Hamstrung by the rules of procedure and evidence during the processing of his federal criminal case, Gen. Michael Flynn (ret.) came into a precarious position, even after getting new lawyers in June 2019. In August 2019, he filed a request for the federal prosecutors to produce exculpatory material about his situation, which request has been interpreted to be a constitutional right and was the subject of a separate order by the trial court back on 12 December 2017. This resulted in additional documents being filed by both sides asserting positions and arguments. After the issue of exculpatory material was considered for more than 30 days, the trial court judge in an opinion and order denied the request on 16 December 2019, which I think was the wrong decision.
As was mentioned here on SST, the procedural posture of Flynn’s case at the time he made the motion for exculpatory evidence was a difficult one. He had entered into a plea bargain agreement with “special counsel” Robert Mueller’s group that included the filing of an agreed charging document to which he would plead guilty. In open court Flynn went through the specific drill required by Federal Rule of Criminal Procedure 11, that he understood the nature of each charge to which he was pleading, and his plea was knowing and voluntary.1
After some information became public about the conduct of the Department of Justice, the FBI, and possibly others — the conduct being before and after the election of Donald Trump on 8 November 2016 — the prosecutorial pursuit of Flynn began to look questionable, to say it diplomatically. He retained new lawyers in June 2019 and the effort began to dig out more information about the series of events that had occurred around him. Fortunately, he had not yet been sentenced, and the possibility existed that he could seek to withdraw his plea of guilty. Parts ‘d’ and ‘e’ of Rule 11 provide the opening–
“(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under Rule 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.
(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.”
The procedural context of the case now shifts initially to Flynn to show a “fair and just reason” for his request to withdraw his plea. He started that process in the documents he filed yesterday, 14 January, consisting of a motion to withdraw plea of guilty and unopposed motion for continuance, along with 13 exhibits and a proposed order. Here is the 24-page motion, which includes considerable detail, with the assertion that more information has come to light in the last 30 days:
His request notes that “future briefing will establish additional reasons” to withdraw his plea. The case schedule had been that the government would file its supplemental sentencing memo by 7 January 2020, which it did, and Flynn would file one by 22 January, with sentencing on 28 January.
Woven into this current state of affairs is the trial of a case, U.S. vs. Rafiekian, which was held in the Eastern District of Virginia in Alexandria, with case number 1:18-cr-457. Bijan Rafiekian, a U.S. citizen, was the vice-chairman, director, secretary, and treasurer of the Flynn Intel Group. He had been appointed to the board of directors of the Export-Import Bank by president George W. Bush and was confirmed to that position by the senate. The prosecution originally was going to use Flynn as a witness in its case, but then did not. Rafiekian had a jury trial which ended on 23 July 2019 with a verdict of guilty on two charges, one of which was acting as an unregistered agent of a foreign government, namely, Turkey. Federal Rule of Criminal Procedure 29 allows a defendant to file a motion for a judgment of acquittal, which can be decided by the trial judge even after a jury verdict.2
After a hearing, that request was granted on 24 September 2019, and the trial court entered a judgment of acquittal in favor of Rafiekian, as well as conditionally granting a new trial, in case the acquittal was reversed on appeal. In that context in which a trial judge grants a judgment of acquittal, the government may appeal the decision, and the federal government has done so in this case.
Flynn’s request to withdraw his plea refers to the Rafiekian case, and how it has affected his present situation. However, even by standing up and pushing forward assertively with the request to withdraw his plea, it is in a tricky courtroom environment.
One aspect is making and preserving the legal points with any supporting evidence in the trial court in case the result is bad and you file an appeal. Unless you have properly raised the point, or objected to a ruling or order in the trial court in a timely manner, a court of appeals will say that “nothing is presented for review”, or “there is no evidence in the record relevant to the issue raised on appeal”, or similar language, and throw you out the door, regardless of the level of injustice that has happened.
While the status and relationship between competing parties in a sporting event and even on a battlefield can change — sometimes quickly — the relationship in a courtroom never changes: the parties are continually faced with the written law and the significant authority of one person in the role of a judge. And to ignore the possibilty of a biased or corrupt judge is to ignore human nature. However, in the tighter courtroom environment, a subtle or bold move can change the dynamic in surprising ways.
In this circumstance, it was time for Gen. Flynn to take another step.
Originally published on Sic Semper Tyrannis. Republished by permission.
- Federal Rule of Criminal Procedure 11: Pleas
- Federal Rule of Criminal Procedure 29: Motion for a Judgment of Acquittal