The Procedural Weakness of Sidney Powell’s Attempt to Blow Up Mike Flynn’s Plea Deal

As I noted earlier this week, after six months of threatening to do so, Mike Flynn has formally moved to blow up his plea deal. His initial motion to justify doing so was all but silent about the main crime he pled guilty to — lying about his phone calls with Sergei Kislyak — and instead presented a bunch of block quotes purporting to show Brandon Van Grack pushed him to lie, but often in fact laying out proof that Flynn lied — to the FBI, to his own lawyers, even to Judge Emmet Sullivan himself.

So the bid to gain any advantage beyond delay until such time as Trump can pardon Flynn isn’t going so well, as a matter of legal argument.

But a recent docket gaffe demonstrates the degree to which this effort is a procedural shitshow, too.

The parties were supposed to be operating under Emmet Sullivan’s order, dated December 16, to provide supplements to the sentencing memos they submitted back in 2018, which — after several government continuances — meant the government’s supplement sentencing memo was due January 7 and Flynn’s was due January 22. The government met that deadline.

Sometime after the government submission, Flynn’s lawyers asked the government for a continuance based on the government’s changed recommendations, which the government alerted Flynn to last September. The government agreed to a delay — for sentencing. But then at the last minute, after planning to do so for six months, Flynn’s team pulled a head fake, and informed the government they really wanted a delay so they could figure out some basis on which to withdraw his plea.

Mr. Flynn also requests a continuance of the sentencing date set for January 28, 2020, for thirty days or until February 27, 2020, or such other subsequent day that is convenient to the Court and counsel, and a corresponding extension of time to file any supplemental sentencing memorandum (from January 22, 2020, to February 21, 2020). The continuance is requested to allow time for the government to respond to the most recent aspects of this Motion and for Mr. Flynn to provide the additional briefing he needs to protect the record and his constitutional rights in light of significant developments in the last thirty days.

In response, Sullivan deferred on Flynn’s motion to withdraw his plea, and set the following new deadlines in response to the request for continuance:

  • January 22: Supplemental motion to withdraw
  • February 5: Government response to motion to withdraw
  • February 12: Flynn reply on motion to withdraw

There was no explicit new deadline in there for a new sentencing memo from Flynn, meaning it would be due on January 22.

In response, Flynn asked for two more days, allowing it time to respond on sentencing and bumping the withdraw 2 days out on the first two deadlines, or 5 on the reply. Flynn also asked for 5PM deadlines even though Sullivan has been insisting on noon deadlines for months.

  • January 24, 5:00PM: Supplemental motion to withdraw
  • February 7, 5:00PM: Government response to motion to withdraw
  • February 17, 5:00PM: Flynn reply on motion to withdraw

Sullivan, today, responded to that request by granting the initial deadlines but shortening the last and insisting on his noon deadlines.

  • January 24, 12:00PM: Supplemental motion to withdraw
  • February 7, 12:00PM: Government response to motion to withdraw
  • February 13, 12:00PM: Flynn reply on motion to withdraw

All that’s fairly uncontroversial, just a dance over how much time Sullivan is willing to bump a sentencing after trying to get it done so that Flynn can lay what will amount to a basis for appeal on a risky scheme to blow up his plea.

But that left Flynn with two sets of documents: the sentencing memo, due January 22, which will be critical if they lose the request to withdraw, which is likely, and the supplemental motion to withdraw, due January 24, which must meet a very high legal bar and lay the groundwork for appeal, which is probably where this is going.

And then Flynn just spluttered out something called a supplemental brief to withdraw. The brief was just six pages, didn’t advance any new legal arguments, and repeated many of the same arguments (and one of the same exhibits) submitted last week. Effectively, that amounted to legally shooting their wad on an argument totally insufficient to an attempt to take back two guilty pleas, without ever addressing the crime to which Flynn actually pled guilty, lying about his Kislyak conversations.

Again, Flynn’s team has known they were going to make this argument since June, and they spluttered out their argument just like that.

They must have realized that they, formally at least, had fucked up, because they resubmitted the same thing but with a footnote:

This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

This is just an honest fuckup by people who are playing a really high stakes game of poker and really frazzled about it, even if they’ve been planning on all this since June.

But it appears Flynn really hasn’t thought up a good reason to argue why he has to withdraw even from his plea agreement, much less the underlying lies about Kislyak.

Which is a pretty lousy position to be in when you’re playing such a high stakes gambit.

