The guilty plea of Gen. Mike Flynn may be thrown out by the court, bringing the whole Mueller investigation crashing down.
U.S. District Judge Emmet Sullivan — who is the judge in the Flynn case — yesterday ordered the prosecution to present any “Brady” material (exculpatory evidence) in its possession to the court. He issued that order on Feb. 12, but he amended his order Friday to specify that he particularly wanted any Brady material that the prosecution had in its possession during the negotiations that led to Flynn’s guilty plea.
What makes this order unusual is that it comes after Flynn pleaded guilty and, in the plea agreement, agreed to forgo any further discovery of new evidence. But Sullivan’s order overrides the plea and orders the evidence to be presented anyway.
The Supreme Court has not ruled on whether the prosecution has to hand over Brady material during plea talks and on whether defendants can withdraw a guilty plea based on the failure to provide it. And the circuit courts are split on the issue.
But Sullivan, in a footnote to his order, traced the legal history and said that it was his opinion that a defendant could change his plea and that the prosecution had to hand over the Brady material during plea discussions.
It is also significant that Sullivan’s order did not come as a result of any motion by attorneys in the case, but was made on his own initiative.
Sullivan is very sensitive to this issue since he was the judge who threw out the conviction of Sen. Ted Stevens, R-Alaska, in 2008. The Stevens conviction was vacated, in part, because of “gross prosecutorial misconduct” that included the failure to provide Brady material.
(Stevens’ conviction was thrown out before sentencing, but he lost his bid for re-election anyway. He died two years later in a plane crash).
Based on his experience in the Stevens case, Sullivan has made it a practice to issue a standing order in all his cases to turn over Brady material the prosecution had in its possession during plea negotiations.
So why did Flynn plead guilty? Was it because he was guilty or because of the threat to prosecute his son that Mueller made to gain leverage over the former general?
And, boy is there exculpatory evidence!
We now know that Peter Strzok, the high ranking FBI official who regularly texted his girlfriend Lisa Page, said that he did not think Flynn lied. Strzok was the FBI agent who met with Flynn, and it was based on what Flynn told Strzok during this interview that he was convicted of lying to the FBI.
But, after Strzok said that Flynn had told him the truth, FBI Deputy Director Andrew McCabe revised Strzok’s account to indicate that Flynn had lied (even though he was not present during the meeting). And it was based on McCabe’s revisions of Strzok’s conclusion that Flynn was indicted.
In addition, we now know that it was the FBI’s practice to use the discredited dossier to get warrants to spy on Trump associates like Carter Page. This practice raises the question as to whether a FISA warrant to surveil Flynn might have been the basis of reports of his conversation with Russian Ambassador Kislyak on which the charges against Flynn are based.
If it was so, the evidence might be tossed out because the warrant to obtain it was based on a dossier funded by Hillary Clinton’s campaign — and grossly inaccurate besides. That might make the Flynn conviction a “fruit of the poisonous tree” and cause it to be tossed out.
As Judge Andrew Napolitano notes, the judge who sentenced Flynn — Rudolf Contraras — was the same jurist who sits on the FISA court for Washington, D.C. Judge Contraras unexpectedly recused himself from further involvement in the Flynn case, without explanation. Napolitano speculates that Contraras might have been the judge who signed off on the FISA warrant that was based on the dossier. (Contraras is one of three judges on the FISA court for Washington, and one of those three signed the warrant).
Judge Sullivan took over the case after Contraras’ recusal.
So, the entire basis of the Mueller probe may come crashing down.
As Judge Napolitano said, it only takes one “courageous judge.”
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