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DOJ Made an Embarrassingly Simple Error in Motion to Dismiss Michael Flynn Case

WASHINGTON, DC - DECEMBER 18: Former White House National Security Advisor Michael Flynn and his wife Lori Andrade leave the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. Flynn's lawyers accepted the judge's offer to delay sentencing for lying to the FBI about his communication with former Russian Ambassador Sergey Kislyak. Special Prosecutor Robert Mueller has recommended no prison time for Flynn due to his cooperation with the investigation into Russian interference in the 2016 presidential election.

Whoopsies.

The bombshell court documents filed last Thursday which seek to dismiss the criminal prosecution of former National Security Advisor Michael Flynn appear to contain the identification number of the wrong attorney. That’s according to reporting from CNN and the New York Times.

The filing, signed electronically by former William Barr aide U.S. Attorney Timothy Shea (full document at the bottom of this post), also contains this notation: “D.C. Bar No. 472845.” Here is the signature block of that document:

The number actually appears to be the bar number of Jessie K. Liu, the “ousted predecessor” (as CNN calls her) who previously filed motions for the Flynn case. Liu, a Federalist Society contributor, left her U.S. Attorney job after President Donald Trump nominated her for a Treasury Department role that she never got. Barr installed Shea in Liu’s place; Trump pulled Liu’s nomination days before a scheduled hearing.

Here is the signature block of a previous filing in the case:

Bar numbers are like atoms: more than one attorney cannot occupy the same number at the same time. They are unique.

Shea was “a political appointee who used the court identity number of his ousted predecessor Jesse Liu,” the CNN report said. “The incorrect ID number is a technical error that may need to be fixed before the judge weighs in.” Also per CNN:

Shea’s signature on the document already raised questions about who within the Justice Department prepared it, why other prosecutors didn’t sign the filing, and why the lead prosecutor on the case withdrew from it an hour before its submission. A Justice Department official told CNN on Saturday that the ID number under Shea’s name was a clerical oversight. The official said it was the mistake of a staffer who submitted the filing to the court on Shea’s behalf — but who didn’t sign it herself. The official said Shea was part of a team who wrote the document, and declined to explain why the career prosecutor, Jocelyn Ballantine, who signed several other recent filings in the Flynn case, didn’t sign it.

Independent journalist Marcy Wheeler raised more drastic legal questions about the legal ramifications of the “clerical error”:

D.C. Bar No. 472845 has already weighed in on whether Mike Flynn’s prosecution was legitimate. D.C. Bar No. 472845 made an aggressive defense of this prosecution little more than six months ago.

Given that Bill Barr’s DOJ already argued this prosecution was proper, given that Bill Barr’s DOJ has provided no evidence any of this is new — on the contrary, Bill Barr’s DOJ has already argued Flynn knew all about this before he pled guilty a second time — Judge Emmet Sullivan might be forgiven for finding the initial argument D.C. Bar No. 472845 made in his court more persuasive than the one D.C. Bar No. 472845 made last week.

Federal Rule of Criminal Procedure 49, which governs written filings to federal courts in criminal matters, puts considerable emphasis on the written name of the individual making the filing and the account used to file documents in an electronic filing system.  Attorney bar identification numbers are not discussed in Rule 49.

The local rules in place in the D.C. District court require bar identification numbers on filings in most cases:

All documents signed by an attorney shall contain the name, address, telephone number, and D.C. Bar identification number of the attorney if the attorney is a member of the D.C. Bar. All attorneys listed on any document who are members of the D.C. Bar must include their D.C. Bar identification numbers regardless of whether they sign the document.

Shea is a member of the D.C. Bar. Later on Monday, Shea filed a correction with his actual bar number (437437). He said the error was not intentional.

Flynn motion to dismiss by Law&Crime on Scribd

Editor’s note: added a detail post-publication about Shea’s filing of a correction.

[Photo by Chip Somodevilla/Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.