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.