National Security Adviser Michael Flynn arrives in the east Room of the White House in Washington, Monday, Feb. 13, 2017, for a news conference with President Donald Trump and Canadian Prime Minister Justin Trudeau. . (AP Photo/Evan Vucci)
On Monday, U.S. District Court Judge Emmet Sullivan, who is presiding over the General Michael Flynn case, cancelled a hearing scheduled for November 5th. He issued a statement which said, “In view of the parties’ comprehensive briefing concerning 109 Defendant’s Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 5, 2019.”
Sullivan is referring to the bombshell court filing submitted last Thursday by Flynn’s new legal team which is led by Sidney Powell.
In the filing, Powell accuses high ranking FBI officials of orchestrating an ambush-interview on Michael Flynn, “not for the purpose of discovering any evidence of criminal activity – they already had tapes of all the relevant conversations about which they questioned Mr. Flynn – but for the purposes of trapping him into making statement they could allege as false.”
I posted about this in detail on Saturday here. Powell alleges that then-FBI lawyer Lisa Page and others manipulated the original 302 report. The filing claims that Peter Strzok, the lead agent on the case, suggested using news of the Steele Dossier as a “pretext to go interview people.” It shows that the FBI tried not to give General Flynn the impression they were interviewing him for a criminal matter. The filing also alleges that former DNI James Clapper, who will be interviewed soon by John Durham, alerted Washington Post writer David Ignatius to publish an article about Flynn’s conversation with then-Russian ambassador Sergey Kislyak. Powell has requested that the DOJ hand over a list of documents which may potentially contain exculpatory information, otherwise known as Brady Material. Finally, she asks for the judge to dismiss the charges against Flynn.
Powerline’s John Hinderaker, a lawyer, weighed in on the filing over the weekend. He wrote:
The Flynn prosecution has lifted the lid on corruption at the Department of Justice and the FBI that few could have imagined. The anti-Trump FBI conducted itself in a way we might associate with a totalitarian state, not the United States of America.
For the most part, the people involved have been fired in disgrace. I am no expert in criminal law, but it seems that some of what happened here–for example, the falsification of the Form 302–must be a crime. If crimes were committed, they should be prosecuted. The prosecution of General Flynn should be dismissed, and those involved in it should be, if not prosecuted, censured.
Hinderaker’s colleague at Powerline, Paul Mirengoff, is also a lawyer. He explains in laymen’s terms that Judge Sullivan’s cancellation statement means “he has all the argumentation he needs to rule on this motion.”
The cancellation of oral argument tells us that Judge Sullivan is ready to rule, but not what his ruling will be. I understand, though, that Gen. Flynn’s legal team considers today’s order by Sullivan good news. It’s comprehensive discussion of prosecutorial abuse in this matter stands unrebutted.
What a difference a day makes. On Tuesday, the prosecutors shot back at the Flynn team. The prosecutors in this case are the group of DOJ attorneys, led by U.S. Attorney Jessie Liu, who are tasked with completing the work of the Special Counsel. Apparently unamused by Powell’s powerful punch last week, they submitted a pair of filings with the U.S. District Court in Washington, D.C. They blasted Flynn’s “extraordinary” new allegations. These filings can be viewed here and here.
One item that Powell demanded were the two cell phones used by Joseph Mifsud in 2016 which were recently obtained by John Durham. The prosecutors wrote that the material contained on Mifsud’s phones is “not favorable” to Flynn “or relevant to his case.”
They excoriated Flynn for claiming to be the victim of an ambush by FBI officials. They wrote: “In an extraordinary reversal, the defendant now claims that he is innocent of the criminal charge in this case…he makes this claim despite having admitted his guilt, under oath, before two federal judges (including this Court).”
Prosecutors also wrote that every new charge contained in Powell’s brief is “unsupported by law or fact.”
Prior to Sullivan’s motion to cancel the next hearing (which apparently does mean what Mirengoff told us it means, that the judge has all the information he needs to rule), they were prepared to file a detailed rebuttal to the Flynn team filing. But, now that he has done so, “they want to make sure he plans to dismiss the new allegations, or offer prosecutors a chance to respond before he rules.”
The prosecutors make several references to the Mueller report. ‘If you look at page such and such in the Mueller report.’ My guess is that the Judge knows better than to rely on information from such a highly partisan document.
I found Powell’s evidence to be extremely convincing and well-documented. The ball is in Judge Sullivan’s court right now. He can decide to offer prosecutors time to prepare a detailed rebuttal or he can issue a ruling. Although Powell’s new filing requests additional Brady Material from the government, her team has been requesting most of this material for a long time and DOJ officials have refused to provide it.
One thing is for sure. The prosecutors, who have been accused of serious wrongdoing, will not go down without a fight.