Ex-Trump aide’s mo­tion re­jected

A judge dis­misses ex-Trump ad­viser Michael Flynn’s FBI at­tacks and sets a Jan. 28 date for sen­tenc­ing.

Orlando Sentinel - - FRONT PAGE - By Spencer S. Hsu and Carol D. Leon­nig

WASHINGTON — A fed­eral judge on Mon­day re­jected Michael Flynn’s at­tacks against the FBI and the Jus­tice Depart­ment, set­ting a long-de­layed sen­tenc­ing for Pres­i­dent Don­ald Trump’s for­mer na­tional se­cu­rity ad­viser for Jan. 28.

U.S. Dis­trict Judge Emmet Sul­li­van of Washington, D.C., dis­missed Flynn’s mo­tion to find pros­e­cu­tors in con­tempt. In a 92-page de­ci­sion, Sul­li­van ruled there was no ba­sis for Flynn’s al­le­ga­tions that fed­eral law en­force­ment of­fi­cials en­trapped the re­tired three­star Army gen­eral into ac­cept­ing a plea deal and that spe­cial coun­sel Robert Mueller’s pros­e­cu­tors had not wrong­fully held back 50 re­quests for ev­i­dence from Flynn’s at­tor­neys.

Flynn, who pleaded guilty to ly­ing to in­ves­ti­ga­tors about his in­ter­ac­tions with Rus­sia’s am­bas­sador af­ter the 2016 U.S. elec­tion, had been set to be sen­tenced Dec. 18. Sul­li­van this month de­layed the sen­tenc­ing pend­ing a re­port by a Jus­tice Depart­ment in­spec­tor gen­eral on how the FBI han­dled the Rus­sia in­ves­ti­ga­tion, which re­viewed topics re­lated to Flynn’s al­le­ga­tions.

The re­port from Jus­tice Depart­ment In­spec­tor Gen­eral Michael Horowitz re­leased last week found that the FBI was jus­ti­fied in open­ing its 2016 probe into pos­si­ble co­or­di­na­tion be­tween Rus­sia and four mem­bers of the Trump cam­paign, in­clud­ing Flynn. But the re­port also found the FBI made sig­nif­i­cant er­rors or omis­sions in ap­ply­ing for in­tel­li­gence sur­veil­lance war­rants for one of them, for­mer cam­paign ad­viser Carter Page.

Sul­li­van re­viewed Flynn’s more de­tailed ac­cu­sa­tions that mis­con­duct by the FBI, Jus­tice Depart­ment

and Mueller’s of­fice raised eth­i­cal con­cerns and cast doubt on his in­ves­ti­ga­tion, but de­nied de­fense claims that they war­ranted toss­ing out his plea in fa­vor of a trial or dis­missal of his case. Sim­i­lar to Horowitz’s find­ings, the court rul­ing un­der­cut ar­gu­ments that the FBI in­ves­ti­ga­tion or Jus­tice Depart­ment pros­e­cu­tion of Flynn was un­jus­ti­fied or im­prop­erly han­dled.

Re­fut­ing Flynn’s claims that he was mis­led into un­wit­tingly plead guilty to charges, Sul­li­van wrote that it was undis­puted that Flynn told the same lies to the FBI, Vice Pres­i­dent Mike Pence, and se­nior White House of­fi­cials, who re­peated them to the Amer­i­can public, lead­ing to his fir­ing in Feb. 2017.

“The sworn state­ments of Mr. Flynn and his for­mer coun­sel be­lie his new claims of in­no­cence and his new as­ser­tions that he was pres­sured into plead­ing guilty to mak­ing ma­te­ri­ally false state­ments to the FBI,” Sul­li­van wrote.

The judge also de­nied Flynn’s de­mands for greater dis­clo­sure, say­ing he “fails to ex­plain how most of the re­quested in­for­ma­tion that the gov­ern­ment has not al­ready pro­vided to him is rel­e­vant and ma­te­rial to his un­der­ly­ing of­fense — will­fully and know­ingly mak­ing ma­te­ri­ally false state­ments and omis­sions to the FBI ... or to his sen­tenc­ing.”

Sul­li­van, the longest­serv­ing ac­tive fed­eral judge on the U.S. Dis­trict Court in Washington and a ju­di­cial ap­pointee of pres­i­dents of both par­ties, en­joys a na­tion­wide rep­u­ta­tion for cham­pi­oning de­fen­dants rights un­der the so-called Brady rule, which es­tab­lished the gov­ern­ment’s obli­ga­tion to turn over ev­i­dence that can be use­ful for the de­fense.

In Flynn’s case, how­ever, Sul­li­van evis­cer­ated de­fense claims that the gov­ern­ment failed to meet its du­ties, writ­ing that the court “con­cludes that Mr. Flynn has failed to es­tab­lish a sin­gle Brady vi­o­la­tion.”

Sul­li­van is­sued his rul­ing af­ter writ­ten ar­gu­ments by both sides — but with­out hear­ing oral ar­gu­ments — sug­gest­ing his dim view of Flynn’s le­gal case.

Flynn could still move to with­draw his guilty plea and face a po­ten­tial trial, or ap­peal a con­vic­tion, but faces a tougher le­gal path ahead to avoid a po­ten­tial prison term at sen­tenc­ing.

OLIVIER DOULIERY/ABACA PRESS

For­mer na­tional se­cu­rity ad­viser Michael Flynn ar­rives at Dis­trict Court for a sen­tenc­ing hear­ing Dec. 18, 2018.

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