The right-wing media is pushing a dubious claim about Mueller's case against Michael Flynn

  • The right-wing media has suggested in recent days that a new court order in the case against former national-security adviser Michael Flynn implies he will be exonerated soon.
  • The judge presiding over the Flynn case, Judge Emmet Sullivan, has issued a similar order in every criminal case he’s overseen since 2009.
  • Legal experts said the order itself was routine practice, adding that the question wasn’t whether Flynn would be exonerated, but whether he would be pardoned by President Donald Trump.

The right-wing media sphere has latched onto a new and fairly routine judicial order as evidence that the former national-security adviser, Michael Flynn, may soon be exonerated as part of the Russia investigation.

Flynn pleaded guilty in December to one count of making false statements to investigators about his contacts with Sergei Kislyak, then Russia’s ambassador to the US, during an interview with the FBI near the end of January 2017. He resigned as national security adviser less than a month after the interview, when news reports surfaced that he had misled Vice President Mike Pence about his conversations with Kislyak.

Judge Emmet Sullivan, who presides over the US District Court in Washington, DC, assumed oversight of the criminal case against Flynn in December.

A little over a week ago, Sullivan issued a court order that soon caught fire in right-leaning political circles. The order directed special counsel Robert Mueller’s team to hand over any exculpatory evidence – evidence that may exonerate Flynn – to Flynn’s defence attorneys.

“Did Robert Mueller’s office withhold other evidence in Michael Flynn’s prosecution, either from the FISA court or from Flynn’s attorneys?” said a blurb atop an article from The Federalist, a right-leaning publication. “There is reason to believe so.”

“A motion by Michael Flynn to withdraw his guilty plea based on government misconduct is likely in the works,” the article continued.

“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,'” Judge Andrew Napolitano, a Fox News legal analyst, said Tuesday.

“Why would he want that after General Flynn has already pleaded guilty? That is unheard of,” Napolitano added. “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.”

The right-leaning website RedState followed suit with its own analysis on Wednesday. The article began: “Was special counsel Robert Mueller a little too ambitious with his charges against former national security adviser Michael Flynn?”

‘This means absolutely nothing’

In short, according to legal experts: probably not.

“This means absolutely nothing,” Randall Eliason, a former assistant US attorney who is currently a professor at George Washington University Law School, said in an email.

“If you look at the order, you’ll see that it is generic, and contains no reference to anything about the Flynn case in particular,” he added.

The rationale behind Sullivan’s order goes back to 2008, when he oversaw the US government’s criminal case against Ted Stevens, then a US senator representing Alaska. A federal grand jury indicted Stevens on corruption charges related to his failure to disclose over $US250,000 worth of gifts from VECO Corp., an oil and construction company that was dissolved in 2007. Stevens was convicted of seven counts and subsequently lost his bid for reelection.

Following Stevens’ conviction, an anonymous FBI whistleblower accused prosecutors of intentionally withholding evidence that would have helped Stevens’s case from his lawyers. The Department of Justice acknowledged four months later, in April 2009, that investigators did not give Stevens’s team access to notes from an interview they conducted with a key witness one year earlier.

The prosecutors’ actions appeared to breach judicial precedent set by the 1963 criminal case Brady v. Maryland, which went all the way to the US Supreme Court. In a landmark decision, the court ruled that withholding exculpatory evidence from a defendant violated the Due Process clause in the 14th Amendment of the US Constitution.

Sullivan overturned Stevens’s conviction after learning of the investigators’ conduct.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” he said at the time. An internal Justice Department probe into the matter that was completed in 2012 appeared to bolster the whistleblower’s claim of prosecutorial misconduct.

Since the Stevens case, Sullivan has issued a similar court order in every criminal case reviewed by Business Insider.

His actions indicate that Sullivan has been “particularly focused” on the issue of prosecutorial misconduct and files a judicial order like he did in the Flynn case in every criminal case “so there is an order on the record reminding prosecutors about their obligations (which they have in every criminal case, whether or not the judge issues a formal order reminding them),” Eliason said.

Jeffrey Cramer, a longtime former federal prosecutor who is now the managing director at Berkeley Research Group, echoed that view. Though he added the caveat that it is difficult to read into federal judges’ orders, “it does seem that this judge has made similar orders in the past, so it might be normal course of business.”

Experts also emphasised the difficulty of withdrawing a guilty plea, citing the court’s requirement for relevant cause before considering such a motion.

“Flynn [pleaded] guilty to lying to federal agents. It is unlikely that he will be exonerated,” Cramer said. “The only question on that front that remains is whether he will be pardoned.”

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