Did Mueller withhold evidence in striking the Michael Flynn deal?

Last Friday, the media was in a frenzy over the indictment of 13 Russians and a couple Russian entities by special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE. As pundits debated the significance of the indictment, an order was filed by Judge Emmet Sullivan in the U.S. District Court for the District of Columbia. The order itself was hardly noteworthy, even on a slow news day. Sullivan simply ordered prosecutors to comply with their obligations of disclosure of exculpatory evidence to the defense.

What was notable is that the prosecutors were members of the special counsel’s office and the defendant was their star cooperating witness, former national security adviser Michael Flynn. The order itself deals with the obligation of disclosure under Brady v. Maryland. Prosecutors must disclose favorable or exculpatory evidence to the defense. That might make for interesting reading by Flynn, given new disclosures that federal investigators doubted his guilt before the appointment of Mueller as special counsel.

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At the outset, I am skeptical that this motion represents a clear break with the prosecution by Flynn. Sullivan wrote a Cardozo Law Review article in 2016 that said that he changed his practices following the scandal in the prosecution of former U.S. Sen. Ted Stevens (R-Alaska). Prosecutors in that case unethically withheld evidence, which led to the throwing out of Stevens’s conviction. In his law review article, Judge Sullivan wrote, “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.”

Nevertheless, cooperating witnesses who pleaded guilty are not usually filing Brady motions. When a defendant cuts a deal with prosecutors, his sentence depends greatly on how the prosecutors view his cooperation. Moreover, in his plea, 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.”

Even assuming that the court issued the order as a standard protection of a defendant before sentencing, it is interesting to contemplate how the information might impact Flynn’s view of his deal. It now appears that, before President TrumpDonald John TrumpReporters defend CNN's Acosta after White House says he 'disrespected' Trump with question Security costs of Trump visit to Scotland sparks outrage among Scottish citizens Ex-CIA officer: Prosecution of Russians indicted for DNC hack 'ain't ever going to happen' MORE unwisely fired then-FBI Director James ComeyJames Brien ComeyEx-GOP lawmaker: Strzok hearing 'was a humiliating day' for Republicans Ignore the spin — still no evidence of Trump collusion Peter's 'principles' damaged public's faith in FBI MORE, federal investigators had concluded that Flynn was not knowingly lying to them about his meeting in late December 2016 with Russian ambassador Sergey Kislyak, a meeting where sanctions were discussed.

Nevertheless, after Mueller was appointed special counsel, investigators zeroed in on Flynn and his son, Michael Flynn Jr., who served as his chief of staff. Flynn was rapidly drained of his savings in the investigation and pleaded guilty, reportedly to protect his son and any remaining assets.

The Flynn “information” filed by the special counsel was curious in a couple of respects. First, it did not make an express guarantee not to go after his son. Second, it did not detail the most serious allegations involving Flynn and his alleged work with surrogates of the brutal regime of Turkish President Recep Tayyip Erdoğan. This includes alleged discussions about the seizure (or “renditioning”) of Erdoğan critic Fethullah Gülen to hand over to Turkish intelligence officials. Gülen, who lives in exile in eastern Pennsylvania, was likely to be tortured and executed by Erdoğan’s henchmen. The filing was crafted narrowly to focus on his false statement and the meeting with the Russians.

In comparison with Flynn’s alleged work on turning over dissidents for possible execution, his meeting with the Russians was hardly shocking. Flynn was the incoming national security adviser, and his meeting with foreign representatives was neither unprecedented nor unlawful. Yet, acting Attorney General Sally YatesSally Caroline YatesSupreme Court hands Trump predictable win on travel ban IG report doesn’t fault Comey for ‘partisanship,’ but it should have for his incompetence Overnight Health Care — Sponsored by PCMA — Health chief grilled on Trump drug pricing plan, ObamaCare case MORE cited the meeting as the reason for her own intervention with the White House. Yates cited the Logan Act as her concern, which was hardly credible.

The Logan Act, which makes it illegal for citizens to intervene in disputes or controversies between the United States and foreign governments, is widely viewed as unconstitutional and has never been used to convict a single U.S. citizen since it was enacted in 1799. Yates’s pushing of a Logan Act investigation seriously undermines her credibility in the actions that she took before being rightfully fired by Trump for ordering the entire Justice Department not to defend his first immigration order.

It is not clear what Mueller revealed to Flynn about these matters before Flynn took the plea deal. Likewise, it is not clear how much of the recent scandal over the controversial FISA surveillance orders impacted Flynn. Another reason Flynn might be having buyer’s remorse is that none of the indictments, including the massive indictment last week, has alleged, let alone established, collusion with the Russians and Trump. Collusion was the original purpose of the special counsel investigation. If the special counsel were to clear Trump of collusion, it could well prompt him to issue pardons to end what he claims to be a partisan “hoax.” If Flynn were to back out of cooperation, he might strengthen his case for a pardon.

Yet, the danger of backing out of a plea can be easily seen in the expanding case against Trump’s onetime campaign chairman, Paul ManafortPaul John Manafort5 revelations from Mueller's indictment of Russians in DNC hack Mueller indicts 12 Russians in 2016 DNC hack The dishonesty of the deep state MORE. Mueller has thrown every possible charge, short of ripping off a mattress label, at Manafort. Indeed, Mueller has raised mortgage fraud as a possible charge. A play for a pardon would be like putting everything on red at a Vegas roulette table: If you hit, it can be the best day of your life. If you hit.

One would hope that Trump’s aides would strongly counsel against such a move, particularly for defendants like Manafort, who faces an array of very serious (though unrelated) charges. The most obvious recipient of such a presidential action would be Flynn, who faces a questionable false-statement charge and had to sell his home to cover legal costs before finally accepting the plea.

If Flynn does feel that material evidence was withheld, he would face a tough task in walking this cat backwards. First, the view of investigators of his innocence does not prevent later investigators from reaching an opposing conclusion. Second, the general rule for plea deals is caveat emptor, or buyer beware. If you needed more evidence, you had to demand it before the deal. It is not clear if Flynn made such a demand and was not given material evidence. However, if the plea were tossed, it would release not just Flynn but Mueller.

The threat from Mueller is obvious: Break the deal, face the wheel. Flynn could be hit with an indictment with more crimes and a co-defendant in the form of his son. In the end, Flynn still has few options that seem to run the gambit from ruin to near-ruin. He is currently at near-ruin.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.