Emmet Sullivan Just Learning of Sidney Powell’s Bait-and-Switch

As I noted the other day, the filing Sidney Powell submitted last week, while called a “reply” to the government’s response, was instead a brand new argument that her client should have his entire conviction thrown out, complete with brand new bullshit claims.

Last night Sidney Powell submitted what procedurally is called her “reply” brief in a bid to compel Brady production. Even if her object were to obtain Brady, this is best thought as her opening bid, as it for the first time she presents this argument. But on page 2, she admits she’s not actually seeking Brady (which makes me wonder whether this entire brief is sanctionable), but instead is seeking to have her client’s multiple guilty pleas dismissed.

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution.

Judge Emmet Sullivan may not have started reading it yet — or maybe he was just impressed with the gaslighting — because yesterday he canceled the November 7 hearing where everyone was going to have an intriguing argument about whether his standing Brady order includes Giglio information impeaching government witnesses like Peter Strzok.

MINUTE ORDER as to MICHAEL T. 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. Signed by Judge Emmet G. Sullivan on 10/28/2019.

The government, unsurprisingly, did not miss what I laid out. They responded to Sullivan’s order noting that Flynn’s reply wasn’t a reply, but an entire new request to have his conviction thrown out.

This “Reply,” however, seeks new relief and makes new claims, based on new arguments and new information. In an extraordinary reversal, the defendant now claims that he is innocent of the criminal charge in this case. See, e.g., Reply at 2 (“When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime . . . .”). For the first time, the defendant represents to this Court that he “was honest with the agents [on January 24, 2017] to the best of his recollection at the time.” Reply at 23. He makes this claim despite having admitted his guilt, under oath, before two federal judges (including this Court). The defendant also argues—based almost entirely on evidence previously provided in discovery—that the government engaged in “conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges [sic] for outrageous government conduct.” Reply at 2. The Reply then seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.”1 Reply at 32.

They went on to note just some of the new requests and claims Flynn made.

To the extent the defendant refers to potential Brady material, the subject of the original motion, he raises numerous arguments and claims for the first time in his Reply. For example, he asserts, inter alia, that the government had an obligation to provide Brady material to him prior to charging him in a criminal case (Reply at 4, 18-20); that the government suppressed the “original 302” of his January 24, 2017 interview with the Federal Bureau of Investigation (“January 24 interview”) (Reply at 23-24); that the government fabricated certain January 24 interview notes and reports documenting his false statements (Reply at 23-24); that the government suppressed text messages that “would have made a material difference” to the defendant (Reply at 6); that the defendant’s false statements were not material (Reply at 27-28); that the defendant’s attorneys were acting under an “intractable conflict of interest,” which the government exploited to extract a guilty plea (Reply at 17-18); and that the “FBI had no factual or legal basis for a criminal investigation” (Reply at 14-16). Each new argument or claim is unsupported by fact or law.

At the end, they made it clear what Sullivan’s obvious response to such a filing should be: an order that Powell submit her request for new relief — that Flynn have his conviction thrown out — as a separate motion or that he simply ignore all of Powell’s new BS.

In light of this minute order, it may be that the Court intends to strike any arguments or claims raised for the first time by the defendant in his Reply. And it may be that the Court plans to require the defendant to raise any new claims for relief in a properly pled motion to which the government can respond fully.

Sullivan responded by agreeing to let the government file a surreply, with Flynn granted a response (though warned, this time, not to introduce any new arguments).

MINUTE ORDER as to MICHAEL T. FLYNN. In view of [131] Government’s Notice of Claims Raised for the First Time in Reply, the government is hereby DIRECTED to file a surreply by no later than 12:00 PM on November 1, 2019. The surreply shall address the new relief, claims, arguments, and information raised in Defendant’s Reply Brief, ECF No. [129-2]. Mr. Flynn is hereby DIRECTED to file a sur-surreply by no later than 12:00 PM on November 4, 2019, and the Court shall strike any new issues raised in the sur-surreply. No further pleadings concerning Defendant’s Motion to Compel Production of Brady Material, ECF No. [109], shall be filed after the sur-surreply.

To be honest, Powell has already won the interim battle, because Sullivan has neither simply ignored her new request and claims nor told her to file a new motion, and instead has ordered the government to reply not just to the new Brady requests, but the bid to have the prosecution thrown out as part of their surreply.

That suggests Powell may well have wowed Sullivan with her ploy.

