By Robert Willmann
The term "ex parte" appears in different contexts in the court system, and is heaviest when one side in a legal dispute meets with the judge behind closed doors without the other side being present. On 5 September 2019, this uncommon event happened when Gen. Michael Flynn (ret.) and his new lawyers met privately with Judge Emmet Sullivan about the refusal of the federal government, through its prosecutors, to grant them security clearances to look at some existing information and exculpatory material in his criminal case, and any new material that might be disclosed. Three documents filed in Flynn's case on 30 August led to the ex parte meeting and a change in scheduling: a joint status report which was not very joint; a Motion to Compel Production of Brady Material and for an Order to Show Cause, filed under seal; and a brief in support of the motion to compel and for a show cause order that is not sealed.
What was set as a routine status conference in federal court in Washington D.C. for Tuesday, 10 September, has now changed to one with a very significant shift: the judge will establish a briefing schedule and a hearing date for the request (usually called a "motion") to compel the government to produce Brady material and for an order to show cause why the prosecutors involved should not be held in contempt of court. A "brief" is a written argument filed for consideration by a court on a particular issue or issues. It is part of a post-trial appeal to a court of appeals or to the Supreme Court, but can be unilaterally filed or ordered to be filed in a trial court.
The court's description appearing in the clerk's docket sheet says, in part–
"09/05/2019 Hearing (Ex Parte) for proceedings before Judge Emmet G. Sullivan held on 9/5/2019 as to Michael T. Flynn. The Court held an ex parte and sealed hearing with Mr. Flynn and defense counsel to consider Mr. Flynn's request for the Court's intervention on counsels request for security clearances. See Joint Status Report, ECF No. 107 at 2-3 (stating 'the government continues to deny [Mr. Flynn's] request for security clearances. [Mr. Flynn's] attempts to resolve that issue with the government have come to a dead end, thus requiring the intervention of this Court.')…. The Court advised counsel that it intends to resolve 109 Motion to Compel Production of Brady Material before addressing any Court intervention regarding security clearances for Mr. Flynns counsel."
The case and prosecution of Gen. Flynn have seemed peculiar from the start, as was his sudden resignation as National Security Advisor on 13 February 2017 after a protest against him by vice president Mike Pence.
The "special counsel" Robert Mueller was appointed on 17 May 2017. By 30 November 2017 a criminal charge was filed against Flynn in federal court pursuant to a plea bargain agreement, and the next day he appeared in court for the formal hearing to enter a guilty plea before Judge Rudolph Contreras. Six days later on 7 December, Judge Contreras recused himself, and Judge Sullivan was randomly assigned to preside over the case. Why Judge Contreras suddenly bailed out is not known, although one issue might be that he was named to the Foreign Intelligence Surveillance Court on 19 May 2016 for a term until 18 May 2023, and warrants under the Foreign Intelligence Surveillance Act (FISA) may have intercepted communications by Flynn before and after Donald Trump was elected president.
On 12 December 2017, Judge Sullivan issued his standard order requiring the government to produce any evidence in its possession that is favorable to the defendant and material to either the defendant's guilt or punishment . On 21 February 2018, a protective order was signed governing the use and disclosure of information regarding the case by the parties, whether unclassified or classified .
The case proceeded along to 18 December 2018, when a weird and aborted sentencing hearing took place, as Judge Sullivan may not have been fully aware of the details of the case or had not been fully briefed by his law clerks, and said surprising things not expected by the parties. Any sentencing was then postponed, and that hearing is a story in itself.
Drama resumed in March 2019 when the report of the Mueller group was given to the U.S. Attorney General consisting of two volumes totalling 448 pages. On 17 May 2019, an assistant U.S. Attorney filed excerpts of the Mueller report in the court clerk's file.
Meanwhile, Gen. Flynn decided to change lawyers, and discharged the attorneys from the Covington & Burling law firm of Washington D.C., who withdrew on 6 June 2019. That firm has been an establishment and silk-stocking group since 1919, with Dean Acheson, later the Secretary of State, as one of the early members. It now has expanded to offices in 12 additional cities and has over 1,000 lawyers. However, as is known in life, such silk stockings do not always prevail.
If a lawyer is discharged from representing a client when a matter is pending, the client's file is to be given to the client. Even in the internally protective legal community, dragging your feet in returning a client's file is a big no-no. The docket sheet revealed a sideshow after Covington & Burling withdrew from representing Flynn. His new attorneys complained that not all of the file material had been returned. Covington & Burling's size and position in the D.C. Bar meant nothing, as Judge Sullivan responded in a order on 16 July 2019–
"07/16/2019 Minute Order as to Michael T. Flynn. In view of the parties' responses to the Court's Minute Order of July 9, 2019, the Court, sua sponte, schedules a status conference for August 27, 2019 at 11:00 AM in Courtroom 24A. Defense counsel has represented to the Court that Mr. Flynn has not received the entire file from his former counsel. … In light of the representations made by defense counsel regarding the delay in receiving the client files, the Court hereby gives notice to the parties of the Court's intent to invite Senior Legal Ethics Counsel for the District of Columbia Bar to attend the status conference and explain on the record the applicable District of Columbia Rules of Professional Conduct. Mr. Flynn's former counsel shall attend the status conference…."
