The Flynn Case: Liberal Press Fails To Speak Up for Its Own Principles

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Who was Brady, anyhow? We ask because of the incredible evidence “suggesting,” as the Wall Street Journal puts it, that the FBI withheld exculpatory information from General Michael Flynn when President Trump’s first national security adviser was being maneuvered into the guilty plea that he is now trying to withdraw. The obligation of prosecutors to disclose exculpatory material is called the “Brady Rule.” Hence our question.

It turns out that John Leo Brady was a 25-year-old murderer from Maryland. He entered the pantheon of precedent because of a Supreme Court case called Brady v. Maryland, decided in 1963. Brady and a 24-year-old companion were convicted of murdering a man they knew, William Brooks. The prosecution withheld from Brady’s defense that his companion had not only admitted doing the killing but also that he’d done it alone.

The Supreme Court, in a decision written by Justice William O. Douglas, decided that Brady’s due process right had been violated. It gave him a new sentencing hearing, which spared him the death sentence he was originally given and jailed him for life. Brady eventually was paroled. The precedent, though, has been in use since and the rule has even, in some jurisdictions (including New York) been tightened.

What rivets our attention at the moment is the silence of the Democrats and the liberal papers in respect of what happened to General Flynn. He’s recently gained access to astonishing Brady material handed over by the Justice Department. Some of the documents deal with the January 2017 interview of Flynn by the FBI in which he’d made the statements that were supposedly lies and to which he pleaded guilty.

It turns out, though, that the full circumstances of the interview had not been disclosed to the general until this year, when the Justice Department, now under Attorney General Barr, finally produced them. The material includes, say, handwritten notes, possibly by the former head of counterintelligence for the FBI, as writing: “What is our goal? Truth/Admission, or to get him to lie, so we can prosecute him or get him fired?”

The Journal, which has been all over this story, notes in a weekend editorial that a separate document shows that the G-Men had already realized the allegations of Flynn-Russia collusion were not credible. “Why keep pursuing him on absurd Logan Act claims?” the Journal asks. Then again, too, there is the transcript of the general’s conversation with the Russian ambassador, which was also withheld from the defense.

The newly turned-over material leads the Journal to conclude that the FBI “set up a situation designed to coax Mr. Flynn into saying something it could later claim was at odds with the transcript.” Judge Emmet Sullivan has so far seemed reluctant to credit a Brady defense for the general. Yet the judge heroically overturned the case against Senator Ted Stevens over Brady violations. Will the new material in General Flynn be enough?

We’ve long since called on Judge Sullivan to reject General Flynn’s guilty plea. Our concern then — December 2018 —was the use by prosecutors of section 1001 of Title 18 of the United States Code, a notoriously vague law that invites abuse. Add to that the Brady issues. The phrase the Journal uses to describe the government’s failure to hand over information in the prosecution of General Flynn is “beyond dispute.”

The thing that gets us here is the failure of the liberal press. It has long loved the Brady Rule. The New York Times has been particularly eloquent when it comes to Brady violations by, say, prosecutors in New Orleans. On the 50th anniversary of Brady, the Times backed “open files reform,” under which prosecutors’ files would be generally opened. Yet Brady abuses in the Flynn case have found the liberal papers loath to speak up for their own principles in the Trump era.

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Correction: Title 18 is the part of the United States code containing the Section 1001 cited above.


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