Tuesday, October 29, 2019

New Flynn Case Development

[Judge Sullivan] is canceling the scheduled hearing because he considers that the briefing the two sides have provided is comprehensive enough that he can make a ruling based on the briefing, without additional arguments.

The hearing was for oral arguments regarding Flynn's motion to compel discovery, but that whole concept was blown sky high by Flynn's lawyer, Sidney Powell, filing of extensive evidence that the government--both the FBI and DoJ prosecutors--have engaged in extensive misconduct, including criminal acts such as altering documents.  I offered a positive assessment of the meaning of Judge Sullivan's action in two UPDATES:

UPDATE 1: Understand this--the judge doesn't have to dismiss at this point. The motion is to compel discovery of "stuff" that the government--basically, Team Mueller--is withholding. From my point of view, however, dismissal for the grotesquely obvious prosecutorial misconduct is the easy way out for Judge Sullivan. If he wants to, that would allow him to wash his hands of a real can of worms, avoid refereeing an incredibly complex discovery process. Of course, that would also give Barr/Durham the perfect rationale to turn Team Mueller inside out--drag them all in front of Durham's Grand Jury, etc. 
UPDATE 2: Paul Mirengoff at Powerline: 
The cancellation of oral argument tells us that Judge Sullivan is ready to rule, but not what his ruling will be. I understand, though, that Gen. Flynn’s legal team considers today’s order by Sullivan good news. Its comprehensive discussion of prosecutorial abuse in this matter stands unrebutted.

I followed up on that in a comment:

if [the Flynn case] gets dismissed for prosecutorial misconduct then Barr is under an obligation--one that I'm sure he's only too eager to take up--to examine what happened. And no one can say it's politically motivated because it will be a Dem judge who instigated it. It will be an open invitation, even a mandate, to absolutely turn Team Mueller inside out. Plus, Powell is one person, with two others to help. Barr has, relatively speaking, unlimited resources. It would be the ultimate best solution, IMO. And probably what Powell has in mind.

Today the government prosecutors requested--and were granted--permission to file a "surreply" to Sidney Powell's bombshell filing.

My take is this. I think the Team Mueller proscutor, Brandon van Grack, is scrambling--he's between a rock and a hard place and is desparately seeking a way out. He doesn't dare allow Powell's filing to go unrebutted, but thus far his replies have avoided the substance of Flynn's complaints of misconduct. Unable to deny Powell's factual allegations--which are undeniably true--he has tried to claim that it's all irrelevant and can't affect Flynn's guilty plea. To me that claim simply doesn't wash.

Tonight a seemingly very confident Powell was interviewed by Lou Dobbs. I'll embed the interview, but the important part comes up front:

Well, Judge Sullivan's just actually giving them a chance to file a sur-reply. They are claiming that we alleged any number of new claims in our reply brief. That is going to be easily refutable by the record--including some of their own filings. But they're gonna hafta deal with that. And Judge Sullivan is simply being judicious there in allowing them further opportunity for briefing. He also directed us to file a sur- sur-reply by Monday at noon, so we will get the last say on the issue.

UPDATE: Margot Cleveland--Judge Tells Government To Respond To Allegations It Hid Evidence From Michael Flynn’s Legal Team--observes:

Yesterday’s filing by federal prosecutors also read as the judicial version of working the refs, with the government suggesting the court may be intending “to strike any arguments or claims raised for the first time by the defendant in his Reply,” or planning “to require the defendant to raise any new claims for relief in a properly pled motion to which the government can respond fully.” The government then asked the court for “guidance,” and the chance “to file a surreply that concisely addresses only newly-raised Brady issues, such as those identified above.”
The government got what it wanted—and then some.
Late yesterday, Judge Sullivan entered an order directing the government to file a surreply brief by November 1, 2019, but in doing so instructed prosecutors to address not just the Brady issues, but any “new relief, claims, arguments, and information raised in Defendant’s Reply Brief.” The order also gave Flynn a chance to respond to the government’s arguments by November 4, 2019. ... 
...  that Judge Sullivan did not limit the additional briefing to specific Brady issues, but instead directed the government to respond broadly to any “new relief, claims, arguments, and information,” suggests the long-time federal judge’s concern has been piqued by what he’s read so far.


  1. >Brandon van Grack<

    "Left holding the bag"?

    1. Looks that way, but one way or the other he'll be asked who handed him the bag and who knew about the bag.

  2. Good old Jessie Liu, crooked judge, at it again. CTH has talked about her at length. Negatively.

    The Justice Department rejected what it called an "extraordinary reversal" by retired Lt. Gen. Michael Flynn for claiming to be the victim of a "plot to set up an innocent man and create a crime."

