On Thursday, two docket entries in the criminal case against Michael Flynn provided a roadmap to the next steps in the case that took a surprise turn last week. As I reported earlier this week, while Americans prepared for the long Labor Day weekend, lawyer Sidney Powell, who had taken over Flynn’s defense in June, hit federal prosecutors with a motion to compel evidence and a request for sanctions for prosecutorial misconduct.
In her motion, Powell charged that government attorneys withheld potentially exculpatory evidence from Flynn, whom had pleaded guilty in late 2017 to lying to FBI agents. In a status report filed the same day, Powell also complained that the government had refused to grant her a security clearance to allow her to review pertinent evidence, and she sought presiding judge Emmett Sullivan’s intervention.
Yesterday, Judge Sullivan “held an ex parte and sealed hearing with Mr. Flynn and defense counsel to consider Mr. Flynn’s request for the Court’s intervention on counsel’s request for security clearances.” An ex parte hearing is one in which one or more parties are absent, which here would mean the prosecutors did not participate in the hearing. Because the hearing was sealed, a transcript is not publicly available, and Powell is prohibited from commenting on the proceedings.
However, the docket order stated the bottom line: “The Court advised counsel that it intends to resolve [Flynn’s] Motion to Compel Production of Brady Material before addressing any Court intervention regarding security clearances for Mr. Flynn’s counsel.”
A minute order soon followed, with the court stating that “in view of Defendant’s Motion to Compel Production of Brady Material, the Court will set a briefing schedule and a motion hearing date at the September 10, 2019 Status Conference.” That briefing schedule will set the timing for federal prosecutors to respond to Powell’s motion and the 19-page memorandum filed in support of the motion to compel. On the tenth, the court will also set a deadline for Powell to reply to the government’s counter and schedule a hearing for the parties to orally argue their positions.
Judge Sullivan’s minute order also included another intriguing tidbit. In it, he noted that the court would “apply the standard set forth in United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) to resolve the pending motion.”
The Yunis case involved the government’s prosecution of Lebanese citizen Fawaz Yunis for air piracy and hostage taking, related to the 1985 hijacking of Royal Jordanian Airlines’ flight number 402. In that case, Yunis sought “copies of all tapes or documentation of conversations between” himself and an acquaintance, Jamal Hamdan, whom the FBI had recruited to serve as an informant. A lower court had ordered the government to produce that evidence, but on appeal, the D.C. Circuit held that Yunis was not entitled to access that material.
In so holding, the Yunis court laid out the governing law, starting with Section 4 of the Classified Information Procedures Act, or CIPA, which governs “Discovery of classified information by defendants.” That Section provides that a court “may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure . . . .”
The D.C. Circuit then explained in Yunis, that under CIPA, “first, a defendant must show that the statements sought crossed the low hurdle of relevance.” The court then recognized “a defendant’s access to his own statements in the possession of the government has generally been granted upon a minimal showing of relevance.” Next, court must “determine if the assertion of privilege by the government is at least a colorable one.” Then, the court must ask if the evidence is “helpful to the defense of an accused.”
Applying these principles, the court in Yunis denied the defendant access to the material, concluding that “nothing in the classified documents in fact goes to the innocence of the defendant vel non, impeaches any evidence of guilt, or makes more or less probable any fact at issue in establishing any defense to the charges.”
What is intriguing about the Yunis citation is that the case involved a defendant seeking access to his own statements. We already know from Powell’s memorandum in support of her motion to compel that Flynn wants access to the tapes of his conversations with Russian ambassador Sergey Kislyak. But we do not know what other tapes Powell sought access to because a protective order required her to file her underlying motion under seal. Had the government been taping Flynn and not just the Russian ambassador?
None of that matters, the government will likely argue, since Flynn already pleaded guilty and is not attempting to withdraw his guilty plea. Thus, the tapes are irrelevant, or at a minimum, not “helpful to the defense of an accused,” the government is likely to counter. Powell, though, seems poised to argue the evidence is relevant and helpful to show that “dismissal of the case for egregious government misconduct” is appropriate.
This argument might seem like a long shot, but so was Trump winning the presidency. And we already know of a lot of egregious government misconduct that flowed from that surprise victory. The question is whether Flynn was also carried away by the deluge, and whether Judge Sullivan will keep him from reviewing the evidence that could prove his case of prosecutorial misconduct. We will have a better hint next week.