UPDATED: Flynn Update: Status Hearing 6/24/19

First the formalities. Due to Flynn's dismissal of his original legal team and hiring of Sidney Powell to represent him in his false statement case before Judge Sullivan, Sullivan set a date for another status hearing--the last day of August. That gives Powell a little over two months to spend getting a handle on the documentation in the case. However, Powell told the judge that she'd need a good three months, and buttressed that estimate with a description of the extent of the documentation she has received to date.

The real news, however, was confirmation that Flynn and his previous legal team never had access to classified documentation relating to the case. This confirmation arose when Powell informed the judge that she might need a security clearance to review some of the documents she might want to see.

Several observers on Twitter had essentially identical accounts of this aspect. Here's how it went:

Powell raised the possibility of needing a security clearance and said she may need to review classified information. But prosecutors say they did not turn over any classified info as part of discovery. Prosecutors & the judge seemed confused about what the info might be. 

The judge ultimately decided that the defense team, prosecutors and the court’s classified information security officer should be in touch and figure out if the judge needs to step in.

Obviously, the classified information that Powell might want to see will depend on where she wants to go in representing Flynn. Most commentators focused on the clear implication in this that Flynn had never been allowed to see the transcript of the conversation with Russian Ambassador Kislyak that he's charged with lying about. Instead, he pleaded guilty to lying to the FBI based on the FBI's FD-302. Further, Team Mueller, in response to Judge Sullivan's demand to see that transcript responded that it wasn't relevant--Flynn had plead guilty and that was all that mattered. Sullivan caved to that.

This is a major problem for Flynn. Flynn has repeatedly maintained to the court, under oath and under questioning by the judge, that he lied to the FBI and wants to be punished for his crime. He has consistently maintained--again, under oath--that he has full knowledge of what he's doing, was satisfied with the representation he had received from his lawyers, and was making this decision voluntarily. On what grounds can he now, while awaiting sentencing, ask to examine the evidence that underlies the false statements that he claims he made to the FBI?

In my view, the answer to this lies in two related matters. The first derives from the statement we quoted above: "Prosecutors & the judge seemed confused about what the [classified information that Powell wants to see] might be."


The second part of the answer lies, I believe, in the second scope memo that Rod Rosenstein provided to Team Mueller--a memo that is also classified, but was key to Team Mueller's ability to extract a plea from Flynn. Sundance provides background on that second scope memo, although he doesn't appear to see in it the significance that I do:

The second scope memo was issued by Rod Rosenstein to Robert Mueller on October 20th, 2017. The transparent intent of the second scope memo was to provide Weissmann and Mueller with ammunition and authority to investigate specific targets, for specific purposes.  One of those targets was General Michael Flynn’s son, Michael Flynn Jr.

...

This second scope memo allowed Weissmann and Mueller to target tangentially related persons and entities bringing in Michael Cohen, Richard Gates, Roger Stone and Michael Flynn Jr.  Additionally this memo established the authority to pursue “jointly undertaken activity“.

Regarding the first reason, for Powell to justify viewing classified documents at this stage in the case she must be prepared to offer Sullivan a reason--and that reason can't be simple curiosity. Given that Flynn has so strenuously maintained his guilt, under oath, I have to assume that Powell intends to attack the entire basis for any case against Flynn--beginning with the very legitimacy of the investigations that led to his fateful interview with the FBI.

I have, of course, argued at considerable length that the FBI had no legitimate official reason to interview Flynn about his contacts with Ambassador Kislyak (Setting False Statement Traps Is Not Official FBI Business or, for more references, here). The very fact that FBI/DoJ came up with such transparently bogus ruses for the interview as the Logan Act tells us that they had no confidence whatsoever in the investigation they had been running on Flynn for as much as two years--which is one reason they neither attempted to question Flynn on those matters nor informed Trump at any time that Flynn was under investigation. The circumstances of the interview, I believe, point far beyond any "honest mistake" the FBI could claim with regard to the initiation and conduct of its Flynn investigation. And that is probably what Powell will need to get at all the classified documentation regarding the FBI's pursuit of Flynn--reasonable grounds to believe that the FBI was acting beyond the scope of its legitimate counterintelligence authority to set Flynn up.

