Thread by @ZoeTillman

Hello from my dining table, where I'll be listening remotely to arguments set to start at 11am on DOJ's motion to dismiss the prosecution against Michael Flynn. For a refresher on the months-long legal fight over whether this hearing should happen at all: buzzfeednews.com/article/zoetil…

The judge will do the hearing via video conferencing, but the public/press can only call in to listen to the audio. If you'd like to dial in, the court has made multiple lines available to accommodate lots of callers! (There were already 300+ people on the line when I dialed in.)

The lawyers had been chatting amongst themselves for a while but it's now gotten a lot quieter after someone noted that everyone who had called in could hear them

One notable addition to the bevy of lawyers already involved in the Flynn case: senior DOJ lawyer Hashim Mooppan entered an appearance a couple weeks ago. You may remember him from such cases as the McGahn subpoena fight, DACA, travel ban, and more

Judge Emmet Sullivan has taken the bench (so to speak) and the hearing on DOJ’s motion to dismiss the prosecution against former Trump national security adviser Michael Flynn is underway

Sullivan begins by saying what he will *not* focus on today:
- Whether there's a live case/controversy (DC Circuit addressed that)
- Whether Flynn should be held in criminal contempt (the parties' positions are "crystal clear," judge says)
- Whether court can appoint an amicus

Sullivan is now reciting the history of the case. Twice so far he's made a point of saying that steps he took that got a lot of attention — delaying sentencing to give Flynn time to complete cooperation and issuing a standing Brady order — are things he does as standard practice

(Sullivan is still summarizing each side's arguments in the case, questioning hasn't started yet)

Current status

https://twitter.com/joshgerstein/status/1310975592527929346

Flynn hearing is back. DOJ lawyer Hashim Mooppan begins, saying Sullivan's overview is generally accurate, but the govt takes issue with a few things. He says they're not arguing the court has to be a "rubber stamp," but that circumstances for court review are more limited

Mooppan then turns it over to Kenneth Kohl, an AUSA in the US attorney's office, who begins by disputing any allegation that the decision to dismiss the Flynn case was driven by improper political motives — it "was the right call for the right reasons"

Kohl said the govt had an obligation to investigate evidence of wrongdoing in a prosecution. Cites notes that appeared to support the contention that Flynn had a bad memory, and a transcript of Comey testimony where he said he wasn't sure if Flynn lied and it was a close call

Kohl argues that there would be major problems proving the case if DOJ was forced to prosecute, since the main witnesses had credibility problems — for instance, former FBI deputy director Andrew McCabe, who was fired for issues re: truthfulness (McCabe is suing over his firing)

Extraordinary exchange between Sullivan and Flynn's lawyer Sidney Powell:
- Sullivan asks if she had discussions with Trump about the Flynn case
- Powell initially says she can't discuss it, citing possible executive privilege
- Sullivan sounds extremely surprised by this...

...
- Sullivan Qs how she could claim executive privilege (Trump hasn't asserted it)
- Powell then starts to back off, saying she provided one in-person update on the case to Jenna Ellis (an outside lawyer for Trump) and Trump himself in recent weeks

...
- Sullivan asks if she made any request of Trump
- Powell says she asked Trump *not* to pardon Flynn and otherwise provided a general update on the case status
- Sullivan asks if she ever asked Trump to ask Barr to appoint new prosecutors. Powell replies "Oh heavens no"

Powell argues Sullivan is biased and appointed Gleeson as amicus to support the judge's own views that Flynn should go to prison. Sullivan stops her, says he doesn't recall her filing a recusal motion. Powell says she's doing it now. Sullivan says she needs to do it in writing.

