After a flurry of court filings and blockbuster developments last month, the Michael Flynn criminal case has been dormant for nearly three weeks. The parties and the public now await word from presiding Judge Emmett Sullivan on the pending motion to compel and motion for sanctions filed by Sidney Powell, the lead attorney who took over Flynn’s case shortly after the special counsel team disbanded.
Powell’s motion seeks to force federal prosecutors to provide Flynn an array of documents withheld from his attorneys and to sanction government lawyers for their failure to provide relevant evidence to the defense team in a timely manner. When and how Judge Sullivan will rule is unclear.
A Flurry of October Surprises
In late October, Judge Sullivan issued a short order canceling a hearing on Flynn’s motions previously scheduled for November 5, 2019, prompting predictions that the long-time federal judge had already made up his mind. This development also triggered a panicked filing by the government complaining that Flynn’s lawyers had raised new issues in their reply brief and cautioning the court not to rule without hearing more from the prosecutors. Sullivan okayed a response by the government and a final rebuttal by Flynn’s attorneys, but added a terse endnote that no more briefing would be had on the issue.
Then, mere days after the final briefing came in, federal prosecutors found themselves forced to admit that for nearly three years, they had wrongly identified the authors of the handwritten notes taken by the FBI agents during their January 24, 2017, interview of then-National Security Advisor Flynn. Prosecutors had told defense counsel (and the court) that the notes written by Peter Strozk had been compiled by FBI Agent Joe Pietka, and those taken by Pietka had been written by Strozk.
This embarrassing mea culpa surely added strength to Powell’s plea for access to other withheld evidence. After all, if federal prosecutors made such a basic blunder concerning key evidence, what other mistakes lay buried in the undisclosed evidence?
Foreshadowing a Motion to Dismiss
While the currently pending motion concerns only the question of access to evidence and sanctions for the never-provided, or the late-provision of, evidence, Powell’s briefing foreshadows the filing of a motion to dismiss the indictment. In her briefing, Powell teases several factual and legal theories supportive of such a motion.
At a minimum, that would also support the withdrawal of Flynn’s guilty plea—something Powell does not appear to be considering at this time—including: Flynn’s original attorneys had a conflict of interest preventing them from representing Flynn in the criminal case; Flynn did not intentionally make false statements to the FBI agents; the FBI agents entrapped Flynn; Flynn’s purported misstatements were immaterial to the investigation into supposed-Russia collusion and thus no crime occurred; the government engaged in selective prosecution and charged Flynn solely because of his relationship to Trump; prosecutors used threats to induce Flynn’s plea; the prosecutors’ failure to timely disclose exculpatory and impeachment evidence invalidates Flynn’s plea; and that egregious prosecutorial and government misconduct mandates dismissal of all charges against Flynn.
The government’s response to the myriad issues Powell raises remains static: Flynn pleaded guilty, so none of these finer points matter. To cement their point, federal prosecutors remind Judge Sullivan in their brief that at Flynn’s December 18, 2018, sentencing hearing, “the court indicated that it needed to ‘first ask Mr. Flynn certain questions to ensure that he entered his guilty plea knowingly, voluntarily, intelligently, and with fulsome and satisfactory advice of counsel.’”
Government attorneys then note that Flynn “was sworn in and answered a series of questions from the Court. For instance, when asked by the Court, the defendant declined to withdraw his plea based on the fact that DAD Strzok was being investigated for misconduct (which the defendant knew before his initial guilty plea).”
The government also stressed that the court had previously questioned Flynn’s defense attorney, asking whether Flynn was “entitled to any additional information that has not been provided to you.” “No, your honor,” his then-attorney responded. “Only after the Court exhaustively questioned the defendant and his counsel about discovery,” federal prosecutors stressed in their briefing, “did the Court ask the defendant if he would like to proceed to sentencing, ‘[b]ecause you are guilty of this offense,’ to which the defendant responded, ‘Yes, Your Honor.’”
That is all true, and given his detailed exchange with Flynn a year ago, which included an offer to provide the retired general outside counsel for a second opinion, Judge Sullivan may bristle at Powell’s position. But several developments and revelations since those December 2018 exchanges should arouse a different reaction from Sullivan: one of outrage—and not at Flynn, but at the government.
