Flynn hearing on Motion to Dismiss.

We're waiting for the hearing to begin. /1
Judge Sullivan's clerk is announcing that the Judge will be out shortly; asking live participants to mute their phones when not speaking.

/2 The Judge has arrived. Here we go. The clerk calls the case. /3
Attorneys annoucing themselves: Ken Kohl and Hashim Mooppan for US; Fully Flynn team!; John Gleeson for amicus. /4
Judge says he's going to "spend some time" capturing the essence of the argument. He means he's going to talk for a while; then he's going to let them speak and ask questions. /5
JS saying hes' not going to address appointment of amicus; the contempt perjury issue; or the case or controversy issue. /6
JS laying out the issue he's going to address - the motion to dismiss by US. /7
"for the first time in this case" in the motion the US says that Flynn's statements weren't material, it can't prove beyond a reasonable doubt the case, and that it's not in the interest of justice to proceed. /8
JS says he's going to focus on his discretion to dismiss under Rule 48(a).
JS saying Flynn plead before JContreras after a full colloquy aided by experienced counsel. (Ha! counsel who incompetently represented him, in actuality).
JS discussing the sentencing hearing before him where he made inquiry about whether Flynn wanted to wait for all his cooperation to be included. Says it's important to note that sentencing has already started in this case.
JS says he continued (delayed) the actual sentencing to allow for the further cooperation in the VA case against the business partner. Then Flynn hired new counsel.
JS now talking about his standing Brady order - doesn't matter to him the stage of the case, he always requires that Brady order.
JS: Flynn then moved to dismiss for Brady violations, which he denied. And he found that the statements Flynn made were "material."
JS: Flynn then moved to withdraw plea saying innocent. Govt never answered that motion because they had to get info from Flynn's former lawyers, which took a lot of time.
(I'm really boiling down what he's saying). He's laying out the fact pattern basically, which is on the docket of who filed what motions and responses and appointment of Gleeson.
So, he's taken us all the way through the docket. Says he's not going to discuss the outstanding appellate opinions. Says they are both "outstanding" opinions. Says they speak for themselves. The case is now back to him.
Now has brought us up to where we are now in terms of process of further pleadings and agreement to do the hearing today.
JS now discussing Gleeson's argument. Says Gleeson relies on history of the Rule. Relying on Ammidown saying the court has a "role" in dismissal, and not just when the defense opposes the motion to dismiss. Discussing the 1940s history of the phrase "with leave of court."
JS says based on that history Gleeson argues that the leave of court language thus applies to both agreed to and disputed motions to dismiss and is consistent with the Separation of Powers (it isn't tho).
JS says Gleeson is arguing that the potential for corrupt, political reasons for dismissal gives the court at least a narrow window for inquiry even if the defense agrees to the dismissal. Discussing Ammidown again and the protection of the public from such conduct.
JS is laying out Gleeson's argument (he'll get to the US and Flynn's argument). Talking about how the Ammidown case says the court can require the Govt to state it's reasons. The court is not a "rubber stamp" to the prosecutors.
JS now discussing Fokker's clarification of these principles, arguing that the post-plea setting here means the deference to the prosecutor is at its nadir.
He's adverting to the US's counter argument that Separation of Powers controls and the difficulty of forcing the govt to proceed with a case that the govt does not want to pursue.
He's distinguishing Fokker saying it dealt with a case about the Speedy Trial Act; now he's laying out the Govt's view that Fokker really limits the court's role in this situation especially after the Supreme Court cases about Separation of Powers that came after Ammidown.
JS setting forth the US's view that in the overwhelming number of cases the court has no role to deny the motion to dismiss if the govt has put its reasons on the record, citing the Separation of Power's caselaw.
JS seems to be emphasizing the phrase "statement of reasons" Just my observation.
JS setting out the Govt view that it does not matter whether the motion to dismiss is pre or post plea - the Rule does not distinguish between them and the Separation of Powers gives the power to the prosecutor up to the point of conviction.
