Michael Flynn Jr. (l) with his father Lt. General Michael Flynn. (Credit: ABC News)
“The criminal case against Michael Flynn imploded Friday. First, the U.S. attorney for the District of Columbia provided Flynn’s legal team with documents discovered by an outside review of the Flynn prosecution — documents withheld for years. Then, Sidney Powell, the attorney who took over Flynn’s defense nearly a year ago, filed new documents in the case, revealing a secret “lawyers’ understanding” not to prosecute Flynn’s son if the retired lieutenant general pleaded guilty.
(…) When a defendant cuts a deal with the government and agrees to cooperate and testify against a co-defendant or others, under Giglio those other defendants are entitled to learn the benefit of the plea agreement. But the email excerpts above suggest as Powell argued in her latest filing, that the lead prosecutor, Van Grack, “made a side deal not to prosecute Michael G. Flynn [Jr.] as a material term of the plea agreement, but he required that it be kept secret between himself and the Covington attorneys expressly to avoid the requirement of Giglio.”
Those emails also distinguish Flynn’s case from the run-of-the-mill criminal case in which a defendant seeks to avoid a plea agreement because of a side deal. Courts regularly dismiss such challenges because the terms of the plea agreement expressly provide that there are no other agreements beyond those set forth in the written plea agreement. As typical, Flynn’s plea agreement included such a provision, as seen below.
But Flynn’s case is different for two reasons. First, the emails attached as Exhibits 1 and 2 in Friday’s filing provide evidence of a side agreement — something lacking in most criminal cases. Second, the emails suggest the government intended to bind itself to this commitment via a “lawyers’ understanding” and omitted the term from the written plea agreement for an improper purpose — to avoid the constitutionally mandated disclosures. Thus, in this case, the side agreement implicates the integrity of the judicial process and suggests prosecutorial misconduct.” (Read more: The Federalist, 4/27/2020) (Archive)