A supplemental motion to withdraw the guilty plea by Gen. Michael Flynn (ret.) for alternative additional reasons to those that were presented in his original request was to have been filed by today. His lawyers asked for additional time to next Wednesday, 29 January, to file the supplemental document. This morning the federal prosecutors said they would not oppose a continuance of the filing date if deadlines to file responses were also extended. The trial court judge then changed the schedule:
“01/24/2020 Minute Order as to Michael T. Flynn granting 157 Defendant’s Second Motion to Continue Briefing Deadlines. The parties shall adhere to the following modified briefing schedule: (1) Mr. Flynn shall file his ‘Supplemental Motion to Withdraw for alternative additional reasons’ by no later than 12:00 PM on January 29, 2020; (2) the government shall file its response to Mr. Flynn’s motion and supplemental motion by no later than 12:00 PM on February 12, 2020; and (3) Mr. Flynn shall file his reply brief by no later than 12:00 PM on February 18, 2020. Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross examination, to show any ‘fair and just reason’ for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d). Signed by Judge Emmet G. Sullivan on 1/24/2020. (lcegs3) (Entered: 01/24/2020)”.
Reading between the lines of the judge’s order, you can see that Flynn’s move to withdraw his plea is developing into serious business. As we have discussed before, Flynn can ask to withdraw the guilty plea by showing a “fair and just reason” under Federal Rule of Criminal Procedure 11(d)(2)(B), but he can only ask and does not have a right to withdraw the plea (unless the judge rejects the plea agreement). If his request is denied, the trial court judge can go ahead and impose a sentence within the range of punishment for the offense and within any applicable terms of the plea bargain agreement.
The judge is hinting at the possibility of a court hearing during which evidence will be presented, including testimony by Flynn and others. If a high stakes hearing like that occurs — with the issues involved — participating in it will require you to be prepared and very alert and aware of what is going on around you, as if you were walking point on patrol at night in an area of armed conflict, but without the physical danger.
Yesterday, 23 January, the Foreign Intelligence Surveillance Court (FISC) released an order it made on 7 January 2019. The Justice Department admitted to the FISC — in bureaucratic language with respect to the last two of the four very intrusive surveillance warrants on Carter Page — that: “… if not earlier [!], there was insufficient predication to establish probable cause to believe that (Carter) Page was acting as an agent of a foreign power”. Whether information from any of the four surveillance warrants against Carter Page was used in the investigation and prosecution of Michael Flynn is an item of interest: https://www.fisc.uscourts.gov/sites/default/files/FISC%20Declassifed%20Order%2016-1182%2017-52%2017-375%2017-679%20%20200123.pdf
Originally published on Sic Semper Tyrannis. Republished by permission.