Emmet Sullivan Invites Mike Flynn to Lie Under Oath One More Time

Yesterday, Mike Flynn asked for a delay in the deadline for his real motion to withdraw his guilty plea(s), pointing to recently obtained 302s of his so-called cooperation with the government to explain why the seven months since they first made it clear they were going to do this wasn’t enough time to make a coherent argument.

Judge Emmet Sullivan granted Flynn precisely the deadlines he wanted.

But along with the delay, Sullivan ordered Flynn to brief the standards for withdrawing a plea in the DC Circuit and the need to have witnesses testify under oath to support that standard.

MINUTE ORDER as to MICHAEL T. FLYNN granting [157] Defendant’s Second Motion to Continue Briefing Deadlines. The parties shall adhere to the following modified briefing schedule: (1) Mr. Flynn shall file his “Supplemental Motion to Withdraw for alternative additional reasons” by no later than 12:00 PM on January 29, 2020; (2) the government shall file its response to Mr. Flynn’s motion and supplemental motion by no later than 12:00 PM on February 12, 2020; and (3) Mr. Flynn shall file his reply brief by no later than 12:00 PM on February 18, 2020. Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d). Signed by Judge Emmet G. Sullivan on 1/24/2020.

Flynn is fucked.

That’s true, because the precedent Sullivan pointed to is a case very similar to Flynn’s. A defendant pointed to a comment he had made to his probation officer, claiming he was not guilty of all the things he was pleading to, but the District Court found that the claim not only didn’t address what he had pled guilty to, but also did not offer enough to rebut his original guilty plea.

Cray points to a conversation with his probation officer, which was reflected in his presentence investigation report as follows:  “[Cray] advised that while he is guilty of some of the offense behavior, he is not guilty of all he is charged with.”   In response to questions from the court, Cray acknowledged that he had made this statement with reference to the original 11-count indictment, not to the two-count superseding information to which he ultimately pled guilty.   Even if we take the statement as an assertion of his innocence of the charges to which he ultimately pled guilty, however, it comes up short.   A defendant appealing the denial of his motion to withdraw a guilty plea, unlike a defendant who has not first pled guilty, must do more than make a general denial in order to put the Government to its proof;  he must affirmatively advance an objectively reasonable argument that he is innocent, see Barker, 514 F.2d at 226 n. 17, for he has waived his right simply to try his luck before a jury.   Cray’s claim falls far short of what we require before finding that a district court that committed no error under Rule 11 nevertheless abused its discretion in denying the defendant’s motion to withdraw his guilty plea.

As it is, the claims Flynn is making about not being guilty of making false statements under FARA conflict with his sworn grand jury testimony, the testimony of Rob Kelner, and the notes of what he told Covington. So if he — and Kelner — were put under oath, the evidence would show that the reason he is offering is bullshit.

More importantly, Flynn has made no claim that he didn’t lie to the FBI in his January 24, 2017 interview. In his filing the other day, he simply renewed claims he made in December 2018 that he already disavowed, under oath, before Judge Sullivan. So, like Lyman Cray, he’s trying to withdraw his guilty plea by claiming he’s innocent of just some of the things he pled guilty to.

Finally, Flynn will need to prove three things to withdraw his plea. One of those things is that he must show a substantial reason why the judge who originally accepted his plea committed an error.

Read together, Barker and Rule 32 set out three factors to consider in order to establish whether the district court abused its discretion when it refused to allow the defendant to withdraw his plea of guilty.   First, a defendant generally must make out a legally cognizable defense to the charge against him.   Second, and most important, the defendant must show either an error in the taking of his plea or some “more substantial” reason he failed to press his case rather than plead guilty.   Finally, if those two factors warrant, the court may then inquire whether the Government would have been substantially prejudiced by the delay in going to trial.

In this case, of course, Sullivan put Flynn under oath for his second guilty plea, and made him state that he didn’t think his complaints about his original FBI interview in any way negated his guilt.

In short, Sullivan is setting up this plea withdraw such that Flynn may be arguing he lied under oath twice: once in his grand jury appearance and once in his guilty plea in 2018.

It’s probably not a good way to get out of a charge of false statements, by claiming under oath that you lied under oath twice.

37 replies
  1. orionATL says:

    tolling for flynn – ding-bat, ding-bat….

    man, is judge sullivan a patient judge.

    when sullivan first chewed flynn out royally i figured he was just another judge who
    was giving a stern tongue-lashing to a defendant he really intended to give a light sentence to.

    but, no, i think now sullivan may operationalize every word of his caustic critique of lt. general flynn. the question now seems to be how much time will the judge mete out, or will the flynn meringue melt under the heat of an oath 😅.

    either way, flynn still gets to keeps his story-for-life about how he was really mistreated by the fbi.

