Flynn set for Jan. 28 sentencing after judge rejects claims ex-Trump aide was tricked

A federal judge on Monday unambiguously rejected Michael Flynn’s claims that the former national security adviser was tricked into pleading guilty, and set a Jan. 28 sentencing in the long-delayed case.

The blistering, 92-page opinion from U.S. District Court Judge Emmet Sullivan is a complete strikeout for Flynn’s new legal team, which had demanded access to nearly 50 categories of information they contended could exonerate the former Defense Intelligence Agency chief.

Sullivan turned down every one of those requests and also accused Flynn of trying to wriggle out of a plea agreement that he voluntarily entered and confirmed to two different federal judges. Flynn pleaded guilty two years ago to a felony false statement charge. His new lawyers have since claimed that he was unfairly targeted by the FBI and special counsel Robert Mueller’s team.

“Regardless of Mr. Flynn’s new theories, he pled guilty twice to the crime, and he fails to demonstrate that the disclosure of the requested information would have impacted his decision to plead guilty,” wrote Sullivan, an appointee of President George W. Bush.

Mueller’s office previously said it would not oppose a sentence of probation in the case. But that was before Flynn’s new legal team took an aggressive tack to try and get the case dismissed, making it unclear whether federal prosecutors will stick to their original position in advance of the upcoming sentencing.

Flynn faces a maximum possible sentence of 5 years in prison, but white-collar defendants typically get sentences well short of the maximum.

Flynn’s new attorneys, headed by Dallas lawyer Sidney Powell, argued that the FBI had no basis for its critical Jan. 24, 2017, interview with Flynn, that Flynn was unfairly misled about the purpose of the meeting and that his misstatements could not have impacted the ongoing probe of alleged collaboration between the Trump campaign and Russia.

Those arguments found no traction at all with Sullivan.

“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,” Sullivan wrote. “The record proves otherwise.”

At a hearing in December 2017, Flynn admitted that he lied to the FBI at the January interview by denying any substantive discussions with the Russian ambassador and by understating his contacts with foreign governments about a then-pending United Nations resolution on Israel.

Flynn reaffirmed his guilt at a December 2018 hearing, about six months before he dropped veteran Washington lobbying and election lawyer Robert Kelner in favor of Powell.

Sullivan said comments by Flynn and Kelner at those hearings undercut Flynn’s new claims that he was railroaded.

“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,” the judge wrote. “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.”

Powell did not immediately respond to requests for comment, but shortly after the court opinion was issued, she retweeted a missive that said: “This Is An Outrage! We no longer have the Rule of Law in this Country. This will not stand.”

The defense attorney also retweeted a message referring to a Justice Department inspector general report released last week that sharply criticized the FBI’s handling of surveillance applications for Carter Page, a Trump campaign aide.

“Flynn was targeted LONG before his appointment without just cause,” the message retweeted by Powell said. “The government hid this information, drug out his legal fees, & then threatened his son to compel a plea - Altered 302’s & more!”

Sullivan’s opinion does not discuss the new inspector general’s report, but says Flynn failed to show how any issues related to the surveillance of Page tainted or even related to the FBI’s interview with Flynn.

“Mr. Flynn fails to demonstrate that any information related to the FISA warrant that he has identified is favorable to his guilt or punishment,” the judge wrote.

The ruling is a bitter pill for Flynn’s defense team, which had high hopes that Sullivan’s reputation as a hard-liner against prosecutorial misconduct would lead him to accept some of Flynn’s arguments, or at least give the defense lawyers the latitude to access previously unavailable evidence.

Sullivan gained widespread attention in 2009 after the Justice Department asked the court to wipe out former Sen. Ted Stevens’ convictions on federal conflict-of-interest charges and drop the case. Sullivan did that, but also unexpectedly ordered a special prosecutor to conduct a criminal investigation of government lawyers involved in the trial. None was ever charged, but one committed suicide amid the probe. (Stevens died the following year in a plane crash.)

At Powell’s first hearing in the Flynn case, Sullivan disclosed that some time ago he’d received a free copy of her book on prosecutorial misconduct, complete with an inscription praising the judge for his courage in the Sullivan case.

But in his ruling on Monday, Sullivan said he saw no parallel between Flynn’s and Stevens’ predicaments.

“This case is not United States v. Theodore F. Stevens … the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court,” the judge said, referring to a pivotal 1963 Supreme Court decision requiring prosecutors to disclose evidence helpful to the defense. “Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because ‘[t]he remedy for a Brady violation is retrial, not dismissal.’”

Indeed, the only ethical qualms Sullivan raised in his decision on Monday were about Flynn’s defense team, whom he faulted for copying portions of a brief filed by other lawyers in another case and “merely” including footnotes citing the original source.

In a passage titled “Ethical concerns with Mr. Flynn’s brief,” the judge strongly suggested that lifting the passages “verbatim” amounted to plagiarism and misconduct.

“[I]t is professional misconduct for a lawyer to … [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” Sullivan wrote. “[C]itation to authority is absolutely required when language is borrowed … The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.”