Michael Flynn’s long awaited hearing, the one Trump fought through an en banc Court of Appeals hearing to keep from happening, happened today. The government, and Defendant Flynn are on the same side, seeking dismissal of a case where Flynn pled guilty (repeatedly) under penalty of perjury. The core issue is whether a strong presumption of “regularity” for government processes, actions and motives is overcome by evidence specific to this case. Today’s hearing provided even more evidence of irregularity, perhaps the most compelling evidence of irregularity yet.
During the course of the hearing, for some reason, Judge Sullivan felt compelled to ask Flynn’s attorney, Sidney Powell, whether she spoke with Trump or others in the Administration about this case. Powell bizarrely answered that executive privilege precluded her from answering. This was absurd. Executive privilege applies only to members of the executive branch, an attorney for a criminal defendant is certainly not one of those. Further, attempting to invoke such a privilege is to concede the existence of the communications.
When Judge Sullivan pressed the matter Powell admitted to talks with the Administration, and to directly, personally briefing President Trump. Judge Sullivan asked if any matters were coordinated with the President and Powell admitted she asked Trump to let the process play out and not pardon Flynn yet.
To describe counsel for a criminal defendant, in an active criminal case, coordinating defense strategy with the President of the United States as “irregular” is an understatement.
An appointed Amicus argues the government’s motion to dismiss is an example of political favoritism, from a President enamored with Flynn, and is not rooted in any legal failings of the case. The government denies such political favoritism, arguing the motion to dismiss is based solely on the failing merits of the case. In weighing that question, Judge Sullivan can now consider how many other active defendants in criminal cases have had the privilege of briefing and planning defense strategy with the President of the United States.
The Judge later asked the Prosecutors whether various Trump tweets fawning on Flynn, and screaming at the injustice of his prosecution, should be weighed in considering whether the real motive was political favoritism. The government counsel hemmed and hawed some before finally saying “no.” I congratulate their acting skills for being able to keep a straight face.
Flynn’s lawyer eventually lost her cool, arguing that Judge Sullivan was biased against her client and demanding that the Judge recuse himself on the spot. Judge Sullivan noted that Powell had never, in the entire pendency of the case, filed a motion seeking recusal. Nonetheless the Judge stated he would allow her to file such a written request and that he would consider it.
Edit & Update
This quick update. When Flynn’s attorney met with Trump to “update” the case she was not the only one there. Another attorney was present. Was this an attorney for the DOJ, which would be understandable? No. The attorney was Jenna Ellis, the attorney for Trump’s Campaign. She is not even a government employee. Her only job is to give legal advice to help secure Trump’s reelection.
In a case that hinges on whether the DOJ motion to dismiss is based on politics vs. solely legal concerns, the implications for that should be self evident.