Changes regarding scheduling and filing papers in the Michael Flynn case


By Robert Willmann

In orders on Monday and Tuesday of this week, the judge presiding over the Michael Flynn criminal case cancelled the court hearing set for 7 November 2019, and set deadlines for new documents to be filed.  Judge Emmet Sullivan directed that the Justice Department, as the prosecution, file a response by noon this Friday, 1 November, to Flynn's document that has a file date of 24 October.  Gen. Flynn's lawyers are to file a reply to that upcoming government document by noon next Monday, 4 November.

The order cancelling the hearing stated–

"10/28/2019 Minute Order as to Michael T. Flynn. In view of the parties' comprehensive briefing concerning 109 Defendant's Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 7, 2019. Signed by Judge Emmet G. Sullivan on 10/28/2019. (lcegs3). Modified to change date of motion hearing 10/28/2019 (lcegs3). (Entered: 10/28/2019)"

Documents filed on behalf of Flynn and the government have led to this latest change in scheduling.  After Flynn's new lawyers entered appearances, they filed a request (a "motion") to compel the production of exculpatory material (called "Brady material") and for an order directing that the prosecutors show cause why they should not be held in contempt of court for failing to produce the material.  The government filed a response on 1 October 2019.  Then Flynn filed a motion to compel the production of newly discovered evidence, which was for the government to produce the data and metadata from two BlackBerry cellular phones that allegedly had been used by Joseph Mifsud.  On 24 October 2019 Flynn's reply to the government's response to his initial motion was filed, and it included some 16 exhibits.  Then on 28 October, because of those papers that had been filed, the judge cancelled the court hearing that was set for next Thursday.

On Tuesday of this week, 29 October, the government filed two more items.

One was a response to Flynn's request to compel the production of newly discovered evidence, about the cellular phones and Mifsud.  The second document was a "notice" that Flynn had raised new claims and a new request for relief, and that the prosecution wanted to reply to the new assertions.  Judge Sullivan then ordered that the government reply to the new claims and request for relief that Flynn had made by noon tomorrow, and that Flynn can reply to the government's document by noon Monday.

A reply to a reply is usually called a "surreply", and a reply to that reply would need to be called a "sur-surreply", as it was here!  The court's order said–

"10/29/2019 Minute Order as to Michael T. Flynn. In view of 131 Government's Notice of Claims Raised for the First Time in Reply, the government is hereby DIRECTED to file a surreply by no later than 12:00 PM on November 1, 2019. The surreply shall address the new relief, claims, arguments, and information raised in Defendant's Reply Brief, ECF No. [129-2]. Mr. Flynn is hereby DIRECTED to file a sur-surreply by no later than 12:00 PM on November 4, 2019, and the Court shall strike any new issues raised in the sur-surreply. No further pleadings concerning Defendant's Motion to Compel Production of Brady Material, ECF No. 109, shall be filed after the sur-surreply. Signed by Judge Emmet G. Sullivan on 10/29/2019. (lcegs3) (Entered: 10/29/2019)"

Flynn's reply of 24 October to the government's response to his original motion to compel the production of evidence and for a contempt proceeding did include new assertions.  It also requested as additional relief that the evidence he asked for be produced in unredacted form, and that the prosecution of him be dismissed for outrageous government misconduct.

It now looks as if this initial approach by Gen. Flynn to improve his position in the case will be decided on the papers and documentary evidence filed and that will be filed with the court clerk by this coming Monday.  Under the new schedule, there will be no court hearing or evidentiary hearing at which additional evidence can be introduced for consideration.  There are advantages and disadvantages to this procedural state of affairs.

I hope to provide documents and more detail in the near future.


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9 Responses to Changes regarding scheduling and filing papers in the Michael Flynn case

  1. Andrew C. McCarthy gave some interesting thoughts on this on Saturday, Oct. 26:

  2. JJackson says:

    Firstly Robert Willmann many thanks for your legal posts they are a most useful resume for us non-lawyers. Do I understand correctly that this bit
    ” … and the Court shall strike any new issues raised in the sur-surreply. No further pleadings concerning Defendant’s Motion to Compel Production of Brady Material, ECF No. 109, shall be filed after the sur-surreply.”
    means the Judge is not going to allow further sur-sur-surreplies based on any new information gleaned from the Governments response even if it throws up new information e.g. Mifsud’s phone shows other phones may also hold key evidence?

  3. robt willmann says:

    I think that the judge’s order does not prevent Flynn from raising new issues and legal claims if new information comes from Mifsud’s phones or from other sources because it says that no further papers “concerning Defendant’s Motion to Compel Production of Brady Material, ECF No. 109, shall be filed ….” That motion is the first request that Flynn filed to try to get the prosecution to turn over information that was exculpatory as to both culpability and in mitigation of a sentence that may be assessed as punishment. That motion also asked that the judge issue an order for a contempt of court proceeding against the prosecutors for not turning over all the exculpatory information they were supposed to.
    In my opinion, the judge wants to rule on that issue of exculpatory material and clear it first. The question of whether a contempt of court proceeding should be initiated is a second issue, but a decision on it could be delayed, depending on what material is disclosed if the judge orders that some exculpatory material should be turned over to Flynn and his lawyers.
    In his reply brief to the government’s response to his initial motion, Flynn included new assertions of governmental misconduct that are still tied to his claim that exculpatory material was not disclosed. He included some exhibits to the reply brief to try to support what he was saying.
    His new allegations add a new dimension to the situation, and they can serve as an argument that information exists about his case that has not been disclosed and should be. The new allegations also can stand alone as new matters of governmental misconduct that should be addressed.
    At this time, Judge Sullivan has decided to rule on some or all of Flynn’s current requests and allegations without a court hearing.

