Mike Flynn’s lawyers demanded access to 40 documents and information from seven meetings connected to the Russia investigation and accused the Justice Department of concealing exculpatory evidence, according to records unsealed Wednesday by a federal judge.
The potentially exonerating records being sought by the former Trump national security adviser’s lawyers, led by former federal prosecutor Sidney Powell, touched on everything from text messages between FBI agent Peter Strzok and FBI lawyer Lisa Page to possible Foreign Intelligence Surveillance Act surveillance of Flynn, and from FBI interview notes of conversations between FBI agents and Flynn to questions about mysterious figures such as FBI informant Stefan Halper and Maltese academic Joseph Mifsud.
“Because the government is supposed to pursue justice, not merely convictions, its responsibility to produce Brady material is a grave one, its scope wide-ranging, and its duration ongoing,” Powell wrote to the court.
The defense motion to compel the government to produce further Brady material, referring to the Supreme Court decision in Brady v. Maryland that requires the government to turn over all evidence relevant “either to guilt or to punishment,” was filed at the end of August. Powell argued the DOJ was violating Judge Emmet G. Sullivan’s orders from December 2017 and February 2018 to produce this information.
The judge’s decision to unseal the motion today follows Tuesday’s courtroom clash between Powell and the DOJ prosecutors led by Brandon Van Grack, a former member of special counsel Robert Mueller’s team. Powell accused prosecutors of “egregious misconduct” while Van Grack claimed that “following the court’s standing Brady order has always been the guideline the government has pursued.”
Flynn pleaded guilty in 2017 for lying to investigators about conversations with Russian Ambassador Sergey Kislyak. Powell argued yesterday that “there never would’ve been a plea to begin with” if Flynn knew how much information the DOJ was hiding from him, alleging prosecutors improperly pressured Flynn into the deal. Among the sets of documents Flynn’s lawyers want are unredacted copies of recordings of Flynn’s calls with the Russian.
The newly unsealed court filing also asked for any new information uncovered by prosecutors or by the DOJ’s inspector general over the last two years.
Flynn’s lawyers further requested access to the two-page electronic communication that allegedly launched the Trump-Russia investigation in July 2016, unredacted memos on the scope of Mueller’s investigation, a letter from the British Embassy to Trump’s incoming national security team that allegedly disavowed British ex-spy Christopher Steele, any work the opposition research firm Fusion GPS did on Flynn, any Flynn-related documents from the DOJ official Bruce Ohr or his wife and Fusion GPS contractor Nellie Ohr, anything related to former FBI Director James Comey or former Director of National Intelligence James Clapper going after Flynn, communications within the DOJ’s Foreign Agents Registration Act related to Flynn, leaks from government officials to the media about Flynn, and more.
Flynn’s lawyers also asked for unredacted interview notes and any notes or recordings from seven secretive meetings, including on planning sessions among former FBI Deputy Director Andrew McCabe and other FBI officials about interviewing Flynn in January 2017, former acting Attorney General Sally Yates allegedly saying a surprise interview of Flynn would be problematic, Comey’s full interview with the special counsel’s office, and more.
“This prosecution and the circumstances surrounding it are unprecedented,” Powell wrote. “The only way to achieve justice in this case is to provide transparency and the full disclosure of all information relevant to the defense of Mr. Flynn.”
Flynn’s defense team, both in court filings and in the courtroom, asked the judge to compel the government to provide what they were asking for.
Sullivan said on Tuesday that “the government must comply with the court’s standing Brady order,” though he added he wasn’t suggesting the government hadn’t done so. He will rule on this issue in the coming weeks.
Van Grack has insisted that “the government has exceeded its discovery and disclosure obligations,” including those related to Supreme Court rulings and orders from Sullivan, and he claimed that Flynn’s plea deal precludes Flynn from seeking more information.
“As such, the government does not anticipate providing additional information,” Van Grack told the court.
The government has until Sept. 24 to respond to the motion for the production of Brady material, and a hearing on that issue is scheduled for Oct. 31. Sentencing memos from the prosecution and defense are due in early December, and the judge set a tentative sentencing hearing for Dec. 18.