JS emphasizing the word "sentencing" also. This is because sentencing is fully within the judicial, not prosecutorial power.
Now he's setting out Gleeson's rebuttal - various cases from other circuits - and position that "all that's left is sentencing" so Separation of Powers isn't really an issue.
Based on what he's saying and how he's saying it, it appears at this stage that he's leaning toward denying the motion. But, I have seen many cases where the judge sounds one way all the way up to the end and then gets to the thing that he/she thinks gives the opposite result.
JS now talking about what kinds of things would permit the court to use its discretion to deny the motion - he's laying out Gleeson's arguments that the court can do that.
JS laying out Gleeson's arguments for when a court can deny the motion to dismiss when the defense OBJECTS. This is to say that it's the same standard for when the defense consents, I suspect. Gleeson finds Fokker refined rather than rejected Ammidown. JS says Govt disagrees.
JS laying out Govt argument that Rule 48 doesn't give the judiciary more power than it had before the rule language went into effect, that the Constitutional Separation of Powers is actually the touchstone. Govt says way to address misconduct by prosecutors lies elsewhere.
JS still explaining the Govt argument about how the kind of corruption that Gleeson is worried about can be addressed in alternative means. Now giving the US argument about the factors it uses to decide whether to dismiss and that the court can't review those.
Some idiot does not have their phone muted, so there is a ton of background noise. Judge stopping.
Clerk begging that person to mute his phone.
Judge thanking that person for muting. Says this is the "new normal." Ha!!
JS now discussing the govt's argument that it can't prove the case against Flynn -lack of materiality to a viable CI investigation, no factual basis for the interview, no criminal case opened for a Logan Act, statements to Pence/Spicer not criminal; they just wanted to interview.
JS still laying out reasons govt gave why there wasn't any linkage of the Flynn interview to any legitimate case.
JS now laying out Gleeson's counter-arguments. Says materiality argument is "not credible." JS says Govt did not address a case Gleeson cited about definition of materiality.
JS says he agrees with Gleeson that the fact that the court already found Flynn's statements "material" is important.

(It's sounding an awful lot like he's going to deny the motion at this point.)
JS citing to Safavian to agree with Gleeson that the govt usually rejects the argument that the govt wasn't actually misled by a false statement.
Gleeson second guessing the DOJ all over the place here here on the materiality and whether the govt can prove the case. Citing to the "two" pleas by Flynn.
JS still laying out Gleeson's arguments refuting the DOJ argument on its assessment of the evidence. Gleeson says these non-credible arguments by DOJ are evidence of DOJ's improper motive for dismissing this case.
JS now giving us Gleeson's factual grounds about DJT asking Comey to let the case go and his tweets as the real reason for the dismissal.
JS now setting out DOJ's rebuttal which is that Jensen's review showed there was no real reason for investigating Flynn.
JS now asks Govt if it has objections or wants to put anything else on the record.
The DOJ lawyer started and now the feed has gone silent!
He was starting to say that the DOJ disagreed with the Judge's "assessment that . . ." !!!!!
I've dialed in on another phone and it is silent too. I'll try another call in. I can't tell if they lost the whole thing or just the one line.
I think the whole thing must have crashed. I'm in on another line, but the clerk is talking to one of the lawyers about using the video and not his phone. The actual participants were doing the hearing by video conference; the public was just listening.
Some discussion of recessing for 1/2 hour. That sounds like Judge Sullivan to me.
Judge saying no one's done anything wrong; it's just the technology. He's going to reconvene at 12:35. Says please relax.
Sidney asking can they stay connected if they are? Judge says yes. She says she has a number of objections to put on the record.
Sounds like it was Mr. Mooppan's video link that crashed it.
FYI, having appeared before Judge Sullivan in a long case, I can tell you with confidence that he seldom starts up again exactly when he says he's going to; he has a casual approach to that.
We're back.
Mr. Moopan has 4 points.
