The Office of Special Counsel complied with a federal judge’s order and as a result turned over all evidence related to former National Security Advisor Lt. Gen. Michael Flynn’s case, according to two sources who spoke to this reporter.
In December, Judge Emmet G. Sullivan ordered Special Counsel Robert Mueller to provide Flynn’s attorneys with any and all information that may have been withheld from the case. Sullivan took over as the presiding judge after District of Columbia Judge Rudolph Contreras was recused from the case on Dec. 7. There was no explanation as to why Contreras, who presided over Flynn’s guilty plea on Dec. 3, was recused from the case. Flynn pled guilty to one count of lying to the FBI, despite testimony provided to Congress by former FBI Director James Comey, where he stated that the agents did not believe Flynn had lied about his conversation with former Russian Ambassador Sergey Kislyak in December 2016.
Sullivan ordered the government to produce any evidence in its possession that is “favorable to defendant and material either to defendant’s guilt or punishment.”
“The government is further directed to produce all discoverable evidence in a readily usable form,” the order stated. “For example, the government must produce documents as they are kept in the usual course of business or must organize and label them clearly.”
The implications that possible exculpatory evidence was withheld by Mueller’s office would be a significant development for Flynn
In a column appearing in National Review, former Assistant US Attorney for the Southern District of New York Andrew McCarthy speculated that the judge may have been concerned that favorable evidence was withheld in the case.
Flynn’s attorney Robert Kelner declined to comment on the developments.
Special Counsel spokesman Peter Carr also declined to comment.
Contreras’ recusal raised suspicion among lawmakers that have been investigating the FBI’s handling of the Russia investigation for the past year. Last week, however, Congressional investigators with the House Oversight Committee discovered a series of text messages between embattled FBI Special Agent Peter Strzok and his paramour FBI attorney Lisa Page revealing that Contreras and Strzok were close friends, as previously reported. Strzok was also one of two FBI agents who had originally interviewed Flynn.
“It wasn’t a definitive answer but certainly raises significant questions,” Rep. Jim Jordan (R-OH) of the House Oversight Committee, told this reporter last week.
The text message chain uncovered by investigators is telling. In one particular chain of messages sent on July 25, 2016, Page tells Strzok, “Rudy is on the FISC! Did you know that? Just appointed two months ago.”
At that point, the pair continues to discuss other issues but comes back to Contreras. “I did. We talked about it before and after. I need to get together with him.” Later, Strzok appears to return to his discussion about Contreras, as reported last week.
Lawmakers cautioned that while the text messages show Contreras and Strzok were friends, there is still no definitive answer on why the judge was recused from the case.
Strzok, who was at the center of the investigation alleging Trump colluded with Russia, was removed from the Special Counsel and demoted in the FBI after tens of thousands of text messages revealed he was vehemently biased against Trump.
Sullivan’s request for Mueller to turn over all evidence came after the plea, and the judge noted that even if Mueller believed the information was not “material” to the case, it would be up to Sullivan to decide whether or not to disclose the information to Flynn’s attorney.
The implications that possible exculpatory evidence was withheld by Mueller’s office would be a significant development for Flynn.
In January, Mueller and Flynn’s lawyers filed a joint status report with the court stating that they were not ready to move forward with a sentencing hearing. The court filing stated that “due to the status of the Special Counsel’s investigation, the parties do not believe that this matter is ready to be scheduled for a sentencing hearing at this time.”
It’s not certain what Flynn’s next steps will be but one option being discussed by attorneys, pundits and supporters is that he withdraw his guilty plea before sentencing.