A year ago, Trump's first national security adviser, Michael Flynn, almost found himself in the hoosegow after trying to persuade Judge Emmet G. Sullivan that, notwithstanding his guilty plea, it was really the FBI's fault that he told them all those lies about his conversation with Russian Ambassador Sergei Kislyak. A rational human being, when given the opportunity to avoid jail time by cooperating a whole lot more with the FBI, would not try that shit again with His Honor. But Michael Flynn is not a rational human being, and neither is Sidney "Emoji Warcrime" Powell, the batshit lawyer he hired after ditching his competent counsel at DC law firm Covington & Burling.

Before Powell had even entered her appearance as Flynn's lawyer, she sent a secret manifesto to the Justice Department urging Attorney General Bill Barr to "dismiss the prosecution of General Flynn in the interest of justice -- whether it be we ink a joint motion or sua sponte by the Department." And then, despite Judge Sullivan's very clear signal that Michael Flynn would not get the benefit of his plea agreement if he refused to take responsibility for his crimes, Powell immediately plastered the docket with accusatory briefs demanding that the FBI turn over every scrap and pixel in the Russia investigation, sure that the Justice Department was hiding the smoking gun which would exonerate her client.


Two years ago, Flynn signed a guilty plea giving up his right to demand further Brady materials, i.e. exculpatory information the government is legally obligated to disclose. One year ago, Michael Flynn pleaded guilty again in open court and reaffirmed that the mean FBI agents were not to blame. But if Peter Strzok's notes say Flynn had a "sure demeanor" at the interview, or if mean people on TV called Flynn a Russian agent, or if Joseph Mifsud was a CIA asset (he wasn't), or if Carter Page's FISA was hinky, then the plea magically disappears! THIS IS YOUR BRAIN ON FOX NEWS.

But here on Planet Earth ... not so much. As Judge Sullivan put it, "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."

Here's how Judge Sullivan described Powell's voluminous document demands:

To evaluate Mr.Flynn's requests, the Court divides them into six categories, acknowledging that there is some overlap within certain categories: (1) information that does not exist; (2) information that is not within the government's possession; (3) information that Mr. Flynn concedes he is not entitled to; (4) information that the government has already provided to Mr. Flynn; (5) information that is unrelated to the charges against Mr. Flynn in this case or to his sentencing; and (6) remaining requests.

Spoiler Alert ...

Giphy

Judge Sullivan was singularly unimpressed with "[d]efense counsel's theory" that "[t]he evidence the defense requests, if produced, would defeat the factual basis for the plea." Moreover, he strongly implied throughout the 92-page ruling that the evidence sought would prove inculpatory to Flynn, rather than exculpatory, saying, "To the extent he seeks information in addition to what has already been provided, Mr. Flynn has failed to establish the first component of his Brady claim: favorability."

Flynn won't be able to claim a conflict of interest with his former attorneys at Covington after having waived it on multiple occasions, and he won't be allowed to leverage the court to get documents from the FBI to defend himself against the "smear" that he's a Russian agent, since that's not what he's charged with. Which is a blow to Sidney Powell, who was sure that Judge Sullivan, the hero of her book License to Lie, who threw out the case against Alaska Senator Ted Stevens based on prosecutorial misconduct, would see things her way.

Alas not.

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. 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." [Internal citations omitted.]

Adding insult to injury, in a section headed "Ethical Concerns with Mr. Flynn's Brief," Sullivan accused Powell of failing to adhere to professional standards by inadequately citing an amicus brief as her source material, saying, "The Court notes that Mr. Flynn's brief in support of his first Brady motion lifted verbatim portions from a source without attribution." There's a legitimate argument to be made that Powell's conduct is pretty standard in the legal community. But there's no argument that this decision was anything but a total repudiation of both Powell's legal reasoning and her courtroom strategy. Flynn might wind up getting a pardon from Donald Trump, but he's sure as hell not getting a walk from Judge Emmet Sullivan.

See you at sentencing on January 28, Sidney!

[USA v. Flynn, Opinion / Politico]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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