Judge Emmet Sullivan had two choices: He could ignore the growing evidence of government misconduct and wind up the two-year saga that has been the sentencing phase of the Michael Flynn criminal case, or he could say “not on my watch.” Yesterday, in a methodical and seemingly tempered opinion, the long-time federal judge opted for the former tack when he denied in full the comprehensive motion to compel Flynn’s attorney Sidney Powell filed several months ago. Judge Sullivan then set Flynn’s sentencing for January 28, 2020.
While Judge Sullivan’s opinion appeared measured as he dispatched the myriad issues Powell raised on behalf of her client, two passages, separated by scores of pages in the tedious 99-page opinion, make clear that the outcome was a forgone conclusion.
“The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution,” Judge Sullivan began his analysis of Powell’s legal arguments under a bolded heading entitled “Ethical Concerns with Mr. Flynn’s Brief.” Judge Sullivan then notes that Powell’s brief provided a hyperlink to the “excellent briefing by Amicus in support of the Petition for Writ of Certiorari in Brown v. United States.”
Powell said in a statement that “the plagiarism accusation makes no sense,” adding that she “relied on briefing in one of my own cases and both cited and linked the brief written primarily by my brilliant friend Lucas Walker.” “That’s how Judge Sullivan knew the source for the material,” Powell explained.
In contrast, Judge Sullivan made nary a mention of the fact that for two years federal prosecutors had misidentified the handwritten notes of the FBI agents. “The government confirmed that it previously misidentified the authorship of the agents’ handwritten notes from the January 24, 2017 FBI interview,” Judge Sullivan wrote in a footnote, before concluding that that correction made Flynn’s request for former FBI Agent Peter Strzok’s handwriting samples moot.
That Judge Sullivan took no umbrage to the government’s blunder, when the normal reaction would be of outrage and concern that federal prosecutors had botched other important aspects of the case, means he didn’t care. He had made up his mind. The case was done. All that was left was to recite the pieces of evidence Powell sought and a reason it need not be produced.
From Judge Sullivan’s opinion it seems clear why he ruled as he did: Flynn pleaded guilty and then held firm to his plea. “Flynn—who was represented by experienced attorneys—knowingly, voluntarily, and intelligently entered into the Plea Agreement,” Sullivan wrote. Then, after the case was reassigned to him, Judge Sullivan “conducted an extension of the plea colloquy in view of statements made in Mr. Flynn’s sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview,” the court explained. But “in response to the Court’s questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963).”
For Judge Sullivan, the guilty plea was the beginning and the end: Flynn pleaded guilty to lying to the FBI and none of the evidence he seeks changes that, and much of the withheld evidence is irrelevant to that specific charge. The avalanche of evidence of DOJ and FBI misconduct the inspector general report recently revealed mattered not a wit to the federal judge.
A sub-theme Sullivan weaves throughout his lengthy opinion seems to also suggest that without a motion—to withdraw his guilty plea or to challenge the effectiveness of Flynn’s prior counsel, or both—the complaints about the prosecutors’ misconduct are academic. However, in several areas of the opinion, Judge Sullivan seems to address arguments on the merits, such as the validity of Flynn’s waiver and his prior attorney’s conflict-of-interest.
What Judge Sullivan didn’t address, though, was the IG report issued last week. That omission seems odd given that federal prosecutors suggested the IG report had relevance to some of the questions raised in the motion to compel and then justified the request to delay sentencings, in part, on the impending release of the report. The failure to even mention the IG report strengthens the conclusion that to Judge Sullivan Flynn’s guilty plea outweighed any prosecutorial misconduct.
At this point, there are few options left. Powell’s approach to date has been to hammer the government, believing the Judge Sullivan who witnessed the prosecutorial misconduct at play in the criminal case against the now-deceased Alaska Sen. Ted Stevens would never permit the government to destroy Flynn on trumped up charges. Judge Sullivan rejected that tactic, saying in no uncertain terms this is not the Stevens case.
Now Flynn must decide whether to proceed with sentencing or to attempt to withdraw his guilty plea or challenge the effectiveness of his first trial counsel, or some combination of these. In weighing his options, Flynn will likely recall his last sentencing hearing before Judge Sullivan and the federal judge’s reaction to hints that Flynn was not accepting responsibility for the offense—something that affects sentencing.
Also, given Judge Sullivan’s prior comments, if Flynn proceeds to sentencing now, he is likely to see some jail time. Of course, President Trump might then pardon Flynn, but with the 2020 election forthcoming, political calculations might squelch that hope.
Flynn could instead attempt to withdraw his guilty plea. At this late date, he would need a solid basis to justify a plea withdrawal, but a claim of ineffective assistance of counsel or establishing an invalid waiver of his attorneys’ conflicts of interest might suffice.
With the plea withdrawn, then, Flynn would have more latitude to obtain evidence from the government, although the IG report already handed him one significant detail: an FBI agent had attended a briefing with then-candidate Trump and Flynn to assess Flynn’s demeanor. That agent would later be one of the two agents to interview Flynn in January 2017 and after talking with Flynn—with his prior demeanor as a baseline—would conclude he did not think Flynn was lying.
That would be strong evidence for Flynn to cite should he decide to fight the charge—or attempt to, as he initially must obtain leave of court to withdraw his plea. Instead, though, Powell may try one last time to highlight government malfeasance by filing a motion to dismiss based on prosecutorial misconduct, and citing the numerous examples included in the IG report that directly involve Flynn. However, given Judge Sullivan’s reaction to date, it is likely going to take something more—it is likely going to take Flynn telling him, “I’m not guilty and I only pled because they threatened my son.”