Former national security adviser Michael Flynn’s lead defense attorney argued in court Tuesday that she is seeking to have the entire prosecution against Flynn “dismissed for egregious government misconduct and long-time suppression” of exculpatory evidence.
Flynn’s attorney, Sidney Powell, said in a status conference in federal court in Washington D.C. that “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” mentioned in the complaint is in reference to the “Brady v. Maryland” Supreme Court case that established the government must turn over all exculpatory evidence.
Flynn pleaded guilty to making false statements to the FBI when he was interviewed at the White House in January of 2017 about his contacts with the former Russian Ambassador Sergey Kislyak.
Judge Emmett Sullivan had scheduled the hearing earlier this month in response to Powell’s motion to compel the government to give up the alleged exculpatory material.
During the hearing, Powell demanded access to classified materials she claims the government has blocked them from viewing, including FBI documents detailing the actions of Bruce Ohr, a former high-ranking official at the Department of Justice who had multiple contacts with former British spy Christopher Steele, the author of the infamous anti-Trump dossier.
According to the Federalist’s Margot Cleveland, what was expected to be a quick status hearing turned into a 45-minute inquisition of Powell’s plan to combat the government’s alleged misconduct. Powell told the judge that the prosecution had failed to disclose documents that exonerated Flynn from being a Russian agent before he signed his plea deal.
“There is far more at stake here than sentencing,” Powell began. “As new counsel, we have an ethical obligation to review everything that has happened in the case or not happened, as the case may be, and that is why we filed the motion to compel production of Brady material.”
She then proceeded to detail several examples of the government’s “stunning failures to produce Brady” material, such as the government’s delay in providing the Lisa Page and Peter Strzok text messages to Flynn’s prior counsel and withholding of various internal documents exonerating Flynn of being a Russian agent and violating the Logan Act.
Powell also hit hard the government’s failure to disclose the original Flynn 302 interview summary written by FBI Agent Joseph Pientka. “They say they don’t have it,” Powell noted, adding that “it would certainly be in the FBI’s computer system.” “Things don’t disappear like that,” the defense attorney stressed, seemingly forgetting Hillary Clinton’s missing 30,000 emails. Judge Sullivan appeared less concerned by the disappearance, noting “notwithstanding the best efforts of everyone, things happen and documents are lost. I mean, it just happens.”
Sullivan also pushed Powell to explain the relevance of the various evidence she was seeking. “There never would have been a plea to begin with if the government had met its Brady obligation disclosing what it knew before Mr. Flynn entered a plea and, frankly, before he even made a proffer,” Powell explained.
But it was when Powell said “there’s one thing after the other that we can document that exonerates Mr. Flynn in any number of ways,” that Judge Sullivan interjected: “You’re suggesting that a basis exists to file a motion to withdraw his plea? Is that where this is headed towards?”
“I can’t say right now exactly where it’s headed,” Powell responded, noting she didn’t “think it’s going to be a motion to withdraw the plea.” Rather, Flynn’s new attorney explained she intended “to show that the entire prosecution should be dismissed for egregious government misconduct and long-time suppression of Brady material.”
Prosecutor Brandon Van Grack rejected Powell’s claims, saying “the government has exceeded its discovery and disclosure obligations in this matter,” stating that it had provided Flynn with more than 22,000 pages of documents.
But Powell called Van Grack’s response “patently absurd,” noting that the DOJ has not even given Flynn the full texts between the FBI lovebirds Peter Strzok and Lisa Page.
“To the extent text messages appear to be incomplete or contain gaps, we do not possess additional messages that appear to fill such gaps,” she said. Judge Sullivan issued a Brady/Discovery Order in December 2017, but prosecutors did not produce the incomplete Page–Strzok texts until March of 2018.
“Although the Inspector General notified Special Counsel of the tens of thousands of text messages between Peter Strzok and Lisa Page no later than July 2017—the prosecutors did not produce a single text message to the defense until March 13, 2018,” Flynn’s Motion to Show Cause and Compel states.
Powell says in the motion that “immediately upon accepting Mr. Flynn’s defense” on June 6, 2019, she sent the government a list of 40 demands “in unredacted form pursuant to Brady and its progeny,” and requested the aid of the court to enforce its Dec. 2017 order.
Included on the list is a request for communications by and between U.S. intelligence agencies and intelligence “assets” like Cambridge Professor Stefan Halper and former head of the British Secret Intelligence Service (M16) Richard Dearlove.
All payments, notes, memos, correspondence, and instructions by and between the FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor Christopher Andrew (connected with MI5) and Halper’s compensation through theDOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam Lovinger, addressed in our brief.
This includes David Shedd (former Deputy Director of DIA) and Mike Vickers, who were CIA officers; James H. Baker; former DIA Director LTG Stewart; former DIA Deputy Director Doug Wise; and the DIA Directorof Operations (DOD). This should also include any communications or correspondence of any type arising from the investigation or alleged concerns about Mr. Flynn that contained a copy to (as a “cc” or “bcc”) or was addressed directly to the DNI James Clapper and his senior staff; to CIA Director Brennan and his senior staff; or to FBI Director Comey, his Deputy Andrew McCabe and senior staff.
Flynn’s legal team is also seeking “Any information, including recordings or 302s, about Joseph Mifsud’s presence and involvement in engaging or reporting on Mr. Flynn and Mifsud’s presence at the Russia Today dinner in Moscow on December 17, 2015.”
Additionally, they are requesting a mysterious interview summary (302) mentioned in the Mueller report dated January 19, 2017, five days prior to Flynn’s Jan. 24 FBI Interview. That memo could potentially involve a pre-inauguration FBI effort to spy on the transition team.
On top of that, team Flynn is asking for records of calls between former director of national intelligence James Clapper and Washington Post reporter David Ignatius, who reported on the leaked calls between Flynn and Russian Ambassador Sergey Kislyak. This request suggests that Powell and Co. suspect that Clapper is the “senior US Govt official” who leaked the information to Ignatius.
The defense team also requested “an internal DOJ document dated January 30, 2017 in which the FBI exonerated Flynn of being “an agent of Russia” and “unredacted scope memos written for the Special Counsel and any requests by Special Counsel that mention Mr. Flynn or his son”
Powell explained to Fox News’s Sean Hannity Tuesday night that former Deputy Attorney General Rod Rosenstein authorized Mueller to investigate Flynn’s son, Michael Flynn Jr.
“We know that Mr. Mueller got a letter from Mr. Rosenstein that allowed him to target Michael Flynn Jr., and there was significant pressure to enter a guilty plea while they were hiding all the evidence that showed he had not been an agent of Russia, that there were no Logan Act violations,” Powell told Hannity.
“When you put together the fact that Mr. Mueller got the letter authorizing him to target Michael Flynn Jr., and they had seized Michael Flynn Jr.’s computers and electronic devices and those things, it’s not too hard to imagine that that might have happened,” she said.
In court papers Powell compared the government’s conduct toward Flynn to the case of former Alaska Sen. Ted Stevens—which ended with Judge Sullivan finding prosecutorial misconduct. Powell wrote about that case and others in her book, Licensed to Lie, which features as its “lead villain,” Andrew Weissmann, aka Mueller’s “legal pit bull.”
Powell told the court Flynn passed a polygraph test in 2016 and had his security clearance renewed, undercutting accusations that Flynn was an “agent of Russia” or “agent of Turkey.”
“There is just a plethora of information out there that we need the actual documents to support and the notes to support,” she said.
Sullivan set a deadline for the defense to reply to the prosecution’s brief for Oct. 15 and set a tentative sentencing date of Dec. 18.