Former National Security Advisor Michael Flynn’s attorneys revealed in federal court Tuesday the prosecution deliberately suppressed exculpatory evidence that would have exonerated Flynn from any collusion with Russia.
“There never would have been a plea to begin with if the government had disclosed Brady information about what it knew before the plea agreement,” Flynn’s lead attorney, Sidney Powell, declared during the status conference, excoriating the prosecutors.
“Brady material” or disclosure, is a term established in the 1963 Supreme Court case, Brady v. Maryland, which mandates government disclosure of all exculpatory or exonerating evidence favorable to the defendant.
While prosecutorial withhold of evidence that would prove the defendant’s innocence or reduce their sentence violates the defendant’s rights to due process under the U.S. Constitution, prosecutors very rarely face repercussions for violating Brady law and have absolute or qualified immunity from civil suits.
Flynn’s legal team presented the charge against prosecutors as they dueled over setting Flynn’s sentencing date after months of delays. The presiding Bill Clinton-appointed judge, U.S. District Emmet Sullivan, set a tentative Dec. 18 sentencing date.
The sentencing date is subject to change pending the defense’s request for Brady material, Sullivan said, warning the Brady order is a higher priority than the plea agreement.
Amid unsubstantiated allegations of Trump-Russia collusion, Flynn, a retired Army lieutenant general and director of the Defense Intelligence Agency, pleaded guilty in 2017 to one felony count of lying to the Vice President Mike Pence and the FBI about conversations he had with then-Russian ambassador Sergey Kislyak in late December 2016.
His discussion with Kislyak specifically regarded then-President Barack Obama’s imposed sanctions against Russia for alleged election meddling.
“I recognize that the actions I acknowledged in court today were wrong, and, through my faith in God, I am working to set things right. My guilty plea and agreement to cooperate with the Special Counsel’s Office reflect a decision I made in the best interests of my family and of our country. I accept full responsibility for my actions,” Flynn said in a written statement at the time of his guilty plea.
Flynn’s guilty plea was part of a deal he struck with special counsel Robert Mueller’s team, which ultimately concluded after a 22-month investigation there was no evidence proving the Trump campaign colluded with Russia to influence the 2016 presidential election.
Memos released in 2018 by the FBI reveal the FBI dissuaded Flynn from having an attorney present during the interrogation.
“Those memos also show that FBI agents did not instruct Flynn that any false statements he made could constitute a crime, and decided not to “confront” him directly about anything he said that contradicted their knowledge of his wiretapped communications with Kislyak,” Fox News reports.
Flynn only faces a prison sentence because of prosecutorial misconduct, the defense argued, accusing prosecutors of concealing an internal Justice Department memo that would have “exonerated” Flynn from being a Russian agent prior to his plea deal.
“There is far more at stake here than sentencing,” Powell said. “There were stunning failures to produce Brady material, going back to July of 2017.”
Despite pleading guilty, the FBI won’t release evidence that Flynn passed a polygraph test, Powell asserted.
“There is just a plethora of information out there that we need the actual documents to support and the notes to support,” she said.
Prosecutors shot back, contending the government has already turned over 22,000 pages of documents related to Flynn’s case and has therefore “exceeded its discovery and disclosure obligations in this matter.”
Powell demanded the Justice Department turn over classified materials, including FBI documents detailing the malfeasance of former DOJ official Bruce Ohr, who coordinated with former British spy Christopher Steele to create the salacious Trump dossier, which she argues are intentionally being withheld because they are critical to Flynn’s defense.
Prosecutor Van Grack dismissed Powell’s claims, arguing Flynn plead guilty to lying to the FBI, not Russian colluding with the Russian government.
Judge Sullivan scheduled a court hearing on Brady material for Oct. 31.
The Clinton appointed judge has previously indicated the odds of a favorable outcome for Flynn under his jurisdiction are unlikely.
In December, Sullivan excoriated Flynn, telling the former national security adviser he couldn’t contain his “disgust” and suggested Flynn may have committed treason.
“Arguably, you sold your country out,” Sullivan told Flynn. “I’m not hiding my disgust, my disdain for this criminal offense.”
Sullivan “is obviously taking the Brady issues very seriously and clearly told the prosecutors that his Brady order stands regardless of the plea agreement or the plea,” Powell told investigative journalist Sara Carter. “If the prosecutors here were seeking justice instead of a conviction, General Flynn would not have been prosecuted. They have been hiding evidence that he was exonerated in early 2017.”
Appearing on Fox News Channel Tuesday, former Assistant U.S. Attorney Andrew McCarthy argued, “President Trump should have pardoned” Flynn.
“Maybe the politics of 2020 makes [it] difficult to do at this point,” he said. “It ought to be — straightforward and it’s gotten very complicated in this case.”
“The bottom line is, in every criminal case the government has an obligation to disclose to the defense any material exculpatory information that’s in the government’s files,” he continued.
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