The Government Reminds Emmet Sullivan that Mike Flynn Already Agreed His Current Complaints Don’t Change His Guilt

The government used an interesting strategy in responding to Sidney Powell’s nominal “reply” brief demanding Brady information but actually asking to have the entire prosecution thrown out.

The most interesting (and potentially risky): even though Sullivan ordered them to address “the new relief, claims, arguments, and information” raised in Powell’s “reply,” they still treat this as primarily a question of Brady obligations. In addressing Powell’s demand to have the prosecution thrown out, they play dumb, noting that Powell has not presented her demand as a lawyer would, with citations and case law, and so then make an assumption that this is primarily about Brady.

In his Reply, the defendant also seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.” Reply at 32; see also id. at 3 (“dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence . . . in a timely fashion or at all”). The defendant does not state under what federal or local rule he is seeking such relief, or cite to relevant case law.9 In order to provide a response, the government presumes, given the context in which this request for relief arose, that the defendant is seeking dismissal as a remedy or sanction for a purported failure to comply with Brady and/or this Court’s Standing Order.

9 Local Criminal Rule 47(a) specifically requires that “[e]ach motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of the facts” (emphasis added). The defendant now seeks relief from this Court for claims that he has not properly raised; the government is hampered in its ability to accurately respond to the defendant’s argument because he has failed to state the specific points of law and authority that support his motion.

I’m sure Powell’s response will be “Ted Stevens Ted Stevens Ted Stevens.” But even if it is, that’s something she could have cited in her new demand for relief and did not.

They do go on to address the claim that the FBI engaged in outrageous behavior, focusing relentlessly on the January 24 interview, rather than Powell’s more far-flung conspiracy theories. But ultimately, this seems to be an attempt to do what they tried to do when they first alerted Emmet Sullivan that Powell had raised new issues, to either force her to submit her demand to have the whole prosecution thrown out as a separate motion, or to substantiate her Brady claims.

The government then lays out, for the second time, that the government already provided Brady by the time Flynn pled guilty a second time, this time before Judge Sullivan, on December 18, 2018.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply [sic] at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

Note, there’s an error in this passage, calling their past filing a “Reply” rather than Response. They should have relied on the Reply — on Powell’s own documents — to show that even her own less-detailed timeline of discovery proves that the government provided everything save some DIA files dating from well before Flynn’s lies before his aborted sentencing before Judge Sullivan.

Which leads us to the tactic that should rule the day. In both that reference to complying with Brady, and in three other places, the government reminds Emmit Sullivan that Flynn had all this information last year, when Sullivan put Flynn under oath, made him plea again, and made damn sure none of these things changed his guilty plea.

They do this, for example, regarding the derogatory information about Strzok.

The defendant also places significant weight on DAD Strzok’s remark that the defendant had “a very ‘sure’ demeanor and did not give any indicators of deception.” Strzok 302 at 3. Without citation or explanation, the defendant intimates that such words were edited out of an earlier draft of the interview report. See Reply at 24. There is no evidence that that occurred, or that the government attempted to suppress those statements. It informed the defendant of the assessment before the defendant signed the plea agreement and pleaded guilty, and documented DAD Strzok’s assessment in a separate interview of DAD Strzok (which it provided to the defendant in discovery). Moreover, DAD Strzok’s assessment does not exonerate the defendant. There is ample public evidence that the defendant also convincingly lied to other government officials about his conversations with the Russian Ambassador.

Then, after laying out how they had affirmatively asked Kelner and Flynn if the former had a conflict arising from having written Flynn’s FARA filing, they remind Sullivan that he himself offered Flynn an opportunity to consult with independent counsel to make sure he had been adequately represented by Kelner last year.

Additionally, during the scheduled sentencing hearing on December 18, 2018, the defendant declined the Court’s invitation to have the Court appoint “an independent attorney to speak with [the] defendant, review the defendant’s file, and conduct necessary research to render a second opinion for [the] defendant.” 12/18/2018 Hearing Tr. at 9.

Finally, after refuting (such as they do) Powell’s claim of abuse, they remind Sullivan that Flynn knew everything she makes a stink about when he pled guilty before Sullivan.

