Late Tuesday, federal prosecutors filed a motion to cancel the briefing due in mid-December in the Michael Flynn criminal case.
In early September, D.C. District Court Judge Emmet Sullivan had ordered the government to file a supplemental sentencing memorandum by December 2, 2019, and directed Flynn’s new attorney, Sidney Powell, to file a supplemental sentencing memorandum for the retired general by December 10, 2019. Judge Sullivan had then set a December 18, 2019, date for Flynn’s sentencing.
But now, after having previously argued stridently that there was no reason to delay Flynn’s sentencing, the government has asked the long-time federal judge to put both the briefing and the sentencing hearing on hold.
Government attorneys presented two justifications for the requested delay. First, they stressed that the court had not yet ruled on Flynn’s pending motion to compel the production of Brady material. As prosecutors note in the motion to delay the sentencing proceedings, Judge Sullivan had scheduled a hearing on the motion to compel for October 31, 2019, but then “canceled the hearing for the Motion to Compel because of the parties’ ‘comprehensive briefing.’”
Nearly a month has passed since the original hearing date and the court has not yet ruled on Flynn’s Motion to Compel. The government’s motion, which Flynn joined, stressed that while “both parties share the Court’s goal to move this case along expeditiously[,], [t]he parties nonetheless believe that their sentencing submissions will be incomplete if they are filed prior to the Court’s issuance of its ruling on the Motion to Compel.”
This explanation for the delay makes eminent sense: If the court orders the government to turn over more information it could well alter the arguments made in the sentencing memorandum. Alternatively, newly disclosed evidence may trigger other proceedings—such as a motion to dismiss based on egregious prosecutorial misconduct—that need resolving prior to sentencing.
What is surprising, however, is that the government agrees with this reasoning. Until now, federal prosecutors argued that the Motion to Compel is a fishing expedition and the evidence sought is immaterial to sentencing. But now, the government seems to accept the possibility that the Motion to Compel has some merit.
Also surprising is the second justification proffered for the delay. The Joint Motion notes “that the Department of Justice’s Office of the Inspector General (OIG) is conducting an Examination of the Department’s and the FBI’s Compliance with Legal Requirements and Policies in Applications Filed with the US. Foreign Intelligence Surveillance Court Relating to a certain US. Person,” and asserts that “the parties expect that the report of this investigation will examine topics related to several matters raised by the defendant.”
It’s telling that federal prosecutors included this added justification in the joint motion to delay the sentencing proceedings. Until now, government attorneys had argued that Powell’s claims of prosecutorial misconduct were unwarranted or irrelevant or both. Yet now prosecutors are tacitly acknowledging that misconduct in the Carter Page FISA case bears on their criminal case against Flynn.
Also interesting is that the government sought out the sentencing delay—not Flynn’s attorney. Powell told The Federalist that prosecutors raised the issue of a delay just Tuesday morning, but that she did not see a draft motion until late afternoon.
One wonders, then, what prompted the government’s change in position. Prosecutors could have easily filed a sentencing memorandum, and in fact, that would have been more consistent with their position that the Motion to Compel is without merit and it’s time to end this matter.
Powell thought the government had no other option, though, telling The Federalist, “This is the government’s only option—short of dismissing the case on its own or producing all the evidence we requested.” Flynn’s attorney also looks forward to the extra time they need to process the IG report and the facts it likely will contain to assist the defense, assuming Judge Sullivan grants the motion.
“We expect it to include evidence of additional Brady violations,” Powell said. “We shall see.”