A federal judge has issued an updated standing order in the case of U.S. v. Flynn, suggesting that Special Counsel Robert Mueller’s team may have withheld exculpatory evidence in prosecuting former national security adviser Michael Flynn.
Judge Emmet G. Sullivan, United States district judge for the District of Columbia, on Friday issued what is called the “Brady rule,” which requires the prosecution to turn over “any exculpatory evidence” to the defendant in a criminal case, meaning Mueller must provide Flynn with all information that is favorable to his defense.
Did Mueller withhold other evidence in Michael Flynn’s prosecution, either from the FISA court or from Flynn’s attorneys? On Friday, Judge Sullivan issued an updated standing order in U.S. v. Flynn that details the govts obligations under Brady. https://t.co/ctmur5s0kW pic.twitter.com/tNlq6Mupmg
— Nick Short 🇺🇸 (@PoliticalShort) February 19, 2018
Mueller’s team last week filed an agreed-upon motion to provide discovery to General Flynn under a protective order governing the use of the material.
According to former federal prosecutor Sidney Powell, this is a “huge” development because “prosecutors almost never provide this kind of information to a defendant before he enters a plea — much less after he has done so.”
Flynn’s attorneys should begin receiving the required disclosures from the special counsel’s office any time now, and there is reason to believe there will be bombshells.
Prosecutors working for Mueller charged Flynn with lying to FBI agents on November 30, 2017. He pleaded guilty to one count of making false statements to the FBI before federal judge Rudolph Contreras the next day. Contreras was recused from the case less than a week later — likely because he served on the special court that allowed the FBI to surveil the Trump campaign based on a FISA application that relied heavily on the unverified anti-Trump dossier.
Flynn’s alleged crime occurred on Jan. 24, 2017, when two FBI agents went to the White House to question him about telephone conversations he’d had with Russian Ambassador Sergey Kislyak during the transition in late December 2016.
Subsequently, according to the Washington Examiner, “Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional.”
This is why Flynn’s guilty plea remains one of D.C.’s greatest mysteries. The FBI reportedly did not think Flynn had even done anything wrong in the phone calls to the Russian ambassador — so what was there to lie about?
But as Powell pointed out in The Daily Caller, “people who are innocent enter guilty pleas every day.”
They simply can no longer withstand the unimaginable stress of a criminal investigation. They and their families suffer sheer exhaustion in every form — financial, physical, mental, and emotional. Add in a little prosecutorial duress — like the threat of indicting your son — and, presto, there’s a guilty plea.
Sullivan’s initial standing order issued on December 12, 2017, directed “the government to produce to defendant in a timely manner – including during plea negotiations – any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” The standing order also directed the government to submit information to the court “which is favorable to the defendant but which the government believes not to be material.”
The updated version added one sentence specifying that the evidence the government must produce “includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.”
According to Margot Cleveland, a lawyer who writes for The Federalist, the revised version is significant because “it indicates that if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”
Sidney Powell writes that Sullivan “is the perfect judge to decide General Flynn’s motion.”
The judicial hero of my book, Emmet Sullivan held federal prosecutors in contempt for failing to disclose evidence, dismissed the corrupted prosecution of Alaska Senator Ted Stevens and appointed a special prosecutor to investigate the Department of Justice.
That independent counsel, Henry Schuelke, issued a scathing report finding systematic, intentional and pervasive misconduct in the Department of (In)Justice. He identified the prosecution’s deliberate concealment of evidence favorable to the defense. That is why Judge Sullivan both issues such Brady orders in each of his cases and encourages every other judge in the country to do the same.
Emmet G. Sullivan is one judge who is ready, willing and able to hold Mr. Mueller accountable to the law and who has the wherewithal to dismiss the case against General Flynn — for egregious government misconduct — if Mueller doesn’t move to dismiss it himself.
Given Sullivan’s history of holding abusive prosecutors in check, Mueller’s vaunted “legal pitbull” Andrew Weissmann may have reason to be concerned.
Weissmann has a history of prosecutorial misconduct dating back to 1997, when he was officially reprimanded by a judge in the Eastern District of New York for withholding evidence, as Sara Carter recently reported.
Weissmann and another Enron Task Force member also reportedly terrorized an Arthur Andersen partner into pleading guilty unnecessarily.
Weissmann and Caldwell made Duncan testify at length against Arthur Andersen when they destroyed the company and 85,000 jobs only to be reversed by a unanimous Supreme Court three years later. Turns out, the “crime” they “convinced” Mr. Duncan to plead guilty to was not a crime at all. The court allowed Duncan to withdraw his plea. And, that was not the only Weissmann-induced plea to be withdrawn either. Just ask Christopher Calger.
As Powell points out, former FBI director James Comey admitted to the Senate Intelligence Committee last May that he leaked a memo detailing his conversation with President Trump deliberately to “trigger” Robert Mueller’s investigation. Since Flynn’s guilty plea, we’ve learned that that memo was classified.
Meanwhile, DOJ Inspector General Michael Horowitz is expected to release his highly anticipated report on the FBI and DOJ’s investigation into Hillary Clinton’s email server within the next six weeks. Horowitz is credited with discovering the Strzok-Page emails revealing the agents working on an “insurance policy” with Deputy Director Andrew McCabe.
Says Powell: “It seems plausible that this ‘insurance policy’ included the appointment of a special prosecutor.”