Michael Flynn, former national security adviser to President Trump, leaves after his plea hearing at the Prettyman Federal Courthouse in Washington on Dec. 1. (Chip Somodevilla/Getty Images)

In July 2008, months before he would face voters for reelection to his seat in the Senate, Alaska’s Ted Stevens (R) was indicted on corruption charges stemming from allegations that he had received gifts related to the renovation of his house. Stevens fought the case, but he was convicted on seven charges just over a week from the election. He lost by 4,000 votes.

Shortly after Stevens’s replacement was sworn in to the Senate, though, there was a new development. An FBI whistleblower stepped forward to allege that federal prosecutors had withheld information from Stevens’s defense team. In the 1963 Supreme Court case Brady v. Maryland, the justices determined that prosecutors withholding exculpatory evidence — that is, evidence that could lead to a defendant’s exoneration — was a violation of due process. The U.S. attorneys in the Stevens case had violated that mandate, and the conviction was set aside.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” Judge Emmet Sullivan said as he overturned Stevens’s conviction. He ordered a special investigation into the incident, which was completed in 2012. It supported the whistleblower’s claim, determining that prosecutors had intentionally suppressed evidence that might have led to Stevens’s exoneration.

From that point on, Sullivan started a new practice for every case he handled: He would issue what is called a “standing Brady order,” mandating that prosecutors proactively turn over material favorable to the defense.

Stevens’s case was brought up frequently earlier this year in the context of allegations that FBI agents were biased in their investigations into the campaign of President Trump and any ties to Russians aiming to interfere in the 2016 election. The government had railroaded Stevens, the argument went, so why assume it wasn’t railroading Trump?

Or, for that matter, Michael Flynn? Trump’s former national security adviser pleaded guilty to lying to federal investigators in December. But what if he, too, had been forced into that position after the feds had withheld exculpatory evidence? How deep does this thing go?

Across conservative media this week, that very idea gained traction. Driven in part by an analysis posted at the Federalist, pundits pointed to a new filing in the Flynn case that seemed to suggest that the judge believed the federal government to be in possession of evidence that could exonerate Flynn.

“The Court,” the filing reads, “directs the government to produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.”

“Why would he want that after General Flynn has already pleaded guilty?” asked Judge Andrew Napolitano on “Fox and Friends.” “That is unheard of. He must suspect a defect in the guilty plea, meaning he must have reason to believe that General Flynn pleaded guilty for some reason other than guilt.”

“Now the question arises,” he continued: “Was he guilty?”

Of course, it’s not unheard of. The new filing in the Flynn case was a standing Brady order, which isn’t filed by every judge. But, as noted by attorney Susan Simpson, who spoke with The Washington Post by phone on Wednesday, it is a practice undertaken by some members of the bench.

Most notably, Sullivan — who in December took over Flynn’s case.


(From the Flynn docket .)

Sullivan, Simpson explained, hasn’t used a blanket Brady order from day one.

“Sullivan is pretty diligent on this stuff. He’s watching the case law closely,” she said. “And his standing order he occasionally updates to reflect new nuances in the law.”

One of those recent developments pertained to plea deals. Evidence that could aid the defense could be impeachment evidence — evidence undermining the testimony of a witness — or exculpatory, meaning that it shows that the defendant might be innocent. The question is whether the Brady standard applies only to trials and not plea deals; Justice Clarence Thomas, for one, believes that it does.

“The Supreme Court has found before that for a plea case the government can require the defendant to sign in the plea agreement they’re not entitled to impeachment evidence,” Simpson said. Sullivan’s previous version of his standing Brady order demanded that prosecutors turn over favorable evidence in plea cases and trial cases.

“In November, before Flynn was ever charged, he revised that order to try to reflect this sort of nuance in the Supreme Court holdings,” Simpson explained. “He said, okay, in all trial cases, government, you’ve got to go ahead and hand over any favorable material. In plea cases, you have to hand over anything exculpatory.” In other words, instead of requiring that prosecutors hand over both impeachment and exculpatory evidence in plea cases, they needed only to hand over exculpatory evidence.

The problem arose on Dec. 12 of last year, shortly after Sullivan took over Flynn’s case. His clerks filed his standing Brady order — but filed the old version, not the version that was updated in November. That mistake was uncovered and, last week, the new version of the standing Brady order was filed. In making the change, the error was noted:


“After this case was randomly assigned to the Court on December 7, 2017,” the docket reads, “such an order was entered on December 12, 2017. Unfortunately, the prior version of the order was inadvertently entered rather than the Court’s current version.”

The current version demands less of federal prosecutors, Simpson notes. Before last week’s filings, the government would have had to turn over impeachment evidence to Flynn’s team as well as exculpatory evidence; now any impeachment evidence that might exist could be withheld.

There’s no suggestion that such evidence does exist. This mistake by Sullivan’s clerks seems to have gotten swept up in rampant social media conspiracy theories aimed at discrediting the investigation into President Trump. There’s no indication that Flynn will soon withdraw his plea agreement or that there exists exculpatory evidence that would prompt him to do so.

The answer to Napolitano’s question, “Was he guilty?” seems to be what it was last December: According to the FBI and Michael Flynn, yes.