Documents recently provided by the Department of Justice point to prosecutorial misconduct and implicate the FBI and attorneys working for Robert Mueller in a sham investigation, Michael Flynn’s attorney claims.
The Flynn proceedings have dragged on for an inconceivably long time. Shouldn’t the cut-and-dried case have been wrapped up by now? It has been more than two years since the general pleaded guilty to lying to federal agents. On Feb. 10, U.S. District Court Judge Emmet Sullivan announced that he was canceling Flynn’s sentencing hearing until further notice – in other words, indefinitely. Something is very wrong with this picture, and the answer to what casts a deep shadow over this case may lie in documents provided to Flynn’s attorney on April 24.
Under what is known as the Brady Rule, prosecutors are required to disclose to the defense anything in the government's possession that is materially exculpatory evidence. "Brady material” comprises evidence favorable to the accused or that supports the credibility – or lack thereof – of a witness.
What Does the Brady Material Show?
Sidney Powell, Flynn’s attorney, has for several months been pursuing the Department of Justice for potentially exculpatory evidence that allegedly had been withheld from Flynn’s defense team, a violation of the Brady Rule. Although Powell now has the documents in her possession, they were handed over under a court order that keeps them from the public gaze.
Earlier this year, Attorney General William Barr appointed U.S. Attorney Jeffrey Jensen to re-examine the Flynn case, and it is likely the Jensen review that led the DOJ to hand over the Brady material finally. Powell has been pushing for Flynn’s conviction to be quashed.
The general was interviewed at the White House by FBI agents shortly after being appointed National Security Advisor in 2017. He was not told at the time that he was the subject of an investigation and was advised that it would not be necessary for him to have an attorney present. The FBI agents who interviewed him stated that they did not believe Flynn had deliberately lied to or misled them during the interview.
Flynn’s attorney has long argued that her client pleaded guilty to lying to federal agents because prosecutors from Mueller’s team threatened that, if he did not, they would go after Flynn’s son for a violation of the Foreign Agent Registration Act (FARA) – a crime that is rarely prosecuted.
Mueller was appointed as special counsel to investigate the now-discredited claim that President Trump’s 2016 campaign team conspired with Russian officials to influence the presidential election.
According to Powell, the evidence she has now received “defeats any argument that the interview of Mr. Flynn on January 24, 2017, was material to any ‘investigation.’ The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”
Powell further claims the documents confirm that attorneys from Mueller’s team did, in fact, promise Flynn that his son would not be pursued for the FARA violation if he, the general, pled guilty. Powell also asserts that Flynn and the attorneys representing him at the time were told essentially to keep the agreement over Flynn’s son off the record.
Will Flynn Have the Last Laugh?
Why did the FBI go after Flynn? There is still no specific answer, and so one can only conclude that the general was targeted because he took a job in the Trump White House. The FBI team running the Crossfire Hurricane operation were trying, at the time, to scoop up as many Trump associates as they could and tie them to the Russians in any way possible. During the post-election transition, Flynn had conversations with Russia’s U.S. ambassador – which is very standard for members of a transition team – and so he found himself in the FBI’s crosshairs.
It still appears unlikely the case against Flynn will be thrown out because another aspect of the Brady Rule could possibly work against him. In order to have a conviction overturned, the defendant must show that, had Brady material been turned over to the defense prior to prosecution, the outcome of the trial would have been different. Though that may be true, it is not necessarily easy to prove.
The president could still pardon the general, though, which would be a very popular move among his supporters and a slap in the face to Mueller, the FBI agents who conspired against the president, and Democrats who pursued the Russian collusion story even before Trump set foot in the White House.
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Read more from Graham J. Noble.
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