MULTIPLE UPDATES: What Happened In The Flynn Case Today 9/5/19

On the obvious level, what happened is perfectly clear. The Court, namely Judge Emmet Sullivan, called Sidney Powell in to tell her that he was separating her motion into two parts or, in effect, two motions: a motion to compel the production of exculpatory material, and a motion requesting that the Court intervene regarding a security clearance for Powell, so she can view Brady material that's classified:

The Court advised counsel that it intends to resolve [the] Motion to Compel Production of Brady Material before addressing any Court intervention regarding security clearances for Mr. Flynn's counsel. 

That's a perfectly logical procedure, since if Sullivan denies the motion with regard to Brady material then the business about a security clearance becomes moot. It appears we can expect that ruling on 9/10/19.

Of course there are at least two things that everyone wants to know. The first is, Did Judge Sullivan tip his hand at all? The answer is, No.

Sullivan is in a bit of a difficult position. He has long championed the practice of requiring expansive disclosures of Brady material (exculpatory material) by the prosecution. That is supposed to happen before a trial or any other significant action--such as a plea agreement. In the Flynn case, as Sidney Powell has argued, Flynn's original lawyers failed to demand all the material that they should have demanded. Part of the reason for that was because the prosecution put extreme pressure on Flynn to come to a plea agreement to avoid charges being brought against his son. Thus, the prosecution, in a real sense, did an end run around Judge Sullivan's well intended order by finding Flynn's most vulnerable point--his love for his son--and ruthlessly exploiting that weakness. If you call that a weakness. Nice people. It's all about justice--Not!

If Sullivan grants Powell's motion regarding Brady material--and, to my mind, she has made a very convincing case--then, to be logical, Sullivan would have to pretty much set off a bomb under the case. Which, of course, is what Powell wants, and it would place the prosecutors very much under the gun. That would be a very bold move on Judge Sullivan's part, but he has done the bold, and right, thing in the past. General Flynn makes a pretty compelling figure before the Court.

The other question is, If Sullivan rules against Flynn will an immediate (interlocutory) appeal be possible? My best guess is that such an appeal would not be allowed, which would mean that the case would move on to sentencing. This is a pretty technical area, although the trend of all recent decisions has been to severely restrict interlocutory appeals. My guess is still pretty much just a guess. On the other hand, this would appear to be a pretty messy way of proceeding and might tell in favor of granting the motion.


UPDATE 1: Margot Cleveland has an illuminating article this morning at The Federalist regarding the Flynn hearing yesterday: What Happened During Flynn Lawyer’s Secret Meeting With Judge This Week? The question is whether Michael Flynn was affected by efforts to get Trump, and whether Judge Sullivan will keep him from reviewing the evidence that could prove prosecutorial misconduct.

Of course, the bottom line remains the same, as stated in the Docket Order than I quoted above. However, after the docket order Judge Sullivan issued a minute order that clarified the standard that he intended to use in deciding the motion and also stated that a hearing date and a schedule for briefs would be set on the previously scheduled hearing date: 9/10/19.

The standard that Sullivan says he'll use is the one set in the Yunis case, and that's what Cleveland goes into. You can read about the details of the case in Cleveland's article (Yunis was an airline hijacker). What is of most interest is Cleveland's explanation of the Yunis standard and its particular relevance in the Flynn case. Cleveland is quoting from the DC Circuit Court of Appeals opinion:

The D.C. Circuit then explained in Yunis, that under CIPA [Classified Information Procedures Act], “first, a defendant must show that the statements sought crossed the low hurdle of relevance.” The court then recognized “a defendant’s access to his own statements in the possession of the government has generally been granted upon a minimal showing of relevance.” Next, court must “determine if the assertion of privilege by the government is at least a colorable one.” Then, the court must ask if the evidence is “helpful to the defense of an accused.” 

What's significant in this is that, while Yunis was denied access to the statements of the FBI informant as having no bearing on his innocence, the Court states that the "hurdle of relevance" is low. Moreover, that showing of relevance is "minimal" when applied to “a defendant’s access to his own statements in the possession of the government." That's exactly what Flynn is seeking, in part, as Cleveland explains below. Further, it would seem that in a case hinging on the truth of statements made, access to those statements should be "helpful."

What is intriguing about the Yunis citation is that the case involved a defendant seeking access to his own statements. We already know from Powell’s memorandum in support of her motion to compel that Flynn wants access to the tapes of his conversations with Russian ambassador Sergey Kislyak. But we do not know what other tapes Powell sought access to because a protective order required her to file her underlying motion under seal. Had the government been taping Flynn and not just the Russian ambassador? 

None of that matters, the government will likely argue, since Flynn already pleaded guilty and is not attempting to withdraw his guilty plea. Thus, the tapes are irrelevant, or at a minimum, not “helpful to the defense of an accused,” the government is likely to counter. Powell, though, seems poised to argue the evidence is relevant and helpful to show that “dismissal of the case for egregious government misconduct” is appropriate. 

This argument might seem like a long shot, but so was Trump winning the presidency. And we already know of a lot of egregious government misconduct that flowed from that surprise victory. The question is whether Flynn was also carried away by the deluge, and whether Judge Sullivan will keep him from reviewing the evidence that could prove his case of prosecutorial misconduct. We will have a better hint next week.

UPDATE 2: Undercover Huber is the one who turned Cleveland on to the Yunis case. Here's his nutshell summary from yesterday:

Undercover Huber‏

@JohnWHuber

Yunis means it is highly likely Sullivan will apply these 3 tests as to whether classified info should be given to Flynn’s defense

1. More than “theoretically relevant”
2. “Genuinely helpful” to defense
3. “Balancing test” favors disclosure to defendant versus risk to nat sec


@JohnWHuber

Complicating factor is Yunis was seeking an absolute dismissal for a terrorism case and discovery motions were pre-trial

Whereas Gen Flynn has already admitted guilt and waived right to trial explicitly

Likely elevates difficulty getting Sullivan to rule in favor to compel

All this is clearly true, yet ... OTOH, Yunis wasn't alleging serious prosecutorial misconduct. My WAG is that, if Powell can show that the material she's seeking is "genuinely helpful," then she's got a "genuine chance" at persuading Sullivan. Bit of a crap shoot.