Former National Security Adviser Michael T. Flynn

By Steve Neavling

ticklethewire.com

A federal appeals court in Washington D.C. will consider the Justice Department’s order to dismiss the criminal case against Michael Flynn, President Trump’s former national security adviser who previously pleaded guilty to lying to the FBI.

Flynn and the Justice Department are calling on the appeals court to compel U.S. District Judge Emmet G. Sullivan to dismiss the case and force the judge to cease examining the DOJ’s decision to drop charges against Flynn, The Washington Post reports.

Last month, Sullivan gave outside parties an opportunity to weigh in on the Justice Department’s unusual request.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with a Russian diplomat and even cooperated with special counsel Robert Mueller’s investigation into ties between Russia and the 2016 Trump campaign.

The Justice Department’s unusual decision to request the dismissal of the case has drawn fierce criticism of Attorney General William Barr. In May, nearly 2,000 former Justice Department employees on Monday urged Attorney General William Barr to resign in an open letter that says he “once against assaulted the rule of law” when he intervened in Flynn’s case.

Former FBI Director Robert Mueller, via FBI.

By Steve Neavling

ticklethewire.com

A federal appeals court on Tuesday ordered the Justice Department to give House lawmakers secret grand jury testimony from special counsel Robert Mueller’s report, The Washington Post reported.

The 2-1 decision is a partial victory for House Democrats who have been trying to obtain the grand jury material. The decision by the U.S. Court of Appeals, which upheld a district court ruling a year ago, can be appealed to the full court or the Supreme Court.

That means the secret material from the investigation does not yet have to be disclosed.

By Steve Neavling
ticklethewire.com

TSA screeners at airport security checkpoints have such an important job that they cannot always be sued for failing to behave properly, a federal appeals court in Philadelphia ruled Tuesday.

The court tossed a First Amendment claim by a passenger who said he was arrested merely for asking to lodge a complaint against an ill-tempered TSA supervisor, Reuters reports. 

“We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior,” Circuit Judge Kent Jordan wrote for a three-judge panel.

“Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context,” Jordan added. “The dangers associated with aircraft security are real and of high consequence.”

Reuters wrote:

Airport security screening can be stressful. The decision was issued four weeks after the TSA announced tighter screening of electronic carry-on items, because of concern they could be used to conceal explosives.

Vanderklok said he was flying on Jan. 26, 2013 to Miami from Philadelphia International Airport to run a half-marathon when TSA personnel subjected his carry-on bag to extra screening, after x-rays showed a heart-monitoring watch stored in PVC pipe.

The TSA supervisor, Charles Kieser, said he summoned police after Vanderklok made a bomb threat.

Vanderklok denied doing so, and said Kieser retaliated for his having requested a complaint form to report the supervisor’s “rude” and “aggressive” behavior.

Prosecutors charged Vanderklok, a father of three then in his mid-50s, with threatening to place a bomb and making terroristic threats. He was acquitted after Kieser’s testimony did not match airport surveillance video.

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• FBI Profiler: Linguistic Work Pivotal in Capture of Unabomber
• FBI Search Conducted at Arkansas State Senator’s Office
• Los Angeles Sues Justice Department, Joining Other ‘Sanctuary Cities’

By Steve Neavling
ticklethewire.com

The FBI’s use of gag orders to prevent companies from disclosing the number and details of national security letters does not run afoul of the First Amendment, the Ninth Circuit Court of Appeals ruled Monday.

The three-judge panel found that gag orders protect national security and therefore do not violate the companies’ constitutional rights, the Washington Times reports. 

The ruling means that the FBI can continue issuing thousands of gag orders a year prohibiting recipients from disclosing their existence.

NSLs require communication providers to reveal customer records, and the FBI has argued that disclosing the information could compromise national security. 

The case stems from a lawsuit filed against the Justice Department by the Electronic Frontier Foundation, which represented two NSL recipients that wanted to notify their users about orders compelling the disclosure of customer data. 

By Steve Neavling
ticklethewire.com

Former FBI Agent John Connolly, who was charged with assisting now-imprisoned mob boss James “Whitey” Bulger, was rightfully convicted of second-degree murder with a firearm even though he was 1,500 miles away from his vicim at the time of the fatal shooting by a hit man, an appeals court ruled, the Associated Press reports. 

The full 3rd District Court of Appeals ruled 6-4 that Connolly’s conviction was proper because Connolly had a gun when he tipped off Bulger’s gang about John Callahan, who was fatally shot in Fort. Lauderdale in 1982.

“The evidence as to both his participation in the murder and his possession of a firearm during his participation are overwhelming,” Judge Leslie Rothenberg wrote on behalf of the majority. “The law does not require that the defendant be the actual shooter.”

The decision reverses that of a three-judge panel of the same court, the AP wrote.

John Connolly

Ex-FBI agent John Connolly is trying to convince a Florida appeals court that he should be released from prison because he is not a murderer.

The Miami Herald reports that appeals judges in Miami-Dade are revisiting the former agent’s conviction of murder with a firearm in a case connected to notorious mobster James “Whitey” Bulger.

Connolly’s defense attorney, Manuel Alvarez, is arguing that there’s no way Connolly could have killed a suspected “snitch” in Florida because the agent was in Boston at the time.

“My client had a gun three weeks before, 1,200 miles away — nowhere near Fort Lauderdale,” Alvarez told the entire panel of the Third District Court of Appeal.

Prosecutors said Connolly, who is serving a 40-year prison sentence, was very much involved in the murder, and a jury properly decided that he was guilty.

“John Connolly is not an innocent FBI agent sitting at his desk 1,000 miles away from the murder,” said Assistant State Attorney Joel Rosenblatt. “He was a primary mover.”

By Steve Neavling

A federal appeals court is expected to decide soon whether the FBI’s “national security letters” are constitutional, the San Jose Mercury News reports.

The letters are a demand for customer information in terrorism-related cases, allowing the FBI to obtain information without a warrant.

San Francisco U.S. District Judge Susan Illston ruled last year that the letters violate the First Amendment because they prohibit recipients from disclosing that they’ve received one.

The 9th U.S. Circuit of Appeals is reviewing the case.

“The gag order says you not only have to turn over the information, but you can’t complain about it,” said UCLA law professor Eugene Volokh.

Steve Neavling

In a decision that could have widespread consequences for federal law enforcement, an appeals court ruled Monday that a Border Patrol agent can be sued for fatally shooting a 15-year-old Mexican boy across the border, the Los Angeles Times reports.

The three-judge panel in New Orleans said the 2010 shooting of Sergio Adrian Hernandez Guereca contain allegations that, if true, would amount to “an official abuse of power so arbitrary as to shock the conscience.”

It’s rare for a court to extend constitutional protections to non-citizens.

“It’s a huge human rights victory,” said attorney Robert Hilliard, who represents the boy’s family. “It gives you a voice inside a U.S. courtroom. They have to focus on, ‘Did the border agent do something wrong?'”

The lawyer for the accused agent said the case may go before the full appeals court.

“Classifying it as a leap is an understatement,” said attorney Randolph J. Ortega. “They have extended the protections of the U.S. courts into foreign countries where the U.S. does not have any jurisdiction.”