It is not easy to understand the issues in the Flynn case. It takes some attention to detail, both political and legal. National Review has posted an excerpt of Andrew McCarthy’s Ball of Collusion on the case. McCarthy explains in his introduction to it: “The excerpt contends that that there was no basis in fact or law for the investigation of General Michael Flynn, an argument I began making when reports about the investigation first emerged in early 2017.”
McCarthy separately updates his analysis of the case in the NR column “Explosive Revelations in the Flynn Case.” In the column, McCarthy focused on the contents of the exculpatory evidence delivered to General Flynn’s counsel this past Friday afternoon.
This past December, Judge Emmet Sullivan denied Flynn’s various motions seeking the production of exculpatory evidence. Judge Sullivan’s wild 92-page opinion is posted online here. It was all over but for the sentencing when the government filed a supplemental sentencing memorandum in the case, reversing the government’s position that Flynn was entitled to a sentencing reduction for providing substantial assistance to the prosecutors.
Flynn has filed two motions that I believe remain pending before Judge Sullivan. In January Flynn moved for the dismissal of the false-statements case against him on account of egregious government misconduct. Absent dismissal, Flynn also moved to withdraw his guilty plea and contest the charges that might be brought against him.
In his withdrawal motion Flynn claims that he never lied or made false statements to the FBI in the infamous White House interview conducted by FBI agents Strzok and Pientka. See generally Flynn’s affidavit in support of the withdrawal motion. Margot Cleveland examined Flynn’s withdrawal motion this past January in the Federalist column “What’s Inside The Latest Court Filings In Michael Flynn’s Case?”
In February Attorney General Barr commissioned United States Attorney Jeffrey Jensen to examine the government’s file in the Flynn case. This past Friday afternoon Jensen’s review resulted in the delivery of previously undisclosed exculpatory evidence to Flynn’s counsel, Sidney Powell. Powell promptly filed this supplement in support of Flynn’s dismissal motion. Two of the three accompanying exhibits — the documents produced by Jensen — are highly redacted; the third was filed under seal.
According to Powell, the evidence produced by Jensen supports “Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI. It also defeats any argument that the interview of Mr. Flynn on January 24, 2017 was material to any ‘investigation.’” A false-statements charge must be predicated on a misrepresentation that is material to an investigation.
Powell also claims that the evidence supports the existence of a “side deal” with prosecutor Brandon Van Grack of Team Mueller not to prosecute Flynn’s son in exchange for his cooperation. According to Powell, Van Grack “required that [the side deal] be kept secret between himself and [Flynn’s] Covington attorneys expressly to avoid the requirement of [disclosure imposed by] Giglio v. United States….”
Margot Cleveland explains and expands on this point in the Federalist column “Robert Mueller’s Case Against Michael Flynn Is About To Implode.” Cleveland’s column includes excerpts from the highly-redacted emails produced by Jensen to Powell that are attached a exhibits to her supplement. The column is extremely helpful for anyone who seeks to understand the issues as they are now presented to Judge Sullivan and Attorney General Barr, but we’re not done yet. Powell notes in her supplement that “the government has advised there is more [exculpatory evidence] to come…”