WASHINGTON, D.C. – Justice Emmet G. Sullivan, the new judge assigned to the case of Gen. Michael Flynn, has required Special Prosecutor Robert Mueller to hand over “exculpatory evidence” to Flynn’s defense team, in a sua sponte motion at the judge’s sole discretion that suggests Sullivan is considering seriously whether Flynn’s guilty plea should be reversed.
If Judge Sullivan decides to throw out Flynn’s guilty plea because of prosecutorial misconduct, this could be the beginning of the end for Mueller’s special counselor assignment
Judge Sullivan’s order derives from the “Brady rule” that requires prosecutors to turn over to defense attorneys all evidence in the prosecutors’ possession that may have a material effect on the defendant’s case.
In her landmark 2014 book, Licensed to Lie: Exposing Corruption in the Department of Justice, former Assistant U.S. Attorney Sidney Powell explained the importance of the Brady rule as follows: “Government agents usually have unimpeded and exclusive access to the crime scene, so they can easily remove and conceal evidence that might contradict the prosecutor’s case.”
Powell noted that on Oct. 26, 2011, then FBI Director Robert Mueller recruited attorney Andrew Weissmann to leave his private law firm partnership to join the FBI as general counselor and deputy director. Weissmann is currently a member of Mueller’s Special Counselor team.
Powell singles out Weissmann as a particularly aggressive DOJ prosecutor who frequently cut corners with the rules in his belief the end of obtaining a conviction justify the means of denying defendants full expression of their rights to defend themselves.
“Weissmann fancied himself a god among prosecutors,” Powell wrote, attributing to Weissmann many of the prosecutorial abuses Powell found in the government prosecution of Arthur Anderson in the Enron case. “He (Weissmann) viewed Wall Street bankers as ‘wise guys on Wall Street’ – no different from the mobsters, murders, and extortionists he had prosecuted among the major crime figures.”
Powell further commented that the “most polite description I had heard of Weissmann by any defense counsel who had dealt with him that he was a ‘madman.’”
Weissmann joined Mueller’s special counselor legal team by Sept. 20, 2017.
Gen. Flynn signed a guilty plea for lying to the FBI on Nov. 30, 2017.
On Dec. 7, one week after Flynn signed his guilty plea, U.S. District Court Judge Rudolph Contreras, the judge who presided over Flynn pleading guilty at a hearing on Dec. 1, 2017, recused himself from Flynn’s case without explanation.
It came out eventually that Contreras was the same FISA judge that the DOJ and FBI used the highly suspect Fusion GPS dossier to obtain permission to conduct electronic surveillance on Trump associate Carter Page that extended ultimately to collateral electronic surveillance of several yet unspecified members of Trump’s campaign, Trump’s transition team, and most likely Trump’s White House staff.
To continue the timeline, on Dec. 12, 2017, Judge Sullivan gave Mueller the unusual set of instructions, demanding that Mueller turn over to the defense anything that could be considered exculpatory.
Then on Jan. 31, 2018, Mueller requested a delay in sentencing, pushing Flynn’s sentencing into May of this year.
Finally, on Feb. 14, 2014, Mueller asked Judge Sullivan to seal the information the special prosecutor’s team had handed over to Flynn’s defense.
The request by Mueller to seal the exculpatory material handed over to Flynn’s defense team suggests Flynn’s prosecution may have derived from the anti-Trump animus between FBI agent Peter Strzok (the FBI agent Flynn allegedly lied to) and Strzok’s lover, FBI agent Lisa Page.
Another concern is that Strzok (and others in the FBI) may have altered their interrogation reports (known as FBI “302” forms) in order to make Flynn appear guilty of an offense Flynn did not commit.
On Feb. 5, 2018, Flynn’s attorneys filed a motion to dismiss all charges against him on the basis that the FBI and DOJ violated his Fourth Amendment rights, requiring the case to be dismissed under the Supreme Court doctrine known as “the fruit of the poisonous tree” – a Supreme Court dictate that requires the dismissal of any prosecution or guilty verdict where the defendant’s Fourth Amendment rights were violated, regardless whether or not the evidence so obtained was essential for the prosecution.
As an important backdrop to the case, in March 2017, then FBI Director James Comey briefed a number of Capitol Hill lawmakers on the “Russian Collusion” investigation and reportedly insisted he believed Flynn did not lie to the FBI.
As a result of that interview, the lawmakers interviewing Comey told reporters they came away with the impression Flynn would not be charged with a crime pertaining to his interview with the FBI on Jan. 24, 2017.