Judge In Michael Flynn Case Ignores Mounting Evidence Of Prosecutorial Abuse

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).”


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