Did Robert Mueller’s special counsel team withhold exculpatory evidence from Michael Flynn — and did the FBI conspire to entrap him? A new filing from Flynn attorney Sidney Powell suggests that the case against the former Defense Intelligence Agency chief and Donald Trump national security adviser may shift dramatically in the next few days. New information released from the Department of Justice under a discovery demand — driven in part by the DoJ’s own internal review of their handling of Flynn — may show investigative and prosecutorial misconduct that could end up exonerating Flynn after all.
“I have never seen such a clearer-cut case of entrapment than this one,” one source with access to the documents told Tucker Carlson yesterday. Carlson asks Andrew McCarthy whether prosecutors themselves committed a crime, if true. McCarthy can’t understand why the FBI went after Flynn at all, except as a political jeremiad:
McCarthy had always been deeply skeptical about the prosecution of Flynn, but had thought it was more likely just wrong rather than potentially illegal. This filing has changed his mind on that point, and calls the revelations in it “explosive”:
This goes to the point I’ve been pressing for years. There was no good-faith basis for an investigation of General Flynn. Under federal law, a false statement made to investigators is not actionable unless it is material. That means it must be pertinent to a matter that is properly under investigation. If the FBI did not have a legitimate investigative basis to interview Flynn, then that fact should have been disclosed as exculpatory information. It would have enabled his counsel to argue that any inaccurate statements he made were immaterial. …
As I’ve noted several times over the years, it has long been speculated that Flynn — though he did not believe he was guilty (and though the agents who interviewed him also did not believe he had intentionally misled them) — nevertheless pled guilty to false-statements charges because prosecutors from Special Counsel Robert Mueller’s staff threatened him. Specifically, Flynn is said to have been warned that, if he refused to plead guilty, prosecutors would charge his son with a felony for failing to register with the Justice Department as a foreign agent. Such a so-called FARA violation (Foreign Agent Registration Act) is a crime that the DOJ almost never charged before the Mueller investigation, and it had dubious application to Flynn’s son (who worked for Flynn’s private-intelligence firm).
Well, Powell now contends that the new disclosures demonstrate that Mueller’s prosecutors — she specifically cites Brandon Van Grack, who now runs Justice’s FARA unit — did indeed promise Flynn that they would not charge his son if Flynn pled guilty. Worse, Powell avers that the prosecutors coerced Flynn and his counsel to keep this agreement secret. That is, this was to be a side deal that would not be written into the plea agreement and therefore would be kept from the court and the public.
Under federal law, all understandings that are relevant to a guilty plea must be disclosed to the judge. It would be not merely a serious ethical breach for government lawyers to fail to reveal such an arrangement. It would be a fraud on the court.
That in itself would be prosecutorial misconduct, although McCarthy doesn’t think it would cause the judge to dismiss the case outright. The best outcome for which Flynn could hope in court, McCarthy concludes, is that the judge finally allows Flynn to withdraw from the plea deal and forces the Department of Justice to put on its case. If the documents given to Powell live up to their billing, there’s no way that the DoJ would put these FBI investigators and prosecutors on the stand to get grilled over their actions as part of Powell’s defense. They would run for the hills.
There might be increasing skepticism about pursuing the case within the DoJ anyway. Attorney General William Barr assigned US Attorney Jeffrey Jensen to conduct an independent review of the case, which apparently forced the belated disclosure of these documents to Powell and Flynn. Barr has been publicly critical of the FBI’s investigations around the Trump campaign already, and Flynn’s team credited Barr with the latest disclosure:
The evidence is the first to be used from a review of Flynn’s prosecution ordered by Attorney General Bill Barr earlier this year. The DOJ assigned U.S. attorney for eastern Missouri Jeffrey Jensen to “assist” and review the matter with federal prosecutors in the District of Columbia, whose office has handled Flynn’s case since the special counsel’s office closed up shop a year ago.
“In light of Mr. Jensen’s independent review, we are finally getting to the Truth. We applaud Attorney General Barr for directing the proper application of [The Brady Act],” Powell told ABC News Monday. …
Sources with knowledge of the sealed evidence as well as the Flynn ally told ABC News on Monday they expect the files, if revealed publicly, to show that the FBI failed to turn over some records under what’s known as the Brady Rule. That requirement is for all potentially exculpatory evidence in the hands of the prosecutors to be turned over to a defendant.
But a full legal exoneration for Flynn is not expected from the sealed records, the sources told ABC News.
Perhaps it won’t amount to a “full legal exoneration,” but it will demonstrated that the FBI and Mueller’s team tried to railroad Flynn. That alone should draw sanctions from the court and a do-over for Flynn’s plea, plus some consideration for a dismissal with prejudice. It’s yet another smelly circumstance for the FBI and Mueller’s team, but at this point the DoJ is probably stuck politically with this case until the judge agrees that there’s no case in the first place.
This episode should be recalled immediately the next time anyone calls for a special counsel under any circumstance. It’s a poisoned chalice no matter what.