Something seems rotten in Flynn’s case — and maybe others, too
The prosecution of Michael Flynn was rocked last Friday by the disclosure of new exculpatory information, leading to speculation that the exoneration of President Trump’s first national security adviser could be imminent. That would be an amazing reversal, since Flynn pleaded guilty in 2017 to lying to FBI agents and, later, declined a federal judge’s invitation to withdraw that plea — reaffirming his admission of guilt. (Flynn has since sought to vacate the plea; the court has not yet ruled.)
The Department of Justice’s letter to Sidney Powell, Flynn’s current lawyer who has persisted for months to pry exculpatory evidence from DOJ, indicates that further revelations may be forthcoming. For now, the disclosure has two salient aspects.
The first involves the factual basis for the Obama-era FBI’s investigation of Flynn — or, rather, the lack of a basis. Under federal law, a false statement made to investigators is actionable only if it is material to the matter under investigation. If there was no basis to believe Flynn had committed a crime, his counsel could have argued that any false statements allegedly made by Flynn when he was questioned in January 2017 were immaterial. Ergo, Ms. Powell contends that the withholding of this information violated the government’s duty to disclose exculpatory evidence.
It is the second aspect I want to home in on, however.
Powell and other champions of Flynn’s cause have long claimed he did not lie to investigators — a claim supported by the interviewing FBI agents, who concluded that Flynn had not made intentional misstatements, just failures of recollection, which are common. Instead, they maintain that Flynn was coerced into pleading guilty nearly a year later by special counsel Robert Mueller’s team of hyper-aggressive prosecutors. Prosecutors did this, Powell argues, by threatening that if he refused to plead, they would prosecute his son. The son, also named Michael Flynn, worked in Gen. Flynn’s private intelligence firm, which Team Mueller was scrutinizing over its alleged failure to register with the government as a foreign agent — a dubious allegation that was rarely handled as a criminal offense before Mueller’s probe.
After DOJ’s revelations last Friday, Powell filed a submission with the court, asserting that the new disclosures demonstrate that Mueller’s prosecutors not only pressured Flynn with the possibility of indicting his son; they also secretly assured Flynn’s former counsel, the well-connected Washington firm of Covington & Burling (C&B), that Flynn’s son would not be prosecuted if Flynn pleaded guilty. This “side deal” (a) was not explicitly memorialized in the formal plea agreement, (b) was not otherwise disclosed to the court as federal law requires, and (c) was designed to enable prosecutors to evade their due process obligations in future cases.
To back up her claims, Powell’s submission included exhibits. They are still under court-ordered restrictions and thus heavily redacted. But the glimpses we get are intriguing. Exhibit 1 includes an unredacted snippet of an email between two of Flynn’s C&B lawyers; in it, Robert Kelner states to Stephen Anthony: “We have a lawyers’ unofficial understanding that they [i.e., the prosecutors] are unlikely to charge Junior [Flynn’s son] in light of the Cooperation Agreement” — Flynn’s commitment to provide information and testimony in other prosecutions.
Exhibit 2 is an email from Anthony to Kelner, among others, stating: “The only exception is the reference to Michael Jr. The government took pains not to give a promise to MTF [Gen. Flynn] regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify.”
“Giglio” refers to the Supreme Court’s 1972 ruling in Giglio v. United States, which requires the government to disclose to the defense any promises made or benefits given in exchange for the testimony of a witness called by the prosecution.
These passages cited in Powell’s exhibits tend to corroborate the claim of an agreement not to prosecute Flynn’s son. It is fair, then, to infer that the threat of such a prosecution was indeed used to pressure him. The exhibits also strongly suggest that the prosecutors did not want an explicit acknowledgement of such a commitment — which would make sense only if they planned not to disclose the commitment in future cases in which they anticipated calling Flynn as a cooperating witness.
Obviously, we should reserve final judgment; there are still facts we don’t know. The timing is hard to follow: Flynn pleaded guilty and signed his cooperation agreement on Dec. 1, 2017; yet, the correspondence between the C&B lawyers is dated March 2018. That is, the lawyers appear to be revisiting terms of a plea agreement their client had entered four months earlier, not scrutinizing an agreement he was about to enter.
Still, Powell’s allegations are very disturbing.
Some have argued that the C&B lawyers should be given the benefit of the doubt because they were merely trying to get the most favorable agreement for Flynn. By keeping their client in the dark about the prosecutors’ commitment not to charge his son, this theory goes, the C&B lawyers ensured that Flynn would not be influenced to curry favor with the prosecutors by this commitment. That, in turn, convinced the prosecutors they could give Flynn the plea agreement without fear of being embarrassed by a revelation that they pressured him by threatening his son. See? Everybody wins.
This is specious, of course. The C&B lawyers were Flynn’s agents, not the government’s; they were ethically bound to share all agreement terms with their client. More to the point, federal law requires all terms of a plea agreement to be disclosed to the court; prosecutors are not at liberty to obscure plea terms because they are embarrassed or tactically harmed by having agreed to them. (Rule of thumb for prosecutors in due process matters: If you are tempted to hide something, it is necessarily something that matters — and, therefore, something you must disclose.)
To comply with this legal mandate that all terms of a plea agreement be disclosed, these agreements — which are written by the prosecutors — make it crystal clear that they express the entirety of the understandings between the parties. That is why the beginning of the letter encompassing Flynn’s plea agreement states that it “sets forth the full and complete” terms that Flynn was accepting.
The end of the agreement is even more definitive. First, Flynn was required to sign directly underneath terms stating that he had fully read and reviewed the agreement with his attorneys, and that “I reaffirm that absolutely no promises, agreements, understandings or conditions have been made or entered into in connection with my decision to plead guilty except those set forth in this Agreement.”
Right under that, his lawyers — both Kelner and Anthony — had to sign an acknowledgment that they had fully reviewed the agreement with Flynn and that “[t]hese pages accurately and completely set forth the entire Agreement.”
Needless to say, Flynn’s plea agreement makes no mention of any commitment by prosecutors to refrain from charging Flynn’s son with a crime, notwithstanding how central that commitment appears to have been to the plea bargain.
Not only does this appear to be a willful misrepresentation to the sentencing judge; it laid the groundwork for deceiving future juries and judges. Mueller’s prosecutors gave Flynn a cooperation agreement because they anticipated calling him to testify in other cases. He would be expected to testify that his written plea agreement stated the totality of his understandings with prosecutors. By doing so, he would mislead juries and judges about what promises (or threats) prosecutors made to induce him to plead guilty and cooperate; jurors would not learn that Mueller’s prosecutors had exploited Flynn’s love for his son to squeeze him into a guilty plea.
The point of Giglio mandates is to promote the fairness and integrity of trials. For lawyers, particularly prosecutors representing the United States, to undermine these mandates would be stunning misconduct. It also would be terribly foolish misconduct. While juries would not like the notion of prosecutors using a son to pressure his father to plead guilty (especially if it was unclear that the son had done anything illegal), they would sympathize with a father’s desire to protect his son from prosecution. If the non-prosecution arrangement were disclosed, jurors would not have regarded it as much of an impeachment of Flynn’s credibility. And they would have understood that the law required the prosecutors to disclose such a commitment if Flynn demanded it as a condition of pleading guilty.
The closer one looks, the worse it gets. We can say that narrowly about the Flynn prosecution, and more generally about the Mueller investigation.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.
Note: This column was edited after its initial publication.
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