WASHINGTON (CN) — A federal judge who last year warned Michael Flynn he may face prison time in the investigation over Russian interference in the 2016 election has penciled in Dec. 18 to sentence the former national security adviser.
U.S. District Judge Emmet Sullivan expressed his disdain in December 2018 for Flynn’s crimes, telling him, “Arguably you sold your country out.”
On Tuesday, federal prosecutors in Washington, D.C., left open the possibility of time behind bars while informing Sullivan the government plans to revisit the sentencing recommendation of probation.
Flynn’s new team of lawyers on Tuesday also made clear they plan to put up a fight in the months leading up to sentencing.
Defense attorney Sidney Powell said the charge against Flynn should be dismissed for “egregious government misconduct” in allegedly withholding key evidence from previous counsel.
Flynn pleaded guilty to lying to the FBI in December 2017 and recently completed serving as a cooperating witness in special counsel Robert Mueller’s investigation into Russian interference in the 2016 election and possible obstruction of justice by President Donald Trump’s administration.
In taking up the issue of undisclosed materials first raised by Powell in a joint status report filed with the government last month, Sullivan appeared puzzled by Powell’s argument.
“Let’s assume that’s true,” the judge said. “So what?”
The documents in question include the original report from the FBI interview of Flynn in January 2017, which Powell described in court on Tuesday as an “ambush interview.”
Attorneys Powell and Jesse Binnall, whom Flynn tapped in June to replace his former attorneys at Covington & Burling, have also requested security clearances to review classified communications from when Flynn served as director of the Defense Intelligence Agency.
Citing D.C. Circuit precedent, Sullivan reminded Powell that attorneys must prove beyond the “mere threshold of theoretical relevance” that classified documents are necessary to the defense case in order for the court to order their release.
He also questioned the purpose of Powell’s arguments relating to government misconduct at the current stage of proceedings, asking if Flynn plans to withdraw his guilty plea.
Powell conceded that Flynn had no such plans. But she repeatedly stated information may lie in the allegedly undisclosed materials that will “exonerate” Flynn from supposed claims of being a Russian agent.
Assistant U.S. Attorney Brandon Van Grack later reminded the court that Flynn is not charged with serving the Kremlin, but instead of lying to investigators on Mueller’s team.
The government held firm that it met all obligations to disclose materials, handing over hundreds of thousands of pages of reports, summaries and drafts including those requested by Powell, prior to Flynn’s guilty plea.
Powell swung back, suggesting the original FBI report, known as a 302, from the 2017 interview may have been destroyed.
“It has to be in the FBI’s computer system and it can be recovered even if destroyed,” Powell said.
Sullivan responded gently that it is not uncommon for documents to be lost without ill-intent in large databases.
The judge agreed to hear arguments from both parties on Oct. 31 regarding the defense request for the court to force the government to hand over the debated materials.