On Tuesday, Judge Emmett Sullivan quizzed federal prosecutors and defense attorney Sidney Powell on the next steps in the Michael Flynn criminal case that has been lingering for more than a year in a D.C. District Court. Judge Sullivan had scheduled the hearing earlier this month in response to Powell’s motion to compel the government to hand over Brady material: material in the government’s possession that is favorable to the accused.
But what should have been a quick hearing to set a briefing schedule turned into a 45-minute preview of Powell’s plan to combat what she characterized as egregious government misconduct.
“There is far more at stake here than sentencing,” Powell began. “As new counsel, we have an ethical obligation to review everything that has happened in the case or not happened, as the case may be, and that is why we filed the motion to compel production of Brady material.”
She then proceeded to detail several examples of the government’s “stunning failures to produce Brady” material, such as the government’s delay in providing the Lisa Page and Peter Strzok text messages to Flynn’s prior counsel and withholding of various internal documents exonerating Flynn of being a Russian agent and violating the Logan Act.
Powell also hit hard the government’s failure to disclose the original Flynn 302 interview summary written by FBI Agent Joseph Pientka. “They say they don’t have it,” Powell noted, adding that “it would certainly be in the FBI’s computer system.” “Things don’t disappear like that,” the defense attorney stressed, seemingly forgetting Hillary Clinton’s missing 30,000 emails. Judge Sullivan appeared less concerned by the disappearance, noting “notwithstanding the best efforts of everyone, things happen and documents are lost. I mean, it just happens.”
Sullivan also pushed Powell to explain the relevance of the various evidence she was seeking. “There never would have been a plea to begin with if the government had met its Brady obligation disclosing what it knew before Mr. Flynn entered a plea and, frankly, before he even made a proffer,” Powell explained.
But it was when Powell said “there’s one thing after the other that we can document that exonerates Mr. Flynn in any number of ways,” that Judge Sullivan interjected: “You’re suggesting that a basis exists to file a motion to withdraw his plea? Is that where this is headed towards?”
“I can’t say right now exactly where it’s headed,” Powell responded, noting she didn’t “think it’s going to be a motion to withdraw the plea.” Rather, Flynn’s new attorney explained she intended “to show that the entire prosecution should be dismissed for egregious government misconduct and long-time suppression of Brady material.”
While appearing on Lou Dobb’s show earlier this month, Powell indicated she was not looking to withdraw Flynn’s plea, but saw dismissal of the charges based on egregious government misconduct the appropriate tack. Tuesday’s hearing represents the first time Powell presented this theory in court.
Powell also highlighted several other pieces of evidence still not turned over by the government, but the government maintained that it had complied with its Brady obligation, providing quick counters to Powell’s charges of Brady violations. It’s difficult to gather from the short back-and-forth the strength of the Brady challenges, but we should know much more soon, as the government submitted a redacted version of Powell’s previously filed sealed motion to compel and informed the court that that document could be publicly released.
Powell is reviewing the redactions and promised to provide her view by September 12, meaning we could see the meat of Powell’s beef by the end of Wednesday. Next will be the government’s response to Powell’s claims of Brady violations, which is due by September 24. Powell then has until October 15, 2019 to file a final response.
To many observers’ surprise, the court also set a sentencing date for Flynn for December 18, 2019, while assuring Powell that the date could be changed if needed. Less shocking, though, was the government’s position that it intends to file a supplemental sentencing memorandum on its position regarding an appropriate sentence for Flynn.
Last year, the special counsel’s office had recommended a sentence of no jail time for Flynn, but much has changed since then. So, in response to Sullivan’s query of whether “the government stands by its sentencing recommendation,” the government’s lead attorney indicated that it intends to refile “the appropriate paperwork.”
The court set a December 2, 2019, deadline for the supplemental sentencing memorandum. But much could occur before then—especially if Powell obtains access to the mountains of material she claims the government is withholding.