conversation that happened only 10 days earlier. when the record shows that this was not some of the came up in passing, but they had numerous conversations about it, they spoke and wrote and he talked and consulted with people at mar-a-lago, came back and spoke again. it was the day of the sanctions, they came back and spoke again. as asay congratulations, result of your conversation, it appears you were successful in russia has agreed not to retaliate. the idea that he didn't remer that conversation, that they only talked about cousin trees

and holiday greetings is implausible. he admitted twice under oath that he did room ever that conversation and did lie to the fbi. the suggestion that he was railroaded is false, and the idea that this is immaterial and unimportant is also false. it was about the national security of the united states and sending a strong message to russia, that they should not and cannot interfere with our elections without extreme consequences, and michael flynn said from the position of the trauma administration, that's ok. i think it is not ok, and it is also not ok to lie about it, because that makes it that much harder for the fbi to find out what hot -- what happened and it took robert mueller 18 months to get to the bottom of this. host: to chris in virginia, democrat. good morning. caller: good morning. i came to this country in 1973. for the first time, i don't feel

like we have a system of law. the law is not applied to everybody. attorney general's interfering in prosecution. the president has surrounded himself with criminals. admitted that he was an agent for turkey. he lied to the fbi. dismissed. would be i feel like the president is doing whatever he wants. -- from being politically motivated to prosecute or dismiss cases. do we still have law in this country? it is like a terrible country with no regulation. the president can do whatever he wants. pentagon,ney from the

and put it toward the wall. he said he is going to delay the election. host: we will give barbara mcquade the final minute. guest: i agree. i think it is damaging when the president does not act within the bounds of the law. we are a country bound by the rule of law, and the attorney general is facilitating this. it is important not only that we follow the law, but that we have the appearance of following the law. when president trump tweets about his enemies and allies, and then we see the attorney general acting in concert with those wishes, it does suggest that the president is punishing people for their politics and helping his friends, like roger stone and michael flynn for political reasons. that undermines the trust of the public has in our criminal justice system. it makes it harder for fbi agent's to be believed on the witness stand, or when they want to interview people in neighborhoods about crime. as a result of that, people are

less inclined to cooperate with law enforcement, and our country will be less safe as a result, when president trump has abused the rule of law in this country. host: we will end it there. barbara mcquade is a fetzer at the university of michigan law former senate judiciarys. committee republican counsel, brett tolman. we have been talking about this case for the past half-hour. i wonder after watching it yesterday, do you think michael flynn's attorney did what sheeting to to do to make her case before that panel of judges yesterday? guest: it is a difficult case, if your focus is simply on the politics of the matter, but if you are looking at the law and the facts in the case, i think ms. powell has the stronger side of the facts and the law, given that the executive branch is the one that should be determining whether a case goes forward or not. host: the headline from the washington post this