With the release of the new material from the case of Michael Flynn, an array of experts came forward to assure the public that it was all standard procedure for investigators to conclude that there was no criminal conduct uncovered and then prosecutors creating a crime (including the use of a clearly unconstitutional law never used to convict anyone since the start of the Republic). Many of these same experts who have been espousing untethered (and ultimately rejected) theories for criminal and impeachment charges for years. Yet, what was most striking is how many also rejected any claim that the undisclosed evidence, at a minimum, violated Brady, the case requiring the government to turn over exculpatory information. Indeed, Ben Wittes, a staunch defender of James Comey, assured readers “while you might not know much about federal law enforcement,” this is all “standard practices.” In fact, this is a clear and flagrant violation of the both Brady and the orders of Judge Emmet Sullivan. The fact that such violations are also dismissed by mainstream media and experts reflects how rage has distorted legal analysis in this Administration.
Brady v. Maryland is a 1963 decision of the Supreme Court that prosecutors must under the Fifth and Fourteenth amendments disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. There are also due process rights requiring the disclosure of any evidence that would allow the defense to attack the reliability, thoroughness, and good faith of the police investigation or to impeach the credibility of the state’s witnesses. Kyles v. Whitley, 514 U.S. 419 (1995).
Courts like Judge Sullivan in the Flynn case issue standard orders under this and other cases requiring disclosure of evidence that are exculpatory or material to issues like impeachment.
Many of us who work on the criminal defense side have long frustrating histories with courts in dealing with violations of Brady and other cases. Often these violations are exposed after sentencing (unlike in Flynn). Courts often cite cases like Strickler v. Greene to decline to order a new trial unless “the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” That is a standard that is difficult to overcome. However, this case exposes a particularly obvious set of violations.
These documents do not show prosecutors finding a way to arrest someone suspecting of a crime. They show prosecutors trying to create a crime. It was previously known that the investigators who interviewed Flynn did not believe that he intentionally lied. That made sense. Flynn did not deny the conversations with then-Russian Ambassador Sergey Kislyak. Moreover, Flynn told the investigators that he knew that the call was inevitably monitored and that a transcript existed. However, he did not recall discussing sanctions with Kislyak. There was no reason to hide such a discussion. Trump had publicly stated an intent to reframe Russian relations and seek to develop a more positive posture with them.
It now appears that, on January 4, 2017, the FBI’s Washington Field Office issued a “Closing Communication” indicating that the bureau was terminating “CROSSFIRE RAZOR” — the newly disclosed codename for the investigation of Flynn. That is when Strzok intervened.
Keep in mind CROSSFIRE RAZOR was formed to determine whether Flynn “was directed and controlled by” or “coordinated activities with the Russian Federation in a manner which is a threat to the national security” of the United States or a violation of federal foreign agent laws. The FBI investigated Flynn and various databases and determined that “no derogatory information was identified in FBI holdings.” Due to this conclusion, the Washington Field Office concluded that Flynn “was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.”
On that same day, however, fired FBI Special Agent Peter Strzok instructed the FBI case manager handling CROSSFIRE RAZOR to keep the investigation open, telling him “Hey don’t close RAZOR.” The FBI official replied, “Okay.” Strzok then confirmed again, “Still open right? And you’re the case agent? Going to send you [REDACTED] for the file.” The FBI official confirmed: “I have not closed it … Still open.” Strzok responded “Rgr. I couldn’t raise [REDACTED] earlier. Pls keep it open for now.”
Strzok also wrote FBI lawyer Lisa Page, the same person Strzok had referenced his “insurance policy” to in emails. Strzok texted Page: “Razor still open. :@ but serendipitously good, I guess. You want those chips and Oreos?” Page replied “Phew. But yeah that’s amazing that he is still open. Good, I guess.” Strzok replied “Yeah, our utter incompetence actually helps us. 20% of the time, I’m guessing :)”
That exchange is not disconcerting as Strzok’s actions. After a finding of “no derogatory information,” Strzok reached for the Logan Act and sent a research paper on the notoriously unconstitutional law. Thus, faced with a lack of evidence of any crime, Strzok’s response was to order the investigation be kept open and then focused attention on an unconstitutional law never used to convict a single person. Its use against the incoming national security advisor to say it is a crime to discuss foreign relations with a Russian official during the transition would have been utterly absurd.