First is that there is no case or controversy, which Sullivan said he wasn't going to discuss.
He's saying it's not a separate issue. It's one of the govt's grounds for dismissal.
Second issue: Court isn't a rubber stamp, but the examples Gleeson used don't apply here. This isn't a case of a rogue prosecutor. This case is the "considered view" of the US.
3rd: The US has exclusive authority to dismiss; Fokker give court no role to disagree with DOJ's determination. Nixon and Fokker are controlling.
4th: materiality. DOJ cited Safavian - he gives the page. Says that is about whether a jury "could" convict, not "should" and certainly not whether the DOJ "should" pursue.
Turns it over to Kohl - also a DOJ lawyer.
He's the senior most career person in US Attorney's Office in DC. He here to say there is no improper action here.
Says he's happy to go through the evidence, but he's confident there is nothing wrong here.
He points to Jensen's review; there is continuing review; adverts to Barnett's recent interview.
Barnett briefed the SCO that there was no crime. He observed them interviewing witnesses on this case. It was him observation that the Flynn case was being used to "get Trump" including how they handled witnesses.
He says that allegation alone would require DOJ to review the situation.
He now refers to HPSCI's testimony (Comey), saying it was a "close one" - he doesn't know if Flynn lied. Kohl says that would be a problem for DOJ. DOJ doesn't prosecute people unless they are SURE there is a crime; not that there might be.
Reminds the judge that they would need witnesses to prosecute this case; there is no recording of what Flynn said in the Jan 24, 2017 interview. Who are we going to call as witnesses?
Strzok? Whom the IG said was willing to take actions to effect the election. He felt he was an "insurance policy" to blunt Trump if he was elected.
Are we going to call the agent who misled the FISC? Or the Deputy (McCabe) who was fired for lying? Whom they didn't prosecute for 1001.

Translation: we have shit for evidence, Judge.
Never have I had a case where we would have a credibility with all of our witnesses.
Talking about Barnett again briefing - he saw no case. When have they ever been pressed before to go forward with a case in these kind of circumstances.
JS now asking about a letter from Sidney to Barr. He wants to ask the govt about that. JS going to read from it now. (This is going to an argument of improper interference.)
JS now reading Sidney's letter. So now a defense lawyer asking for supervisory review of a case is creating "interference" with justice apparently. Unbelievable. JS notes she had not entered her appearance yet in the court.
There is absolutely nothing wrong with a person having lawyers who represent them in court and different lawyers who don't enter their appearance in court but approach the govt for resolution. I certainly hope Judge Sullivan isn't going to try to say this is a problem.
There he goes. He questions the "propriety" of the letter.
"One must wonder" what the public would think. "Someone who doesn't represent someone." THAT IS WRONG. Just because you have not entered your appearance DOES NOT mean you don't represent them.
I had this same issue with another judge. They forget that entering your appearance is NOT the same thing as representing them. It is ENTIRELY legal and ethical for people to have a team of lawyers, some of whom are in court and some of whom are not.
Mooppan telling Sullivan he does not see why this would be a problem. Even if she was an unrelated person, why would it be wrong for someone to raise a question of justice with DOJ?
JS wants a copy of any reply and wants to know of any discussion within DOJ about it or with Sidney. This is not appropriate. Mooppan says he'll look into it and respond. Sullivan says DOJ might have reasons to redact.
Sidney tries to jump in. JS says he'll let her talk in a minute.
She's talking now, says there was no meeting; no discussions; only response she got was a denial that there was any Brady.
She's starting to make objections. Sullivan interrupts her. Asks if she's had discussions with the President.
Sidney declining to answer. Says any such conversation would invoke executive privilege.
Sullivan says she doesn't work for the govt. She says that isn't required to invoke the privilege.
Sullivan pressing her about with discussions with DJT and who in his office she spoke to.
Sidney saying once after the govt moved to dismiss and to update him about status.
