The last chapter on the Michael Flynn prosecution has hardly been written. Litigation over the case is far from over, especially with the appointment of amicus John Gleeson to basically "take the other side" and Beth Wilkinson to represent Judge Emmet G. Sullivan in a mandamus action brought against him by Flynn. And at least until all the books are fully written, and beyond, there will remain hard questions on both sides of the divide. Should the Mueller/FBI investigation have been initiated in the first place? Was it an overly aggressive effort by the FBI and later Robert Mueller's team to "get Flynn" at all costs, and even to possibly get Donald Trump himself? And, coming from the other side, was the Justice Department's decision to dismiss the indictment informed, or perhaps merely compromised, by the Trump Administration's politically-driven decision to undermine the Mueller/FBI investigation? All in the name of Trump's remaining in office and getting re-elected.

This column won't try to answer those questions. Rather, it employs the Flynn case to examine an important legal issue: Must a prosecutor disclose Brady material before a defendant pleads guilty?

Flynn Case Origins

It is relevant to look at the background here. Michael Flynn, then newly-appointed National Security Advisor to President Trump, was apparently suspect—indeed, the Acting Attorney General, Sally Yates, so told the White House. Moreover, seemingly indisputably, Flynn had lied to Vice President Mike Pence, leading Pence to (unwittingly) make a false statement on TV about Russia. Small wonder that Flynn was in the FBI's crosshairs. And here, we also don't consider other suspicions about Flynn—i.e., that, unregistered, he lobbied Donald Trump on behalf of the Turkish government.

Thus, even without relevant FBI personnel purportedly being "Never Trumpers" who may have hoped to defeat Trump or embarrass him once elected, the storm signals about Flynn were likely enough for the FBI to want to investigate him at least in terms of counterintelligence.

But prosecute him? And for what crime? Maybe Flynn violated the long existing Logan Act, 18 U.S.C. §953, which forbids unauthorized American citizens from communicating with foreign governments. After all, Flynn had clearly communicated with Russian officials, pre-inauguration, to help Trump reverse Russian sanctions previously imposed by the Obama Administration. But a Logan Act violation as a criminal case may not have seemed like such a great case to present to a jury. So maybe the FBI preferred that Flynn be prosecuted for making a criminally false statement to the FBI—"So, let's get him to lie." Indeed, they probably saw it as likely that Flynn would lie to the FBI if interviewed about whether the Trump Campaign interacted with Russian officials, pre-presidency.

Why Get Flynn To Lie?

The uninitiated might ask, "Why would law enforcement affirmatively want a suspect to lie?" Isn't that contrary to any rational law enforcement purpose—don't law enforcement officials want all persons to tell the truth? The real answer may be surprising. If, for some reason, prosecuting a suspect for a substantive crime might be difficult for an evidentiary (or other) reason, prosecuting him for a false statement might be preferable. Meaning, it will work better—particularly if the law enforcement officials hold their cards close to the vest, intentionally not disclosing to the suspect what they already know when they interview him.

To be clear, the practice of investigators holding their cards close to the vest is hardly uncommon. If, for example, the FBI seeks the absolute truth "about everything" during an interview, it hardly wants to tell the suspect what it already knows—meaning also, what it doesn't know. Law enforcement doesn't publicize that tactic, but it certainly exists. It is time-honored and perfectly reasonable. Let's face it, the worst way to get the truth out of someone who might be reluctant to tell you what he knows is to lay out for him everything you already know.

Here, though, is what's unique about Flynn. Way after Flynn (1) was interviewed by the FBI, (2) lied about his Russian interactions, etc., (3) agreed to cooperate with the FBI and (4) actually pleaded guilty (twice) to felony false statements, something unprecedented occurred. That is, Attorney General William Barr supported Trump's effort to deride the FBI's "deep state" over its supposed anti-Trump partisanship in investigating his campaign. As a result of the Barr-commissioned Justice Department investigation, the defense learned this: the FBI officials who are seen by some as "Never Trumpers" had emailed among themselves just before the Flynn interviews over a particularly burning question: Was the Flynn interview being designed "to get him to lie, so we can prosecute him or get him fired?" Who commits that kind of thing to writing? Welcome to the 21st century.

The 'Trap'

While I am not suggesting this was the case in Flynn, courts have condemned "perjury traps" when a prosecutor, perhaps uncomfortable with the strength of a substantive charge, subpoenas a person of interest or suspect to the grand jury for no other reason than basically intending that he will perjure himself. See, e.g., U.S. v. Regan, 103 F. 3d 1072 (2d Cir. 1997). This is accomplished by questioning the witness in a manner designed to elicit false responses, and a defendant has a high burden should he choose to go down this path.

But Flynn wasn't in a grand jury; it was an FBI interview. So, for these purposes, let's assume the interview of Flynn was indeed a trap (and that there is something wrong with that). That said, prosecutors—i.e., the Mueller team—weren't directly involved in the Flynn interview. Even so, what legal or ethical issue on their part might raise questions about how the Mueller prosecutors comported themselves and whether Flynn's guilty plea is thereby tainted? Simple. Before Flynn pleaded guilty, especially if the prosecutors knew about the "get him to lie" email and that that curious email actually constituted Brady material, they didn't disclose the email correspondence (especially when there was already concern about the FBI having arguably politicized the investigation to "get him").

