Flynn Filing Points to Mueller’s Team Hiding Exculpatory Evidence

December 14, 2018 Updated: December 17, 2018

Commentary

On Dec. 11, the legal team representing retired Lt. Gen. Michael Flynn, President Donald Trump’s former national security adviser who pleaded guilty to a single count of perjury in exchange for his cooperation with special counsel Robert Mueller’s office, made a legal filing in the court of federal Judge Emmet Sullivan.

That legal filing was very revealing, but to understand why it’s such a bombshell requires briefly going over the timeline of events in this most unusual case.

  1. On Dec. 1, 2017, Flynn pleaded guilty before Judge Rudolph Contreras.
  2. On Dec. 7, 2017, Judge Contreras was suddenly removed from the case without any public explanation.
  3. That same day, it was announced Judge Emmet Sullivan would be replacing Judge Contreras.
  4. On Feb. 21, 2018, Judge Sullivan filed what is known as a “Brady Ruling,” instructing the prosecution team to hand over any exculpatory evidence to Flynn and his legal team that had been withheld from them up to that point.
  5. The Mueller team then spent the next 11 months asking for Flynn’s sentencing to be delayed, pushing the date back three times, until finally a firm date of Dec. 18, 2018, was set.
  6. Having a firm date set at last allowed both sides involved in the case to file the required pre-sentencing memorandums.

(Note: A Brady disclosure filing is made when a judge wants to make absolutely sure, before proceeding to sentencing, that a defendant who pleaded guilty has received all favorable evidence from prosecutors. For prosecutors to withhold exculpatory evidence from a defendant who pleaded guilty is one of the most serious legal and ethical violations that an officer of the court can commit.)

The Mueller special counsel team went first, on Dec. 4, making a public filing in which it asked for no jail time for Flynn based of his cooperation over the past year, as well as his extensive interviews with other Department of Justice offices that were conducting investigations.

Exactly one week later, and one week before his scheduled sentencing date, on Dec. 11, Flynn’s legal team made its own filing, and, in doing so, dropped several bombshells on the Mueller special counsel office and the Spygate plotters.

Entrapment

In its memo to the judge, Flynn’s legal team revealed how then-Deputy Director of the FBI Andrew McCabe helped entrap the retired general with a phone call to Flynn, during which he suggested Flynn have no legal counsel present, and that the FBI agents assigned to interview him never alerted him that they were there investigating a criminal matter. The two agents also never warned Flynn at any time during this interview that he’d be liable for criminal penalties if he lied to them at any point.

While those revelations have gotten much media attention, there’s another bombshell in the Flynn filing that’s gotten much less notice.

Footnote 20 in the filing says:

“Certain information summarized or quoted in this Memorandum derives from documents furnished to Defendant’s counsel pursuant to the Protective Order, United States v. Flynn, 17 CR 232 (D.D.C. Feb. 21, 2018) (Doc. 22). Undersigned counsel conferred with the Government, which represented that disclosing the selected information does not constitute a violation of the Protective Order.”

That footnote doesn’t say exactly when the Mueller special counsel team handed over these exculpatory documents detailing the scheme to entrap Flynn. But, it’s clear from the way that footnote is worded the Mueller team is trying to preemptively deny that handing it over when they finally did was any sort of violation of the Brady ruling that Sullivan issued to them on Feb. 21.

If the judge made the ruling official on Feb. 21, and the Mueller special counsel team waited until, let’s say, August to finally cough up these documents, they can, of course, make the claim they didn’t violate Sullivan’s order. We’ll soon know if the judge agrees with this assertion.

Do you know what it means when a federal judge catches federal prosecutors in the act of withholding exculpatory evidence from a defendant and that defendant has already pleaded guilty? It means a severe violation of the defendant’s rights has occurred. Behavior such as this has gotten entire federal cases tossed in the past, including the case of Sen. Ted Stevens and, just late last year, the Cliven Bundy case.

The mainstream media just spent the last year claiming Contreras’ sudden removal from this case meant nothing much at all, and the subsequent 12 months of sentencing delays were due to all that awesome cooperation Flynn was supposedly giving to Mueller for his investigation into Trump and his associates.

In fact, at least one major reason why Contreras was suddenly pulled off this case is a matter of public record, even if Democrats and the media don’t want people to remember what it is: Peter Strzok and Lisa Page got caught in their text messages talking about getting together with their friend, “Rudy,” and trying to influence him, but being especially clever about how they went about doing it.

It now seems there might have been another reason for the long sentencing delay: The Mueller team was desperately trying to figure out how to avoid having to hand over these exculpatory documents to Flynn’s lawyers and giving away the entire entrapment scheme. In the end, they failed, and at a still undetermined date, they finally handed over to Flynn all the exculpatory evidence they’d been withholding.

If it turns out that Flynn and his legal team received the exculpatory documents after pleading guilty only because Sullivan ordered Mueller’s team to turn over anything they’d been withholding, not only is this case going to be tossed, the federal prosecutors involved in it are going to face legal discipline for their behavior.

Brian Cates is a writer based in South Texas and author of “Nobody Asked For My Opinion … But Here It Is Anyway!” He can be reached on Twitter at @drawandstrike.

 

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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