Former National Security Advisor Michael Flynn plead guilty back in 2017 to charges he lied to the FBI. As part of his plea deal, he was supposed to cooperate with the Feds, presumably all part of the ongoing attempt to oust Donald Trump from the Oval Office. Since then, however, Flynn tried to withdraw his plea and has claimed he was set up. Now it seems his protests might not be so far-fetched. If true, like the man or not, justice demands steps be taken to not only clear his name of these charges but to see that those responsible face the metaphorical music.

When you hire an attorney, you expect him to represent you to the best of his ability. The last thing you expect is for him to deny you fair representation. Sure, there are times when an attorney isn’t qualified or for some other reason fails to provide adequate representation. However, it is a rare thing when an attorney denies his client access to files that could provide a basis for a defense. That is, apparently, exactly what Robert Kelner and Stephen Anthony, Michael Flynn’s former attorneys, did. Worse, it looks like the Department of Justice failed to turn over evidence that falls squarely under the Brady ruling which demands exculpatory evidence be given to a defendant.

Lady Justice may be blind, but she isn’t deaf and dumb and she can wield a sword of vengeance when necessary.

And that might just be necessary in this case.

Background:

Flynn is no longer represented by Kelner and Anthony. One of his new attorneys, Sidney Powell, filed the appropriate motions and then waited for Kelner and Anthony to turn over her client’s files. Instead of getting everything, Powell — and Flynn — had to wait more than year for the documents to be handed over. Imagine their surprise and anger to realize it still wasn’t everything, despite the fact close to 6,800 items were handed over.

Oopsie. We’re sorry. But trust us, there’s no conspiracy here.

Worse, the government failed to hand over exculpatory evidence, something a first year law student knows is required. Is it any wonder Powell is questioning the motives of both her client’s former attorneys and the DOJ? Nor should it be any wonder that Powell feels this so-called oversight reveals “that the retired three-star general did not commit any crimes, as suggested by Department of Justice prosecutors in former Robert Mueller’s special counsel investigation.”

The Media and Flynn:

Or perhaps I should ask, “What media?”.  Little has been said about these revelations in the mainstream media. It isn’t hard to understand why. The media wants nothing to do with anything that doesn’t undermine the president. The possibility Flynn, for all his faults, might not be guilty of the charges he plead guilty to simply can’t be contemplated. So, bury it or deflect so people forget about prosecutorial misconduct and the violation of the attorney-client privilege.

Of course, there have been a few of the usual suspects who were quick to jump in and push aside any concern about justice being subverted. For example, CNN, which long ago proved it was not the voice for American values, demonstrated it once again. Instead of being outraged by the duplicity shown by certain members of the federal government by withholding exculpatory evidence, it decided to continue the crusade to tear down the foundations of our nation.

The Justice Department handles tens of thousands of cases every year. The fact they are so laser-focused on this one is in itself, I think, a bit eyebrow raising,” CNN analyst Elie Honig told the Dan Abrams Show on Tuesday. . “I think we’re going to see sometime soon Bill Barr’s DOJ make some kind of finding or concession that something was done wrong in the prosecution of Michael Flynn, that some evidence was withheld. “

That sound you just heard was the sound of me pounding my head against the wall. Attorney General Barr doesn’t have to make anything up. The actions of the DOJ and of Flynn’s former attorneys are all any court should need to decide there was a miscarriage of justice. But I guess it’s all right in Honig’s book to withhold exculpatory evidence and not get called out for it, at least if your victim is a conservative or someone who served in the Trump Administration.

Not everyone in the media shares Honig’s opining. Greg Jarrett said, “The unvarnished truth is that the retired Army lieutenant general and former National Security Adviser never did anything wrong and committed no crimes. He was set up by unscrupulous FBI officials, then relentlessly pursued by Mueller’s team of overzealous prosecutors who were desperate to show that President Trump and his campaign colluded with Russia to win the 2016 presidential election.”

