Gregg Jarrett: Michael Flynn’s prosecution is a shameful injustice – charges against him should be dropped

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Former National Security Adviser Michael Flynn pleaded guilty, so he must be guilty. This is the canard repeated ad nauseam by the multitude of Flynn critics on social media and among so-called elite journalists.

The editorial board of The New York Times trumpeted this obtuse reasoning when it published the following headline: “Don’t Forget, Michael Flynn Pleaded Guilty. Twice.”  

In a printed predicate to the editorial, the Times brags that its opinion journalists are “informed by expertise and research.” Is that so? Then why didn’t the Times bother to mention that roughly 20 percent of exonerated defendants in the U.S. have pleaded guilty? 


The answer is quite simple. The New York Times is so animated by its own liberal bias that it is blind to such trivial matters as facts, truth and innocence. Anyone associated with President Trump must be guilty of something, or so the Gray Lady would have its readers believe.

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The 20 percent figure comes from the National Registry of Exonerations, which meticulously tracks defendants who have been falsely accused and/or wrongfully convicted since 1989. Among 2,551 known exonerations, more than 500 pleaded guilty. Like the Flynn case, the false pleas were often coerced under threat by ruthless and dishonest law enforcement.

This tidbit of information ignored by the Times is one of the many gems that can be found in the well-reasoned brief filed Wednesday by lawyers for Flynn, a retired Army lieutenant general, as he seeks to withdraw his guilty plea to charges of lying during an FBI interview about his contacts with Russia’s ambassador to the U.S.

The Justice Department has also filed a motion to dismiss all charges against Flynn. Unbelievably, U.S. District Judge Emmet Sullivan has signaled he is reluctant to grant the motion.

The Justice Department decided to drop the Flynn case when it discovered atrocious misconduct by the original prosecutors who suppressed extraordinary exculpatory evidence of Flynn’s innocence.

“It is apparent that crucial facts were withheld from General Flynn in violation of Brady v. Maryland (373 U.S. 83, 1963), and wrongful pressure was applied to coerce his plea of guilty,” according to Flynn’s brief (Page 17). All of this was deliberately concealed from the court, although the judge seems utterly unbothered by it.

Under the law, Sullivan cannot conduct an inquisition into the decision-making or motives underlying the motion to dismiss. He can permissibly review the Justice Department’s stated reasons in its 20-page brief that was supported by 86 pages of newly discovered evidence. But even if Sullivan disagrees with those reasons and believes they are unwise or incorrect, he is constitutionally powerless to force the government to proceed with its prosecution.

The decision to bring charges or drop them is solely an executive branch function. It cannot be countermanded by the judicial branch without violating the constitutional separation of powers. Sullivan has no authority to pursue the case on his own accord.

Nevertheless, Sullivan appears to be under the mistaken impression that once a guilty plea has been entered, the case is closed and sentencing must proceed. The defense brief cites no fewer than 32 federal court cases in which dismissals have been granted during sentencing or post-sentencing.

The Federal Rules of Criminal Procedure (Rule 11d) afford a defendant the absolute right to move to change his or her plea. Yet, Sullivan has now indicated he may charge Flynn for perjury contempt of court for exercising his legal right. In essence, the judge wants to punish an innocent defendant for having the audacity to assert his actual innocence.

Were any of the aforementioned 500-plus innocent defendants who falsely pleaded guilty ever prosecuted for perjury? Of course not. It would be a bastardization of justice to do so. But Sullivan doesn’t care. He seems determined to punish a defendant for a crime he did not commit because he previously pleaded guilty under duress.


This brings us full circle to the incessant reminders by the left-wing media that Flynn must be guilty because he originally pleaded guilty. His lawyers argue a sad, but indelible truth about prosecutions: “Regrettably, our ‘justice’ system has become a conviction machine so powerful that innocent people are regularly compelled to ‘confess’ guilt they do not have and plead to crimes they did not commit.”

Judge Jed S. Rakoff, senior U.S. district judge in New York, published a wise and critical analysis of wrongfully induced plea bargains for The New York Review of Books that has been cited reliably by legal scholars.

Rakoff explained how prosecutors have all the power and often employ one-sided (meaning unfair) tactics during secret negotiations behind closed doors. Rakoff concluded: “The prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.” 


Michael Flynn is one such victim. Evidence of his innocence was hidden from him for years. Unscrupulous prosecutors threatened to charge his son unless the father copped a plea. They crushed him financially as he tried to defend himself. With mounting legal bills, he was forced to sell his home. He finally surrendered under the intense emotional strain and monetary pressures.

None of this seems to matter to either Judge Sullivan or the biased media. For them, the end justifies the means – even if the end constitutes a shameful injustice.