    • earlofhuntingdon says:

      Flynn climbed the gibbet himself and is letting Powell twist him in the wind. Sullivan is just letting them do it. It won’t change the result.

      • Rugger9 says:

        Given that six months is the cap and a pardon is expected, why do this at all? I’m sure the Palace would arrange the time to be served in “Club Fed” out here in Pleasanton.

        Or, can Sullivan add to the time due to these DOA motions?

        • Katherine M Williams says:

          Perhaps this is why the judge is allowing all the delays. In 2021 the political situation may be less salubrious for Flynn; a pardon won’t be an option.

      • emptywheel says:

        Oh, it may change the result. One way or another, he’s now on the hook for lying, especially if Sullivan makes him go back under oath (and he will at sentencing in any case). So Sullivan can use his lies during this process to justify a much higher sentence.

        • earlofhuntingdon says:

          Well, if ICE can blindside law-abiding immigrants by arresting them at courthouses, the FBI could arrest Michael Flynn again for committing new act(s) of perjury in one. Flynn’s prosecutors should prepare for it.

          If Mr. Flynn is that stupid, then as a repeat offender, he would face rather more prison time. It’s possible that Ms. Powell might also expose herself to a charge of suborning perjury. Not something most judges and state bar associations admire.

          • orionATL says:

            i was wondering about ms. powell, esq. it seems she is in a real bind.

            on the one hand she has what i understand is a very strong professional obligation to defend powell, all the more since she can’t claim she just ran into him last month and didn’t realize what she was going into.

            on the other, i understand this last gambit was flynn instituted, not the choice of his attorney.

          • rip says:

            And this one-time general was considered smart enough to run the Defense Intelligence Agency (DIA)?

            Maybe he was considered stupid enough to become a pawn in a global power pawnage.. Who are the real players?

        • orionATL says:

          molly p. –

          now, now. we must be careful about using words of violence here – like gibbet .

          but on the other hand …. 😉.

          • Molly Pitcher says:

            Well I was actually responding to Earl of H’s comment that “Flynn climbed the gibbet himself and is letting Powell twist him in the wind”, but I didn’t type fast enough and my response was physically distanced.

            The definition of flibbertigibbet is actually quite apropos

            • orionATL says:

              i found your play on words funny and clever. its order was no problem and i was quite familiar with the term.

              my comment was not intended as criticism at all, though i see now i stepped on your line.

              i was building on both yours and e of h’s use of “gibbet” to make a teasing comment regarding the emptywheel monitors’ worries about incitements to violence here.

              thanks for the good humor.

          • earlofhuntingdon says:

            The violence of a metaphor – shooting oneself in the foot, as it were – depends on context. In the matter of Michael Flynn, virtual gibbet or no, any custodial sentence he receives would be an entirely self-inflicted harm.

            Or, to digress, take a current criminal case in Utah. A married couple were in their home, naked from the waist up, on a desert-hot day, doing home repairs. They were in view of his children and her step-children. (Or, vary the facts slightly and have her openly breastfeeding a new baby in her living room, in front of those same step-children.)

            Was that age appropriate openness within the privacy of one’s home and family, or the crime of lewdness (while hanging drywall)?

            The divorced mother of those children called it the latter. She filed a complaint and the DA independently chose to prosecute. A fan of Rashomon – and a less ambitious DA – might have seen jealousy seeking revenge and a new custody arrangement. Regardless, context matters.

            • P J Evans says:

              I’d say it depended on the age of the kids. Under 4, it wouldn’t matter. Over 6, you need a top of some kind – even a swimsuit top would do.

            • orionATL says:

              earl of h. –

              nicely reasoned. for my part, the divorced spouse was obviously vengeful and the prosecutor an idiot for intruding in the family.

              now in the old days a very violent incident, in a court even, might have gone like this with an understanding judge and jury 🤣.

              “Journalism in Tennessee and Other Humorous Sketches” Mark Twain

              “I was sitting here, said the judge, in this old pulpit, holding court, and we were trying a big, wicked-looking spanish desperado for killing the husband of a bright, pretty Mexican woman. It was a lazy summer day, and an awfully long one,…

              But when the jury announced the verdict – not guilty, and i told the prisoner he was acquitted and free to go…

              the woman rose up and says she – ” judge, do i understand you to say this man is not guilty who murdered my husband?” She turned on that smirking spanish fool and out with a “navy” and shot him dead in open court.

              that was spirited i admitted. i adjourned court right on the spot and we went outside and took up a collection for her and her cubs and sent them over the mountain to their friends.

              Ah she was a spirited wench!”

              from Little Bluebook no. 663

              now that is justice with judgment says i.

            • earlofhuntingdon says:

              An American majority might agree with you. But then, an American majority does not believe in biological evolution, whereas, a goodly number of people in Utah do believe in polygamy.

