WASHINGTON — Michael Flynn, President Donald Trump’s former national security adviser, is exploring options to get out of his guilty plea — his lawyer told a judge Tuesday that they believed there was evidence that would show his case should be dismissed due to “egregious government misconduct.”
It was the first in-court confirmation from Flynn’s new legal team that they might try to blow up the plea agreement he signed as part of former special counsel Robert Mueller’s investigation in December 2017. Flynn had agreed to cooperate with the government as part of the deal, in which he admitted to lying to the FBI about his contact with then-Russian ambassador Sergey Kislyak before Trump was sworn in as president. As of last fall, Flynn was on track for sentencing, but in recent months there were signs of a shift in strategy.
In June, Flynn brought on new lawyers, including Sidney Powell, a regular Fox News commentator and Mueller critic. In late August, Flynn’s new lawyers submitted a brief to the court accusing prosecutors of misconduct, arguing the government had wrongfully withheld evidence from the defense that could help Flynn’s case. They disagreed with prosecutors that Flynn was ready for sentencing, saying they needed more time to review the case and pursue material that they believed the government was obligated to turn over.
On Tuesday, US District Judge Emmet Sullivan in Washington, DC, asked Powell if their new misconduct claims against the government were a prelude to Flynn trying to withdraw his guilty plea. Powell said she didn’t think they’d pursue that, but couldn’t say for sure what they planned to do. Responding to Powell’s repeated claims that there was evidence exonerating Flynn, the judge asked if the defense would try to argue Flynn was innocent.
Powell replied that the evidence would go toward showing “that the entire prosecution should be dismissed for egregious government misconduct.”
Flynn hasn’t formally asked the court to dismiss the case, but Powell’s comments confirmed it’s a tactic his legal team is seriously considering. Sullivan set a hearing for Oct. 31 to hear arguments on whether the government had complied with its obligations to turn over exculpatory evidence to the defense, often referred to as “Brady” material after a landmark 1963 US Supreme Court decision that held that prosecutors had to turn over evidence helpful to a defendant’s case.
The government has insisted that it met its Brady obligations in Flynn’s case and disputed Powell’s claims that there was classified information the defense was entitled to.
Among the evidence that Powell says Flynn’s legal team didn’t get from the government are copies of text messages between two onetime members of Mueller’s team — former FBI special agent Peter Strzok and former FBI lawyer Lisa Page. Those communications, many of which were eventually released to the public, included anti-Trump messages. Trump and his supporters have focused on these texts as proof that Mueller’s investigation was rooted in political bias against the president.
Brandon Van Grack, a federal prosecutor who had been part of Mueller’s team, told Sullivan on Tuesday that the government told Flynn’s original legal team about the existence of the Strzok–Page communications — and that they expressed a preference for a presidential candidate — before Flynn originally signed his plea deal in December 2017. Van Grack added that the defense received copies of some of those messages before Flynn appeared in court in December 2018 to confirm he was sticking with the plea agreement.
Although Sullivan said he would wait to hear arguments on the Brady issue until the next hearing in October, he did entertain a few points from both sides. Sullivan said that any argument about Flynn being entitled to additional evidence would need to be in the context of being “relevant and helpful” during sentencing.
Powell replied that “there is far more at stake here than sentencing.” Powell told the judge that as Flynn’s new lawyers, she and her team had an ethical obligation to review all of the evidence in his case. When Powell argued that there was evidence that they believed exonerated Flynn of being an agent for the Russian government and of violating federal laws that prohibit private citizens from engaging in unauthorized negotiations with foreign governments, Sullivan questioned the relevance, noting Flynn wasn’t charged with those crimes.
Powell replied that those arguments went toward their broader claim that the investigation into Flynn — an investigation in which he lied to the FBI about his contacts with Kislyak — was based on unfounded claims that he might be a Russian agent or in violation of US law. She also argued the government disclosed too late in the criminal proceedings information about former FBI director James Comey’s role in directing what she characterized as the “ambush interview” of Flynn.
Comey told members of Congress in December 2018 that the FBI interviewed Flynn in January 2017 as part of a “counterintelligence mission to try and understand why it appeared to be the case that the national security adviser was making false statements about his conversations with the Russians to the vice president of the United States,” according to a transcript of the closed hearing, as reported by CNN.
There were signs at Tuesday’s hearing that Flynn’s lawyers weren’t the only ones looking to shift position. Sullivan asked Van Grack if the government planned to stand by its original sentencing memo, in which prosecutors said that Flynn had provided “substantial assistance” and indicated they were comfortable with a sentence that included no prison time. Van Grack replied that the government would file an updated sentencing submission, a hint that they might change course.
The judge tentatively set a new sentencing date for Dec. 18. Flynn came before Sullivan for sentencing last December but asked to postpone it after the judge suggested Flynn should wait until he was completely finished cooperating with the government and improve his odds of a better sentence; Sullivan had harsh words at the time for the conduct Flynn had pleaded guilty to.