thefederalist | On Friday, Judge Emmet Sullivan issued an order in United States v. Flynn that,
while widely unnoticed, reveals something fascinating: A motion by
Michael Flynn to withdraw his guilty plea based on government misconduct
is likely in the works.
Just a week ago, and thus before Sullivan quietly directed Special
Counsel Robert Mueller’s team to provide Flynn’s attorneys “any
exculpatory evidence,” Washington Examiner columnist Byron York detailed the oddities of Flynn’s case. The next day, former assistant U.S. attorney and National Review contributing editor Andrew McCarthy connected more of the questionable dots. York added even more details
a couple of days later. Together these articles provide the backdrop
necessary to understand the significance of Sullivan’s order on Friday.
What’s Happened in the Michael Flynn Case So Far
To recap: On November
30, 2017, prosecutors working for Mueller charged former Trump national
security advisor Flynn with lying to FBI agents. The following day,
Flynn pled guilty before federal judge Rudolph Contreras. Less than a
week later — and without explanation — Flynn’s case was reassigned to
Judge Emmet G. Sullivan.
One of Sullivan’s first orders of business was to enter a standing
order, on December 12, 2017, directing “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.” Sullivan’s standing order
further directed the government, if it “has identified any information
which is favorable to the defendant but which the government believes
not to be material,” to “submit such information to the Court for in camera review.”
Sullivan enters identical standing orders as a matter of course in all of his criminal cases, as he explained in a 2016 Cardozo Law Review article: “Following the Stevens case, I have issued a standing Brady Order for each criminal case on my docket, updating it in reaction to developments in the law.” A Brady order directs the government to disclose all exculpatory evidence to defense counsel, as required by Brady v. Maryland. The Stevens
case, of course, is the government’s corrupt prosecution of the late
senator Ted Stevens—an investigation and prosecution which, as Sullivan
put it, “were permeated by the systematic concealment of significant
exculpatory evidence. . . .”
While the December standing order represented Sullivan’s normal
practice, as both McCarthy and York noted, Flynn had already pled
guilty. In his plea agreement, Flynn agreed to “forego the right to any
further discovery or disclosures of information not already provided at
the time of the entry of Flynn’s guilty plea.” On Wednesday, however,
the attorneys in the Flynn case presented the court an
agreed-upon protective order governing the use of the material —
including sensitive material — the special counsel’s office provides
Flynn. This indicates Mueller’s team will not fight Sullivan’s standing
order based on the terms of Flynn’s plea agreement.
Why Bombshells Are Likely Ahead
With a protective
order in place, Flynn’s attorneys should start receiving the required
disclosures from the special counsel’s office. There is reason to
believe these will include some bombshells.
