The judge issued what is known as the ‘Brady Rule,’ demanding that exculpatory evidence be turned over to Flynn’s defense team. The ‘Brady Rule’ is named after the case of Brady v. Maryland.
Brady v. Maryland went before the United States Supreme Court, which ruled that suppression by government actors (the prosecution, in this case) of evidence favorable to the defendant is a violation of due process.
In other words, Judge Emmet G. Sullivan’s issuance of the ‘Brady Rule’ requires that Mueller’s investigation team turn over to Flynn’s defense team any evidence that may benefit the defendant.
This is an unusual thing to see in a case, however. As former federal prosecutor Sidney Powell says, “prosecutors almost never provide this kind of information to a defendant before he enters a plea — much less after he has done so.”
Generally, after a plea has been entered, a case is considered more or less finished. All that’s left is sentencing, and if a plea bargain has been made between the prosecution and defense, even that is a simple process.
That would suggest that while the plea bargaining was occurring, exculpatory evidence was suppressed, essentially hidden from Flynn’s defense team.
The fact that Judge Sullivan ordered exculpatory evidence be turned over to Flynn’s defense team, therein, is a strange event in the generally strange prosecution of Michael Flynn.
The ‘crime’ which prompted the FBI to ‘investigate’ Flynn occurred on January 24, 2017. Two FBI agents went to question Flynn at the White House about a series of conversations he’d had on the phone with the Russian Ambassador, Sergey Kislyak after President Donald Trump had won the election.
According to statements from FBI Director Comey, he didn’t believe that Flynn had lied to him about the calls.
Further, there’s no evidence that the calls with the Russian Ambassador had broken any laws.
The question, then, is why Flynn would have decided to plead guilty to a charge that didn’t seem like it would stick.
Of course, as Powell said in an article from the Daily Caller, there are innocent people who “enter guilty pleas every day.”
A federal investigation is not an easy thing to endure. It can be hard on families, children, wallets, and the person being investigated.
In some cases, a guilty plea with the promise of a lesser (or almost nonexistent) charge and punishment begins to seem like a good deal.
Further, the longer that an investigation draws on, the greater the threat of accidentally perjuring oneself becomes.
In an article written in Reason Magazine, they pointed out that in investigations like the one that Robert Mueller is running, it’s not uncommon to try and catch suspects in a lie if there is nothing else to the investigation.
Perhaps that’s why Flynn offered up a guilty plea.
So, why does this revised and updated Brady Rule matter in that light?
Simply because, as lawyers like Margot Cleveland, who writes for The Federalist have pointed out, it signals that Flynn may have a way out.
As Margot Cleveland wrote, “it indicates that if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”
That may mean that Michael Flynn and his legal team could be back in the fight, and the guilty plea he entered could be withdrawn in light of new evidence that may even exonerate him.
Judge Sullivan has a long history of standing up to government prosecutors and holding them accountable for misconduct.
If this evidence was suppressed purposefully, Judge Sullivan is the best possible person for Flynn to be in front of.
Further, Andrew Weissman, the ‘legal pitbull’ for Mueller’s team, has a fairly long history of prosecutorial misconduct that stretches back two decades at least.
In 1997, Weissmann was officially reprimanded by a judge after he withheld evidence.
Weissmann, along with another member of the Enron Task Force, Leslie Caldwell, allegedly bullied David Duncan of Arthur Andersen into testifying against the business, only to eventually see the verdict overturned by the Supreme Court.
David Duncan was allowed to withdraw his plea after it was determined that what he plead guilty to wasn’t a crime. Eventually, Duncan settled with the SEC.
A very similar thing happened with Christopher Calger, an Enron executive who was allowed to withdraw his guilty plea.
Michael Flynn may be able to withdraw his plea, and depending on the nature of the evidence, it may undermine the future prosecution.
Flynn’s defense team expects ‘bombshells’ in the exculpatory evidence. Perhaps, it may just show that the way this investigation is being run is not acceptable, from a legal standpoint.