For all of the above reasons, it is no surprise that with the same set of facts, the defendant and his prior counsel previously represented to this Court that the circumstances of the interview had no impact on his guilt, or guilty plea. On December 18, 2018, when the Court asked the defendant if he wished to “challenge the circumstances on which you were interviewed by the FBI,” he responded, under oath, “No, Your Honor.” 12/18/2018 Hearing Tr. at 8.10 The Court then asked the defendant if he understood that “by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed,” to which the defendant answered, “Yes, Your Honor.” Id. And when the Court queried whether the defendant wanted an opportunity to withdraw his plea because one of the interviewing agents had been investigated for misconduct, the defendant stated “I do not, Your Honor.” Id. at 9. His counsel likewise represented to the Court that their client was not “entrapped by the FBI,” and that they did not contend “any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI.” Id. at 11-12.

Sullivan wisely put Flynn under oath last year and gave him an opportunity to back out of his plea. Unless he can be convinced there’s anything new — and while it’s shiny gaslighting, Powell’s evidence doesn’t back that claim — then he’s obliged to hold Flynn to his plea from last year.

Or, as the government suggests, Sullivan can send this thing to trial.

The baseline remedy for a Brady violation in this district is retrial, not dismissal. United States v. Pettiford, 627 F.3d 1223, 1228 (D.C. Cir. 2010) (“If we find a Brady violation, a new trial follows as the prescribed remedy, not as a matter of discretion.”)

I’ve said before and will repeat it here, it’s a fools errand to try to predict Judge Sullivan. If this ploy is going to work for anyone, it might work for Sullivan.

But Judge Sullivan’s own actions may well prevent that.

There are, to be sure, interesting details in this filing. It reveals more details about what happened when Flynn was proffering in advance of a plea deal. It explains that the timing of his January 24 interview was tied not to the release of the Steele dossier, as he alleged, but to Sean Spicer’s repetition of his denials on January 23 (something that’s consistent with Andrew McCabe’s memo on the topic). It debunks a long-standing conspiracy theory — that Lisa Page and Peter Strzok said they had to lock in Mike Flynn in a chargeable way the day Comey was fired. It reveals that the government raised — and Flynn twice waived — any concerns that Rob Kelner had a conflict tied to his role in Flynn’s FARA filing.

But mostly, this filing lays out all the way that Flynn already said, under oath and to Judge Sullivan, that these issues didn’t matter.

Update: I think I found another error. The government says that the only thing interesting in the February 10 redline of the 302 is Strzok indicating he didn’t remember two details — that Flynn said he had no particular affinity for Russia, and that he didn’t remember that Flynn said his government Blackberry wasn’t working in the Dominican Republic.

Contrary to the defendant’s assertion, there were no material changes made after February 10, 2017, to the draft of the January 24 interview report. See Reply at 26. On February 10, 2017, DAD Strzok highlighted two—and only two—sentences where he did not recall a statement that the other interviewing agent included in the draft of the report.

But this must actually be Pientka not remembering these things, because both details show up in Flynn’s notes.

15 replies
    • Vicks says:

      Why stop there?
      How about Trump administration using “national security” to justify starting a trade war (that is turning out to be the biggest tax increase in history) with his f’ing tariffs?
      Maybe shutting down the government after a bipartisan vote in congress said no to his gd wall isn’t a crime, but declaring a “national emergency” and stealing money to fund it sure as hell would put anyone else in a legal pickle.
      If “abuse of power” is one of the articles of impeachment, I hope to hell there is a need and an opportunity to show a pattern

  1. Matthew Harris says:

    So let me boil down the basic legal strategy.

    Powell (and other conspiracy theorist) claims that the FBI used irregular procedures (not taking the question through the White House counsel office) and were biased (based on lots of text messages they sent beforehand. Also, that they were unsure whether Flynn was lying. (“He had a confident demeanor”)

    But I guess the big head-scratcher for me, as a non-lawyer, is how any of this is relevant after Flynn himself agreed that he did lie, in a material fashion, under oath.

    Since I am not a lawyer, let me kind of phrase it in terms of a more common situation.

    Say that a police officer obtains a warrant for a house because he thinks they are growing cannabis because he said he saw some plants growing in the yard. (In jurisdictions where that is still illegal). Say that the cop was just biased: he thought it looked like a hippie house, so he walked by, and saw the plants, then went and got a warrant. That is one thing, legally. But if the cop never saw any plants, but lied and said he did to get a warrant, that is another thing.
    (I know this is a somewhat loose analogy, but it is hard to come up with a good analogy).