That said, Powell is in a precarious place. Her own brief accuses her client of lying in the January 24, 2017 FBI interview (albeit about a non-charged topic). Her Exhibit 15 makes it clear that the government provided Flynn with everything that was Brady information (as distinct from 5 year old records, some of the inculpatory, from DIA, or the Joseph Mifsud phones that DOJ has officially informed her are not helpful to Flynn) three days before Flynn pled guilty under oath to Sullivan last December, something Sullivan himself noted in the last hearing. One of her new claims — that Rob Kelner was too conflicted to advise Flynn to plead guilty — flies in the face of Sullivan’s own colloquy last year.

That said, Sullivan has broad leeway to decide he means his standing order on Brady will include Giglio, and that’s where Powell may well succeed.

46 replies
  1. timbo says:

    I hope Sullivan’s just going back and looking over the record thoroughly to basically lambast defense counsel at the next meeting, ‘gittin the firepit ready’. Given all this new material, a good whacking would take some time to construct. “This has been an astounding year… Mr. Flynn, are you happy with your current defense counsel?” might be the first question out of the box…

    hash tag sullivanstravails

  2. MattyG says:

    And hopefully Sullivan’s semi acquiescence is simply a demonstration that the court is not unduly prejudiced in the matter – before lowering the boom.

    • Rugger9 says:

      The First Law of Dirtballs is that they will always give you another chance for discipline. I see Sullivan here letting Powell have some rope to see if she can actually make her claims stick, and hammering her when it falls apart starting with the Government sur-reply. We do know that Sullivan is not inclined to accept Government statements at face value as a rule. There are a couple of things that interest me, though:

      1. Is it a help for Flynn to introduce Giglio-based versus Brady-based evidence, and does that interfere with other cases (I seem to remember that the side effects were the main problem)? If so, perhaps this is really about graymail.
      2. How come AG Barr is letting this case proceed like it has? I figure with the interest of Individual-1 concerning Flynn starting with asking Comey to let it slide, Barr would have found a way to spike the case. Maybe Powell is part of that plan, but only Giuliani would be worse IMHO since as far as we know Powell hasn’t butt-dialed anyone.

      • Peterr says:

        Sullivan isn’t anti-government, but rather, he’s suspicious of those with power and responsibility. Here, you’ve got the government on one side and the former National Security Advisor/former director of the DIA/three-star general (retired) on the other. Both sides have sworn oaths to support and defend the constitution, and Sullivan will come down damn hard on whichever side broke their oaths.

        Re #2, I think this case is too far gone for Barr to stop it. Even if he tried, there’s no way he could have done that with a simple electronic motion saying “the Government withdraws all charges and asks for a dismissal” that would not have resulted in an invitation to the AG to come chat personally with Sullivan in open court. If you think Sullivan was hard on Flynn last December, what he would have done to Barr would make that look like a walk in the park.

        • MattyG says:

          I’m wondering if the strategy is simply to delay sentencing as-long-as-possible-by-any-means-available. If they made the calculation last Spring that DT would be impeached by the House but then quickly let off by the Senate maybe all they are gunning for is sentencing to occurr in an atmosphere of a “restored” DT rather than one of a build up toward criminal exposure. If the Senate frees DT the Judge might be under pressure to back off on the time since Flynn could be made to appear a “political” player rather than a criminal national security risk.

          • Rugger9 says:

            With some of the recent appointment hack judges that might work, but Judge Sullivan isn’t likely to be the least bit concerned about whether this is a political prosecution (and it is not), after all Flynn already pleaded guilty and Barr hasn’t called off the DOJ here.

            FWIW I don’t think Barr would care about the optics either if he could help Individual-1 out of his jam. Look how he stopped Mueller’s inquiry and stonewalled Congress to see how much he can be shamed (nope).

            • Peterr says:

              Agree 100% about Sullivan.

              Also, I wasn’t saying that the optics would stop Barr from trying to derail this case. I was saying that Barr’s knowledge of Sullivan’s contempt for those who get caught trying to jerk him around and pervert justice would have done that. Barr clearly had no problems lying to Congress and the country via a press conference about the contents of the Mueller report, but that’s very different from standing in front of a federal judge like Sullivan and lying to the judge’s face.

  3. Peterr says:

    I think Sullivan is asking the Government to provide more rope to Powell and Flynn, as they seem to have requested. But no further rope will be provided after the surreply. “The defense can only hoist itself this one last time.”

    In all seriousness, I think Sullivan is letting this play out so as to preserve his judgment on appeal when he comes down hard on this mess. Sullivan inherited this case mid-stream, and he has demonstrated on numerous occasions that he wants his portion of presiding over this case to be bulletproof on appeal. Yes, he could have tossed the “new issues” motion, but it letting it go forward he then takes away the “we got shut down by the judge” argument, while reserving for himself the ability to absolutely tee off on defense counsel and the defendant at a later date.

