Judge Emmet Sullivan’s hearing about whether he should let DOJ dismiss the Flynn case is about to start. Expect some grilling.
The odd situation here is that both DOJ and Flynn’s lawyers want the case thrown out. But Judge Sullivan was suspicious of DOJ’s motives, and appointed John Gleeson, a retired judge, to argue against them.
Gleeson filed a scathing brief arguing that DOJ's reasons for seeking dismissal were "pretextual," "riddled with inexplicable and elementary errors of law and fact," and that "the government has engaged in highly irregular conduct to benefit a political ally of the President."
Judge Sullivan points out that sentencing has already commenced, in Dec 2018. He only delayed it to make sure Flynn got the full benefits of his cooperation. (Instead his cooperation fell apart.)
He also points out that at that Dec 2018 hearing, Flynn repeated his plea of guilty
Judge Sullivan recaps: Then, in late 2019, Flynn began asserting his innocence for the first time, claiming prosecutorial misconduct. In Jan 2020, he moved to withdraw his guilty plea, contradicting sworn statements to this court (when he pleaded guilty).
Sullivan emphasizes, and repeats, that he has already concluded that his court should not be merely a rubber stamp for the prosecutors’ decision to throw out the charge.
(The relevant rule requires "leave of court" to dismiss charges.)
Gov't lawyer Ken Kohl says dismissing the case "is the right call for the right reason. We’re completely unafraid to get into the specifics of why we needed to dismiss this case." He says in his view, "there isn’t a case."
Kohl cites newly disclosed notes from Special Counsel's Office from Jan 2018 saying Flynn had a "bad memory," as corroborating Flynn's claims he misremembered his calls with Kislyak during his FBI interview.
(But the Kislyak calls happened just a month before that interview.)
Judge Sullivan is asking the gov't about Sidney Powell's letter to Bill Barr from June 2019. Reading out the beginning of it.
courtlistener.com/recap/gov.usco…
Sullivan wants the government to address "the propriety" of Sidney Powell's letter to Barr. Says in his opinion it's highly unusual, requesting that new attorneys be appointed to prosecute a case she intends to enter her appearance in.
Says "the bar" may have to address it
Sullivan: Was there a response from AG Barr to this letter? Wants a copy if so
Gov't lawyer Mooppan says he'll check.
Sullivan says he wants to know if Deputy AG Rosen replied too, & whether there were meetings at which this was discussed. Wants minutes of those meetings ASAP
Sullivan asks Sidney Powell: Have you have discussions of the president about this case?
Powell says she has not... other than an update of what happened in it.
Sullivan: Answer yes or no, did you talk to the president
Powell: Says she can't discuss that.
Powell says in recent weeks she talked about the case with Trump and Jenna Ellis, says she asked Trump not to pardon Flynn.
Things are quite tense.
Judge Sullivan has been really grilling Powell. She accuses him of "abject bias," says she wants to file a motion for him to recuse right now.
Sullivan says, "put it in writing." Says she had ample time to do that already
Gov't lawyer Kohl: I'm not sure of a case where a court takes defendant to sentencing who’s claiming he’s innocent and hasn’t been afforded a trial.
Gov't lawyer Mooppan: Says there would be no prosecutor if Sullivan won't throw out the case
(Why Flynn might actually win here)
Judge Sullivan asks about the FARA violations (re: Turkey) that Flynn admitted to, which wasn't charged as part of the plea deal. Asks whether he could still be charged with that under a future admin or future AG.
Gov't says, basically, yes
DOJ atty Ken Kohl is wholeheartedly embracing the "Flynn was railroaded" narrative. Often sounds like Flynn's defense lawyer.
Kohl is giving a very selective and misleading presentation of various tidbits in the recent disclosed files re: the investigation of Flynn, throwing up one after another, presenting a Fox News-friendly narrative of a witch hunt
Sullivan asks about the letter from Strzok's attorney. "I was floored when I saw the letter" mentioning alterations on a document (though Sullivan inaccurately says "an email").
Says it was "very unsettling." Wants a response from gov't in a week.
Sullivan asks whether he should take Trump's tweets into consideration.
Mooppan says he's consulted with Barr, and is authorized to represent that Barr's positions re: Flynn are not based on consultations with Trump or Trump's tweets.
Gleeson: “These reasons (offered by the government for dismissing the case) are so painfully pretextual that the government feels the need to keep coming up with more of them.”
"I can't believe some of the things I'm hearing."
Gleeson: The real reason behind all the pretexts is that Flynn has friends in "really high places" that want to help him out. This is shown by Trump's comments, Trump's tweets, Barr's comments. Trump has "a deep animosity" for those who prosecuted Flynn.
Gleeson says the government has “manufactured a materiality standard just for Michael Flynn.”
(DOJ started claiming this year that Flynn's false statements weren't material to any investigation.)
Gleeson says this has been like "whack-a-mole."
"The government continues to unearth utterly inconsequential administrative and investigative tidbits. It launders them through this weird investigation conducted by” US Atty Jensen. And puts it onto Flynn's docket
Sullivan (to Powell): Why did Mr. Flynn plead guilty twice under oath?
Powell: His counsel was conflicted. He wasn't advised to all the evidence. (She continues in this vein for some time)
Re: "whether this is a witch hunt," Mooppan cites Bill Priestap's notes: "What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired"
@adamgoldmanNYT & @ktbenner report Priestap claims these are being misinterpreted
nytimes.com/2020/05/13/us/…
Judge Sullivan says it's been a very interesting and very long day, and he will proceed with dispatch. (No ruling today.)
Hearing is over.
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