Friday, June 19, 2020
Attached are the separate Responses of Michael Flynn and the Department of Justice to former federal judge John Gleeson's Amicus Brief in U.S. v. Flynn. A copy of Gleeson's Brief is also attached for ease of reference. Keep in mind that all of these papers were filed in Judge Emmet Sullivan's court, rather in the DC Court of Appeals which is hearing General Flynn's Petition for Writ of Mandamus against Judge Sullivan. This is because it was Judge Sullivan who decided to appoint an amicus and set a lengthy briefing schedule instead of granting the Motion to Dismiss outright or simply holding a hearing in the first place.
The DOJ Response, in addition to demolishing Gleeson's legal arguments, puts more stress than before on the Interests of Justice rationale for moving to dismiss the case against General Flynn. I'll be commenting on that in the next few days. DOJ also goes out of its way to oppose the Flynn camp's position that there was prosecutorial misconduct connected to the prosecution. DOJ rejects this out of hand, both with respect to all of the older exculpatory materials and the information discovered, declassified, and turned over by U.S. Attorney Jeffrey Jensen within the last two months. DOJ in fact turned over a significant amount of exculpatory material prior to General Flynn's guilty plea. Of course, we still have the mystery of the missing original draft 302, which has not been explained to my satisfaction by the Fan Belt Inspectors.
As noted, the Jensen documents were not turned over until very recently, but there is no indication that any prosecutor knew, much less received, these items. That's important, because these items unmistakably lend further support to the view that Flynn's January 24 statements to FBI Special Agents were not material to the FBI's Crossfire Hurricane investigation. This makes the items Brady in my view. But DOJ still has its institutional interests to protect. And it has historically been in the forefront of seeking to limit the reach of Brady.
More to come on all of this.