On Tuesday, the public may get to see how former National Security Advisor Michael Flynn’s deep-state claims about his own plea deal hold up in a federal court.
U.S. District Judge Emmet Sullivan will hold a hearing on how to move forward with claims from Flynn’s legal team that special counsel Robert Mueller’s prosecutors withheld exculpatory evidence from him that should be turned over before Flynn is sentenced.
When Flynn last year gave mere winks to similar conspiracy theories surrounding Mueller’s probe, it prompted a tirade by the judge that culminated in Sullivan accusing Flynn of treason and threatening to give him a prison sentence that not even the prosecutors were asking for. (Sullivan later walked back the treason allegations.)
But rather than back away from those antagonistic tactics, Flynn has doubled down on them in recent months, leading to questions about whether he’s playing for a presidential pardon rather than an easier sentence.
“I can’t believe that [his lawyers] expect that this is going to move a judge in a federal court to do anything,” Patrick Cotter, a defense attorney not involved in the case and former federal prosecutor, told TPM, referring to Flynn’s allegations of prosecutorial misconduct. “The only [reason] that I can think of is it is the kind of reality-free conspiracy allegations that the President and those around him seem to enjoy and appreciate, and it may be a very crude attempt to appeal to the President.”
Flynn’s latest court filings have echoed many of the accusations of Justice Department misconduct floated by President’s allies in conservative media and even by Trump himself. His most recent public filing reads like a mad libs of the names and alleged conduct Trump-world has used to cast doubt on the Russia probe.
“These arguments seem designed more for the Fox News audience than a court of law,” said Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School.
McQuade said the allegations “could” be a play for a pardon, given that Flynn’s arguments are unlikely to be successful in court.
“Perhaps [his attorney] hopes that these allegations of misconduct can build political support for Trump to grant a pardon to Flynn,” McQuade wrote in an email to TPM.
Less than a year ago, Flynn appeared to be on a different track.
The former national security advisor — perhaps the most high-profile Trump associate prosecuted in Mueller’s probe — was heading into a December sentencing with a recommendation of no jail time from prosecutors, who praised him for his “substantial” cooperation.
But in his own sentencing memo, Flynn implied that he had been the victim of an entrapment scheme and shirked responsibility for his admitted offense: lying to the FBI about his Russian contacts.
The strategy appeared to backfire — at least if Flynn was hoping to coast into a light sentence. Sullivan lambasted Flynn, demanded that he confirm he was guilty of the crime he pleaded to and hinted that if sentenced then, Flynn could face time in prison. Flynn took up Sullivan on his offer to delay his sentence so Flynn could complete his cooperation.
Flynn’s move six months later to fire his original team of lawyers initially looked like a possible a course correction toward a more humble, remorseful posture in the case. Instead, Flynn leaned in to the strategy he previewed last December and hired Sidney Powell, an attorney known for being critical of the Mueller probe.
Powell has insisted Flynn’s cooperation was continuing, but the new team of lawyers has put his relationship with prosecutors under increasing strain. The new lawyers have pushed to delay sentencing — which the Justice Department says can happen now — and have complained about their lack of security clearances, which they say they need to review certain aspects of the case.
Plans for Flynn to testify at a July trial for his ex-business partner were blown up due to a disagreement between him and the prosecutors.
The latest dispute is the most explosive. In a filing last Friday short on evidence but long on deep-state fear mongering, Flynn accused Mueller’s team of engaging in “pernicious” and “malevolent” conduct. He claimed that there is evidence helpful to his case that has been withheld from the government, but gave only one concrete example: the anti-Trump texts between two then-FBI officials, Lisa Page and Peter Strzok. According to the filing, prosecutors didn’t provide any of the texts for Flynn until the day they were made public.
As a matter of legal strategy Flynn’s hostile approach has flummoxed outside observers who say it stands to hurt rather than help Flynn’s standing for sentencing.
Harry Sandick, a former federal prosecutor, said Flynn’s recent allegations likely “doom[ed]” his chances of getting a reduction of sentence recommendation from prosecutors.
“At the same time, it is unlikely that Flynn will be allowed to withdraw his plea — the legal standard is very high,” Sandick said in email to TPM.
Cotter said that as a defense attorney he has dealt with clients who have been offered good deals by the government but who — due to some emotional reaction — have backed out, to their own legal detriment.
McQuade theorized that perhaps “Flynn regrets his decision to enter a guilty plea now that the Mueller Report has not resulted in further criminal charges against others.”
“That is not a valid basis for withdrawing a guilty plea after a defendant admits in open court that he is guilty,” she warned.
When asked about the criticisms being voiced about Flynn’s legal strategy, Powell told TPM in an email that those commenting on the case should read her book, “Licensed to Lie: Exposing Corruption in the Department of Justice.”
“You might want to wait to write anything until after the hearing on Tuesday,” she said.
Update: This story has been updated to clarify the purpose of Tuesday’s hearing.