This threatened kick to the groin area motivated Covington & Burling to the extent that nine days later, on 25 July, they signed a paper, subsequently filed, which said that by then all of Gen. Flynn's file had been returned, and: "The firm never, in any way whatsoever, conditioned the transfer of files to General Flynn's new counsel on payment of outstanding fees" .
The status conference set for 27 August was then cancelled, and the parties were to file a joint status report by 30 August and tell the court: "(1) the status of Mr. Flynn's cooperation; (2) whether the case is ready for sentencing; (3) suggested dates for the sentencing hearing, if appropriate; and (4) whether there are any issues that would require the Court's resolution prior to Mr. Flynn's sentencing".
But the joint status report ended up saying, "The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below" .
Also on 30 August the two documents were filed that kicked off the new developments: a sealed request to compel production of material and for a show cause order about whether the prosecutors should be held in contempt of court, and the brief in support of the request, which is publicly available.
Larry Johnson noticed the importance of the 30 August brief and discussed it a week ago .
The references in the documents and court orders to "Brady material" come from the 1963 U.S. Supreme Court opinion called Brady vs. Maryland. It required the government to produce evidence in its possession that is favorable to the defendant, although the type of evidence and who decided what evidence was "favorable" were the subject of subsequent court opinions and ethical rules of State Bar Associations governing the conduct of attorneys. The opinion in the Brady case interpreted the due process clause of the U.S. Constitution as requiring the disclosure of exculpatory information to the defense in a criminal case.
The brief is 19 pages long and is useful to read because it describes in more general terms what certainly would appear in detail in the motion filed under seal. In addition, pages 11-16 present a basic description of the Brady doctrine–
As a possibly helpful coincidence, Judge Sullivan presided over the disgraceful trial of Senator Ted Stevens of Alaska in 2008, in which the Department of Justice prosecutors did not disclose exculpatory evidence they had about Stevens, and the misconduct was so blatant that Judge Sullivan held three prosecutors in contempt of court on 13 February 2009, which forced them off of the case after the trial was over. New prosecutors saw that the case had real problems when the evidence favorable to Stevens was considered, and in 2009 requested that the jury verdict be set aside and cancelled, and the criminal charges dismissed "with prejudice", which means that they cannot be filed again. Judge Sullivan on 7 April 2009 appointed an attorney to investigate the Justice Department lawyers, and it resulted in what is called the Schuelke report, which is referenced in footnote 3 on page 2 of the brief filed in Flynn's case . Thus, Judge Sullivan knows that attorneys and agents of the Department of Justice can commit misconduct, and he is capable of addressing it.
However, the procedural posture of Gen. Flynn's case is a difficult one. He signed a plea bargain agreement and pled guilty to the one charge in open court, going through the whole drill that accompanies the entry of a plea of guilty, including affirmative statements about knowledge and voluntariness. However, the one good thing is that he has not yet been sentenced and a final order has not been signed by the judge.
From the papers in the court clerk's file, it appears as if the new lawyers for Gen. Flynn are approaching the problem by initiating events that are like those which resulted in the dismissal of the case against Senator Ted Stevens. The request filed on 30 August and its accompanying brief ask for information favorable to Flynn to be disclosed, plus the initiation of a contempt of court proceeding against the prosecutors. If the prosecutors from the Mueller group and the Justice Department are held in contempt of court for their conduct during the investigation and for failing to make proper disclosures of evidence, they should be forced off of the case, and other possible remedies may also be available in Gen. Flynn's favor.
The clerk's docket sheet is in reverse chronological order, starting with the recent documents and going backwards in time to the beginning of the court case–
A few months back, I was dialing between radio stations while driving and heard part of an interview that caught my attention. The interview was of attorney John Dowd, who represented president Trump for a period of time during the investigation by special counsel Robert Mueller. The newly filed documents in the Flynn case brought back to mind the interview of John Dowd. I found it the other day as a video of the radio program, which was on 19 April 2019, after the Mueller report had been released. The following excerpt is of interest, and starts at about 9 minutes and 34 seconds into the interview. The whole interview follows the short transcript below, and both website citations are to the same interview–
"John Dowd: And the stuff on Flynn is absolutely false.
Brian Kilmeade: What do you mean?
John Dowd: We were …
Brian Kilmeade: What do you mean the stuff's on … [crosstalk]
John Dowd: Flynn didn't commit a crime. You know, we were, we helped Flynn's lawyers because they couldn't find their way around. They couldn't get documents. We got everything for them. And we, we were told, I was told they were going in to convince the special counsel that there was no case there.
Brian Kilmeade: Well they said [crosstalk] Hey John, they told, they, they…, in the report it says Flynn was told by the president to go get the 30,000 missing Hillary e-mails.
John Dowd: Nonsense. Absolute nonsense."
The status conference is to begin at 11:00 a.m. today, 10 September. If the position of the judge remains the same, a schedule for the filing of briefs by the parties and a hearing date about Flynn's motion will be established, which will create a new dynamic at a sensitive point in this criminal case.
 The standard order of Judge Emmet Sullivan that the government is to produce information and evidence to the defense.
 Protective order issued concerning the discovery and use of information in the Flynn case by the parties.
 The paper filed by Flynn's former lawyers about returning his file they created while representing him.
 The joint status report filed on 30 August 2019.
 The report by Henry Schuelke III was completed in November 2011. It is 514 pages after the table of contents, plus an addendum of comments and objections by the six subjects of his investigation. The report in the pdf computer format as filed is around 30 megabytes in size, and so uploading it for viewing is not practical at this time.