Attorneys for former National Security Adviser Michael Flynn on Aug. 30 accused prosecutors of hiding exculpatory evidence in a lawsuit against Flynn. Flynn’s team asked the judge to find the prosecutors in contempt of a standing court order, which would lead to the prosecutors’ dismissal from the case.
“They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day,” Attorney Sidney Powell wrote in a motion to compel the production of the exculpatory evidence.
The attorneys accused the government of singling out Flynn for prosecution “motivated by a discriminatory purpose” and suggested that the evidence used against the former national security adviser may have been illegally obtained.
The defense attorney further asked the court to order that the prosecutors preserve all evidence, including the communications of the staff at the now-closed office of special counsel Robert Mueller.
The filing is the first major legal volley by the defense team led by Powell, a vocal critic of prosecutorial misconduct within the Justice Department (DOJ). Flynn fired his former legal team in June.
In an indication of what’s to come in the first case brought by former special counsel Robert Mueller, the introductory paragraph of the Aug. 30 filing by Flynn cites an article titled “Why Innocent People Plead Guilty” and references a statistic that shows that more than 20,000 people are in prison for crimes they pleaded guilty to but didn’t commit.
Powell stated that the prosecutors have recently produced exculpatory evidence to the defense team but declined to call it “exculpatory.” She makes an argument for why the evidence should be considered Brady (exculpatory) material in a sealed filing. As a result, Powell demands in the filing that the defense team examine information even if the prosecutors deem it inculpatory.
According to Powell, the kind of conduct she accuses the prosecutors of is pervasive in the DOJ. By referencing a ruling in a separate case, she suggests that the remedy for such misconduct should be for the court to find the prosecutors in contempt and for the indictment to be dismissed.
In a separate motion as part of the same filing, Powell asks the court to find the current prosecutors in contempt and dismiss them. If new prosecutors were assigned to the case, they would quickly discover exculpatory evidence, Powell stated.
Among the exculpatory evidence Powell believes the defense team may be concealing are FBI notes memorializing the interviews between bureau agent Joe Pientka and senior DOJ official Bruce Ohr. Powell notes that the prosecutors in Flynn’s case worked with Ohr in 2016 and 2017.
Ohr’s role in the investigation of the Trump campaign was revealed in 2018. He became the FBI’s back channel for communicating with Christopher Steele, the former British spy who compiled the so-called Steele dossier, which was paid for by the Hillary Clinton campaign and the Democratic National Committee, and contained false allegations that Trump colluded with Russia. Ohr also funneled information from the firm that hired Steele—Fusion GPS—via his wife, Nellie Ohr, who also worked for Fusion GPS.
Special counsel prosecutors Andrew Weissmann and Zainab Ahmad were in touch with Ohr in 2016 and 2017, Powell claims.
“Weissmann and Ahmad were not in the DOJ chain of command to be informed by Mr. Ohr at all. They had no legitimate reason to be privy to his operation with FusionGPS and Christopher Steele,” Powell wrote.
“It is imperative the defense obtain the Bruce Ohr 302s and notes—unredacted—and all evidence of this circuitous and illicit operation.”
In making the argument, Powell references the government’s case against Sen. Ted Stevens, presided over by the judge in the Flynn case, Emmet Sullivan. In 2009, Sullivan found the prosecutors in the Stevens case in contempt of the court’s order to produce exculpatory evidence, and he dismissed them, noting that their conduct was “outrageous.” Sullivan then dismissed Stevens’s conviction.
Powell argues that the government’s conduct has become even worse since the Stevens case, pointing to the Justice Department inspector general report released in 2018. The report found, among other issues, that the biases expressed by FBI agents, including Peter Strzok, cast a cloud over the Clinton email investigation. Strzok was one of the agents who interviewed Flynn at the White House in 2017. Flynn pleaded guilty to lying to the FBI during that interview.
Flynn’s team argues that the “most stunning suppression of evidence” in the case had to do with the prosecution’s withholding, for almost eight months, the text messages between Strzok and Lisa Page, an FBI attorney Strzok was having an extramarital affair with. The special counsel learned of the text messages in July 2017, but the prosecutors didn’t produce them until March 2018 after they were released to the public. The prosecutors didn’t disclose to the court that Strzok had been removed from the special counsel team because of the bias expressed in his text messages. Weissmann and Ahmad also failed to inform the court of their work with Ohr, the defense claims.
“Counsel for Mr. Flynn has repeatedly requested the unredacted messages between Strzok and Page, the unredacted 302s of Bruce Ohr, as well as details of the information the Department and Special Counsel had of their messages prior to Mr. Flynn’s plea. Mr. Van Grack [one of the prosecutors] has refused to provide it,” Powell wrote.
The Flynn team specifically demands unredacted versions of the documents and not summaries composed by the prosecutors. Powell cites a recent case against Adam Lovinger, a government whistleblower who exposed FBI, CIA, and Pentagon payments to Stefan Halper, a government informant who targeted the Trump campaign.
In Lovinger’s case, the prosecutors concealed, for one month, a report that found that Lovinger did not leak any classified information to the media. Notably, the prosecutors redacted the word “not” from the exculpatory report, changing the conclusion on whether Lovinger disclosed classified information to the media.
“Accordingly, the government must be compelled to produce the actual 302s, text messages, notes, and all actual documents the defense has requested—and we must see them unredacted. Summaries are not evidence,” Powell wrote.
“Even in ideal circumstances, summaries present unnecessary risks of mistake and misrepresentation,” she said. “Written summaries require characterization of the evidence that a prosecutor—even the most well-intentioned—has no business making.”
Fourth Amendment Concerns
Powell claimed that the evidence against Flynn may have been obtained via either illegal surveillance, an intelligence operation to smear him, or a criminal leak. She cited the documented abuses of the National Security Administration (NSA) databases, the release of Flynn’s conversation with the Russian ambassador to the media, and the illegal unmasking of U.S. citizens in 2016. Powell also suggested that the investigation of Flynn resulted from an FBI and CIA operation that used Stefan Halper, a known intelligence asset, to smear Flynn as an “agent of Russia.”
“Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment,” Powell wrote.
The judge referenced by Powell determined that then-FBI Director James Comey gave illegal unsupervised access to the NSA database to several private contractors.
Powell also accused the prosecutors of selective prosecution, arguing that Flynn was singled out for the indictment “motivated by a discriminatory purpose.”