Yesterday's Flynn Hearing Was A Clusterf*ck Wrapped In A Sh*tshow Clad In A National Humiliation

But other than that, all good!

(Photo by Alex Wroblewski/Getty Images)

Screaming about a Deep State conspiracy? Accusing the judge of bias? Throwing colleagues under the bus while pretending that the unprecedented actions at Bill Barr’s DOJ are normal and pro-forma? Nefariously altered exhibits? Technical snafus and unmuted mikes that force multiple adjournments for the court clerks to scramble to reconnect all parties?

Check, check, check, check, and CHECK. Yesterday’s hearing the Michael Flynn case had it all.

U.S. District Judge Emmet Sullivan assembled the parties digitally to determine what should be done with the former National Security Advisor now that an en banc appellate panel ruled that the court is not obligated to dismiss the case just because the Justice Department decided after three years that it no longer feels like prosecuting it.

Hashim Mooppan, the Deputy AG in the Civil Division, appeared for the DOJ to argue that there was no legal basis for the case to continue, since the government has “absolute” prosecutorial authority. He also vouched for the independence of the DOJ, saying that he’d personally discussed the case with Attorney General Bill Barr and been assured that his decision to drop the charges five minutes before sentencing had nothing to do with pressure from the White House, where the president fired off dozens of tweets demanding exactly that.

Ken Kohl, the Deputy Chief of the U.S. Attorney’s Office for D.C., was on hand to argue (the DOJ’s latest version of) the facts. Perhaps Michael Flynn simply forgot about his conversation with the Russian ambassador on December 29, despite it having dominated every news cycle since the Washington Post reported on January 12 that the two had discussed sanctions relief and an upcoming UN vote. In Kohl’s telling, Flynn was just so darn forgetful that he misspoke on January 24 when FBI agents came to ask him about it, since they’d picked up the call on wiretaps and knew that the NSA’s public denials made him a blackmail risk.

And despite Trump saying that he fired Flynn for lying, and Flynn admitting this lie under oath and in open court multiple times, the DOJ couldn’t possibly prove to a jury (which did not exist, because he’d already pled!) that Flynn lied because, ummm, all the FBI agents lacked credibility. And thus the government was forced to drop the case, which is just how it always goes at DOJ.

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Kohl was also shocked and appalled, that anyone would suggest that the holy Department of Justice would bend to political pressure. How very dare you, sir!

Debevoise partner John Gleeson, a former Eastern District of New York judge appointed by Judge Sullivan as amicus to assess the propriety of the DOJ’s abrupt about face, appeared to shout “I FEEL LIKE I’M TAKING CRAZY PILLS!” Except slowly, and in a soporific monotone, for seemingly hours on end.

And bringing up the rear on the crazy train was Flynn’s nutbag counsel Sidney Powell, who spent months tweeting that Judge Sullivan was going to come down on the government like a ton of bricks the way he did in the case of Alaska Senator Ted Stevens, and has never gotten over the shock of being wrong.

Powell’s opening gambit was to deny the legitimacy of the proceedings and accuse Judge Sullivan of bias. When he patiently asked her if she’d filed a motion for recusal, she admitted she had not. But she still might!

She went on to insist that her client’s first allocution and guilty plea was a legal nullity because it was given under oath to U.S. District Judge Rudolph Contreras, who later recused himself, perhaps due to his acquaintance with FBI Agent Peter Strzok.

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The second allocution in Judge Sullivan’s courtroom is also a nullity, in her telling, due to ineffective assistance of counsel. See, Flynn’s former lawyers at Covington & Burling, who represented him in the instant criminal matter before she took over the case, also prepared his defective Foreign Agents Registration Act (FARA) filing claiming that he wasn’t being paid to advocate for the Turkish government. (He was.) Flynn waived this conflict, but actually it was unwaivable — at least according to Sidney Powell — and thus his repeated admissions under oath that he knowingly lied to the FBI disappear like magic. Poof!

Powell defended her own ex parte communications in a letter demanding that Bill Barr drop the case — a letter sent before she even entered an appearance, and which she was treating with the “utmost confidentiality.” Very cool and very legal, she insisted, while simultaneously calling a letter from Peter Strzok’s attorney Aitan Goelman, pointing out that someone had doctored his client’s handwritten notes which appear as exhibits, as “extra-judicial.”

When asked if she’d spoken to the president himself about the case, she admitted she had, but attempted to assert a claim of executive privilege for the substance of their conversation. Civilians claiming privilege for presidential communications is… a new one.

Powell went on to admit that she’d urged the president not to pardon Flynn and that Jenna Ellis, the president’s campaign counsel, was present for the discussion. Which is also… a new one.

In an extended, Infowars-style rant, she shouted about James Comey, Peter Strzok, Andy McCabe, insurance policy, coup, crooked FBI, and referred to Judge Gleeson as a “special prosecutor” picking up the “mantle” of the “corrupt prosecution” launched by Barack Obama and Joe Biden.

At the conclusion of the hearing, Judge Sullivan said he would take the matter under advisement and issue a ruling expeditiously, only to be interrupted by an agitated Powell demanding a rush transcript of the hearing.

“You’d have to talk to the clerk about that,” Judge Sullivan replied. And then the sad spectacle was mercifully over.


Elizabeth Dye lives in Baltimore where she writes about law and politics.