New documents suggest that Flynn ‘was set up by corrupt agents’ who threatened Flynn’s son and made a secret deal with Flynn’s attorneys.
‘Why was the FBI investigating General Flynn?” That is a question I posed more than three years ago, in the days immediately after President Trump fired Michael Flynn — fleetingly, his first national-security adviser — in February 2017.
There was never a good answer to that question. That has always been a big problem for the current and former government officials whose actions in the blatantly politicized probes of the Trump campaign and its surrogates are currently under investigation by the Justice Department.
The question and the lack of a satisfactory answer are likewise at the root of stunning disclosures the Justice Department has just made to Flynn and his legal team.
Even when the government is doing the right thing, you can rest assured that Friday-afternoon information dumps (here, in the middle of a pandemic) are apt to contain news humiliating for the officials involved. So it was that last Friday night, the DOJ provided some so-called Brady material — i.e., exculpatory information that prosecutors are required by law to reveal to defendants they have charged with crimes — that Flynn’s lead lawyer, Sidney Powell, has been demanding for months.
The information is still not public because it has been produced under a court order that keeps it under wraps, at least for now. But we can glean its outlines from a motion Ms. Powell filed immediately afterward in federal court in the District of Columbia. That’s where she has been trying to convince Judge Emmet Sullivan to vacate Flynn’s guilty plea and throw out the case based on alleged prosecutorial misconduct.
In the motion, Powell argues that the new information “proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents.” She elaborates that the evidence that has finally been communicated to her
defeats any argument that the interview of Mr. Flynn on January 24, 2017, was material to any “investigation.” The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.
This goes to the point I’ve been pressing for years. There was no good-faith basis for an investigation of General Flynn. Under federal law, a false statement made to investigators is not actionable unless it is material. That means it must be pertinent to a matter that is properly under investigation. If the FBI did not have a legitimate investigative basis to interview Flynn, then that fact should have been disclosed as exculpatory information. It would have enabled his counsel to argue that any inaccurate statements he made were immaterial.
And that is far from the end of the matter.
As I’ve noted several times over the years, it has long been speculated that Flynn — though he did not believe he was guilty (and though the agents who interviewed him also did not believe he had intentionally misled them) — nevertheless pled guilty to false-statements charges because prosecutors from Special Counsel Robert Mueller’s staff threatened him. Specifically, Flynn is said to have been warned that, if he refused to plead guilty, prosecutors would charge his son with a felony for failing to register with the Justice Department as a foreign agent. Such a so-called FARA violation (Foreign Agent Registration Act) is a crime that the DOJ almost never charged before the Mueller investigation, and it had dubious application to Flynn’s son (who worked for Flynn’s private-intelligence firm).
Well, Powell now contends that the new disclosures demonstrate that Mueller’s prosecutors — she specifically cites Brandon Van Grack, who now runs Justice’s FARA unit — did indeed promise Flynn that they would not charge his son if Flynn pled guilty. Worse, Powell avers that the prosecutors coerced Flynn and his counsel to keep this agreement secret. That is, this was to be a side deal that would not be written into the plea agreement and therefore would be kept from the court and the public.
Under federal law, all understandings that are relevant to a guilty plea must be disclosed to the judge. It would be not merely a serious ethical breach for government lawyers to fail to reveal such an arrangement. It would be a fraud on the court.
Of course, if a deal of the kind Powell is alleging had been disclosed, it would have illustrated the hardball that Mueller and his band of activist Democratic prosecutors were playing in an effort to nail President Trump. You’re stunned to hear it, I’m sure.
The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of The Duran.