The Court:

Last year, Judge Emmet Sullivan required Flynn’s former attorneys to hand over their files to Powell. It has taken all this time for them to do so. Normally, the court might give a tongue lashing for the delay but that would be that. Not this time. Not when it is become more likely they not only were remiss in turning over their records but that their actions prevented Flynn from mounting an effective defense, leading him to seeing a guilty plea as his only recourse.

It goes beyond that, however. If you read between the lines, there was trouble before this week. At the time the court ordered the attorneys to turn over their records, the “order was made under threat of a hearing before the District of Columbia Ethics Counsel.”

Think about that for a moment. A judge doesn’t usually threaten attorneys with the ethics counsel unless he’s seen reason to suspect they might not comply with his order. You certainly don’t have to threaten an attorney in this way just to get them to turn over a client’s file when the client changes counsel. Failure to hand over the records would be similar to a doctor keeping a patient’s file when that patient changes physicians. I don’t know about you, but it makes me want to know what the attorneys were trying to hide.

The Flynn defense is stunned that Covington and Burling has only now found thousands of additional documents amounting to more than 17,000 pages that should have been produced to the defense almost a year ago,” Powell said.

I don’t buy for one minute they “overlooked” more than 7000 documents. Someone either hid the documents or they conveniently forgot about them. And that brings us to the latest entry in this ongoing saga.

Things Are Getting Interesting:

Judge Sullivan wasn’t amused by the attorneys’ actions, nor was he taken in by their so-called explanation that the delay was because of a “miscommunication” between them and their IT specialists who, in turn, used the wrong search terms to pull the document. I guess it is possible. But what law firm doesn’t at least have paralegals or law clerks checking to make sure all the i’s are dotted and all the t’s are crossed?

As a result of this much delayed find, and possibly because he suspects even more issues to come to light, Judge Sullivan “issued a surprise order telling the former national security adviser’s previous attorneys to conduct another search of their entire case archive.”

They must also “re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn. . . “It is FURTHER ORDERED that Covington & Burling LLP is FORTHWITH DIRECTED to produce to Mr. Flynn’s successor counsel all documents or communications concerning the firm’s representation of Mr. Flynn that were not previously transferred in the rolling productions. It is FURTHER ORDERED that Covington & Burling LLP shall file a notice of compliance with this Order by no later than 12:00 PM on May 4, 2020.”

In short, they’d better not “overlook” anything else and they’d better not blow the deadline or there will be hell to pay.

As there should be.

There can be little doubt something smells when it comes to the Flynn prosecution. Whether the prosecution and his former attorneys worked a deal that left Flynn twisting in the wind is for the courts to decide. It really doesn’t matter if the DOJ and the attorneys worked together to deny the former general his constitutional rights to a fair trial and competent legal representation or if they had their own agendas. What does matter is finally getting to the bottom of the matter.

If Flynn is guilty of the charges against him, he should be punished. But not if the DOJ conspired to deny him his rights. We live in the United States of America and we don’t–or at least we shouldn’t–allow our government to railroad an accused through and find them guilty when they are anything but. It doesn’t matter if the accused is only a pawn in a bigger game.

It is past time for Michael Flynn to have his “fair” day in court. While the prosecution is supposed to try to convict those it prosecutes, it isn’t supposed to make up evidence or withhold exculpatory evidence do to so. Defense attorneys are not supposed to deny their client (current or past) evidence that might help him make an informed decision about the best course of action to take.

I am tired of watching our constitutional rights, the very foundation of our nation, being stripped away by parts of government with willing assistance by the media. Here’s hoping Judge Sullivan not only hold the former defense attorneys to the order and takes whatever action is appropriate as the case moves forward. Here’s hoping as well that those in the DOJ who turned a blind eye (or not so blind eye) as the exculpatory evidence was withheld soon find themselves standing before a disciplinary committee — and possibly facing criminal charges — for their part in making a mockery of the judicial system.

Featured image by Donkeyhotey. Creative Commons 2.0 license.