Thread by @meganmineiro

Coming up at 11am, Judge Sullivan will hear arguments on the Justice Department's push to drop the prosecution of Trump’s former national security adviser Michael #Flynn. I'll have live updates.

This will be the first time hearing directly from Sullivan--appointed by president's of both parties to serve on the D.C. superior, circuit and district courts--since Flynn asked the D.C. Circuit to force the judge to drop the case.

Background: DC Circuit Won’t Force Dismissal of Flynn Prosecution
courthousenews.com/dc-circuit-won…

Flynn's attorney Sidney Powell says he will not be on the videoconference hearing with the judge.

Here's who we have in the mix this morning:

Judge Emmet G. Sullivan--Clinton appointee

John Gleeson--fmr district judge, amicus appointed by the court to argue against DOJ's motion to dismiss

Flynn--attorney Sidney Powell

DOJ--AUSAs Hashim M. Mooppan, Kenneth Clair Kohl

Fun fact on Sullivan: when Clinton appointed him to the district court in 1994, he became the first person in D.C. to have been appointed by three president to three judicial positions (Clinton, Reagan and H. W. Bush).

Here we go...Sullivan starts out saying he is going to spend time essentially "capturing the essence of the main argument."

Then he wants the attorneys to tell him if he misstated their augments followed by questions.

Sullivan says he won't focus on whether Flynn should be held in criminal contempt for perjury at this point or if the court had the authority to appoint Gleeson as amicus.

"The scope of the court's inquiry is going to be significantly limited."

Sullivan plans to address whether the court has discretion to review prosecutorial abuse and whether to deny DOJ's motion to dismiss the false statement charge against Flynn.

Sullivan says he postponed sentencing Flynn to allow him "every opportunity to help himself" through his plea agreement.

Sullivan noted Flynn's cooperation with DOJ in his former business partner's criminal case. Background: courthousenews.com/former-flynn-p…

Sullivan says there's no reason to discuss the D.C. Circuit three-judge panel or en banc panel conclusions, adding sufficient to say the case was remanded to him.

Sullivan says Rule 48(a) gives the court a role in dismissals following indictment, reading from Gleeson's brief.

Sullivan reading from Gleeson's brief says “judges may constitutionally guard against these forms of abuse in their own courts" and dismissal may only be obtained by leave of court.

The judge says the district court serves as more than “a rubber stamp for the prosecutor’s decision," then adds "that deserves repeating" and reads again.

Sullivan now running through DOJ's filings says the government argues the principle object of leave of court to dismiss a case is to protect against prosecutorial harassment.

Back on Gleeson's arguments now on the court's authority, Sullivan says the amicus argues the judge has a responsibility to protect against “gross abuse of prosecutorial power."

Seems that someone not muted on the line is playing audio from a congressional hearing. Clerk instructs all parties to mute their feed.

Sullivan thanks the individual who muted their phone, says "this is the new normal" and jumps back into summarizing the parties' arguments.

I was momentarily dropped from the public call-in line. Called back and the automated message told me there's 500 participants on the call.

Sullivan ordered 7 different teleconference numbers for the public to listen to today's proceedings. I'm on the second line, so could be many more listeners.

Sullivan says “it is never a defense to a false statement charge that ‘the government was not actually deceived'" reading from the amicus' brief.

Sullivan asking DOJ if it has any objections to what he just said or additions to the summary.

Pausing for technical troubleshoot. Judge can't hear DOJ attorney.

"Relax it's not your fault. Again this is the new normal here, we're all learning," judge says.

Judge Sullivan gives a shoutout to the court's tech guru John Cramer saying the parties are in good hands now as they work out the poor sound quality.

Before the sound problems, DOJ attorney Hashim M. Mooppan was beginning to argue that the motion to dismiss should be granted because there is no conflict between the parties (Flynn and DOJ).

Judge calling a recess until 12:35 to resolve the tech problems.

Note that Sullivan is in the courtroom, said he was trying to look through the plexiglass to see what time it is.

Flynn's attorney Sidney Powell before the recess told the judge she has a "number of objections" to put on the record when they return.

Sullivan spent the first 50 mins of the hearing on a detailed rundown of the parties' arguments.

Sullivan seems very set on keeping both parties calm during the hearing and said repeatedly when the tech issues arose that it was no one faults/no one needed to be "stressed out."

Set to get started again...

Sullivan: "I hear you fine Mr. Mooppan.”

DOJ: “Alright, fingers crossed."

Reminder that the parties are arguing by videoconference today, per the court's COVID-19 protocol.

DOJ attorney Mooppan up again argues that Rule 48(a) doesn't allow the court to question whether the executive branch should bring a case.

Kenneth Clair Kohl, a senior ranking career official in U.S. Attorney's Office for D.C., says there was no corrupt political decision in dismissing Flynn's case.

“I have never seen it in my entire career in our office and it didn’t happen here," Kohl adds.

Kohl questions who DOJ would call as witnesses to prosecute Flynn listing "Pete" Strzok and "Andy" McCabe" saying DOJ's OIG found they both had credibility issues including "lying under oath, misleading the court."

Sullivan asking DOJ now about a letter Flynn's attorney sent DOJ in June 2019.

https://twitter.com/MMineiro_CNS/status/1310989581932802048?s=20

Powell slams Sullivan as biased and criticizes him for selecting the latest date the parties agreed to for today's hearing.

Sullivan defends his conduct saying he wanted to be sure the district court had jurisdiction on remand from D.C. Circuit before proceeding:

“I was proceeding very cautiously...it wasn’t any effort to unduly delay this proceeding," the judge says.