    Flynn "now claims that he is innocent of the criminal charge in this case," federal prosecutors said in a court filing Tuesday, referring to an allegation by Flynn's legal team that he was ambushed for an interview by the FBI in January 2017.

    "For the first time, the defendant represents to this Court that he 'was honest with the agents [on Jan. 24, 2017] to the best of his recollection at the time,'" the prosecutors said in a court filing in the U.S. District Court in Washington, D.C. "He makes this claim despite having admitted his guilt, under oath, before two federal judges (including this Court)."

    Flynn, President Trump's first national security adviser, pleaded guilty in 2017 to lying to investigators about conversations he had with Russian Ambassador Sergey Kislyak in late 2016 regarding sanctions and agreed to cooperate with special counsel Robert Mueller's Russia investigation.

    The defense team that negotiated the plea deal was fired earlier this year. Since taking over the new team, Sydney Powell has argued “there never would’ve been a plea to begin with” if Flynn knew how much information the DOJ was hiding from him, alleging prosecutors improperly pressured Flynn into the deal.

    Powell has urged U.S. District Court Judge Emmet Sullivan, the presiding judge in the case, to order the Justice Department to produce information that could help Flynn's case. This includes, she alleged in a court filing this month, two Blackberry devices used by Joseph Mifsud, the mysterious Maltese professor who allegedly played a central role in the launch of the Trump-Russia investigation.

    Sullivan canceled a hearing set for Nov. 7, citing the most recent filing from Powell's team in an attempt to get the case thrown out that alleges, among other things, the FBI manipulated notes on their interview with Flynn. “In view of the parties’ comprehensive briefing concerning 109 Defendant’s Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 7, 2019,” Sullivan said.

    This prompted the Justice Department to file a response Tuesday seeking guidance that said that "each new argument or claim is unsupported by fact or law." In a separate filing, U.S. Attorney for D.C. Jessie Liu said Powell's motion for the two phones allegedly used by Mifsud and now allegedly in the possession of the government are not favorable or relevant to Flynn's defense and "thus, the defendant’s motion should be denied."

    Powell said her team will be filing replies to both documents. "Apparently, the government did not read or comprehend our brief, much less Judge Sullivan's Brady order. Their filings today smack of desperation," she told the Washington Examiner.

    1. It should be noted that the Washington Examiner story is incorrect in an important respect. It states that the "Justice Department" is the party disputing Flynn's motions. In fact, Mueller passed the Flynn case and other cases to local US Attorneys precisely to prevent direct DoJ supervision. The relationship between DoJ and local US Attorneys is too complex to go into here, but suffice it to say that it's inaccurate to suppose that the position of a local USA represents "Justice Department" thinking.

      In this article, and in her Dobbs interview, Powell seems more confident than ever.

    2. Found explanation for US Attorney Liu’s “letter” here. It was a response to Judge Sullivan’s decision to not hold a hearing.

  3. Mr. Wauck,

    It just seems incredulous that the local US attorney has so much power. Since they are appointed (and confirmed by the Senate, I assume) by the President, that does make sense. I want to believe that Barr has other tricks up his sleeves to deal with these shenanigans.

    The government's response is pretty weak.

  4. "He makes this claim despite having admitted his guilt, under oath, before two federal judges (including this Court)."

    However, Powell's evidence suggests that Flynn was tricked into this plea by the FBI agents literally changing the documentary evidence of Flynn's "lies". This, by the government, is an incredibly weak reply.

    1. Like, where's the idea that a judge's duty is to see that justice is done? As is the prosecutor's job?

      Here's a link to Robert Jackson's very famous address: THE FEDERAL PROSECUTOR. Contrast that with the behavior of the modern generation of prosecutors.

  5. At CTH, a reader noted that Sullivan's choice, to give Liu etc. a final say (due Friday), and then Powell THE final say (due Monday) is unusual, and is a rather good sign.
    Is it true that, usually, the gov't gets last raps, in such cases as these?

    1. I don't believe so. It would normally be the responding party. In this case, while Powell started the ball moving, it's the government that has asked--after Sullivan said, enuff--to file one more brief. So Powell gets to respond. In effect, the government had responded to the judge--as Cleveland puts it, they were in effect "working the ref." What the commenter you were reading probably means is what Cleveland said. In effect, Sullivan called their bluff: Fine, you wanna keep yacking? File another brief but address these specific issues that you want to avoid, and then Flynn can respond. That does, IMO, look like Sullivan is upset with the government.

  6. Thanx.
    One way or the other, I gather that, all things considered, this ruling will be one of most important lower court rulings in U.S. history.
    Can I gather that we can expect the judge to rule w/ in a few days or so, after she files Monday?

    1. He has to write an opinion, but I don't think he wants to delay at this point. It's been going on for a very long time already. Time for closure.