Was special counsel Robert Mueller a little too ambitious with his charges against former national security adviser Michael Flynn?
That’s what some are exploring today, as news has emerged that the federal judge overseeing the case against Flynn has ordered Mueller’s team to turn over any “exculpatory evidence” they may have to Flynn’s defense team.
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.
So if Mueller is withholding something that might get Flynn off the hook, or at least lessen the severity of the charges, his defense want to see it.
Flynn has been charged with lying to the FBI about his contacts with foreign nationals. He was forced to resign his position with the White House after 3 weeks, because he lied to Vice President Pence about it.
Some of the Fox News crew, like Judge Andrew Napalitano, are jumping all over this.
“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.”
Pretty much what you expect to hear from a Fox News loyalist. Other legal experts aren’t as convinced that what this appears to be is what it really is.
Judge Sullivan oversaw the trial of former Senator Ted Stevens (R-Alaska), and found fault with the handling of the case by prosecutors, who failed to turn over exculpatory evidence.
“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.”
He actually made a similar order after taking over the case in December.
“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.
Mueller is seeking to delay a decision on Flynn’s sentencing hearing until May.
Flynn is only one of 4 Trump team members caught in the special counsel web (We’re not counting the 13 Russians).