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74 replies
  1. earlofhuntingdon says:

    DC is not the best district or circuit in which to switch from really good lawyers to bad ones more skill in shoveling manure on Faux Noise than in lawyering.

    If this is all a vaudeville act seeking a Trump pardon, maybe they get a pass, but I doubt it. I still can’t figure out why this dog’s breakfast is worth eating. How does it better serve Flynn or even Trump?

    • Peterr says:

      Earl, I think it’s clear they’ve given up on winning in court. Instead, they’re setting Flynn up with the GOP base to award him a “Martyr to the Cause” with oak leaf clusters for his service to the nation, once Sullivan comes down on him (again) like a ton of bricks. Flynn’s conviction will be seen by the Faux Noise crowd as yet one more example of the Deep State sticking it to Real Patriots.

      If that’s not it, then I got nothing either.

        • Mitch Neher says:

          If Flynn’s genuine position is that he was somehow entitled to lie, then there could be no legal argument that makes good on that claim.

          And especially not when Flynn refuses to explain why he lied.

          The same non-sequitur goes for the notion that the FBI had no right to pose the question to Flynn.

          So . . . Flynn’s intended audience must be somebody other than Judge Sullivan. That sounds like bad form at least.

      • boba says:

        While I agree with this conclusion, I am at a complete loss for value in it, especially to Flynn. He pays the price of a federal felony conviction and all the lovely accouterments that entails, namely a 6 month stint in a federal prison, to what end for him? I understand a military mindset in that self sacrifice and willingness to take on danger and hazard to protect others, but when I did it it was to protect the institution / concept of the USA. I would willingly and gladly take a bullet for the country (or even a subordinate!); but if you asked me to take a bullet for my commander, with the exception of one, I would pass. I cannot imagine Trump commanding that kind of loyalty and I certainly would not count on Trump making good on any promises or favors in return for my effort or sacrifice.
        There’s something rotten in the state of Denmark.

          • joel fisher says:

            I’m thinking Flynn wishes it would be the whole six so the “unfairness”of it (the mean old US Attorney said I wouldn’t have to serve any time. And now this!) would be something to catch Trump’s eye and get clemency right away. The timeline is concerning to me: motions in February; a sentencing (finally) by the middle of February; an appeal (can he stay out of jail and on bail pending the appeal?). If he doesn’t go inside before November, he ain’t going inside. Give credit where credit is due: Sidney Powell can put word salad on a piece of paper with a caption on the top. I hope Sullivan keeps his cool with Flynn (he will) and tears Sidney a new one big enough to keep her suspended law license in.

            • P J Evans says:

              The schedule sounds pretty normal for a court case, especially one where the defense side is doing everything it can to delay.

          • timbo says:

            Why not? Seems like he’s been fast and loose with not only the truth but also the justice system itself. I mean, I guess he can claim that it was his lawyers that were incompetent to begin with. Obama should have fired him sooner, basically. Someone remind me again how exactly he got his star?

            • bmaz says:

              Because he has been under withering oath on this twice already. Nobody should be allowed to do that. NOBODY. And, no, trying to slough it off on his original lawyers is simply asinine. Why in the world would you want to encourage this jackassery?

              You are so damnfire determined to join the lynch mob on Flynn that you are willing to do incredibly serious damage to the presumption of regularity of pleas and the criminal justice system? I honestly find that thought sick.

              And you are in favor of rewarding the absolutely batshit bad faith unethical antics of hack Fox News lawyers like Powell? This is your idea of a good result? Do you also think the government ought to be able to violate plea contracts with defendants because they blithely decide they want more blood? How bad are you willing to fuck up everyday principles in the criminal justice system because you have a hard on for Flynn? Jesus Fucking H. Christ.

                • bmaz says:

                  Where am I getting that from? Decades of actually practicing criminal law in trial and appellate courts, having paid very close attention to the Flynn case, and an understanding of the dynamics of the interaction between the prosecution, defense and court in plea proceedings and need for regularity in them.

                  • timbo says:

                    So you are claiming that the irregularities here are from the prosecutorial side? I understand that Sullivan can sometimes be keen to get all that right… and that’s understandable in some case… but in this case, is there overreach on the prosecution side that is clearly warranting all this? Sullivan would certainly be the judge that would go the extra mile to get to the bottom of if there was such a problem, of course… but from what I can see here, this is mostly Flynn delaying having to show up to prison for as long as possible. That might be his right technically, to go through all this rigamarole, but, to me, this seems to be fishing hard for a pardon. I mean, am I the only person who finds Sullivan’s patience here to be almost super-human?

