MAJOR UPDATE: The Flynn Hearing 9/10/19

MAJOR UPDATE: Scroll to the end for details of this update. I call this a major update because transcripts of the hearing are now available and they confirm my initial impression that the hearing went very well for the Flynn side--terrific job by Sidney Powell and h/t to Techno Fog.

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The Flynn hearing took place this morning. The hearing was supposed to be a scheduled status conference heading toward setting a sentencing date for General Flynn. However, in the meantime--on 8/30/19--Flynn's new lawyer, Sidney Powell, had filed a bombshell motion asking for the prosecutors, led by former Team Mueller member Brandon van Grack, to be removed from the case for misconduct--specifically for withholding Brady material.

Judge Sullivan first set a tentative sentencing date: December 18, 2019. Then the hearing moved on to matters related to Powell's motion.

What I've done here is conflate the separate twitter threads of Will Chamberlain and Zoe Tillman to provide a somewhat running and connected account of the most relevant parts of the hearing.

From the start, Judge Sullivan made it clear that he took Powell's motion very seriously. He also quickly disposed of an initial issue. Having noted that Flynn, in his plea agreement, had agreed to forgo the pursuit of additional discovery, Judge Sullivan then stated that the plea agreement wasn't binding on the court. That means, as Judge Sullivan pointed out, that the plea agreement cannot be used to absolve the prosecutors of their obligations under the judge's Brady order. So, the Brady case and Judge Sullivan's order--NOT the plea agreement--will control the judge's consideration of Powell's motion.

Judge Sullivan then specifically addressed the question of whether it would be necessary for the government to turn over classified materials, as Powell is demanding. Judge Sullivan reiterated his position that the Yunis standard would control. If the classified material is relevant and helpful to Flynn's sentencing is will need to be turned over. (This was discussed previously at What Happened In The Flynn Case Today 9/5/19.)


According to Chamberlain,

When Powell got up to discuss her arguments about the motion, Judge Sullivan was paying close attention. Even smiling. He was intrigued. He pushed back at times, but it was clear Judge Sullivan and Powell had great rapport. 

Sullivan was curious and intrigued throughout, though he was clearly reserving judgment.

This makes sense as, from a strictly legal standpoint, this is a highly unusual situation with important ramifications that extend beyond the case itself.

Powell began by touching on some of her arguments regarding what Brady material she believes was withheld, such as the Strzok/Page texts. Judge Sullivan pressed Powell a bit on the relevance of that material, and Powell responded that the material addressed the broader argument of government misconduct. Specific examples of Brady violations by the government that Powell cited included:

- failure to produce the original Pientka 302

- failure to produce Strzok/Page text messages in a timely fashion

Judge Sullivan pushed back as Powell started to argue that there was evidence exonerating Flynn of being a Russian agent or or Logan Act violation, noting that Flynn hadn't been charged with any of that and questioning the relevance.

But the judge then noted--unprompted--that at sentencing judges consider the benefits a defendant has already received as part of a plea, and if there was evidence that Flynn didn't commit certain crimes that he wasn't charged with as part of a plea deal, that might be relevant (i.e. FARA violation).

When Powell proceeded to argue that Flynn would never have pled guilty if the prosecutors had met their Brady obligations the judge asked if this argument meant that Flynn was considering moving to withdraw his plea. Powell responded that she can't say exactly where Flynn was headed, but likely not a motion to withdraw his plea. Rather, she said, they would show the whole prosecution should be dismissed for "egregious" misconduct.

In response to Powell's claims about the Brady material, Brandon van Grack disputed the accuracy of Powell's representations. Specifically, regarding the claim that Flynn had not received the Strzok/Page texts in a timely fashion, van Grack stated that before Flynn's first guilty plea in December, 2017, the government did tell him that such communications existed and that they showed a preference for a presidential candidate.

Van Grack argued that that means Flynn was aware of the Strzok texts before the public was. He then says that before Flynn's second guilty plea, the government made him aware of the remaining text messages and turned over certain texts that weren't available to the public.

Van Grack also stated that, as for the arguments about being a Russian agent or having violated the Logan Act, that wasn't what Flynn was charged with or what the case is about - it was about Flynn lying to the FBI about certain communications with Russia.

Judge Sullivan asked van Grack if the government stands by its earlier sentencing representations. Van Grack replied that the government would refile something when it was appropriate. As Tillman pointed out, that "is very different from saying that they stand by what they said before."