    I don’t think the defense is well served by giving Sullivan more time to think about all this. Yes, Sullivan explicitly begged Flynn to slow him down last December and ask for a continuance, but Sullivan urged that Flynn do that in order find new ways to demonstrate his cooperation with the government because his cooperation to date (at that time, that is) was less than stellar. Flynn took the advice and asked for the extra time, but has hardly used it as Sullivan encouraged him to do.

    This will not end well for Flynn when Sullivan bangs down his gavel for the last time.

  4. Rapier says:

    Maybe this throw all the stuff you have against the wall and see what sticks in “reply” are common. I’m just asking if it is or isn’t.

  5. Manqueman says:

    OTOH, what Sullivan is doing is the efficient thing. If he simply denied the motion because of the Reply, he’s inviting another discrete round of motion practice and resulting delay. Instead, he’s converting the existing motion to moot the need for that further round.
    When one’s outside the system, one focuses on the rules because one doesn’t know the nuts and bolts of the litigation machine, as it were. The judge is doing the expeditious thing here: He’s moving things instead of delaying things and (likely!) giving Team Flynn more than enough rope to hang themselves. Procedure-wise, he’s accommodating them so that, at least, will not be an issue they can credibly appeal.

  6. Rugger9 says:

    OT but this might generate some kerfuffle today:
    Apparently Fox and Friends (“3 dolts on a divan” per Charlie Pierce) had a busy morning. RH Dolt Kilmeade did a no-pology for sliming LTC Vindman and doubled down on Vindman’s tendencies. But they also had on a former NYC Medical Examiner (Dr Baden) who is claiming that Jeffrey Epstein’s death was not suicide but homicide, based upon the ligatures and the circumstances. Normally stuff reported by Raw Story needs independent verification, but I find it curious that Faux would willingly open up this can of Epstein worms, given how much pictorial and other evidence there is already in circulation of the close ties between JE and Individual-1 in addition to Dersh and other Palace minions. One wonders just how bad this impeachment inquiry must be already viewed that the Palace toadies think resurrecting JE as a murder victim (with the obvious question about who ordered it, cui bono) was a good idea. I can’t see Individual-1 ignoring this segment.

    Will the media slurp this story up and run with it? Undoubtedly. Will it deter the Ds and Judges Sullivan and ABJ from their duties and hearings? Not at all. So while the noise may be seen as a useful distraction from the impeachment vote Thursday (more or less) for the Palace, it will not be effective in stopping anything that causes risk for Individual-1, and if (IF) he is linked to JE’s demise or JE in general, I think it will erode the base just a bit more for 2020.


    • bmaz says:

      Baden is a paid expert witness that almost always finds the opinion he is being paid to find. Funny thing about expert witnesses that way. Also, this is not news. Epstein’s attorney stated this was the position from the date of the original autopsy. Baden is also a paid Fox talent who often appears on Fox. This is ginned up bullshit. Independent medical examiners “not” being paid by the Epstein family have most all opined that the injuries absolutely are consistent with suicide and support the conclusions of the NYC medical examiner.

        • bmaz says:

          Well, yeah. Also some pretty dodgy opining on the JonBenet Ramsay case. And many others where he magically finds what assists those paying him. Now I don’t necessarily hate this, I pay experts all the time to do that. But I think it ought be understood, and Baden has a long history going back to complaints about him that led Mayor Koch to remove him from his Chief ME position.

          • P J Evans says:

            It’s one thing when you really are an expert, and you’re being paid for an honest opinion, even if it’s only paid by one side. (My brother was an expert witness once, in his own field.)

            • bmaz says:

              Oh, Baden really is an expert. Without question. But he is one for hire. And that’s okay as long as people understand where he comes from.

              • Rugger9 says:

                Totally agree, which is why I noted that independent verification would be needed. So, while we can agree that Dr. Baden is not useful for info, why would he be let loose on TV like this to focus attention on someone like Epstein that had the previously identified links to Individual-1? Associations like this need to be favorable, not to known creeps.

                The GOP used to be good at messaging.

              • posaune says:

                Baden did the John Lennon autopsy, didn’t he? and Michael Stewart (whose brains were lost in the ME’s office) ?
                oops, sorry that was Elliott Gross, Milton Helpern’s SIL.

  7. Molly Pitcher says:

    Another OT, KQED radio, the Bay Area NPR affiliate, just reported the Papadopoulos is running for Katie Hill’s seat. As if things couldn’t get any weirder.

  8. posaune says:

    I have a childhood memory of Dirkson speaking for a memorial upon Carl Sandburg’s death. Seems like he and Charles Percy were there. (My parents thought we should be there).

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