Orders given by the newly assigned judge in former Trump National Security Advisor Michael Flynn’s criminal case have raised the possibility that the retired general’s guilty plea in special counsel Robert Mueller’s investigation may get thrown out.
In November, Flynn plead guilty to one count of lying to the FBI about contacts he had with Russian Ambassador Sergey Kislyak during the transition in December 2016
Observers, including President Donald Trump, noted there was nothing inappropriate about the incoming national security adviser talking to representatives from foreign governments. The conversations had nothing to do colluding with the Russians during the presidential campaign, which was supposedly the focus of Mueller’s investigation.
The Washington Examiner‘s Byron York pointed out an unusual sequence of events in Flynn’s case following his guilty plea that has not received widespread media coverage.
Just days after accepting the plea, Judge Rudolph Contreras recused himself from the case, which is being heard before U.S. District Court for the District of Columbia.
In his place, the court assigned Judge Emmet Sullivan, who presided over the corruption case involving the late Alaska Republican Sen. Ted Stevens.
Stevens’ conviction in October 2008 cost him his re-election bid a few weeks later. It came to light just months afterward that the Justice Department had withheld exculpatory evidence that would have helped the senator’s defense. The conviction was set aside in April 2009.
According to York, “Sullivan ripped into the Stevens prosecutors with an anger rarely seen on the bench.”
“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” Sullivan said at the time.
The judge “was furious that the federal government had repeatedly withheld evidence from the Stevens defense and has been known ever since as a judge who is a stickler for making sure defendants are allowed access to all the evidence they are entitled to,” York wrote.
When he took over the Flynn case in December, Sullivan ordered Mueller’s team “to produce all discoverable evidence in a readily usable form.” And he declared that “if the government has identified any information which is favorable to the defendant but which the government believes not to be material, the government shall submit such information to the Court for in camera review.”
In other words, the judged declared that he, not Mueller, would be deciding what evidence needs to be turned over to Flynn’s legal team.
As part of his plea agreement, Flynn had foregone “the right to any further discovery or disclosures” from government prosecutors.
“It certainly appears that Sullivan’s order supersedes the plea agreement and imposes on the special counsel the obligation to reveal any and all evidence suggesting that Flynn is innocent of the charge to which he has admitted guilt,” wrote National Review‘s Andrew McCarthy, a former federal prosecutor.
One piece of evidence that may prove helpful to Flynn is that FBI agents who conducted his interview in Jan. 2017 — among them special agent Peter Stzok of anti-Trump text fame — came away believing he was telling the truth.
“On March 2, Comey testified to a closed session of the House Intelligence Committee that, while Flynn may have had some honest failures of recollection during the interview, the agents who questioned him concluded that he did not lie,” according to McCarthy.
“(B)ut apparently because Strzok’s finding that Flynn was truthful was negated by Mueller’s very aggressive prosecutors,” the columnist added. “Did they decide they knew better than the experienced investigators who were in the room observing Flynn’s demeanor as he answered their questions?”
McCarthy wondered whether Flynn’s team knew that information before they agreed to the guilty plea. Fox News reported at the time that Flynn, facing financial and emotional pressure due mounting legal bills, may have agreed to the plea in order to simply end the case.
Additionally, McCarthy speculated the reason Contreras recused himself from the case following Flynn’s plea is that he is one of the judges assigned to the FISA court. In that capacity, he may have signed off on at least one of the warrants allowing surveillance of Trump campaign figures including Carter Page and Paul Manafort.
Whether Flynn’s legal team will have factual grounds to undo the plea agreement is not yet known, but Mueller’s prosecutors agreed last month to put off sentencing in the case until at least May.
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