As the case against Michael Flynn is still open, the government may hand over yet more documents dug up by a review of the case ordered by Attorney General William Barr. In fact, according to Flynn’s lead lawyer, Sidney Powell, more documents are coming.
“I heard there’s more to come, more Brady evidence to come,” she told The Epoch Times. Brady evidence refers to exculpatory evidence in the government’s possession that prosecutors are required to provide to the defense.
Flynn, former head of the Defense Intelligence Agency under the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in December 2017 to lying to the FBI in an interview almost a year prior.
In January, he moved to withdraw his plea. In May, the Department of Justice (DOJ) moved to dismiss the case after the review, led by U.S. Attorney Jeffrey Jensen, uncovered documents suggesting the FBI questioned Flynn to elicit false statements from him, which isn’t a proper investigative purpose.
Since Powell took up the retired three-star Army general’s case a year ago, she has argued that the FBI and DOJ have been withholding exculpatory evidence.
The DOJ’s move to drop the case would ordinarily signal the end of the obligation to provide any more documents, but District Judge Emmet Sullivan, who is presiding over the case, took the unusual step of holding back his approval of the motion to dismiss, and even appointed an amicus curiae (friend of court) to argue against the dismissal.
Backed by the DOJ, Flynn asked the District of Columbia appeals court for an extraordinary intervention (writ of mandamus), arguing that Sullivan doesn’t have the authority to delay or question the DOJ’s motion in these circumstances.
A three-judge panel of the appeals court ordered Sullivan to accept the dismissal on June 24, but Sullivan has yet to comply. Appeals court decisions take three weeks to come into effect, giving Sullivan time to ask the whole court (12 judges) to review the decision. A majority of the judges would have to agree.
In the meantime, however, it appears that the Jensen review continues and as long as the case is open, Flynn would still obtain the findings.
“I mean, the longer Judge Sullivan takes to dismiss the case, the more stuff they owe me,” Powell said, during an interview with The Epoch Times’ Jan Jekielek. “There’s still a long list of things that I know are there.”
Part of the disclosures the DOJ has provided so far has been in the form of summaries of documents, but not the documents themselves.
One such document is “a January 30 memo inside the Department of Justice completely exonerating General Flynn of all things Russia,” Powell said.
Flynn was originally targeted by the FBI in August 2016 for alleged ties to Russia. After four months, the FBI moved to close the case, saying it found no derogatory information on Flynn.
Then-head of FBI counterintelligence operations, Peter Strzok, intervened in January 2017 to keep the case open at the behest of the FBI leadership, contemporaneous text messages show.
His notes from that time indicate that President Barack Obama told the FBI that “the right people” should be on the Flynn case, while Vice President Joe Biden brought up the idea of a Logan Act violation.
The Logan Act is an obscure 18th-century law prohibiting private citizens from conducting diplomacy with foreign nations without White House approval. Nobody has ever been successfully prosecuted under the statute and its constitutionality has been questioned, given the emphasis on First Amendment rights in the past decades.
According to the DOJ’s motion to dismiss, the FBI kept the case open using the justification that Flynn violated the Logan Act in his calls with then-Russian Ambassador to the U.S. Sergey Kislyak.
Flynn asked the ambassador in December 2016 for Russia to only respond reciprocally to Obama’s expulsion of 35 Russian diplomats less than a month before leaving office.
After Strzok and Supervisory Special Agent Joe Pientka interviewed Flynn on Jan. 24, 2017, Strzok said in a report from the interview that Flynn denied he made such a request to Kislyak.
Powell has said Flynn didn’t lie and at most didn’t remember.