Sullivan asking whether she asked DJT to intervene. She says she only asked DJT NOT to issue a pardon and gave him an update.
Sullivan asking Sidney whether it is ethically proper for her to write DOJ. She says yes; Flynn had terminated Covington already, but she had not just entered her appearance in the court, but was repping Flynn at the time. (This is 100% correct.)
Sidney moving to strike Gleeson and all his pleadings and the facts he's interjected into the case. Sullivan says her record is clear that she objects to Gleeson and his role in the case.
Sidney moves to recuse Sullivan.
She's objecting to how he's handled the case after the Court of Appeals's opinion. Sullivan defending himself for delaying 21 days saying he did so to give Flynn time to file for cert & for the mandate to return to him. (Under the appellate rule, there is no mandate on mandamus.)
Sullivan continuing to defend himself saying he wasn't unduly trying to delay.
Sidney continues with why he should recuse himself. Saying he appointed Gleeson to advance his own personal agenda. He's ignoring the materials provided by DOJ on the record recently.
She also objected to him allowing the filing yesterday by Strzok's attorney, one of the dirtiest FBI agents ever.
"If you want to file a motion to recuse - you probably should have filed it - file a motion." He's giving her a week to file it.
She says she will file it. Sullivan asks what her next point it.
Sidney consulting her notes.
She's objecting to JS's assertion that Flynn refused to cooperate in the VA case; she says the govt asked him to lie (Van Grack) and that he could not do that (also Van Grack threatened Flynn), referencing edits to plea papers.
Sidney has other arguments; Sullivan says he'll give her a chance later. Asks if Gleeson has objects tot he summary. Gleeson says he thinks Sullivan did a great job with the summary.
Sullivan ask Gleeson to put on the record whether they have discussed the case outside of the court. Gleeson says no.
Sullivan now asking DOJ what the next steps would be if he denies the motion. Would it be the motion to withdraw? He wants to know the status of the DOJ's discussions with the law firm Covington on the ineffective assistance issue.
Mr. Kohl now responding; Motion to Withdraw has not been resolved yet. Reminding judge that such motions are to be liberally granted, quoting Sullivan's language that he would not accept pleas from someone who didn't think he was guilty.
Kohl saying they did do review of Covington file and claim of threats to son. There was some discussion in an email of an "understanding" that the son would not be prosecuted and limiting the use of that information.Says it's concerning; something the court would need to look at.
Mooppan jumps in to say the withdrawal issues further emphasize the reason why the dismissal motion should be granted; they don't intend to prosecute this case.
JS asking if DOJ knows of any case on all fours with this one. This is a phrase lawyers use to mean "exactly" the same.
Kohl now reminding the judge of a notorious set of cases in our courthouse where the agent had stolen drugs (coke or heroin, I can't remember) for his own use if I recall correctly and DOJ had moved to dismiss cases where people were serving sentences when those facts came out.
Sullivan says he of course remembers those cases. He's saying he'll read any opinions on those cases if there are any, but he doesn't remember there being opinions. Kohl is agreeing with that; Sullivan says he will double check.
Mooppan says there are no precedents to deny the motion either.Sullivan asking about dismissing with our without prejudice.Mooppan says they are asking for w/prejudice.
He says that part is not a matter of constitutional law. (I don't agree with that.) But he's trying to placate.
Sullivan now asking about the uncharged criminal conduct in the plea - this is the FARA conduct, not the false statements. He's asking whether a future AG could charge that & whether w/ or w/o prejudice would affect that. Says not to read too much into his questions necessarily.
Mooppan conceded that the FARA charge would be separate from the false statement charge legally. (This is probably right.) Kohl agreeing.
But Kohl is pointing to language and changes to it in the plea papers that changed the intent language on the FARA claim; says some of what was presented to Sullivan is not all that it appears & that the VA federal judge had problems with it too.
Sullivan now asking about the materiality because of his findings of materialty in the Brady motion (which Sidney didn't ask to reconsider). Mooppan saying the issue legally for prosecutorial discretion is whether DOJ thinks of the materiality, not whether sufficient for a jury.
