The Great Flynn Case Mystery

I have been wondering why, shortly after Judge Rudolph Contreras was (without explanation) recused from hearing the Michael Flynn case and Judge Emmet G. Sullivan took over, Special Counsel Robert Mueller agreed to postpone the sentencing until May, after the inspector general's report is due.

I have no assurances that my suppositions are correct, but I'm beginning to think that at the next hearing of this case, Judge Sullivan will hear Mueller dismiss the case.  Here's how I come to that.

The only reason I can imagine why Judge Contreras was recused – note: did not recuse himself – is that he was a member of the FISC, the court that grants surveillance warrants under FISA.  As the evidence mounts that the warrant was improperly granted, someone – perhaps the chief judge of the district – removed him from further participation in the case, likely because Contreras approved the warrant and its extension.  If the warrant was improperly issued, all the evidence it garnered is tainted.

As to why the agreed upon delay, my thought is that Mueller wants to wait until the inspector general report so that, in a sense, his hands will be clean if the case is dropped, that he was compelled by the record to do so.

I missed it earlier, but on December 12 of last year, Judge Sullivan issued a tough demand of the prosecution.  They are compelled immediately to turn over all exculpatory material in their possession to General Flynn.  The last paragraph of the order is particularly strong:

Finally, if the government has identified any information which is favorable to the defendant but which the government believes is not material, the government shall submit the material to the Court for in camera review.

Judge Emmet G. Sullivan.

The order is not, to my knowledge, standard.  Most courts rely on the government counsel to follow the dictates of what is known as the Brady Law, which requires them to provide such material to the defendant.

But Judge Sullivan has good reason to depart from this view.  He was made aware – too late for the trial – of the unethical conduct of the Department of Justice lawyers who prosecuted Senator Ted Stevens.  He has proposed that all federal judges issue the same sort of orders, specifically noting how the government abused its powers and withheld evidence against Senator Stevens that would have cleared him of the charges brought against him (citations omitted):

In 2008, Senator Theodore "Ted" Stevens (R-AK) was running for re-election for his seventh term.  He was also a criminal defendant in a case over which I was presiding.  After a four week trial, and about one week prior to election day, a jury found Senator Stevens guilty of lying on Senate disclosure forms.  Stevens lost the election, a Democrat replaced him, and the balance of power shifted in the Senate.  This consequential chain of events may well have turned out differently had the government followed the law because during the course of post-trial proceedings, it became clear that the Stevens prosecution was permeated by systematic concealment of evidence favorable to the Senator in violation of the law, the Constitution, and the prosecutors' ethical duties.

About six months after the verdict was returned, then-Attorney General Eric H. Holder, Jr. moved to dismiss the indictment against Senator Stevens with prejudice. As it appeared to me that prosecutorial misconduct had tainted the proceedings in my courtroom, where I have sworn, for over thirty years on the bench, that every defendant will receive a fair trial, I appointed a highly regarded lawyer and former Assistant United States Attorney, Henry F. Schuelke, III, to investigate what went wrong in the investigation and prosecution of the Stevens case, and to recommend whether there was a basis to prosecute the prosecutors for criminal contempt of court.

After an investigation of nearly three years, during which both Senator Stevens and one of the attorneys who prosecuted him died, and following extensive collateral proceedings, Mr. Schuelke's report was made public. Based on his exhaustive investigation, Mr. Schuelke and his colleague William Shields concluded that "[t]he investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." Mr. Schuelke further found that at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial.

Despite his findings of significant, widespread, and, at times, intentional misconduct, Mr. Schuelke did not, however, recommend prosecution for criminal contempt.  This was because he found that the court had not issued an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence.  Noting that, "[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation," Mr. Schuelke nevertheless recommended that, without disobedience of a "clear and unequivocal" order, the prosecutors not be charged with criminal contempt.

As a result of the Stevens trial and its aftermath, I suggested that an amendment to Rule 16 be revisited to require the government to disclose exculpatory evidence to the defense, as set forth in Brady and its progeny.  I have also suggested that certain changes to the local rules of the District Court for the District of Columbia would ensure that the government is fully aware of its disclosure obligations.  Finally, I now issue a standing Brady Order in each criminal case on my docket, which I update as the law in the area progresses.

In sum, as regards Judge Sullivan, the government has lost the presumption of ethical conduct, which many courts still afford prosecutors.  Actions have consequences.  But Mueller knew he'd have to provide exculpatory evidence to the defendant prior to the sentencing hearing, and it's hard to imagine that his big, well financed crew didn't have it in hand.

Unless, of course, as I suspect, the exculpatory evidence is being collected by the Office of the Inspector General.  And if it is and is made public before the sentencing hearing, Mueller will have hands-off reason to dismiss the case, without anyone being able to credibly charge that he threw it.

Update: And what sort of exculpatory evidence could have been withheld? According to Byron York in the Examiner:

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation. One topic of intense interest was the case of Michael Flynn, the Trump White House national security adviser who resigned under pressure on Feb. 13 after just 24 days in the job. (snip)

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

That's my supposition.

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