The Government Deserves Serious Censure
At the time he questioned Flynn during the December 2018 hearing, Judge Sullivan had no idea of the serious—and likely unwaivable—conflict of interest Flynn’s then-attorneys had. The government had pushed Flynn’s previous attorneys at Covington and Burling LLP, in February 2017, to quickly file a registration statement under the Foreign Agent Registration Act (FARA), for Flynn Intel Group (FIG). Federal prosecutors later obtained indictments against Flynn’s FIG business partners for supposed FARA violations, and still later the prosecutors branded Flynn a co-conspirator in the FARA case. There was a clear conflict of interest, which the government failed to mention to Judge Sullivan.
Further, since Flynn last appeared before Sullivan, the government’s FARA case against his FIG partners has imploded. Following a six-day trial, a jury had convicted Flynn’s former business partner, Bijan Rafiekian, of acting as an unregistered agent of Turkey, conspiring to act as an unregistered agent of Turkey, and conspiring to make willful and material false statements and omissions in a FARA filing.
But federal judge Anthony Trenga stepped in and tossed the guilty verdict, concluding that no “rational jury could conclude that Rafiekian conspired with Alptekin or anyone else.” Judge Trenga further held that “there is no evidence of discussions or suggestions, let alone an agreement express or implied, to either avoid filing under FARA or to cause the filing of a false FARA registration statement.”
That the government’s FARA case against Flynn’s business partner proved bogus should also trouble Sullivan because, according to Powell’s earlier court filings, the special counsel’s office had informed Flynn’s “counsel in the summer of 2017 that it was going to indict the FARA case then, had obtained authorization to target Michael Flynn, Jr.—who had a newborn—and had seized all his electronic devices.”
The threat was clear: Plead guilty and cooperate or we will prosecute your son. And given Judge Trenga’s conclusion in the Rafiekian case that there was no evidence of a FARA crime, there is an added postscript: We will prosecute your son on bogus charges.
Government Threats and Obfuscation
The threat also wasn’t a one off: After Powell took over representation of Flynn, federal prosecutors attempted to force Flynn to testify at Rafiekian’s trial that Flynn had knowingly made false statements in the FARA filings—something Flynn denies. When Flynn refused to lie, federal prosecutors abruptly added Michael Flynn Jr. to the witness list for the Rafiekian trial, but then never called him to testify.
The government, according to Powell, also had an FBI agent contact Flynn Jr. directly, even though the younger Flynn was represented by counsel. These maneuvers corroborate the prosecutors’ earlier use of Flynn Jr. as a pawn to pressure his father to plead guilty.
It is possible that Judge Sullivan will take umbrage at Flynn for telling the court he was pleading guilty because he was guilty. But the retired general’s statements, made while being represented by attorneys encumbered by a serious conflict of interest, appear in a different light when considered against the prosecutors’ threat to target his son for a non-existent crime.
Or as Powell put it to The Federalist, “When Flynn appeared before Judge Sullivan, he and counsel were expecting a 30 minute sentencing–not a second plea proceeding. Aside from being represented by completely conflicted counsel, what Defendant has ever spoken off script and called a halt to his sentencing? In thousands of federal cases, I’ve never seen it happen. He was a hostage–more than a dozen members of the special counsel were in the courtroom that day, the indictment just unsealed in Rafiekian—purposely to threaten him and Mike Jr.—the ultimate hostage situation and for which he was unprepared and effectively unrepresented.”
Powell added, “In large part, it was the alarm bells Judge Sullivan sounded that day that began the process that led to consulting and retaining new counsel and uncovering the truth. Judge Sullivan is to be commended for that and for giving him additional time to cooperate. That process also clarified many things.”
That additional time has indeed clarified many things and exposed a well-constructed plot to ambush Flynn, quiz him on a telephone call the inquisitors already knew the content of, and later make material changes to the 302 interview summaries to establish a basis for criminal charges. Judge Sullivan will be considering those new revelations, and not merely Flynn’s previous statements, when he rules on the currently pending motions and those to come.