This past Friday afternoon, the time when the government traditionally seeks to bury bad news, interim United States Attorney for the District of Columbia Timothy Shea delivered what must be exculpatory evidence in the Flynn case to Sidney Powell (counsel for General Flynn). Deputized by Attorney General Barr, United States Attorney for the Eastern District of Missouri Jeff Jensen had turned up the documents in his review of the government’s handling of the case against General Flynn.
What was in the documents? In his NR column on this development, Andrew McCarthy draws inferences based on his review of the supplement filed by Powell in support of Flynn’s motion to dismiss the case against General Flynn. The documents themselves were filed by Shea under seal, but Andy infers from Powell’s brief argument:
• That the documents support the proposition that the government had no good-faith investigation of General Flynn open at the time that he was interviewed by the FBI. Absent such an investigation, the false-statements charge to which he pleaded guilty lacks a legal predicate.
• That the documents support the existence of a side deal separate from the plea agreement submitted to Judge Sullivan — i.e., a promise that Team Mueller would not prosecute Flynn’s son if he copped a plea. Andy comments: “Under federal law, all understandings that are relevant to a guilty plea must be disclosed to the judge. It would be not merely a serious ethical breach for government lawyers to fail to reveal such an arrangement. It would be a fraud on the court.”
Andy rightly observes that Powell’s litigation on Flynn’s behalf has always been uphill. I think that remains the case. Depending on what the documents show and how clear they are on these points, however, Attorney General Barr should grasp the nettle himself. Citing Eric Holder’s dismissal of the case against Ted Stevens following his conviction, Barr should order Shea to seek dismissal of the Flynn case himself. Again, depending on what the documents show, Barr should consider going beyond Holder’s modified limited hangout and undertake to deal with Brandon Van Grack and everyone else involved in the Flynn prosecution who is still employed by the Department of Justice.