On Monday, former President Trump national security advisor Michael Flynn appeared before Judge Emmet Sullivan for a routine status hearing. Yet the 15-minute hearing proved anything but usual when Flynn’s new attorney, prosecutor turned defense attorney Sidney Powell, suggested that the special counsel’s office may not have produced classified information relevant to Flynn’s case. And Powell made clear she intends to obtain it.
The status hearing began friendly enough, with the judge asking Flynn, who had pleaded guilty on December 1, 2017 to a charge of providing false statements to the Federal Bureau of Investigation, how he was doing. “Great,” the retired general replied, with the judge then greeting Powell, who was making one of her first appearances before Sullivan since taking over Flynn’s case.
“I firmly believe in transparency,” Sullivan began, before proceeding to note for the record that in 2014, Powell had sent him a copy of her best-seller, “License to Lie”:
On the third page she wrote, ‘Judge Emmet Sullivan, to all those who seek, hallow, and do Justice. With the greatest respect and gratitude for your honorable service, Sidney Powell, April 24, 2014,’ and there are at least two very complimentary sections in the book about the Stevens trial that I presided over and me and things that happened in the trial, and the saga continued after the trial. And I’m embarrassed to say, I’ve not read the entire book, Ms. Powell. I did read the chapters about me and the Ted Stevens trial, but I just thought I would put that on the record. I asked a colleague, I said, ‘Does that mean I have to recuse?’ And the colleague said, ‘If everyone who said nice things about you appeared before you — If everyone who appeared before you said nice things about you, you wouldn’t have a caseload.’
While Sullivan didn’t belabor the point, Flynn and Powell likely found solace in these pleasantries. It surely reminded Sullivan of the underhanded misconduct that even federal prosecutors are capable of, as he witnessed firsthand in the Stevens case.
That case involved the government’s prosecution of Alaska’s then-sitting senator Ted Stevens on federal corruption charges. A jury convicted Stevens and eight days later he lost his re-election bid. But after evidence of gross prosecutorial misconduct came to light, the attorney general dismissed the indictment.
Sullivan, who had presided over the criminal trial, ordered a full investigation into the misconduct, which revealed that Stevens’ trial was “permeated by the systematic concealment of significant exculpatory evidence.” It is unfortunate, however, that Sullivan hadn’t read the rest of “License to Lie,” for in it Powell details many of the abuses that lay at the door of the special counsel’s lead attorney, Andrew Weissmann, when he led the Enron Task Force.
Back to Basics
Sullivan then returned to business, asking Powell how she wished to proceed. Flynn’s new counsel explained that although she had agreed with the U.S. attorney’s office, which had taken over the case from the special counsel’s office, to set a new status hearing in 60 days, given the complexity of the case, and the fact that she had “not completely even obtained possession” of all of the relevant documents, 90 days was more realistic.
Although the government pushed to keep the 60-day time period, Powell explained that most of her time over the next month would be dedicated to preparing Flynn to testify in the criminal case against Iranian-American Bijan Kian, also known as Bijan Rafiekian, scheduled to start in mid-July in a Virginia federal court.
“Oh, yes, sir, yes, sir. That cooperation is still fully ongoing,” Powell assured Sullivan, when he asked whether that was still the plan, referring to Flynn’s commitment to testify against Kian, who “was charged with conspiracy for working for Turkey to influence American politicians, . . . while he and Flynn co-owned the Flynn Intel Group.” In the end, Sullivan set the next status report for the end of August, while adding, “If there’s a need for modification, let me know and I’ll be happy to modify it.”
Minor Point with Major Implications
After a short detour to discuss the travel restrictions governing Flynn’s release pending sentencing, the housekeeping was done—except for one minor point, with major implications: “We’d also like to proceed to get security clearances so that we may fully converse with our client, and,” Powell continued, before Judge Sullivan interrupted and noted a classified information security officer was present. But, the court added, “I’m not saying that you need clearance, because I don’t know what the information is that’s been turned over.”
At that point, Brandon Van Grack, the Department of Justice’s prosecutor from the National Security Division, joined in the discussion. He had participated in the case when it was still part of the special counsel’s probe, and added two points.
“First is, there is no classified discovery provided to defense counsel,” he began, noting “we never put that on the record, so there’s no reason for the Court to know that, but there is no classified discovery in this case.” Second, the national security prosecutor stressed that there were only 20,000 pages of documents provided in discovery, suggesting that the material Powell needed to review was not as voluminous as the court had been led to believe.
Then came the bombshell: “And I do think most of the information I will need to review may be classified,” Powell responded. “I don’t know for sure, but out of an abundance of caution,” Flynn’s new attorney continued, before Sullivan interjected, “Notwithstanding the government’s representations?” “That’s with regards to what they produced. There is other information,” Powell replied pointedly, to which the court quipped: “Now you’ve piqued the government’s interest.”
But Van Grack persisted, noting that “again, in terms of the information the government produced, there’s nothing that the government produced that’s classified.” “But you’d like to know what this other information is, too?” Sullivan queried. Van Grack suggested the “court would want some specificity in terms of the basis for getting a security clearance from government, which is in possession of the classified information,” at which point Sullivan called the classified information security officer to the bench and held a sidebar discussion that was sealed by the court and redacted in the court transcript.
Did the Special Counsel Hide Key Evidence?
These exchanges raises the question of whether the special counsel’s office failed to provide Flynn’s prior attorneys all material information related to the case against Flynn. Although in his plea agreement, Flynn had agreed to “forego the right to any further discovery or disclosures of information not already provided at the time of the entry of Flynn’s guilty plea,” shortly after Flynn pled guilty before Judge Rudolph Contreras, the case was reassigned to Judge Sullivan.
Sullivan’s first order of business was to enter the standard order he issues in all criminal cases on his docket. That standing order requires the prosecution to produce “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” Significantly, Sullivan’s standing order directs the government to submit to the court “any information which is favorable to the defendant but which the government believes not to be material.” In other words, Robert Mueller’s team could not withhold evidence with the excuse that it was immaterial.
Yet Van Grack explicitly stated that no classified information had been turned over. In an August 25, 2017, letter, however, then Senate Judiciary Chair Chuck Grassley requested that the Department of Defense and the Defense Intelligence Agency “declassify a key piece of information from” a classified briefing provided to Judiciary Committee members about Flynn.
Grassley stated that declassification would “not pose any ongoing risk to national security,” and “would be in the public interest, and in the interest of fairness to Lt. General Flynn.” That suggests the information, at a minimum, was favorable to Flynn, and since in sentencing a court must consider the character and history of the defendant, it appears those documents should have been provided.
Don’t Forget the Tapped Phone Calls
What about any recordings or transcripts of calls involving Flynn? The government had previously rebuffed Sullivan’s directive to file the transcript of the call between Flynn and former ambassador to the United States Sergey Kislyak, which would seem likely to be classified. Did they not even turn that recording over to Flynn, even though it formed the basis of the criminal charges against him? And what other recordings did the government have of Flynn’s conversations during his time with the Trump campaign, transition, and young administration?
While the government told the court it was “not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record,” Sullivan’s standing order required the special counsel to provide Flynn any information material to his guilt or sentence, and to present the court any information that might be favorable to Flynn that the government did not believe to be material.
Flynn’s prior attorneys may not have attempted to enforce the court’s order, given their penchant for pleasing the special counsel—possibly at a cost to their client—but from Powell’s preliminary comments during Monday’s hearing suggest she has every intent of demanding the documents. And that’s where things will get interesting.