It was Flynn’s defense team that raised the issue, in a subtle manner, in the pre-sentence report response they filed. The judge read between the lines, and demanded the documents. Give the lawyers a break - lawyers must always follow their clients choices. It is the clients that tell the lawyers what to do. Frankly, I think it was a master stroke from his lawyers to raise the issue with a wink, hoping that the judge would catch on. He did.
On a personal level, I once had a client that was insistent on telling lies on the stand. He told me he would. Ethics rules, and personal morality, prohibited me from putting him on the stand. When he insisted, I filed a motion to withdraw just saying that the Rules of Professional Conduct require me to withdraw. The opposing side objected. The judge read between the lines and knew (he told me months later) what the issue was without me having to prejudice my client by being more descriptive. If I had, it would have certainly hurt my client.
So, Flynn and his lawyers are playing the game at a higher level than the Mueller minions. If I were the judge, I would insist that Mr. Mueller appear and take the heat directly. He could be interrogated about his knowledge, and why he violated Brady.
That is Mueller’s biggest fear; answering questions from Judge Sullivan under oath. Violating the Brady rule is a crime, and there is no lawful excuse for Mueller withholding interview notes and original 302. Mueller has been getting away with this shit for decades because he has never really been held accountable. Hopefully, that will change I the next couple of weeks.