Judge denies Michael Flynn's demands in blistering order — and finally sets a sentencing date
Michael Flynn will not receive a trove of information he has asked the Justice Department to turn over that he claims could help exonerate him, a federal judge ruled on Monday.
Judge Emmet Sullivan denied Flynn's voluminous requests in a scathing order stretching on for 99 pages. Flynn, who pleaded guilty more than two years ago to a single charge of lying to the FBI in the course of the Russia investigation, will now be sentenced on Jan. 28.
The former national security adviser to President Donald Trump was supposed to be sentenced in December of 2018. However, during a hearing, Sullivan made clear that he was inclined to give Flynn a harsh sentence unless he agreed to delay sentencing until his cooperation with Special Counsel Robert Mueller was concluded. Sullivan indicated then that he was disgusted by the allegations of Flynn's conduct while working the White House and his attempt in his sentencing memo to disclaim responsibility for his crime. Flynn and his lawyers agreed to delay the sentencing.
Flynn has become something of a martyred figure in the eyes of the right wing, in line with the outrage surrounding and conspiracy theories about the Russia investigation. Repeatedly, Flynn defenders have hoped that his entire case might be thrown out and that government wrongdoing in the charges against him could be exposed. After his initial stalled sentencing, Flynn leaned into these theories. He hired the aggressive and sharply partisan defense attorney Sidney Powell, who has used the case to cast aspersions on the Russia investigation.
Her latest demands, which Sullivan has now denied, focused on information in the Justice Department's possession that might supposedly be exculpatory for Flynn. Many of these requests stemmed from allegations that the FBI was out to get Trump and Flynn. She even requested records related to a claim that former Deputy FBI Director Andy McCabe said: "First we f[**]k Flynn, then we f[**]k Trump." The FBI says there's no evidence McCabe made such a statement.
Sullivan said Flynn and Powell's list of demands for evidence fell into many categories: Some of the records don't exist, some aren't in the government's possession, and some Flynn has no right to. And there's no evidence that would undermine the charge against Flynn that, after all, he has already pleaded guilty to. (Flynn could technically try to withdraw his plea — which would likely fail — but he hasn't even tried to do that.)
The order is not just a denial — it's a thorough and devastating rebuke of Flynn's claims, and an embarrassing one at that. At one point, Sullivan said that it appears a section of Flynn's legal brief was plagiarized from another source without proper citation, raising ethical concerns. At another, he writes: "by any conceivable measure, Mr. Flynn's requested information is neither helpful nor relevant to the defense."
In one particularly devastating passage near the end, Sullivan quickly dismissed Flynn and his defenders' central claim that the charges against him resulted from some kind of set-up:
Finally, the 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 record proves otherwise.
The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI.
And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television.
The order is a major blow to the conspiracists who have argued that Flynn is an unfairly persecuted man, which is widely believed on the right. Of course, the conspiracists can always just say that Sullivan is another part of the conspiracy — even though they once thought he might be Flynn's savior.
Another, more plausible candidate for the role of Flynn's savior is the president himself. Despite Sullivan's order making it clear that Flynn's fate as a felon is all but sealed, Trump could still sweep in with his pardon power and wipe the slate clean for his former national security adviser.
In fact, that may have been the whole point of Powell's legal work on Flynn's behalf. She may have believed her pleas to Sullivan would fail but used them as an appeal to Trump — and to pro-Trump media outlets that have his ear. Her arguments played up favorite talking points for the GOP, including raising the specter of FISA abuse, even though it has no relevance to Flynn's case. Figures on Fox News, which Trump regularly watches, have repeatedly made the case for a Flynn pardon. And if her work on Flynn's behalf has sufficiently irritated Sullivan, causing him to overreact and bring the hammer down at sentencing, it may give Trump more incentive to issue the pardon. Pardoning someone who has received a sentence that seems excessively harsh may be more politically feasible than if the person is treated fairly.