Judicial order in Flynn case prompts new round of scrutiny
The federal judge overseeing the criminal case against former Trump national security adviser Michael Flynn has ordered special counsel Robert Mueller’s team to turn over any “exculpatory evidence” to his defense team.
The development generated immediate attention in conservative circles, with some seizing on the order as a potential indication that Flynn’s guilty plea had been called into question.
Judge Emmet G. Sullivan filed the order on Friday, directing federal prosecutors to produce to Flynn’s legal team “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment” in a timely manner.
Sullivan’s order invoked the “Brady Rule,” which requires prosecutors to disclose exculpatory evidence in their possession to the defense — that is, evidence that could prove favorable to the defendant in negating his guilt, reducing his potential sentence or bolstering the credibility of a witness.
Judge Andrew Napolitano, a frequent presence on Fox News who has been hailed by President Trump, was among the voices keenly interested in Sullivan’s decision.
“The judge on his own, not in response to any application from General Flynn’s lawyers says, ‘By the way, I want all exculpatory evidence, evidence that could help Flynn or hurt the government turned over to Flynn’s lawyers,’” Napolitano said on Fox News Tuesday.
“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.”
Other legal experts cautioned that it would be premature to make such a conclusion based on the court order alone.
They pointed to Sullivan’s past work overseeing the trial of former Sen. Ted Stevens (R-Alaska), in which the judge faulted prosecutors for misconduct in failing to turn over exculpatory evidence.
Still, experts acknowledged that such an order would typically be seen as unusual, especially in cases in which the defendant has already pleaded guilty.
“It’s not unexpected coming from him,” said Jack Sharman, a lawyer at Lightfoot, Franklin & White and former Whitewater special counsel. “I think it would probably be an over-read to make a conclusion about the defect in the plea just based on this order.”
Sullivan issued the order “sua sponte”—or at his own volition, unprovoked by Flynn’s defense team. He filed a nearly identical order in mid-December, after taking over the case.
There are no details in the filing that are specific to the case.
“It’s just a way to have in the record a judge’s reminder to the prosecutors about their Brady obligations,” said Randall Eliason, a George Washington University law professor and former U.S. attorney. “It’s just a generic, boilerplate [order] you could file in any case.”
Mueller two days prior had filed a motion for an agreed-upon protective order governing the use of material, including “sensitive materials,” in the case provided from the special counsel’s office to Flynn’s lawyers.
In early December, Flynn pleaded guilty to one count of lying to FBI agents about his contacts with then-Russian ambassador Sergey Kislyak during the transition. He has since been cooperating with Mueller’s investigation into Russian interference as part of the plea agreement.
Flynn was forced to resign as national security adviser last February after media reports based on leaks of U.S. surveillance revealed that he had lied to Vice President Mike Pence about his conversations with Kislyak by saying the two did not discuss sanctions on Russia.
Sullivan took over the case from Judge Rudolph Contreras, who recused himself a week after Flynn’s guilty plea was revealed.
Mueller has sought to delay a decision on Flynn’s sentencing hearing until May.
Flynn’s guilty plea is among a number of significant bombshells in Mueller’s ongoing probe, which has also produced money laundering-related charges against former Trump campaign officials. On Friday, Mueller indicted 13 Russians and three Russian entities on charges of orchestrating an elaborate campaign to interfere in the 2016 presidential election.
Flynn’s guilty plea was significant, however, because he is the first and only Trump administration official to be ensnared in the investigation thus far.
Olivia Beavers contributed to this report.