Powell will want to see the entire FBI file on Flynn. She may not get it, but she should be asking for it and should accept nothing less than all documents that bear upon predication. Further, when she makes these demands to the court she will probably need to argue that her attack on the very legitimacy of the investigation has as much or more to do with upholding the integrity of our entire justice system as it does with doing justice to a man who has repeatedly lied to the court regarding his supposed guilt.

As for the importance of the second scope memo, the argument is similar. From my vantage point I have to agree with those who maintain that the only real point in that scope memo was to allow Team Mueller to target Flynn Jr. in order to coerce a guilty plea from Flynn Sr. Recall, 28 CFR § 600.1, which sets out the grounds for a special counsel investigation, specifies that the Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that "criminal investigation of a person or matter is warranted". Powell, I believe, will be arguing that there never was a matter that warranted criminal investigation of either Flynn. She will be arguing that the expansion of the Special Counsel's authority was improperly granted in order to coerce a guilty plea from Flynn Sr., based on an investigation that was an abuse of the FBI's authority in the first place. And for that reason Powell will want to see all documentation--including classified documentation--pertaining to the predication against Flynn Jr.

(As an aside, I hope this discussion will suggest why Joe DiGenova never misses an opportunity to excoriate Rod Rosenstein in the strongest terms.)

I believe there are strong, although admittedly circumstantial grounds, favoring Powell in this. The fact that neither Flynn was charged with any substantive crime is telling. Yes, I understand that not all FBI investigations result in charges--been there, done that. But in this situation the exoneration of Flynn of all substantive wrongdoing is telling. You may ask, What exoneration? My reply is in two parts: 1) In these circumstances, considering who Flynn was, there was at least in an informal sense a higher bar for even initiating an investigation; and 2) also with regard to those same circumstances, if in any way possible, a guilty plea to some substantive charge should have been required.

In further support, I would cite remarks from Judge Sullivan himself at the initial pre-sentencing hearing, back in December, 2018. At that time Sullivan indicated that he had some questions that he'd want answers to, like,

how the government's investigation was impeded? What was the material impact of the criminality? Things like that."

Yeah. And Powell will be telling Flynn, if I'm not very much mistaken, that "things like that" are part of what she has questions about, to which she's looking for answers. But her questions go far beyond that to the Big Question: Why did the Special Counsel even pursue such a piddling matter--questionable as it was? Was their any criminal investigation warranted, or was this a political witch hunt?

I don't doubt that there's something else that Powell has in mind. She knows this is an uphill struggle. On the other hand, she knows there's a possibly game changing difference at this point--if not for that I question strongly whether Flynn would have changed attorneys and whether Powell would have taken Flynn's case. And that possibly game changing difference is that Bill Barr is now the Attorney General of the United States. In full. I'm not saying that Powell is simply delaying for time. I'm sure she believes in the righteousness of what she's doing. But it would be foolish on her part not to extend the timeline to see what difference the Barr/Durham investigation will make. They will be--already are--looking at the same documents she'll be seeking access to. Things could be changing.

UPDATE: Read this--from near the end of the transcript of the status hearing--in light of the fact that Flynn's previous lawyers had no clearances and did not review classified documents. Van Grack had previously stated that the discovery materials provided to Flynn's previous lawyers included no classified materials: "there is no classified discovery in this case." One can only assume that was because Flynn's previous lawyers either made no such request or didn't push for it. Powell clearly states that, notwithstanding the government's representations of how much documentation they provided in discovery, there is additional material she wants to see and most of it is classified:

MS. POWELL: And I do think most of the information I will need to review may be classified. I don't know for sure, but out of an abundance of caution and to have --  

THE COURT: Notwithstanding the government's representations?  

MS. POWELL: That's with regards to what they produced. There is other information.  

THE COURT: Oh. All right. Now you've piqued the government's interest. 

MR. VAN GRACK: Your Honor, again, I'm not -- again, in terms of the information the government produced, there's nothing that the government produced that's classified, and so -- I mean -- to the extent --  

THE COURT: But you'd like to know what this other information is, too.