From Acceptance of Responsibility and Cooperation to Defiance

Untitled, Watercolor, 34” x 46”, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

It’s one thing to spout freewheeling claims on Fox News. It’s quite another to make those claims in court filings and arguments in Judge Emmet G. Sullivan’s court. Michael Flynn’s new attorney Sydney Powell has gone on record, in court papers and arguments, accusing the Mueller team of serious prosecutorial misconduct. She claims prosecutors withheld critical exculpatory evidence from Mr. Flynn and his defense team, information Ms. Powell alleges should result in dismissal of the case as a sanction for such alleged misconduct. In her 19-page August 30, 2019 memorandum in support of a motion she filed under seal—in which she invoked the case of United States v. Ted Stevens, the former Republican Senator from Alaska, 21 times—she asked Judge Sullivan to hold the government in contempt for violating his “Standing Order and their legal and ethical duties to produce exculpatory and impeachment evidence to the defense.” She also asked Judge Sullivan to order the government to produce to Mr. Flynn’s new counsel all such evidence and information.

The motion itself was recently unsealed with only minor redactions. It identifies 40 separate items Mr. Flynn is requesting Judge Sullivan to order the United States to produce.

The issues Ms. Powell raises, which Judge Sullivan will test in due course, are of keen interest to criminal defense attorneys and me in particular. In a later post I will discuss in some detail the circumstances of the Department of Justice withholding critical information in a public corruption case I defended, a case in which the prosecutor found the Department of Justice’s (mis)conduct intolerable.

Candidly, I don’t much care for what I know of Michael Flynn, his associations, his personality, his antics or his politics. At Mr. Flynn’s December 18 sentencing hearing last year—one year to the day from his new sentencing date, Judge Sullivan didn’t seem to care much for his conduct, telling Mr. Flynn he had arguably “sold out” his country, and asking the government whether the prosecutors had considered charging him with treason. After Mr. Flynn filed his sentencing memorandum last year in which he intimated fault lay with the FBI agents to whom he had lied, Judge Sullivan also ordered the release of the FBI’s memorandum of interview of Mr. Flynn so the public had access to the details of the facts in support of Mr. Flynn’s guilty plea, facts to which Mr. Flynn admitted, under oath, when he entered his plea. But, as Ms. Powell ably points out in her August 30 memorandum, innocent people enter guilty pleas all the time. She points out the “government has a crushing 95% or higher conviction rate. It is virtually impossible to defend successfully when the might and power of the federal government focuses on the destruction of an individual, and the government holds all the cards.”

Why would Ms. Powell invoke Senator Ted Stevens and his case 21 times in her moving papers before Judge Sullivan? Why would she attempt to draw comparisons between Senator Stevens’ case and the Flynn prosecution? There may be some method to her madness.

At the end of July 2008 and less than a month before a primary election in Alaska, Senator Ted Stevens was indicted in the District of Columbia on seven counts of public corruption. Judge Emmet G. Sullivan, yes, that Judge Emmet G. Sullivan, presided over Senator Stevens’s criminal case. The Senator was accused of having accepted gifts from one of the largest private employers in the State of Alaska. The indictment alleged he had made false statements on mandatory financial disclosure forms for the years 1999-2006. The alleged gifts related to renovations of a home in Alaska and his acceptance of labor and materials. Senator Stevens denied the allegations and claimed he and his wife had paid over $160,000 for the renovations that a tax assessor valued at $104,800 and a bank appraiser determined should have cost $124,000. For a comprehensive discussion of that case I recommend Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens, published in 2014. The author, Rob Cary, was one of the Senator’s defense attorneys.

A jury convicted Senator Stevens. The conviction was later vacated—on the government’s motion. An FBI whistleblower revealed the prosecution had concealed and withheld evidence of innocence from the defense. As the judge presiding over a fundamentally flawed and unfair prosecution, Judge Sullivan, who did not trust the Department of Justice to get to the bottom of its own misconduct and take appropriate measures to correct it, appointed an outside law firm to conduct an investigation and issue a report. That 525 page report was issued March 15, 2012. The first paragraph of the report is telling:

“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systemic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness. Months after the trial, when a new team of prosecutors discovered, in short order, some of the exculpatory information that had been withheld, the Department of Justice . . . moved to set aside the verdict and to dismiss the indictment with prejudice. New prosecutors were assigned after U.S. District Judge Emmet G. Sullivan held two of the previous prosecutors in contempt for failing to comply with the Court’s order to disclose information to Senator Stevens’s attorneys and to the Court regarding allegations of prosecutorial misconduct which were made after trial by an FBI agent who had worked on the case.”

In his Author’s Note, Rob Cary explains:

“[T]he public must understand what happened to Senator Stevens. People need to know that it took the combined efforts of a dozen lawyers working around the clock—to prove that the prosecution itself was corrupt. Two investigations [one by the Department of Justice and a second independent investigation ordered by Judge Sullivan] have resulted in over 1000 pages of reports that explain how the prosecution concealed evidence of innocence from the defense. . . .

“[O]ur criminal justice system is broken. It needs reform. United States v. Stevens is a textbook example of what can go wrong in a criminal case. If the government can conceal evidence from a U.S. Senator, it can conceal evidence from any citizen. I believe that what happened to Senator Stevens has happened more frequently than most of us could imagine. . . .”

As the result of the serious prosecutorial misconduct in Stevens, Judge Sullivan issues a Standing Order in the criminal cases before him. The Standing Order requires the prosecution to produce all exculpatory and impeachment material, among other things. The Standing Order is linked to his web page for the United States District Court, District of Columbia. It's worth a look.

Judge Sullivan entered his Standing Order in the Flynn case. In her recent memorandum, Ms. Powell announced: “Unfortunately, the government learned nothing from the rebukes in Stevens. It has engaged in even more malevolent conduct in the prosecution of Mr. Flynn.” Knowing what I do about the Stevens prosecution, and what is publicly available on the Flynn case, I find her bold proclamation difficult to believe. Can she back up her stridency? Will she lose credibility with Judge Sullivan?

Under the particular facts and procedural history of his case of which I am aware, I have serious doubts about the merits of Mr. Flynn's change in strategy. Some might argue he is snatching defeat from the jaws of victory. The other day, prosecutors went on record that they will submit a new sentencing memorandum rather than stand on the previous one that asked Judge Sullivan not to send Mr. Flynn to prison. With Ms. Powell as his attorney and with a highly visible strategy that attacks the Special Counsel’s investigation and prosecutions, however, Mr. Flynn and his counsel appear to be angling for a pardon. That politicization will likely work with Mr. Trump but likely won’t work with Judge Sullivan. From publicly available information Ms. Powell’s allegations seem peripheral to the criminal charge and guilty plea of lying to the FBI. But Judge Sullivan does have access to additional information that will bear on his sentencing decision.

Frankly, I hope Ms. Powell is wrong and the government did not violate Mr. Flynn’s rights as a criminal defendant. But as much as I may dislike Mr. Flynn, I care more about a criminal defendant’s constitutional rights, including his.

Everyone should.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and

**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in and are hers


Natural US Citizen. Caucasian. Shamed into blogging by DSM-V Cluster B 9/9-led regime, Utah's most embarrassing congressperson, and Newton's Third Law of Motion. The views expressed are mine.

USA, Utah, Salt Lake City


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