Judge Gives Flynn Chance To Attack Prosecution But Sets Sentencing Date

A federal judge will let Michael Flynn’s attorneys fully air their claims of prosecutorial misconduct, but still wants to move towards a new sentencing date for President Trump’s former national security advisor. 

U.S. District Judge Emmet Sullivan’s move Tuesday to set a Dec. 18 sentencing date — which he cautioned could be moved depending on how things unfolded — was a rebuke to Flynn’s resistance to proceeding with sentencing amid his lawyers’ allegations.

“There is far more at stake than sentencing,” Flynn lawyer Sidney Powell told Sullivan in a status hearing in the case in federal court in Washington, D.C.

She accused the government of “egregious” misconduct and suggested that Flynn would have never pleaded guilty in the first place if the government had disclosed the materials he is now demanding.

The Justice Department said it would respond to Flynn’s latest claims within the next two weeks. At Tuesday’s hearing, prosecutor Brandon van Grack previewed some of the government’s defenses to Powell’s allegations.

Flynn pleaded guilty in December 2017 to lying to lying to FBI officials about his Russian contacts. As part of his plea deal, he cooperated with special counsel Robert Mueller’s team as well as with other Justice Department investigations. Heading into a sentencing hearing scheduled in December 2018, prosecutors described his assistance as “substantial.”

But the relationship between prosecutors and Flynn has since come under strain. The sentencing planned for last year was delayed after he angered the judge by filing a sentencing memo suggesting he was a victim of entrapment. Rather than back down from that hostile posture towards the prosecution, however, Flynn has since doubled down on it. Earlier this summer, he replaced his set of lawyers with a legal team led by Powell, a prominent Mueller critic. Flynn has since gotten into increasingly tense disputes with the government, the latest being the allegations that Mueller’s team withheld evidence from Flynn.

Powell leaned into those allegations at Tuesday’s hearing, which ostensibly was supposed to be a scheduling conference.

“There is one thing after the other that exonerates Mr. Flynn in any number of ways,” she said.

She brought up the anti-Trump texts sent by Peter Strzok, an ex-FBI official involved in the Flynn investigation, that weren’t made public until after Flynn’s plea. She also accused the government of withholding until the last minute key details about ex-FBI Director James Comey’s involvement in the Flynn probe. She harped on allegedly withheld evidence showing the Justice Department didn’t believe Flynn to be an agent of Russia — a claim prosecutors have never made in court.

Sullivan appeared skeptical of the allegations, even if he is going to hear them out. He noted that Flynn had plead guilty twice — first with the 2017 unveiling of the plea deal and again in front of Sullivan at the December 2018 sentencing that went awry. 

Sullivan questioned Powell’s use of the word exonerate. When pressed by the judge, Powell said she did not think there would be a plea withdrawal. Rather the materials would “show that the entire government prosecution should be dismissed,” she claimed.

Sullivan repeatedly reminded Powell of the standard Flynn will have to meet in his demands for the materials — that they are relevant and not just theoretical.

When she brought up  Strzok’s texts, Sullivan asked her how they were helpful to Flynn’s case.

“Obviously those agents were completely impaired by bias,” Powell said.

Van Grack meanwhile revealed that Flynn had been made aware before his 2017 plea of the existence of Strzok communications preferential to one of the candidates. The government also shared with Flynn before the planned 2018 sentencing hearing additional information about the Strzok texts that had not been made public, the prosecutors said.

Van Grack also disclosed that the prosecutors planned to file a new sentencing memorandum ahead of the Dec. 18 sentencing date. Given that their original memo recommended no prison time for Flynn, the move to file a new one could mean prosecutors will now seek a harsher punishment given his latest allegations.

That memo is due Dec. 2 while the Justice Department’s response to the withheld evidence allegations will be submitted by Sept. 24. A hearing on the evidence allegations was scheduled for Oct. 31.