    As I understand it, Powell’s arguments, even if we do believe them, would all be of the first type. There was biases and irregularities, but as I understand it, Powell has not charged that warrants were obtained under false pretences, or that confessions were obtained under duress.

    Also, isn’t all of that moot because Flynn has publicly and under oath confessed to the crime he plead guilty to.

    I guess this is another legal question: if a police or prosecutor gets a confession under some form of duress, do future confessions done not under duress, but that were somehow instigated or connected to the original confession, no longer count? That is kind of going beyond “Fruit of the poisoned tree” and into “Fruit that at one time was in the same bowl as fruit from the poisoned tree”.

    These questions interest me, because while Flynn seems to be a weasel, I would normally be sympathetic to procedural questions like this. I try to reverse the situation in my mind: two years from now, FBI agents with right-wing sympathies interview Elizabeth Warren’s EPA head and ask them if they ever had any contact with Greenpeace, and then charge them with lying…I would, indeed, feel very different about that case. This perhaps makes me a bit of a hypocrite.

    • Kevin OMalley says:

      If Liz Warren is conspiring to get an American resident murdered by GreenPeace for personal profit, then by all means, bury her.

      • bmaz says:

        Just pointing out that that was a hypothetical by the first commenter, and the hypothetical reply by the second. And hi Kevin OMally, welcome to Emptywheel, I see you have been here a couple of times; please make sure to be consistent with your handle though.

  2. Frank Probst says:

    Non-lawyer viewpoint: I think the part about ordering a new trial is just a straightforward way a getting Powell the admit the obvious fact that she wasn’t brought on as a lawyer to handle appeals after a contentious trial after which the client is maintaining that that he was railroaded and he isn’t guilty. She was brought on as a lawyer to handle appeals after her client got what the judge himself obviously thought was a sweetheart plea deal. I realize that this is just stating what everyone already knows, and that Sullivan knows it, but I think they did it so that she’d have to make this simple very admission in the courtroom, in front of the press, who may still be treating this as a Perry Mason mystery. What I think would be fascinating (but which isn’t going to happen) would be is if Sullivan would just swear Flynn in again and ask him the exactly same questions he asked him last year.

    I also think that the calculus for getting a pardon has changed since the Ukraine scandal blew up and took precedence over the Mueller findings. Bill Barr won’t be charging anyone with anything, but there are several people here that Trump is going probably going to have to pardon if he truly believes that nobody did anything wrong and wants the historical record to say so.

  3. AndTheSlithyToves says:

    Great reporting, Marcy! The longer Trump and his deranged minions are allowed to hold America captive in another reality episode of “Make Amerikkka Great Again,” the more destructive, and long-term, it will be for the country. Lying, cheating and stealing are features, not bugs, of the ways in which this Trans-National Crime Syndicate operates.

  4. Frank Probst says:

    (Posting the link to the article just for context, but it jam-packed with details:

    Key quote: “While the meeting was disclosed in a Department of Justice lobbying database, the contents of what was discussed have remained private.”

    Am I the only one who’s never heard of “a Department of Justice lobbying database”? Does anyone have any experience looking at these and knowing how they work? Given the amount of news we’ve had on FARA for the last few years, I’m surprised that this is the first time that I’m hearing about something like this.

  5. joel fisher says:

    Is it possible that the game plan is to piss Sullivan off enough that he presents as angry during the sentencing and gives Trump a talking point for a pardon?

    • OldTulsaDude says:

      Sullivan’s reaction is irrelevant; the only reaction these people consider is that of the frothy right. The target of the appeal is sitting in the White House and has the power to pardon. From his tweets, it appears to be working.

  6. skua says:

    Here is an idea that I’d like bmaz to swat from the realm of “reasonable” quickly:

    The prosecutor’s approach as set forward in ew’s post, can, with my minimal understanding of the situation, be interpretted as increasing the probability that the judge, a man who does not suffer prosecutorial misconduct at all lightly, will criticize the prosecution.
    This criticism, while not meaning Flynn’s conviction would be nullified, would fit well in a Trump-incoherent-melange-“explaining” of why Flynn had been pardoned.

    • skua says:

      And, in the confused world that we untrained live in, I have accidentally used “nullified” instead of “dismissed” or “thrown out”.

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