The same officials then sent two investigators into the White House, knowingly evading the long-standing rules of contacting the White House Counsel’s office in advance — something former FBI Director James Comey later bragged about and said that he “got away with it.”
So what happened then? We know that the investigators did not believe that Flynn intentionally lied to them about the sanctions discussion and told their superiors that they did not see evidence of a crime. Later Robert Mueller and his staff proceeded to charge Flynn with the single count. They then drained Flynn of millions and threatened to prosecute his son. He proceeded to take the plea.
Brady and the Sullivan Orders
Now back to Brady and the prior orders of Judge Sullivan (who is have practiced in front of for many years).
At least as early as February 2018, federal prosecutor Brandon Van Grack (who was one of Mueller’s staff) was under order in the Flynn case to produce all evidence in the government’s possession “that is favorable to defendant and material either to defendant’s guilt or punishment.” There was also an obligation to turn over all favorable defense evidence, including impeachment evidence for witnesses even if the government believes the evidence “not to be material.”
In 2019, Van Grack repeated the denial that there was “any information that would be favorable and material to [Flynn] at sentencing.”
So we now know that the Justice Department was withholding a January 4, 2017 document entitled “Closing Communication” from the FBI Washington Field Office. That document declared that an investigation “did not yield any information on which to predicate further investigative efforts.” In what universe would that not be :favorable to defendant and material either to defendant’s guilt or punishment”? Moreover, it would be key impeachment evidence in examining investigators or other witnesses. As a criminal defense attorney for 30 years, I would have viewed the material above as a windfall of evidence favorable to my client.
I have been a long critic of the failure of federal judges to sanction prosecutors for misrepresentations and withholding of evidence. That could prove the case here but that will not alter the fact that this is in open defiance of these orders. I have been counsel in cases where clear violations occurred, including a well-known case in front of Judge Sullivan that led to years of hearings before a Special Master and federal magistrate. This material was clearly within the court orders to be produced.
That brings us back to the reflexive response of these experts to assure the public that there is nothing to see here, or, as Wittes declared, this is all just standard practice. There was a time when media like CNN and MSNBC and the Washington Post were outspoken critics of prosecutorial misconduct. Yet, in this age of rage, those principles are now inconvenient obstacles in an overriding narrative in the media. Many of these same experts have spent years advancing ridiculously twisted interpretations of the criminal code to claim “smoking gun” evidence of criminal acts by Trump and his associates. Those claims ranging from treason to bribery have been uniformly rejected by prosecutors as well as the House impeachment proceeding. Yet, it does not matter. Any sweeping legal theory or denial is replicated in the media to fit a carefully maintained narrative.
Yet, as the Supreme Court said in Brady, “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”
Even those saying that this is all “standard” stuff seem to suggest that “what is standard” is abuse. Wittes declared:
“If you’re outraged by the FBI’s tactics with Flynn, keep in mind that they do these things every day against drug dealers, gang members, and terrorists. Except those people are black, Hispanic, and Middle Eastern—not “lock ‘er up” lily white.”
Putting aside the weird rationale of abuse as a victory for racial justice, the statement was widely and favorably cited despite the fact that it is the ultimate rationalization of abuse. This legal relativism is the touchstone of legal analysis in the Trump era.
We have long had echo journalism where networks pander to the desire (and fantasies) of viewers. However, it was only in the last few years that we have seen the systematic misrepresentation of core legal principles by legal experts, including constitutional rights, to fit such a journalistic and political agenda. To suggest that Flynn was abused or that the Mueller staff violated core rights is intolerable in this environment. Yet, Donald Trump will not be our last president. What will these experts and media outlets have when he leaves office other than a Pyrrhic victory based on the abandonment of these core principles? What will be left of legal analysis after years of grotesquely distorted interpretations?