Again, this article doesn't address whether the email actually constituted Brady material—often a difficult question dependent on the eye of the beholder—but let's assume that it was. Brady v. Maryland, 373 U.S. 83 (1963). This simple issue here is whether the prosecutors had an obligation to disclose it. The answer is not totally clear and, surprisingly, may actually depend in some way on the particular judge presiding over the case.

What Is the Law and Practice?

To begin, while a prosecutor's duty under Brady is ongoing, Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987), the Supreme Court has never held that a defendant who pleads guilty has a right to receive Brady material before he pleads guilty, U.S. v. Ruiz, 536 U.S. 622, 633 (2002). Indeed, Flynn's plea agreement itself did not require that the prosecutor disclose Brady material before his guilty plea.

Flynn's own motion to vacate his guilty plea, it should be noted, was not strictly about an alleged Brady violation (it was about "overall egregious law enforcement misconduct"), and the Barr Justice Department's motion to dismiss principally argued that the false statement prosecution was unwarranted. According to the Barr-appointed prosecutor, the false statement was not material to any valid, then pending, FBI investigation. Accordingly, the dismissal request didn't squarely present "Brady" as the department's problem with the prosecution.

Yet, presented squarely here is this: Must Brady material be disclosed pre-guilty plea to a defendant? Answer: not as a matter of law. That, though, is not the end of the story. A judge can simply require Brady production before a guilty plea, and Judge Sullivan is a judge whose standing order specifically requires such production "during plea negotiations." The order states that "the Court, sua sponte, 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." Did it matter that Flynn pleaded guilty to a charging information? Certainly not in Judge Sullivan's courtroom.

Judge Sullivan is not alone. Indeed, Judge Jed S. Rakoff, who sits in the Southern District of New York, specifically requires in his rules that Brady material be produced within two weeks after the defendant's indictment. Giglio material must also be produced, although later. Giglio v. U.S., 405 U.S. 150 (1972). Judge Rakoff goes further. He tells this column (in response to an email request) that before he accepts a guilty plea, he requires an on-the-record representation from the prosecutor that all Brady material known to the prosecutor has been disclosed. And if the defendant pleads guilty to an information, the result in Judge Rakoff's courtroom is the same: Brady must be produced pre-pleading and a compliance representation by the prosecutor is required.

While our survey is largely anecdotal, the Sullivan and Rakoff practices are somewhat uncommon in federal courts, particularly where there is a guilty plea without an indictment having preceded it. Still, the obligation they impose would be a valuable mechanism if employed across the board by all judges to ensure that prosecutors' feet are held to the fire on this pivotal issue.

Analyzing 'Flynn'

So let's consider the Brady issue in Flynn more closely. Judge Sullivan's standing order says that any exculpatory material must be disclosed "during plea negotiations." His standing order further says: "if the government has identified any information which is favorable to the defendant which the government believes not to be material, the government shall submit such information to the court for in camera review."

Thus, if the Mueller prosecutors knew about it and had believed that the "get him to lie" email might have been favorable to the defense (even if not material) and were reluctant to produce it, they were then required to ask for an in camera review of the email. Had Sullivan said "no," it needn't have been produced, they would have been off the hook. If he said "yes," they would have been compelled to disclose it. End of discussion.

While Judge Rakoff's rules don't "require" an in camera submission, the Rakoff protocol in which prosecutors are asked in open court to represent that they turned over "all" Brady material probably encourages them to be more cautious in considering "iffy" materials. And it may lead prosecutors to more readily make requests for in camera inspections when appropriate.

Again, we don't opine here on whether the "get him to lie" email was exculpatory, favorable or material—remember, "eye of the beholder." Obviously, the Mueller prosecutors weren't troubled—or troubled enough—about it when Flynn pleaded guilty. Maybe they were right.

Still, shouldn't the combined protocols of Sullivan and Rakoff (and presumably other federal judges of a like mind)—that is, (1) pre-pleading Brady production, (2) a rule requiring in camera inspection for iffy Brady items, and (3) a prosecutor's on the record representation confirming Brady compliance before a guilty plea is accepted—be the model for all federal courtrooms?

Unless the Federal Rules are amended, or the circuits or the Supreme Court create a uniform rule requiring complete Brady production pre-pleading, why leave this all to chance? Justice Brennan, after all, taught us long ago that the criminal prosecution should be a quest for truth, not "a sporting event."

Joel Cohen, a former prosecutor, practices white collar criminal defense law as senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at both Fordham and Cardozo Law Schools. Dale J. Degenshein, a partner at Armstrong Teasdale, assisted in the preparation of this article. They are the authors of  the recently published 'I Swear: The Meaning of an Oath' (Vandeplas Pub., 2019). The views expressed here are the authors and not their firms or clients.