U.S. District Judge Emmet Sullivan set off the intense exchange with Sidney Powell, a former federal prosecutor, during a telephone hearing on the government's extraordinary request to dismiss Flynn's prosecution after inquiring about whether the president has any direct involvement in his political ally's case. Details about Trump's involvement in Flynn's case could cast light on whether untoward White House influence contributed to the U.S. Department of Justice's May 7 request to dismiss the case.
Trump has been long critical of the prosecution into Flynn, 61, who admitted in December 2017 to lying to the FBI about his discussions with Sergey Kislyak, then Russian ambassador to the U.S. — regarding sanctions imposed on Russia by the Obama administration — during Trump's presidential transition.
Powell was hesitant to discuss the substance of her conversations with the White House or Trump, telling the judge she's under no obligation as they're protected by executive privilege — a legal doctrine used by the president and members of the executive branch to withhold information from public disclosure.
"I would think that any conversations I have had with the president would be protected by executive privilege," the attorney said.
"But you don't work for the government," a seemly surprised and bewildered Judge Sullivan fired back.
Powell insisted she doesn't believe executive privilege "is only limited to people who work for the government."
"So you're purporting to invoke executive privilege not to answer the court's question about whether you discussed Mr. Flynn's case with the president of the United States, correct?" Judge Sullivan asked.
The defiant attorney ultimately revealed that she had spoken with Jenna Ellis, a senior legal adviser to the president's re-election campaign, and Trump himself "in the last couple of weeks" about Flynn's case.
"What precisely did you ask him to do in connection to this case" and what was the nature of those discussions? the judge asked.
Powell replied, "I never discussed this case with the president until recently, when I asked him not to issue a pardon, and I gave him a general update of the status of the litigation."
"I provided it in-person to counsel for the president," Powell added without giving any other concrete details about her talks beyond the request not to pardon Flynn.
The White House did not immediately reply to a request for comment on Powell's admission.
This dramatic exchange between Judge Sullivan and Powell was one of the most striking moments during Tuesday's hearing as the judge examines whether to grant the DOJ's motion to throw out the highly contentious case.
Kenneth C. Kohl, a veteran career prosecutor in the U.S. Attorney's Office in Washington, and DOJ attorney Hashim M. Mooppan both told Judge Sullivan there was no corrupt political decision in getting Flynn's case dropped despite what the president's tweets and public comments about the case might suggest.
"I've been around the courthouse for three decades. I'm the senior ranking career person in our office right now and I want to appear today because the allegations against our office that we would operate or act with a corrupt political motive just are not true," Kohl told the judge. "I have never seen it in my entire career in our office and it didn't happen here. I'm here to say the U.S. Attorney's Office's decision is the right call for the right reasons."
Kohl reiterated the government's argument that dismissal is being sought because the FBI relied on insubstantial legal grounds to probe and interview Flynn about his communications with Kislyak about the sanctions imposed on Russia for interfering in the 2016 election. He stated the probe had been infected with political bias, and that the government would have failed to secure a guilty verdict at trial due to credibility issues with the FBI investigators who handled the case at the time.
The long-anticipated hearing came almost a month after the D.C. Circuit in an 8-2 ruling dismissed the retired U.S. Army lieutenant general's petition, backed by the DOJ, to shut down Judge Sullivan's inquiry into the government's rationale for ending the prosecution brought by former special counsel Robert Mueller's Russian election interference probe.
At the circuit court, Flynn's team and the DOJ accused Judge Sullivan of abusing his judicial discretion and second-guessing the government's motion. They also said he erroneously appointed a retired federal judge and prosecutor, John Gleeson, as amicus curiae to make the case against the department and inform the district judge's decision.
The inquiry, they maintained, amounts to an intrusion on the executive branch's constitutional authority to decide which prosecutions should be pursued or dropped.
But the majority's ruling concluded that granting Flynn's writ of mandamus petition would be premature and extreme because Judge Sullivan should get the opportunity to rule on the pending motion first. If the trial judge denies the request, the order added, Flynn would have the opportunity to file an appeal.
On Tuesday, Judge Sullivan repeatedly emphasized that while court rules give him a limited role, judicial precedent suggests he's "not a rubber stamp" on prosecutors' requests to throw out a case.
Mooppan agreed that the district court isn't merely a rubber stamp. But the Jones Day alumnus argued that because "this isn't a case of a rogue prosecutor or political favoritism," scrutinizing the DOJ's decision is unwarranted. Moreover, Mooppan added, the executive branch has the "exclusive authority" to prosecute cases and keeping Flynn's case alive undercuts that authority.
Gleeson, for his part, maintained that Judge Sullivan certainly has the authority to dismiss the motion on the basis that the DOJ abused its prosecutorial power by yielding to Trump's pressure campaign to protect his ally.
"Not for nothing, but this crime was committed in the West Wing," Gleeson, a Debevoise & Plimpton LLP partner, said. The court-appointed adviser also urged the judge to consider Trump's public remarks attacking career prosecutors and campaigning for the case's dismissal.
Indeed, Judge Sullivan suggested that presidents have avoided becoming involved directly in criminal cases to maintain the department's independence. The judge's probing line of questioning to the attorneys in the case also suggests he's deeply skeptical of the government's bid and is immediately unclear how to proceed.
While running through a series of constitutional questions and other inquiries to test the scope of his authority, Judge Sullivan asked, among other things, why the government would want to shut down the case despite Flynn pleading guilty twice; whether it would be "appropriate" to give a future DOJ and attorney general the opportunity to determine whether to bring a case against Flynn for "uncharged criminal conduct" and if the district court should take the president's tweets into consideration. The judge noted that other federal judges across the country have considered Trump's public comments and tweets concerning matters in cases before them.
At the end of the five-hour-long teleconference hearing, which was at one point marred by technical difficulties, Judge Sullivan did not say when he will issue a ruling. But the judge acknowledged that the circuit court's order encouraged him to rule quickly.
Judge Sullivan, meanwhile, gave Powell a week to file a motion to remove him from the case. Earlier in the hearing, the attorney insisted that Judge Sullivan should immediately recuse himself because he's biased toward her client by appointing Gleeson to support the judge's own views that Flynn should be imprisoned. Powell also lambasted the judge for selecting the latest date the parties agreed to for Tuesday's hearing.
Judge Sullivan defended his conduct, and he noted in part that he doesn't recall Powell ever filing a recusal motion.
"You probably should have filed it, but you didn't. I'm not going to address on oral representation," the judge said. "I'll afford you an opportunity to do that" in writing.
Flynn is represented by Sidney Powell and Molly McCann of Sidney Powell PC and Jesse R. Binnall, Lindsay McKasson and Abigail Frye of Harvey & Binnall PLLC.
The government is represented by Kenneth C. Kohl and Jocelyn Ballantine of the U.S. Attorney's Office for the District of Columbia and Hashim M. Mooppan of the U.S. Department of Justice's Civil Division
The case is U.S. v. Flynn, case number 1:17-cr-00232, in the U.S. District Court for the District of Columbia.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