Kohl (who is doing a great job) says that factually the record is different now than then when Sullivan ruled. He points to questions that Sullivan asked at the sentencing hearing. He says what matters is "what is actually true."
He says it is Sullivan's questions that have unraveled the case - properly. This is similar to what we argued in our brief - that Sullivan's order on Brady is what has brought the problems to light. Kohl is a soothing presence in the hearing. He's an old hand.
He's taking Sullivan through some of the facts that undermine the materiality - that have come out since Sullivan ruled. Pointing out that FBI itself did not think the interview was RELATED to the investigation. How then can it be material?
Relying on Barnett's independent assessment that after reviewing the transcripts there is nothing wrong with the calls with Kislyak so how can it be related to the investigation?
Now mentioning Priestep's questions about what is our goal? Kohl saying this is a red flag that there is a problem with the interview? Why is the FBI doing an interview then. Getting someone fired is not the FBI's job.
Says Gleeson's arguments basically assumes materiality. If Gleeson's questions are so relevant, why didn't the FBI agents explore those issues?
Further followup was deemed unnecessary, so how can Gleeson's arguments be material.
Since these facts are so "all over the map" it raises the definite issue of whether there was in fact any real investigative purpose to the interview. He says they can't prosecute because someone is connected if there's no evidence.
Sullivan saying wouldn't it have been more appropriate to file to reconsider the motion to dismiss for the Brady claim. He spent 100 pages on his ruling on it. Why didn't they just file a pleading saying we've got new evidence & think the case is bad. (Isn't that what they did?)
Kohl is going a GREAT job here. Saying the more we did the review - because of your great Brady order Judge! - the more we became convinced that the actual facts did not support the allegation of crime in the plea.
Kohl talking about the case agents saying the National Security Letters were investigatively unnecessary and they are saying it's a mess. Denies they are "Monday morning" quarterbacking; it's just that new evidence has come out.
He also points to Jocelyn Ballentine being on the case the whole time; she is career. Kohl ends with: we just genuinely think that there is a problem with this case.
Sullivan saying this isn't like Ted Stevens case; he went to trial & asserted his innocence. Kohl says yes, but they took a hard look at the evidence at the point they got it, which was post plea, but the question is still what can we prove. The IG has gutted all our witnesses.
Sullivan addressing Aitan Goelman's letter of yesterday saying there are interlineations in the documents filed. He wants a certification from the government about those documents. "Unsettling."
JS asking whether he should take DJT's Twitter comments into consideration. (Says he couldn't do Twitter if he had to.) Mooppan representing that the AG had confirmed he didn't rely on them.
Mooppan says DJT's tweets are an opinion about whether the prosecution is just; it's not on the evidence. DJT is agreeing with DOJ's view on that issue. Sullivan wants to know what weight to give them or disregard them or caselaw from other courts about how to handle Tweets.
Kohl saying the further we get from the facts and evidence, the more problematic it is. The way to do it is to look at the evidence; that's what drives the decision.
Sullivan asking about not one of the SCO lawyers not signing on the motion to dismiss. Jocelyn is with the US Attorney's Office and Van Grack withdrew. Mooppan says to give this no weight. The decision is a considered decision by DOJ that is all that matters.
Mooppan telling Sullivan that the staffing on the pleadings is really within the Separation of Powers issue and the court should give that no weight.
Sullivan asking why he should weigh Fokker heavier than Ammidown. Isn't the Rule 48 discussion dicta?
Mooppan says the discussion of RUle 48 in Fokker is part of the holding, citing Supreme Court cases explaining the scope of the holding vs. dicta. Ammidown is the opposite - the Rule 48 discussion there is dicta.
Boom! Mooppan also says Ammidown is from the 70s and the VERY NEXT YEAR, the Nixon case came out saying the dismissal power is exclusively for the executive.