My Take on Yesterday's Hearing on DOJ Motion to Dismiss Prosecution of Gen. Michael Flynn

AP Photo/Manuel Balce Ceneta

 

A comprehensive summary of yesterday’s hearing will need to await the availability of, and my ability to digest the transcript of the hearing.

But from what I heard in the time I had available to listen — which was limited — I do expect that Judge Sullivan will, in the end, grant the motion; however, he will do so “without prejudice”, meaning that the case could later be refiled if leadership at the Department of Justice changes.  I doubt even that would happen for a lot of reasons covered during the hearing, but it could and I think Sullivan will preserve that circumstance in his order.

Judge Sullivan spent a great deal of time allowing his appointed amicus counsel to go through a long conspiratorial theory relying on inferences and speculation to lead to an implausible conclusion that the case is being dismissed because of Gen. Flynn’s connection to Pres. Trump.  The case made by the amicus counsel was thoroughly and resoundingly destroyed by a DOJ attorney Hassim Mooppan who was, in my opinion, far and away the best advocate in the proceeding.  But he was backed up quite nicely by Assistant United States Attorney Kenneth Kohl, who has the distinction of being the longest-serving AUSA in the District of Columbia US Attorney’s Office, and his words are going to carry special weight with Judge Sullivan as a result.  There is simply no honest way to discount Kohl as making an appearance in the case and arguing for dismissal of the action as a political move.  AUSA Kohl laid out his active role in the leadership of the office in reaching the conclusion that the case should be dismissed based on evidence uncovered in the investigation being conducted by US Attorney Jensen, which AUSA Kohl called — on the record — “FBI misconduct.”

I’m not going to try to cover even some of the arguments made — I would no doubt leave out important arguments if I were to do so.  But I’ll set forth here why I think Sullivan will ultimately grant the motion. Mostly, it is because of what would come next if he does not, and because it could portend bad things for him and other fellow district court judges in the future.

First, you need to understand the “equities” of Judge Sullivan in this dispute.  He’s fighting against the idea that a district court judge like himself does not have the authority to “check” what he might see as “abuses” in the decision-making process of the Executive branch AFTER they bring matters into his court.  On this issue, I suspect he’d have broad support from district court judges all over the country.  They are the gatekeepers to the federal court system.  By asserting a strong role for the trial judge under Rule 48, Judge Sullivan — aided by Judge Gleeson — is saying to DOJ:

“You brought this case, you occupied my time, you made representations and arguments on the record to me and asked me to do certain things in my role as a district court judge, and you don’t get to just walk away from all that without an explanation that is to my satisfaction.”

He is defending institutional turf that he believes belongs to the Judiciary once a case is filed — and, in this case, a guilty plea is entered.

The hearing and his coming Order will allow him to stake out his claim to all this ground — maybe a published opinion.  He will justify and vindicate his belief in his entitlement to make this inquiry and this decision, and not have it be a pro forma function that is dictated by the decision of the Executive Branch.

But in the end, I think he will say he’s deeply skeptical of reasons and motives offered by DOJ, and he believes their legal analysis on “materiality” is not correct or persuasive.  He will not agree that the Fokker Services case dictates the outcome here, but it only guides the decision which is his to make.  Taking all that into consideration, he will claim he would be justified in denying the motion on its merits, BUT considerations of “separation of powers” lead him to conclude, IN THIS CASE, he should exercise his discretion by granting the order, but without prejudice.  That way if it is later discovered by new DOJ leadership that the dismissal was politically motivated, it can be refiled.

I think he will take this course because if he does not, then the case will either move back to the Appeals Court, or he’ll need to take up Gen. Flynn’s motion to withdraw his guilty plea.  If it goes back to the Appeals Court he faces uncertainty.  The only thing the Appeals Court said when it returned the case to him is that he could have a hearing and decide the motion.  There was no suggestion in the text of the opinion that the Appeals Court judges were sympathetic to his views or the views expressed by Judge Gleeson on the merits of DOJ’s motion.

If the Appeals Court were to reverse him, it would undo all he would have accomplished by dismissing the case but only after a lengthy explanation for why he could not dismiss it. All his work could evaporate.

Alternatively, if the motion to withdraw is refiled, that opens up the entire problem of having to go through the conflict of interest/ineffective assistance claims regarding the Covington & Burling attorneys representing Gen. Flynn before Sidney Powell, and how much Special Counsel Prosecutor Brandon Van Grack knew about that — but never raised it with the Court.

Those attorneys will have to testify in any such hearing with regard to the legal advice they gave Gen. Flynn. In order to do so, Sidney Powell is entitled in discovery to all materials that might be relevant to their testimony about Gen. Flynn and his case.

That material would include internal communications within the Covington & Burley law firm about General Flynn and his case.  That firm has MANY attorneys with past connections to DOJ and the Obama Administration, including former Attorney General Eric Holder.  I suspect Covington & Burling does not want that material released to Sidney Powell to use in a public hearing on Gen. Flynn’s motion to withdraw his plea.

Judge Sullivan understands the “end game” here is not just a quick sentencing of Gen. Flynn if he denies the motion to dismiss.  It will be much more complicated, and more “dirty” than that.

So, my prediction is he will grant the motion but do so without prejudice in an “over-the-top” Opinion that declares the effort by DOJ to be a political favor to Pres. Trump.

Note:  I was writing this so quickly I got the end and actually wrote that he would “deny” the motion, rather than “grant” the motion. I’ve corrected it.