      • drouse says:

        “Martyr to the Cause” can be quite lucrative. G. Gordan Liddy, cashed in on the early talk radio circuit. Ollie North is still doing the ramrod up the ass patriot act. Hell, Elliot Abrams wormed his way back into government and was last seen headed south to resume old tricks.

    • roberts robot double says:

      I think that, should we ever get to “the bottom” of this four years of utter shit, we will find that we’re really dealing with some simply simple idiots.

      First off, Flynn is obviously no high-IQ guy, at least not any more, if he ever was. In my limited understanding, getting to the top of some branch of the military is mostly about where you start (parentage, schooling) and then how good are you at following orders to the letter and kissing the right asses. Not the best system to inculcate thinking of any kind. In fact, I imagine it would build up a kind of immunity to believing you might, just might, be on the wrong path, especially in the face of our ongoing and very fast-moving info tech revolution.

      Second and primarily, is it possible that he’s simply the mark in a grift? The lawyers come to him and say, “We’ll get you off scot-free, here’s the plan…” and his dim-witted self does the same thing all these demented fools at Trump’s rallies do: they get fired-up on ridiculous bullshit and go all-in.

      I mean, these lawyers are billing their hours to someone, right? Not only that, but aren’t they doing the GOP’s bidding, not Flynn’s, making Flynn merely a disposable test-subject in their probing of America’s system for weaknesses to exploit for their fascist goals?

      • timbo says:

        Oh, believe you me, a high IQ just means that one can construct more elaborate and consistent fantasies. That’s not necessarily a point for Flynn though.

    • BobCon says:

      I think there is a nontrivial chance grift is the motivation.

      In searching Sidney Powell, I saw that besides the usual skeezy legal stuff, she produced an odd movie, Decoding Annie Parker.

      At first, it seems legit, with a cast of reasonably well known actors — Helen Hunt, Samantha Morton, Aaron Paul, and more. But the reviews make it clear everyone involved was sleepwalking.

      https://film.avclub.com/1798180315

      https://www.rogerebert.com/reviews/decoding-annie-parker-2014

      It supposedly had a budget of $2 million, but vanished from screens after netting about 40 thousand dollars.

      It’s possible this was a vanity project for Powell, although that doesn’t explain why everything about it seems phoned in. The darkest possibilities are that it is a Producers style scam, or a money laundering operation.

      At any rate, it shows that Powell has the ability to get seven figures from who knows where for a joke project. Maybe Flynn is a followup.

  2. roberts robot double says:

    I can’t agree with your assessment that this is an “honest fuckup” for the simple reason that Flynn ejected his good counselors to go with these right-wing nutjobs, who are never, ever honest about anything they do. All they do is use their influential friends (especially the courts and the Executive) to massage the system to further their wanton desires.

    No, my greatly respected host, these people ARE fuckups who, in their wanton disregard for American justice (yeah, that’s tough to type, but it certainly is a great theory in an even worse world), are working their tiny, selfish minds beyond their limits to destroy the last bastions of what America could be if, for example, info tech could be brought to bear on corruption, truth and justice.

    The bare reality of our situation is that only small-minded, degenerate, provincial fools will gravitate to the GOP’s idealogy. It is simply nothing but hateful, callous idiots all the way up to their utterly anti-American and anti-Christian king.

    That said, Ms. Wheeler, I hope you have some understanding of how your hard work and proper American ideals lift our spirits in this ridiculously maddening clusterfuck of modern corruption. God bless you and this band of passionate, proper malcontents.

  3. Peterr says:

    And then Flynn just spluttered out something called a supplemental brief to withdraw. The brief was just six pages, didn’t advance any new legal arguments, and repeated many of the same arguments (and one of the same exhibits) submitted last week. Effectively, that amounted to legally shooting their wad on an argument totally insufficient to an attempt to take back two guilty pleas, without ever addressing the crime to which Flynn actually pled guilty, lying about his Kislyak conversations.

    Again, Flynn’s team has known they were going to make this argument since June, and they spluttered out their argument just like that.

    Why does this strike me as a lawyer trying to (a) pad her bill, (b) point to bright shiny things, or (c) both of the above?

    • roberts robot double says:

      That’s my basic theory, too (as stated above): the GOP is nothing but idiot marks and idiot grifters from the very bottom to the very top. Flynn might just be both.

