Many contentious moments between defense counsel and the presiding judge were heard during yesterday’s virtual motion hearing Between Sidney Powell, lead counsel, and District Judge Emmet Sullivan foreshadowed Sullivan’s decision to move on with the proceedings against former Trump adviser Ret. Gen. Michael Flynn.
The Department of Justice argued its motion to dismiss charges, but Judge Sullivan let the farce continue.
Powell informed Judge Sullivan that she will move to disqualify him from oversight of the case because he [Sullivan] had “actively ligated against him [Flynn].”
“I need to also move to disqualify the court and urge that it recuses itself immediately,” Powell said. “It’s absolutely unprecedented for proceedings against a defendant to be conducted by a person who actively litigated against him.”
The exchanges over Powell putting a motion for recusal in writing have underscored the tension between the lead counsel and the judge. Sullivan has still put off accepting or denying the DoJ’s motion for dismissal.
The charges were initially brought by Special Counsel Robert Muller as part of his investigation into alleged Russian meddling in the 2016 election. The specific charge was that Flynn lied to the FBI about having a phone call with a Russian ambassador before being sworn into office.
Flynn’s guilty pleas were prompted by prosecutors who threatened to go after his son and business partner, Michael Flynn Jr., unless he cooperated. In January, Flynn asked the judge for permission to withdraw the pleas.
There’s also that pesky fact that having the phone call, itself was not illegal. Only that he denied it, and illegal FBI wiretaps had it on tape, which is why those goons started probing him in a situation they described as a casual conversation for which he would not need a lawyer, rather than the on record interrogation that was used to launch this entire kerfuffle.
In May, Attorney General William Barr ordered the DOJ to drop the case against Flynn, a move which resulted in Sullivan tapping Gleeson to argue against the DOJ’s position and to determine whether Flynn should be charged with contempt of court for walking back his plea.
The Flynn team appealed to the U.S. Court of Appeals for the District of Columbia Circuit, arguing that Sullivan was required by law to grant the DOJ’s request.
The judge made himself akin to a party in the case, creating an appearance of bias, which is grounds for recusal, according to Powell.
The three-judge panel ordered Sullivan to accept the plea, but Sullivan appealed the decision to the full court, which reversed the decision and sent the case back to Sullivan on August 31, 2020.
One of the hearing’s highlights was Sullivan questioning Powell and DoJ lawyers on whether Attorney General William Barr’s decision to drop the case was based on President Trump’s tweets criticizing the case against Flynn. The DOJ lawyers said Barr’s decision wasn’t based on Trump’s tweets and pointed to the evidence of Brady violations that Powell had cited.
New documents have also emerged where a case agent expressed his belief that the prosecution was used as a means “to get Trump.”
Sullivan also questioned a letter from Powell to Barr, where she had requested that he appoint new prosecutors due to concerns about the case.
Powell said that she had received no response to the letter and that she only talked to Trump about the case several weeks ago to give him an outline of the case; she asked him not to pardon Flynn.
When Sullivan asked for an example of a case that was dismissed under analogous circumstances, the DoJ lawyers said they weren’t aware of one since normally such a case wouldn’t have been brought in the first place.
Ultimately, U.S. vs. Flynn will go to the Supreme Court.