FEDERAL CRIMINAL COURT NEWS
I’d Like My “Flynn Discovery Packet,” Please BY DAN DWORIN
D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com
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n a decision, widely derided in legal circles, to dismiss charges against former National Security Advisor Michael Flynn, the Justice Department may have handed a powerful tool for discovery to defense attorneys. Flynn pled guilty to a single count of lying to federal investigators regarding a telephone conversation Flynn had with a high-ranking member of the Russian government prior to Donald Trump taking office in January 2017. Despite the fact that the call was recorded by U.S.
intelligence agents, Flynn falsely asserted that he had not urged the Russians to hold off on any response to the Obama administration’s sanctions for interference in the 2016 presidential election.1 The Office of Special Counsel secured an indictment against Flynn for lying about the Russian contact, as well as for failing to disclose his lobbying ties with the government of Turkey. Flynn pled guilty. Flynn later changed attorneys and moved to withdraw his guilty plea, alleging that the prosecution team had not provided all relevant information. His new defense team filed a flurry of motions requesting internal documents that could be exculpatory or mitigating. After Special Counsel Robert Mueller ended his inquiry into interference in the 2016 presidential election, career prosecutors in the Department of Justice prosecuted the case against Flynn. They urged the trial court to reject Flynn’s request for documents and denied any misconduct— despite Flynn reaffirming his guilt in open court on more than one occasion.2 Judge Emmet G. Sullivan, in a motion to dismiss the prosecution based on alleged prosecutorial misconduct, found that communications between
two FBI agents concerning their notes of Flynn’s interview did not show misconduct and that “Flynn made multiple false statements.”3 In most cases, a request to withdrew a guilty plea would have ended here—a judge denies a motion to withdraw a guilty plea and sentences the defendant. But this was clearly not an ordinary case. On May 7, 2020, the Justice Department filed a motion to dismiss the case, stating that Flynn’s misstatements were not material, despite the grand jury having found otherwise. Notably, one of the lead career prosecutors on the Flynn case moved to withdraw from the case the same day the dismissal motion was filed.4 In its motion to dismiss, the Justice Department lawyers now argue that internal communications between agents prior to Flynn’s interview show that the initial national security investigation into his Russian contacts had ended. These records were provided to the defense by U.S. Attorney Jeff Jensen of St. Louis, who was specially appointed by Attorney General William Barr to “investigate the investigators” of the Russia probe. These materials were covered by various privileges, including investigative and attorney work-product, and would never be disclosed to a defendant
Leslie Breeland Realtor, JD, GRI, CLHMS SEED Property Group 512.826.8430 leslie@seedpropertygroup.com seedpropertygroup.com
in a normal case.5 The motion to dismiss posits that since there was no basis for an interview of Flynn, his false statements were not “material.” It is impossible to imagine a defense based on that argument working in front of a jury. One question for practitioners going forward is, shouldn’t the government always disclose its internal communications regarding investigations that result in prosecution? Because the government turned over privileged information for Flynn, shouldn’t my client be afforded the same? Perhaps requesting a “Flynn Packet” should be part of the standard discovery motion practice in federal courts going forward, at least under this AUSTIN LAWYER AL AL administration. Footnotes 1. https://www.lawfareblog.com/flynnredux-what-those-fbi-documentsreally-show. 2. Id. 3. United States v. Flynn, Cause No. 1-17-CR-00232-EGS (D.D.C. Dec. 19, 2019, mem. order). 4. U.S. Drops Michael Flynn, in Move Backed by Trump, NY Times, May 7, 2020. https://www.nytimes. com/2020/05/07/us/politics/ michael-flynn-case-dropped.html. 5. ‘Never Seen Anything Like This’: Experts Question Dropping of Flynn Prosecution, NY Times, May 7, 2020. https://www.nytimes. com/2020/05/07/us/politics/ michael-flynn-case.html.
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AUSTINLAWYER | JUNE 2020