      And, beyond Peterr’s above excellent summation of the GOP’s possible (probably probable) longer-term view on this case, the reality is that all-in GOP lawyers aren’t going to run low on well-off idiots to defend any time soon. So they’ve got that going for them, the bastids.

          • Valley girl says:

            It’s hard to explain my sideways sense of humor. “The underpant worn by the rat” seemed as good a picture of Powell and Flynn as any.

            As for Nunes, well. there’s “Aerodynamics of a Cow”

            I found some of the illustrations LOL hysterical. (Some just lame.) Maybe I’m an easy mark b/c of the countless hours I’ve spent searching the internet for images for powerpoint based- presentations to premeds.

      • Mitch Neher says:

        The scientists who conducted the rodent-underpants experiment may have forgotten to anoint those garments with Holy Oil.

        Holy Oil may also be the tangent that best explains the relative inverse proportion of neo-natal brain-to-body size versus adult-male penis-to-body size.

        Or not. But something has to explain the glint in Orrin Hatch’s eyes. And it can’t be Avagadro’s number. Unless it is.

        • Fran of the North says:

          Not gonna lie, that is a take on Avagadro’s number of which I’ve never conceived, and probably won’t be able to forget. #formerscienceguy

          • Mitch Neher says:

            I didn’t conceive of it either. It’s an instance of echolalia leftover from one of the previous threads. I forget which one. But it was recent.

          • timbo says:

            Thanks, guys, for helping me come up with another character idea for my as yet unpublished virtual mystery series. I sense that “Ester Mole” will not be a boring character.

            In the series, the protagonist’s girlfriend is named “AmanDuh”, whom he has never met, but frequently flirts with him online in chat mode only. Protagonist’s friends and relatives: “How come we’ve never met her?” “She lives in Caracas and her camera is on the blink!” In any case, the protagonist will be investigating mysteries he finds on or occur because of the Internet (while he remains completely and utterly oblivious to general reality).

            I hasten to add that I dare not reveal the name of the protagonist yet as the Internet is full of thieves…

  4. Vicks says:

    https://americanmilitarynews.com/2020/01/iran-to-sue-trump-us-military-for-war-crimes-of-killing-soleimani-at-hague-international-criminal-court/
    so…
    is this a distraction from the fact that these same people JUST shot down a plane full of real live (and very innocent) human beings?
    How the hell is winding up the Trump with a battle on the world stage NOT guaranteeing he will use all of his power to exploit (what one would assume) Iran wants and needs people to believe was a tragic accident?

  5. P J Evans says:

    One of the snarkers at Kos has this description of Flynn’s current legal team:

    So, Mike “the Turkish Delight” Flynn wants to rescind his guilty plea, having replaced his previous, semi-normal, legal team with a mason jar full of bathtub gin, pop rocks, and a single gerbil suffering from dementia.

    I think it’s unfair to the bathtub gin, the pop rocks, and the gerbil.

  6. Eureka says:

    My symbol for this whole thing — and not just the Flynn case(s), but Corsi’s aborted plea, Stone’s cases, … assorted grifters — is from when (IIRC) both teams were reviewing notes in the Flynn case, and, in dealing with Powell’s then-latest antics, a transcript line read:

    Brandon [very heated]: …

    Or something pretty close to that.

    Wherein Mr. Van Grack represents us all.

    The Mueller investigation / Trump cabal makes for some gnarly (potential) defendants/defenses, I’ll say that.

  7. pablo says:

    I hope Sullivan gives him prison ASAP because there is no way Trump will pardon him before the election, he’d take a big hit with Ind.’s. Seeing him spending months behind bars waiting would be worth it.

  8. earlofhuntingdon says:

    Donald Trump claimed to a well-heeled crowd at Mar-a-Lago recently that he killed a senior official of a foreign government with which the United States is not at war because that senior official said “bad things” about “our country.” That generally means saying bad things about Donald Trump, such as, he’s “a fucking moron.” That is not a threat, let alone an imminent threat.

    https://www.cnn.com/2020/01/18/politics/trump-soleimani-details-mar-a-lago/

    If true, Trump, in a venal rage, illegally committed an act of war. At a minimum, his was an impeachable offense. It also means that every other western country’s political leadership should be looking up at the skies, because every one of them has taken the piss out of Donald Trump’s crudeness, ignorance, venality, and incompetence.

    Trump’s GOP says, “So what?” and its Senate members are happy to vote to keep him in office to see what other crimes and destruction he can commit over the next twelve months. In a sane world, the GOP would pay a permanent electoral price for its depravity. To coin a phrase, how much of their shit do we have to put up with?