Sullivan says there was a suggestion in a filing that he had talked with amicus John Gleeson. For the record, the judge asks the retired EDNY judge if they have ever spoken -- Gleeson says this is the first time.

Sullivan running through a series of constitutional questions for DOJ now.

Sullivan says he asks a lot of questions and cautions against reading too closely into any of them today.

“I’m just trying to reach the right decision for the right reasons,” the judge adds.

Kohl with DOJ says that if the agency finds evidence that a politically connected defendant committed a crime they will prosecute, but if there is no evidence will not.

“We just tried to make the right call here,” the attorney adds.

Kohl repeatedly relying on statement from William Barnett, the veteran FBI agent who handled Flynn's case:

“He didn’t raise any alarm bells and he told the special counsel’s office that there was nothing there with respect to Flynn."

Judge Sullivan says he was "floored" and it was "very unsettling" that Peter Strzok’s attorney said some attachments on Flynn docket appeared to have been altered.

https://twitter.com/kyledcheney/status/1310711056902369291?s=20

Sullivan asked DOJ to follow up verifying that all documents filed in support of its motion to dismiss are true and accurate.

Turning to Trump's tweets supporting Flynn, Sullivan asks if he should consider them in his ruling.

DOJ claims AG Barr dropping the case was not based on any statements by the president.

DOJ attorney Mooppan says Trump's tweets on Flynn are not evidence of favoritism.

"That’s a view about whether this is a just prosecution or an unjust prosecution," he says.

Amicus John Gleeson up now three hours into the hearing.

"I have a lot to say."

Gleeson in response to question from Sullivan starting with whether granting the motion to dismiss should be done with or without prejudice.

The retired judge says Rule 48(a) makes clear it should be without prejudice.

Gleeson argues Flynn pleaded guilty twice to lying to the FBI.

“People who don’t hang around federal courtrooms don’t really get just how important it is to enter a plea of guilty," the retired judge says.

Gleeson argues that Flynn can't just show up to court and "see how the wind is blowing” then have a "change of heart" after pleading guilty.

Gleeson says Trump has more than 100 tweets and retweets on Flynn.

“He’s closely following the proceeding. He’s personally invested in ensuring this prosecution ends."

Gleeson says that Trump's tweets backing Flynn come with “a backdrop of open disdain" by the president for the judiciary.

DOJ's motion to dismiss is "a yield to the president’s pressure," Gleeson says.

Gleeson twice reads AG Barr's statement that Trump's tweets "make it impossible to do my job and to assure the courts and the prosecutors in the department that we are doing our work with integrity.”

“This court is free to deny leave under Rule 48 to vindicate fundamental judicial interest and related public interests," Gleeson tells the judge.

Gleeson also concedes that DOJ has a "presumption of regularity" in moving to dismiss but that "is not a presumption that can’t be rebutted."

“If the executive wants to take Michael Flynn off the hook he can pardon him," Gleeson argues, adding that would not bind up the judiciary in the “desire to scuttle the case" because Flynn is Trump's friend and ally.

Sullivan has ordered a 15 min recess to give the court reporter a break.

Back.

Sullivan commends everyone on their arguments so far in the long hearing and asks Gleeson about discretion.

Judge says he has four questions for Powell and then will allow her to make additional arguments.

"The contortions the government has engaged in...are not pretty," Gleeson says.

The amicus argues that predication is never a prerequisite for the FBI to conduct the kind of voluntary interview at the center of this case.

Gleeson says that the government would "fight tooth and nail" in any other case where the defendant sought to get out from under a guilty plea the way Flynn has here.

Gleeson pushing against DOJ's argument that it can't prove Flynn's guilt questions how the national security adviser forgot in less than a month that he asked the Russian ambassador for a favor, then lied about it to the VP elect.

Gleeson smacks down the govt relying on FBI agent William Barnett's statement that he didn't "raise any alarm bells" with Mueller's team on Flynn, says Barnett believes Flynn lied and was only interviewed last week.

Flynn's attorney up now. Sullivan asks her why Flynn pleaded guilty twice under oath.

Powell says his counsel was "hopelessly conflicted," arguing conflict of interest with his Covington & Burling.

Powell argues the Flynn prosecution "was part of the essential coup to take out President Trump."

Powell argues the court should look at the 150 pages of new evidence that shows that the investigation into Flynn was political.

Powell argues Trump's tweets are nothing but a "red herring," says the same about Strzok's attorney's letter claiming DOJ evidence on the record was altered.

Mooppan with DOJ back up now arguing that new evidence shows that leaving the 2017 interview with Flynn the FBI agents' "contemporaneous impression was that Flynn was not lying or did not think that he was lying."

Mooppan also argues that Flynn told McCabe that he thought the FBI knew about all his communications and that FBI agents recognized that Flynn has “a bad memory."

Sullivan says he doesn't see how the case cited by the govt in and of itself should dictate his decision and asks DOJ for more precedent.

Mooppan says he doesn't have another case to cite, argues if there were another case where an FBI agent questioned whether to "prosecute him or get him fired?" it would be dismissed.

“This is the Department of Justice. Not the department of prosecution," the DOJ attorney says.

Gleeson says, respectfully, DOJ's team sounds like bad defense attorneys arguing they're shocked that an FBI agent would induce someone to perjury.

“Look under the hood. That’s what they do," the amicus argues.

"It has everything to do with the president’s belief that this is some kind of witch hunt," Gleeson argues.

That's a wrap.

Sullivan closes out saying it has been a very interesting and informative long day, adding: “Have a nice evening. Be safe."

For those counting, today's Flynn hearing ran just over four hours. Thanks for following along!