Whether Judge Emmett Sullivan will schedule oral argument after receiving these latest filings is yet to be seen. And how he will rule is anyone’s guess.
Late last week, Michael Flynn’s star attorney Sidney Powell filed a much-anticipated brief on the public docket detailing evidence that federal prosecutors had withheld from her client. Powell’s brief, which also exposed the FBI’s plot to set up Trump’s then-national security advisor, dominated conservative media coverage for several days and prompted a Twitter thread from President Trump quoting the brief at length and calling the targeting of Flynn “a disgrace.”
Then, just as the noise began to quiet, Judge Emmett Sullivan—the federal judge presiding over the Flynn criminal case—issued a surprise order.
“In view of the parties’ comprehensive briefing concerning Defendant’s Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 5, 2019,” the short minute order issued on Monday read. Court watchers promptly speculated on the significance of the order.
It could mean one of two things. It could mean Sullivan had found the briefing sufficiently clear to allow him to render a decision on Powell’s motion to compel without the benefit of oral argument by the parties. Or it could mean that the briefing was so detailed that Sullivan needed more time to study the arguments before engaging with counsel and intended to reschedule the hearing for later.
While Powell appeared undaunted by Judge Sullivan’s order canceling the November 5, 2019, hearing, the government’s immediate filing of a document cast as a “Notice of Claims Raised and Relief Sought for the First Time In A Reply Brief” suggests federal prosecutors feared Sullivan had made up his mind—and not in their favor.
In their filing, the government complained that Flynn’s reply brief “seeks new relief and makes new claims, based on new arguments and new information.” “Issues may not be raised for the first time in a reply brief,” federal prosecutors stressed, before suggesting that “by making new arguments for the first time in his Reply, the defendant has potentially placed this Court in the position of reviewing novel assertions and arguments that the defendant claims are essential to his cause without the benefit of the government’s factual responses and legal analysis.”
The government then highlighted several of the arguments Powell made in her reply brief, such as that “the government suppressed text messages that ‘would have made a material difference’ to the defendant”; “that the defendant’s false statements were not material; that the defendant’s attorneys were acting under an ‘intractable conflict of interest,’ which the government exploited to extract a guilty plea; and that the ‘FBI had no factual or legal basis for a criminal investigation.’”
To these points, prosecutors retorted, “each new argument or claim is unsupported by fact or law,” prompting Powell to tell me, “The prosecutors appear to dwell in an imaginary alternative universe.”
Yesterday’s filing by federal prosecutors also read as the judicial version of working the refs, with the government suggesting the court may be intending “to strike any arguments or claims raised for the first time by the defendant in his Reply,” or planning “to require the defendant to raise any new claims for relief in a properly pled motion to which the government can respond fully.” The government then asked the court for “guidance,” and the chance “to file a surreply that concisely addresses only newly-raised Brady issues, such as those identified above.”
The government got what it wanted—and then some.
Late yesterday, Judge Sullivan entered an order directing the government to file a surreply brief by November 1, 2019, but in doing so instructed prosecutors to address not just the Brady issues, but any “new relief, claims, arguments, and information raised in Defendant’s Reply Brief.” The order also gave Flynn a chance to respond to the government’s arguments by November 4, 2019. But that’s it: Judge Sullivan made clear that no new arguments should be made in Powell’s sur-surreply and no further pleadings concerning Flynn’s motion to compel would be accepted.
Whether Judge Sullivan will schedule oral argument after receiving these latest filings is yet to be seen. And how he will rule is anyone’s guess. But that Judge Sullivan did not limit the additional briefing to specific Brady issues, but instead directed the government to respond broadly to any “new relief, claims, arguments, and information,” suggests the long-time federal judge’s concern has been piqued by what he’s read so far.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.