  4. Mr Willman – I don’t know whether this might be indirectly relevant to the Flynn case.
    Submissions by Christopher Steele to a House of Commons Intelligence and Security Committee* on Russian interference in UK politics have recently been reported, though not as yet the contents of those submissions  –
    Dominic Grieve, chairman of the committee mentioned, is a British MP who finds himself opposed to his former party, the Conservative party.  Acting in the  highest traditions of public service he wishes to blacken the name of his former party by suggesting that his former party was the beneficiary of Russian money and influence.
    He states – ““But the report is informative and people are entitled to information, and it seems to us that this report is germane because we do know, and I think it is widely accepted, that the Russians have sought to interfere in other countries’ democratic processes in the past.” The Guardian adds the helpful note – “It is understood that the dossier**  examines allegations that Russian money has flowed into British politics in general and the Conservative party in particular.”
    So to cut that very long story short, on our side of the Atlantic people are playing election politics with dodgy Intelligence information.  You are just so lucky, your side of the Atlantic, that no one would dream of doing that in the USA.
    So what the hell’s all that got to do with the article above?  
    Well, maybe this.  It looks as if Steele is still being regarded as a credible witness here in places where it matters. If this extends to his still being regarded as a credible witness in the case of the Steele dossiers on President Trump, then HMG is still confident that the part played by British Intelligence in the American “Russiagate” scandal will not be disclosed.
    If that confidence is justified then your Russiagate is going to be buried ten foot deep both sides of the Atlantic. If Flynn’s judge is putting a stopper on further enquiry into the background of the General’s case that might indicate the same.
    Just seems to me, reading the various articles on SST on this, that ten foot might not be quite enough.
    (*”The committee has greater powers than a select committee of Parliament, being able to demand papers from former governments and official advice to ministers, both of which are forbidden to select committees.”  Wiki)
    (** No, not that dossier.  This is another one that the House of Commons  Intelligence Committee is constructing independently.  We have elections here too, you know, and everyone knows that these days an election without a Russian dossier scandal just isn’t the same, somehow.) 

  5. Also picked up by the BBC –
    “The committee heard evidence from UK intelligence agencies such as GCHQ, MI5 and MI6 about Russian attempts to interfere in the 2016 EU referendum and the 2017 general election.
    “Previous disclosures would suggest these Russian activities did not match the scale of those directed against the 2016 US presidential election, and even in that case, there is considerable debate about how far people were actually influenced by these actions.”

  6. akaPatience says:

    With reporting that the Durham inquiry (into whether or not there was justifiable predicate for the counter-intelligence activity against Trump that was spawned by the Russian collusion claim) has transitioned to a criminal investigation, no doubt a lot of IC a**-covering can be expected here and abroad, with The Guardian as well as our MSM willing accomplices set on maintaining the narrative that Russia cost Clinton the 2016 election, facilitated the Brexit vote, and is causing far-right populist political gains around the world.
    It’s hard to believe Steele could be considered credible here in the US, when the $30 million Mueller probe, inclined as it was to impeach Trump, pretty much came up empty handed (as Larry Johnson has reported here) on the Russian collusion issue in spite of its bogus summary declaration that there was evidence of “sweeping and systematic” effort by Russia to elect Trump. Clinton spent over a billion dollars in her 2016 campaign. Russians spent $100,000 on Facebook ads, according to FB.
    Having said that, I expect there’s tremendous pressure being brought to bear against incriminating any US allies in the matter.
    And if it’s ever accepted that Wikileaks’ publication of DNC emails was the result of leaking and not hacking, then Russian influence on the US 2016 election will be further diminished.
    Wouldn’t it be ironic if the Steele dossier were proven to be the product of Russian disinformation?!?!

  7. Vig says:

    Lobbying against UN Security Council Resolution 2334 in Dec. 2016 was the right thing to do?
    The lobbying wasn’t successful anyway? And Trump fulfilled his promise to recognize Jerusalem as the capital of Israel later anyway?
    Joe Pientka’s note isn’t shorthand either.

  8. To be truthful, looking at all this stuff is like lifting a stone and disturbing the creepy-crawlies. Just watched John Brennan insisting that he and his like were acting honourably and correctly. Villains is one thing. Sanctimonious villains another.
    I don’t believe enough is made of the distinction between what Steele and his erstwhile superiors got up to and what is now routine propaganda type activity on the social media.
    If I’ve got TTG right he is asserting that social media influence operations are now done by all – Russians as well as us. Brad Parscale insists that the amount spent on Facebook by Russians or Russian sympathisers was too small to matter. But there are other ways of using social media as a persuasive tool than that and one assumes that all countries are at it – the example most obvious is the work done by Cambridge Analytica for the Latvians.
    All that’ll be part of an information war that goes from such enterprises as the Integrity Initiative and the think tanks on to the media, right down to the little subsidised sites all over the place and on down to the the Elliot Higgins’ of this world. Whether there’s any central strategic direction or whether it’s self-confirming consensus is unimportant. That’s our information environment – heavily contaminated and unless one is aware of it (surprisingly many in the general public are) very effective in shaping how we think.
    The Steele nonsense is quite different. That’s a straight organised smear campaign. Just old fashioned mud slinging at a politician, Trump, who threatens the (for many) comfortable status quo. With seemingly plenty of assistance from Intelligence Officers who ought to be busy counting warheads or something instead.
    Some of those Intelligence Officers ours. What on earth were they up to, running such an operation against the President of what one would think was regarded as a friendly power?

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