The judge is going to give Powell time to file a recusal motion — adding that she could have filed it at any time over the past few months — saying he's not going to take such a motion based on oral representations

Sullivan moves on to John Gleeson, the former federal judge appointed as amicus. Gleeson says he doesn't disagree with Sullivan's summary of the case. Sullivan asks Gleeson to address whether they've ever talked about the case before Gleeson's appt, and Gleeson says no

Sullivan is now questioning Mooppan and Kohl about what would happen if he denied the motion to dismiss the case. Kohl says Flynn's motion to withdraw his guilty plea is still pending, and that such motions are typically treated "liberally" pre-sentencing

Mooppan then says there would be no prosecutor in the Flynn case, since DOJ does not wish to pursue it, and he argues there is no previous case where a fed court has been allowed to appoint a private prosecutor outside of the contempt context

Sullivan asks if there's any past case identical to this situation, where a def has pleaded guilty. Kohl cites the fallout from the case of Matthew Lowry (this was an extremely high profile case in DC a few years ago), an ex-FBI agent who stole drug evidence for personal use...

...Kohl says that in light of the Lowry situation, the govt dropped prosecutions against more than two dozen defendants whose cases had a connection to Lowry, incl. defendants who had already pleaded guilty. The principle is the same in the Flynn case, Kohl argues

To the extent Kohl has argued there was no political motive for DOJ moving to dismiss, Sullivan asks if the court should consider Trump's tweets defending Flynn and criticizing the prosecution. Mooppan says AG Barr's decisions were not based on comms with Trump or his tweets

Gleeson expresses incredulity about what's happened in Flynn's case, saying the judge should definitely give a lot of weight to Trump's tweets about Flynn's case and arguing that the only explanation for how this has all unfolded is that Barr yielded to pressure from Trump

Gleeson argues that DOJ is entitled to a presumption of regularity in how it exercises its power to prosecute (or not), and the court should give deference to that, but it is not "blind deference." He argues evidence of abuse of power pierces that presumption.

The judge is taking a 15-minute break

The Flynn hearing is back on after a short recess

Sullivan asks Gleeson's about a judge's discretion in these situations — Gleeson argues the judicial branch has an independent interest to not become "an instrument" for "unseemly" bad faith by the government

Re: govt saying it's no longer confident what Flynn said about contacts w/ the Russian ambassador in 2016 was material to the counterintel investigation into Trump campaign-Russia ties, Gleeson says it's "about as straightforward a case of materiality as this court will ever see"

Flynn's lawyer Sidney Powell is speaking again. Sullivan asks why Flynn pleaded guilty twice. She argues the first plea hearing was invalid b/c that judge, Judge Contreras, was friendly with Peter Strzok (Contreras hasn't officially explained his recusal) washingtonpost.com/world/national…

Powell argues that the second time Flynn entered a guilty plea, before Sullivan (at the hearing that started as sentencing but ended with Flynn getting more time to coop), it wasn't valid because he was represented at the time by lawyers who were conflicted from representing him

DOJ lawyer Hashim Mooppan is back up — he argues a judge has more of a role to play if the defendant and govt are not on the same side re: dismissal. If they are, as is true here, the court can only assess if the prosecutor's position is the "authoritative position" of DOJ...

...Mooppan said a judge would have authority to look into that to make sure a prosecutor hadn't reached a side deal with a defendant to get a criminal case dismissed that didn't reflect the exec branch's official position, for instance

Sullivan briefly goes back to Kohl's reference to the Lowry case as analogous (where crim cases were dismissed after an FBI agent was found to have stolen drug evidence), and says he doesn't see the Flynn situation rising to that level

Mooppan says he's not aware of any other cases to compare to the Flynn case, but says it's highly unusual, citing a doc that showed the FBI counterintel chief at the time taking notes about the purpose of interviewing Flynn and wondering if it's to get truth or get him to lie

For more on that page of handwritten notes by an FBI official in advance of the Flynn interview at the heart of the case in January 2017: buzzfeednews.com/article/zoetil…

Five hours after the hearing on DOJ's motion to dismiss the Flynn prosecution began, the judge wraps up by saying he'll "proceed with dispatch" in ruling. He's giving the parties a week to submit additional filings, which will be spelled out in an order to come.