Tuesday’s long-anticipated hearing in Michael Flynn’s ongoing legal drama did not bring the one thing Flynn and the President Trump’s Justice Department deeply desire: a dismissal of the Flynn case.
U.S. District Judge Emmet Sullivan entertained their arguments — and the arguments of a retired judge he has tasked with opposing the dismissal request — for nearly five hours. The Justice Department and Flynn’s lawyer Sidney Powell went all in on the conspiracy theories that allege that Flynn, who pleaded guilty to lying to the FBI in 2017 about his Russian contacts, was targeted as part of a Deep State “coup” directed at President Trump.
But Sullivan gave no indication that he was convinced by those arguments, nor did he hint that he planned on dismissing the case in the coming days. On the contrary, he requested additional briefing, meaning that at least for the next week or so, he is unlikely to agree to drop Flynn’s case.
What the judge did occasionally show was just how troubled he was by the evidence — including Thursday’s revelation that Flynn’s attorney had personally briefed President Trump on the case — that the government may have been working to undermine its own prosecution of Flynn to a greater degree than was previously known.
The arguments put in stark relief the high-stakes nature of the DOJ’s gambit to reverse its prosecution of Flynn, whom Trump and his allies are already hankering to get back into the President’s inner circle. Repeatedly, the judge was asked to consider whether, by granting Flynn’s dismissal, he was being forced to play a role in allowing a separate set of rules to be applied to defendants who are also allies of the President.
“If the executive wants to take Michael Flynn off the hook, it could pardon him,” former U.S. District Judge John Gleeson, who’s been tasked with opposing the DOJ’s arguments said. “Because if it does that, it doesn’t bind up this judge, this court in the unseemly desire to scuttle the case because the defendant is a friend of the President’s.”
Tuesday’s arguments marked the first time Sullivan got to hear in court from Gleeson, the former federal prosecutor and retired judge who Sullivan appointed as a so-called friend of the court to lay out why Flynn’s case need not be dropped.
Gleeson kept his arguments relatively straightforward and clean, emphasizing that the Justice Department was having to “contort itself” for Flynn by deviating from its usual approach in similar prosecutions.
He called such contortions “ridiculous” but also “sad” because “this is our Department of Justice, too.”
On the DOJ’s assertion that it no longer believed it could prove the case against Flynn at trial, Gleeson quietly scoffed. He repeatedly challenged the Justice Department to do for other defendants what it had done for Flynn.
In Gleeson’s account, the Justice Department’s “odd” behavior in the Flynn case in recent months pointed to one obvious conclusion: that the Justice Department “yielded” to pressure from President Trump, who has aired publicly his disdain for the Russia investigation.
It “has everything to do with the President’s belief that this is some kind of witch hunt, and an attorney general who has said publicly that the President’s tweets … made it very difficult for the Justice Department to get the trust of the courts,” Gleeson concluded.
The Department, which was represented at Tuesday’s hearing by Deputy Assistant Attorney General Hashim Mooppan and career attorney Kenneth Kohl, leaned more deeply than it ever had before into Trump’s claims that its investigation into his campaign’s Russia ties was a “witch hunt.”
“What if it’s true that it’s a witch hunt?” Mooppan said at one point in the hearing, arguing to Sullivan that that’s not Trump asking the DOJ to help a friend, but rather to relieve the anguish of a concerned citizen.
Kohl, who touted his background as a longtime career official, told Sullivan he was appearing at the hearing to push back against claims that the dismissal request was driven by a desire to help out one of Trump’s friends.“The allegation that we would act with a corrupt political motive is just not true,” he said.
Within minutes, Kohl instead accused former FBI officials Peter Strzok and Andrew McCabe, both Trump foils who played key roles at the beginning of the Russia probe, of acting corruptly. Kohl suggested also that Obama administration political appointees had manipulated evidence to place Flynn behind bars as part of an illegitimate investigation.
“When the agents themselves aren’t absolutely convinced that he’s guilty, career prosecutors just wouldn’t bring the charges,” Kohl said, relying on piecemeal documents of unclear relevance to allege that the FBI was unsure of whether Flynn committed a crime.
Powell, not surprisingly, took the anti-FBI arguments the farthest, claiming at one point that the Russia probe was a “coup” and alleging baselessly that prosecutors first went after Flynn as a way “to get to President Trump.”
Sullivan’s skepticism of Powell became clear when he suggested that her June 2019 outreach to the Justice Department was ethically dubious. Powell had sent a private letter to Attorney General Barr asking that he drop Flynn’s case before she formally became Flynn’s attorney of record in the case.
It was during Sullivan’s grilling about this outreach that Powell revealed she briefed Trump personally about the status of the case in recent weeks. She at first resisted disclosing the conversation by suggesting it could be protected by executive privilege. But upon more pressing by Sullivan, she admitted that she advised Trump against issuing a pardon for Flynn and that she also discussed the case with his campaign legal advisor Jenna Ellis.
As the hearing drew to a close, Sullivan took the time to praise both sides, thanking them for their “excellent pleadings.”
But he betrayed no sense that he agreed with Powell or the Justice Department. Rather, it was during the first hour of the hearing — in which Sullivan read out his summary of the case — that the judge gave a sense of his thinking.
Citing one Supreme Court case, for example, Sullivan said that the ruling found that the rule governing motions to dismiss was not “for the court to serve merely as a rubber stamp.”
Sullivan repeated that line, stressing that the precedent was not “to serve merely as a rubber stamp.”