Overall, my impression from these accounts is that Flynn and Powell are probably very pleased with the way things went.

- Judge Sullivan made it abundantly clear that the plea agreement would not deter him from examining the government's conduct. Specifically, Sullivan appears to be favorably inclined at this point toward allowing Flynn's demands for further discovery--as much as may be relevant.

- Judge Sullivan's point regarding classified materials seems particularly important. The government's position seems to have been that they were under no obligation to address classified Brady material if they weren't expressly asked about it, and that doesn't appear to be Sullivan's view at all.

Van Grack's response to Judge Sullivan's challenge--does the government stand by its earlier representations--was notably weak. The judge would certainly have taken note of that, and in the context of Powell's claims about misconduct.

One further point which wasn't mentioned. Powell has several times hinted that Flynn did not receive vigorous representation from his previous legal team. The judge may well have noted the difference today.

In the meantime, there are three months to go before sentencing and much may be learned during that time.

MAJOR UPDATE: There's a lot that happened at the hearing. I'll group the most important items in two groups.

Perhaps the most important is the revelation that the government is in possession of exculpatory communications that it has never provided to Flynn's defense team:

Powell revealed to the Court that there are communications by the government that

- exonerate Flynn of the claim that he was somehow a "Russian agent"--memo dated 1/30/17;

- exonerate Flynn of the claim that he may have violated the Logan Act--memo dated 2/8/17;

In fact, as Powell pointed out to the court, the government knew that Flynn had briefed DIA before meeting with Turkish officials, proving that he wasn't a foreign agent.

The significance of this is that these claims were part of the claimed pretext for interviewing Flynn in the first place--a decision made by Comey.

And yet--Team Mueller prosecutor Brandon van Grack accused Flynn, after his guilty plea, of being a a foreign agent (in violation of 18 USC 951). Further, in December, 2018, van Grack told the court that Flynn had received a "benefit" in that Flynn was not being charged with being a foreign agent. But, according to Powell, van Gracks' claim would have been a fraud on the court because the memos from early 2017 show that the government knew Flynn wasn't a foreign agent at all. Therefore, they knew that he was receiving no benefit at all at sentencing, despite what they (mis)represented to the court. That means the exculpatory communications are "relevant" to the guilty plea and "helpful" to the defense--fullfilling the requirements of the Yunis standard for forcing the release of classified documentation.

This deception gets even worse, because as Sara Carter points out:

If the Jan. 30, 2017 DOJ Flynn memo does exonerate Flynn, then it will call into question Comey’s actions when he had the private meetings with Trump. Why didn’t Comey reveal to Trump that DOJ found no evidence that Flynn was an ‘agent of Russia’ when he met Trump at the White House on Feb. 14 meeting?  Why were the stories about Flynn, along with classified information regarding his phone conversations with the former Russian Ambassador Sergey Kislyak, leaked to the Washington Post in early February? Remember, the information was leaked by senior government officials, according to the author and columnist David Ignatius. Ignatius said that senior officials accused Flynn of violating the Logan Act, even worse conspiring with Russia. 

Further, new information that former FBI Deputy Director Andrew McCabe advised that there was no Logan Act violation, along with the DOJ internal memo of Jan. 30 that Flynn ‘was not an agent of Russia,’ was enough information for Comey to advise the President that Flynn had been cleared of any wrongdoing. Instead, Comey claimed obstruction of justice by the President.

In other words, Comey should have told Trump: Don't worry, Flynn did nothing wrong. Instead, Comey claimed that Trump was obstructing the FBI. But how could Trump obstruct something that the FBI and DoJ knew wasn't a crime? Uh oh! It looks like everything that came afterwards was a complete fraud!

And Powell is still trying to get the original Flynn 302:

Powell: "We've already, for example, identified material differences between the agents' notes from their interviews of Mr. Flynn on the 24th and the 302 they produced. We're missing the original 302 by Mr. Pientka, which according to FBI rules had to have been written within five days of their interview of Mr. Flynn. That has never been produced to this court. They say they don't have it, but it would certainly be in the FBI's computer system. Things don't disappear like that."

Of course, Powell almost certainly suspects that the "original" 302 was never written--at least not within five days. Instead, the 302 was written by a committee that included Andrew McCabe--who wasn't even at the interview--and was "tweaked" over a much longer period than five days. To "get it right." Well, I guess that would explain the "material differences between the agents' notes ... and the 302 they produced." Ouch!

This looks very bad.