    • Eureka says:

      To coin a phrase, how much of their shit do we have to put up with?

      I think we’re gonna need a bigger shovel.

      • Vicks says:

        It appears that team Trumps defensive strategy is to have Trump’s lawyers and propaganda pushers Barr-“splain” our country’s constitution to Americans.
        I’d suggest prosecutors make sure there is extra security around any original versions just in case Trump has any plans to use his sharpie to strengthen his case.

        • Eureka says:

          Oooh, and then we can use the proceeds to fertilize ‘In Honor of Michelle Obama’ victory gardens outside every school in the land, so the kids will know vegetable diversity beyond “freedom fries”, given 45’s latest greatest hit job on health and school lunches.

          [Related, I wish I could remember the link and quote re Trump’s reflection last week, wishing he hadn’t gotten into the vaping thing, too. It was seen as his main “health policy” contribution. Nice that that was highest on his self-recrimination agenda at this time.]

          And vicks — we might save ourselves if a ‘big liberal donor’ (sic) buys the corp that owns Sharpie. He’ll run out of ink eventually.

    • Marji Campbell says:

      I really want Flynn to do prison time. Curious why no one here is talking about allowing Flynn to withdraw his plea, and then hitting him with all charges and going to a jury trial?

      • bmaz says:

        Flynn is never going to get that much time. And, thank god sentencing is done by guidelines and professionals and not what random members of the public “want”.

        Once accepted, pleas are almost never allowed to be withdrawn from because it is fucking horrible precedent and should never be encouraged, nor should it be encouraged here. This isn’t some game for people to get their jollies on.

        • timbo says:

          What’s the punishment for abusing the legal system though in this way? I understand that we want justice to be correct and that some judges take that obligation seriously. But as some point, this sort of thing does come down to contempt of court, does it not? Seems that Flynn and his lawyers are leaning more and more towards contempt, particularly if alleged shennanigans become even more patently clear, correct? I mean, at some point, perjury may be an issue here and that might generate yet another case to prosecute, right?

          • bmaz says:

            Sentence the defendant within the range he agreed to (now without cooperation credit, and now without acceptance of responsibility credit too). Then order sanctions on Powell for bad faith pleading. And, yep, that is somewhat rare, but certainly not something totally new. But, and I hate to be harsh, there is simply a LOT more in the balance of this kind of decision as to the basic regularity of pleas in courts than just Flynn.

            • timbo says:

              Fully acknowledge that.

              Presumption of innocence is hard, not easy. I still marvel that the Framers were that radical. If you look at all the radical things in our Constitution, the Bill of Rights in particular, that single thing may be the most radical of all, possibly the most important endorsement of Humanism in any legal document written up to that point, possibly since. It’s much higher contrast, a much clearer statement, but less flashy than freedom of speech, freedom of the press, etc. The later 14th Amendment elucidates on it but does not change the basic premise. It is a testiment to our legal system that it has withstood so many crises des jours to become so inculcated in our national psyche.

              • bmaz says:

                And, again, I did not mean to be overly harsh. But all the nonsense occurring from things like the Flynn case (and a lot of others) trickles down fast.

                It is not just the “ripped from the headlines” episodes on Law and Order and whatnot. It hits the day to day criminal courts fast. Also, wasn’t kidding, if defendants can get out of accepted and entered pleas out of complete bad faith, so then too can the prosecution. The entered and accepted is key.

                Defendants can fairly easily get out of signed pleas BEFORE entered and accepted by the court, as can the prosecution upon a fair showing. Which happened VERY long ago as to Flynn. Hell, he was “supposed” to be sentenced over a year ago on his formally entered plea. After that, you have to show manifest injustice, or it just does not happen. There is not a lick of that as to Flynn, only bad faith.

                • timbo says:

                  Bad faith on the part of whom? I sense that Flynn has changed his story a number of times. I sense that he has done that as part of fishing/delyaing for a hoped for pardon from Trump. It seems to me that his pleadings, through his lawyers, are just biding/wasting time until the political system’s ability to actually hold Flynn accountable becomes clear one way or the other under the Trump regime. Now it seems he’s trying to say that he did not break the law when he took money from Turkish agents/lobbyists. Are we now saying that those folks are not Turkish agents/lobbyist? Where does this thing end legally? I’m for fair justice. Can anyone explain how Flynn has been treated unfairly by the prosecution in a substantive enough way to have his sentencing delayed past March? Are we going to see that now too?

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