              What about the counter-factual breastfeeding example? It’s a bete noir in the US, but receives few shrugs elsewhere. The law also displays a gender bias. A morbidly obese dad with his shirt off might be more offensive. It might also be more instructive about the epidemics of obesity and metabolic syndrome in the US.

              Every example depends on the age and place appropriateness of the behavior and the context adults give it. Family court might be appropriate, but this is not an area where police and the criminal courts add value. In, say, the Netherlands, a prosecutor might have said, “Put your shirt on,” and left it at that. If anything, it would have been referred to social services.

              Personally, I think the number of homeless and the cost of healthcare and education in America are more obscene.

              • Hika says:

                A mentally-stunted adult male prancing through public spaces with an assault rifle is just dandy, but a woman with no shirt is a danger to morality. That’s a bug bunch of America’s problems, right there.

  2. I Never Lie and am Always Right says:

    /snark/ So after the Motion is denied and Flynn is sentenced, is Flynn’s next move to claim ineffective assistance of counsel by both his current attorney and his prior attorney? /end snark/

  3. Peterr says:

    From Sullivan’s order, cited above:

    Mr. Flynn’s supplemental motion and the government’s response shall address the following: . . . the need for an evidentiary hearing . . . including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, . . .

    As the saying goes, “It is better to remain silent and be thought a fool than to speak and remove all doubt.” That cross-examination in the order quoted above will not only be conducted by the government, but by Emmet Sullivan, who does not suffer fools lightly.

    Be afraid, Mr. Flynn. Be very afraid.

    • bmaz says:

      Indeed, Mr. Flynn has a problem. He has for over a year now, but the press bought off on his and Sid Powell’s bullshit like it was legitimate. It never was. Something that the people at Emptywheel knew from the jump.

  4. Rapier says:

    On the other hand being pardoned for the conviction of making false statements, after claiming under oath that you lied under oath twice, would be the ultimate expression and celebration that we have entered the post truth age.

    • Nehoa says:

      If I were Flynn, I would not be so sure that Trump will pardon him or commute his sentence. If it does not benefit Trump going forward, he is not likely to do it.

      • Mitch Neher says:

        Exactly. Flynn no longer has very much usefulness as a witness against Trump. Since Trump has little to fear from Flynn, therefore Trump has no reason to pardon Flynn nor to commute Flynn’s sentence.

        Unfortunately, Flynn almost certainly has something truthful and incriminating to say about Trump and Kushner. Bummer.

        • bmaz says:

          This is true. That said, do not discount the value of throwing a bone to the frothy right howlers who do care about Flynn. Trump loves throwing those bones.

            • bmaz says:

              Oh, I did not see that much inconsistency. I thought you made a good point, Trump may not be worried about the second paragraph much now though. Also, I suspect Mueller asked Flynn about those subjects, though we don’t really know what was said.

                • bmaz says:

                  Yeah. Unfortunately it means nothing. Roberts will be no hero here, and even if he were to make a call instead of just declining and referring it to the Senate (Roberts will never make a firm call), McConnell has the votes, even Murkowski, to turn it away.

                  This is why it was so lame for the House to have done such a slipshod rushed effort before presenting articles of impeachment. Once it is in the Senate, nothing will happen; it needed to have been done properly in the House first.

                    • bmaz says:

                      And, to be clear, Schiff has been spectacular in arguing the case in the Senate. Seriously good. But they took an unnecessarily thin case into an incredibly hostile forum.

  5. OldTulsaDude says:

    What a man of honor! Judge, I’m not guilty of telling a small lie; No, Judge, I’m guilty of committing perjury….twice! Do your duty and let me off for being so honest!

  6. Rick Eargle says:

    Non lawyer here… Why have i heard nothing from the press or democrats….about recusing
    Senators for taking russian money for their campaigns .. why should they be on the jury ??
    Rudy Giuliani And Pam Bondy… clearly witnesses at best.. most liking conspiracy..Why didnt Schiff used photos of Lev with the senators..w/ Bondy with Giuliani?? Why hasnt NY prosecuted Ivanka Eric Don jr for the charity scam?? Bank Insurance fraud?? money laundering ..all state crimes?

  7. joelafisher says:

    I wonder what powers a federal judge has 1) to punish direct contempt of court with court costs or (hopefully, unpardonable) jail time while the contemptuous one contemplates purging their contempt; and 2) to punish a misbehaving lawyer who has, just throwin’ this out there, suborned perjury by their client? I’m pretty sure Sidney can get spanked pretty hard, but I’m not so sure about the General. I don’t know whether executive clemency extends to contempt. If the underlying case went away , it’s hard to see how he could purge himself. However, I’m entitled to hope aren’t I? These consequences, if legally possible, should be significant enough to send a signal to others similarly inclined.

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