Andrew McCarthy: Michael Flynn should not have been prosecuted

Andrew McCarthy on whether the government played fair with Michael Flynn

The attorney for former National Security Adviser Michael Flynn claims the DOJ withheld evidence favorable to his client; reaction and analysis from Fox News contributor Andrew McCarthy, former assistant U.S. attorney and author of ‘Ball of Collusion.’

Former Assistant U.S. Attorney Andrew McCarthy said Tuesday that ex-Trump administration National Security Adviser Michael Flynn should never have been prosecuted or investigated.

Appearing on “America’s Newsroom,” McCarthy told host Bill Hemmer that he really thought “President Trump should have pardoned him” and “maybe the politics of 2020 makes [it] difficult to do at this point.”

“This is something, Bill, that’s really — it ought to be — straightforward and it’s gotten very complicated in this case,” McCarthy said.

On Tuesday Flynn’s legal team indicated in federal court that they are seeking to have the case against him thrown out. The team is accusing the prosecution of “egregious conduct and suppression” of potentially exculpatory evidence.


In a status conference in federal court in Washington, Flynn's lead defense attorney, Sidney Powell, said: "There never would have been a plea to begin with if the government had disclosed Brady information about what it knew before the plea agreement."

The "Brady material" complaint is in reference to the Supreme Court case Brady v. Maryland, which established the government's obligation to turn over all exculpatory evidence. The accusation came as both sides have squabbled over a sentencing date. After months of delays, prosecutors have said they are ready to proceed to sentencing. On Tuesday, U.S. District Judge Emmet Sullivan indicated he would like to set a tentative sentencing date of Dec. 18.

"There is far more at stake here than sentencing," Powell said. "There were stunning failures to produce Brady material, going back to July of 2017."

Prosecutors, though, have strongly rejected that assertion, saying "the government has exceeded its discovery and disclosure obligations in this matter," including providing Flynn with more than 22,000 pages of documents.


Flynn in 2017 pleaded guilty to providing false statements to the FBI during an interview about his contacts with the former Russian Ambassador Sergey Kislyak, as part of former Special Counsel Robert Mueller’s Russia investigation.

Powell, who has accused the Justice Department of withholding documents critical to Flynn's defense, is demanding access to classified materials she claims the government has blocked them from viewing.

Those materials include FBI documents surrounding the actions of Bruce Ohr, a former high-ranking official at the Department of Justice who had multiple contacts with the author of the infamous Trump dossier.

On “America’s Newsroom,” McCarthy explained: “The bottom line is, in every criminal case the government has an obligation to disclose to the defense any material exculpatory information that’s in the government’s files."


“So, what you had here was a switch of judges and when the new judge came in even though the plea had already happened, he issued a discovery order demanding that the government turn over any exculpatory information that it hadn’t turned over,” he said.

Fox News' Jake Gibson and Alex Pappas contributed to this report.

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