A federal judge denied Monday several requests by former National Security Advisor Mike Flynn that the Justice Department turn over various documents that Flynn claimed would show prosecutorial misconduct in his plea deal.
At the same time, U.S. District Judge Emmet Sullivan rescheduled Flynn’s sentencing, which has twice been delayed. Flynn’s sentencing hearing is now scheduled for Jan. 28.
Sullivan’s 92-page opinion was a brutal one for Flynn and the new team of lawyers he hired earlier this year to replace the attorneys who had negotiated his plea deal with special counsel Robert Mueller.
“[T]he Court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea,” the judge said. “The record proves otherwise.”
Before getting into what Flynn was requesting, the judge also raised “ethical concerns” he had, suggesting that portions of one of Flynn’s briefs had been plagiarized.
The judge said that Flynn “misconstrue[d]” what the government was legally obligated to turn over to him.
Flynn, who pleaded guilty to lying to the FBI about his Russian contacts, had been set for sentencing last year, but those proceedings were delayed after Sullivan expressed anger over a Flynn sentencing memo painting him as the victim of entrapment.
Rather than back away from the claim, however, Flynn doubled down on it, and over the summer hired a new legal team led by a prominent Mueller critic. They then filed motions alleging prosecutorial misconduct that included 50 separate information requests. Flynn’s new legal team suggested that the information would be so damning that the entire prosecution would be thrown out.
The judge denied those requests, and another request apparently made under seal, in one broad stroke Monday.
Flynn, the judge said, had failed “to explain how most of the requested information that the government has not already provided to him is relevant and material to his underlying offense—willfully and knowingly making materially false statements and omissions to the FBI.”
The opinion reads like a mad libs of the anti-FBI conspiracy theories that have propelled Trump’s and his allies’ criticisms of the Russia probe. Among the figures that get name checked are Lisa Page and Peter Strzok, the former FBI officials who sent texts critical of President Trump; Christopher Steele, the author of the Trump-Russia dossier; and Joseph Mifsud, whose been accused of serving as plant to entrap the Trump campaign.
Much of Sullivan’s analysis of those allegations focuses on whether they’re relevant to Flynn’s prosecution and exculpatory to his case. Nonetheless, he called Flynn out for demanding evidence of misconduct that the government denies exists and for not fully grappling with the Justice Department’s responses to his claims.
Among Flynn’s accusations were that the Justice Department improperly withheld anti-Trump texts between Page and Strzok. Strzok was among the FBI agents who interviewed Flynn in January 2017, when Flynn made the false statements. Flynn was told the texts existed before striking his plea deal, and, the judge noted that he had seen the substance of those texts when he reaffirmed his guilty plea at last year’s abandoned sentencing hearing.
Flynn “failed to demonstrate there is a reasonable probability that, had the government disclosed the actual Strzok-Page text messages prior to the parties entering into the Plea Agreement, the disclosure would have led to a different result,” the judge said Monday. He also said that Flynn “mischaracterize[d]” a statement by Strzok about his work on the probe.
The judge also did not buy Flynn’s claims that the FBI agents’ notes from his interview showed that the FBI had made significant changes when it was editing its formal internal document recounting the interview (known as a 302).
“Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are ‘consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”
Additionally, the judge denied Flynn’s request for more information about Mifsud, including data from two of Mifsud’s cell phones, which Flynn claimed the government had obtained. Mifsud is the enigmatic Maltese professor who allegedly told former Trump campaign advisor George Papadopoulos that Russians had dirt on Hillary Clinton. Papadopoulos, who pleaded guilty to lying to the FBI about his Mifsud-related communications, now claims Mifsud was a Western intelligence plant, and Mifsud features prominently in far-right theories about the Mueller probe.
“The government points out that the Mueller Report contains no references connecting Mr. Flynn and Mr. Mifsud. By not responding to those points, Mr. Flynn has conceded them,” Sullivan said. “Nonetheless, the Court agrees with the government that those requests are unrelated to Mr. Flynn’s false statements and sentencing and are outside of the relevant time period in this case.”
Sullivan’s scathing opinion is the latest rocky turn Flynn’s case has taken. A little over a year ago, as he was preparing for his initially scheduled sentencing, Flynn appeared to be heading towards no prison time, with prosecutors praising his “substantial” cooperation.
That train went off the tracks during the December 2018 sentencing hearing, when Sullivan railed against Flynn’s efforts to play down his guilt and demanded that Flynn reaffirm he had lied to the FBI.
Flynn’s original set of attorneys, sensing that Sullivan’s anger could translate to prison time, asked to abort the sentencing hearing until Flynn had finished his cooperation with prosecutors, which was set to include testimony at a trial for his business associate this summer.
But those plans too went off the rails once Flynn hired Mueller critic Sidney Powell. A dispute between prosecutors and Flynn’s new attorneys torpedoed his trial testimony plans, and the government has since indicated to Sullivan it would like to file an amended sentencing memo, suggesting prosecutors will take a harsher tone this time around.
Sullivan on Monday ordered that the government file its supplemental sentencing memo on Dec. 30, and for Flynn to file a memo of his own on Jan. 13.
Read Sullivan’s opinion rejecting Flynn’s deep state theories below: