“A motion by Michael Flynn to withdraw his guilty plea based on government misconduct is likely in the works,” declared The Federalist’s Margot Cleveland on Friday.
Judge Emmet G. Sullivan issued a so-called “Brady” order on Friday in United States v. Flynn that Cleveland, a lawyer, says “likely” stands as an indication that the former Trump national security advisor is looking to withdraw his guilty plea based on government misconduct.
Flynn was charged with lying to the FBI during the Mueller probe on November 30. The former Trump advisor pleaded guilty on December 1 before federal judge Rudolph Contreras, but less than one week later, the case was reassigned under Judge Sullivan.
“On the surface, Friday’s order seems inconsequential, but in comparing the December 12, 2017, version to the February 16, 2018, version, one substantive change stood out,” explained Cleveland.
Here’s what she noticed: “The revised version added one sentence specifying that the government’s obligation to produce evidence material either to the defendant’s guilt or punishment ‘includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.'”
This add-on is significant, she argues, because it “indicates that, if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”
Cleveland acknowledges that it’s unclear if Sullivan “modified the standing order in response to special concerns in the Flynn case,” but noted that “it differs from the model text he included in his 2016 article, as well as the standing order he used most recently in a criminal case from August 2017.”
Moreover, in the revised order, the judge added “a lengthy footnote” “detailing the case law and setting forth his position that, if material exculpatory evidence is withheld during plea negotiations, a defendant is entitled to withdraw his guilty plea.”
“Flynn’s attorneys now know what to do should Mueller’s team disclose such evidence,” argues Cleveland.
In the wake of the release of the House Intelligence Committee memo on possible FISA court abuses and Grassley-Graham memo, numerous pundits have argued in support of the idea that Flynn has grounds to move to withdraw his guilty plea.