The federal judge assigned to the criminal case against Trump’s former National Security Adviser Michael Flynn has ordered Special Counsel Robert Mueller to turn over any “exculpatory evidence” to Flynn’s defense team.
Oddly, however, Flynn’s legal team did not make this request. Instead, Judge Emmet G. Sullivan issued the order “sua sponte,” or at his discretion, invoking the “Brady Rule” – which requires prosecutors to turn over previously unfiled evidence that might have a material impact on a defendant’s case. Interestingly, two days before the order Mueller filed a motion for an agreed-upon protective order regarding the use of evidence in the case, including “sensitive materials,” provided to Flynn’s lawyers by the office of the Special Counsel.
As The Hill notes, Sullivan dinged federal prosecutors in the trial of former Sen. Ted Stevens (R-AK) for misconduct in failing to turn over exculpatory evidence.
The development has generated a significant buzz in conservative circles, with the implication being that perhaps Flynn might not have pleaded guilty in light of certain evidence.
Judge Andrew Napolitano addressed Sullivan’s decision on Tuesday, saying The judge on his own, not in response to any application from General Flynns lawyers says, “By the way, I want all exculpatory evidence, evidence that could help Flynn or hurt the government turned over to Flynns lawyers.”
Why would he we want that after General Flynn has already pleaded guilty? That is unheard of. He must suspect a defect in the guilty plea. Meaning, he must have reason to believe that General Flynn pleaded guilty for some reason other than guilt.
Adding to the odd turn of events in the Flynn matter is a February 1 report that Special Counsel Robert Mueller’s team has postponed Flynn’s sentencing due to the “status” of the investigation.
Some have speculated that Mueller’s request indicates Flynn is cooperating with his investigation. Others, such as former federal prosecutor Joe diGenova, think that “It may very well be that the guilty plea cannot stand” after D.C. Judge Rudolph Contreras – who also sits on the FISA court and may have personally signed off on surveillance warrant(s) which ultimately included Flynn- recused himself days after he was assigned Flynn’s case.
Others have speculated that the FBI conducted an illegal interview of Flynn by not announcing that he was actually under investigation, and did not have an attorney present.
And in a leaked account of former FBI Director James Comey’s March 2017 closed door briefing to Congressional investigators, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe he had lied to them, and as a result, “some of those in attendance came away with the impression that Flynn would not be charged with a crime.”
Meanwhile, if we’re to entertain rumors and speculation, Judge Sullivan’s decision on the exculpatory evidence may have something to do with Andrew McCabe’s firing and rumors of changed “302” forms – which is the paperwork an FBI agent fills out discussing the content of an interview.
Journalist Sara Carter – known of late for her access to leaks by “white hat” actors in the intelligence community, sat down with Sean Hannity in late January where she discussed McCabe’s firing and suggested “there’s indicators right now that McCabe may have asked FBI agents to actually change their 302’s”
Carter: What we know tonight is that FBI Director Christopher Wray went Sunday and reviewed the four-page FISA memo. The very next day, Andrew McCabe was asked to resign. Remember Sean, he was planning on resigning in March – that already came out in December. This time they asked him to go right away. You’re not coming into the office. I’ve heard rep[orts he didn’t even come in for the morning meeting – that he didn’t show up.
Hannity: A source of mine told me tonight that when Wray read this, it shocked him to his core.
Sara Carter: Shocked him to his core, and not only that, the Inspector General’s report – I have been told tonight by a number of sources, there’s indicators right now that McCabe may have asked FBI agents to actually change their 302’s – those are their interviews with witnesses. So basically every time an FBI agent interviews a witness, they have to go back and file a report.
Hannity: Changes? So that would be obstruction of justice?
Carter: Exactly. This is something the Inspector General is investigating. If this is true and not alleged, McCabe will be fired. I heard they are considering firing him within the next few days if this turns out to be true.
Was McCabe fired because the 302’s filed in the Flynn interview were altered as some have suggested?
Flynn, who has been cooperating with Mueller’s investigation, was forced to resign as Trump’s National Security Advisor last February after leaks from U.S. intelligence revealed he lied to Vice President Mike Pence about perfectly legal and to-be-expected conversations he had with Russian ambassador Sergey Kislyak during the transition.