Flynn’s Lawyer: There Would Have Been No Guilty Plea If Not for Government Misconduct

By Petr Svab
Petr Svab
Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.
September 10, 2019 Updated: September 11, 2019

WASHINGTON—Michael Flynn, a former adviser to President Donald Trump, wouldn’t have pleaded guilty to lying to the FBI if the government had provided his defense exculpatory information, said Sidney Powell, a former federal prosecutor hired by Flynn earlier this year after he fired his prior lawyers.

Flynn admitted in late 2017 to lying to the FBI during an early 2017 interview, as well as lying on the foreign lobbying disclosure forms for his now-defunct consultancy firm. As part of his plea deal, he was only charged with one count of lying to the FBI.

During a Sept. 10 hearing at the Washington district court, Powell argued that the government withheld from Flynn’s previous lawyers information that would have been helpful to his defense, including the original draft of a Form 302 report from the FBI interview with Flynn.

The prosecutors said they don’t have the draft.

Powell said that even if the draft was destroyed, it could be recovered from the FBI computer system.

Powell gave more examples, such as the government’s failure to initially provide the defense text messages between former FBI officials Lisa Page and Peter Strzok. While having an affair, the two exchanged text messages showing animus toward then-candidate Trump and support for Trump’s opponent, former Secretary of State Hillary Clinton. Strzok was later fired from the FBI, while Page left voluntarily. Strzok is now suing the government over the firing.

Strzok was one of two agents who interviewed Flynn. After the text messages emerged, Strzok was fired from the team of special counsel Robert Mueller, who, among other tasks, took over the Flynn case in 2017.

The other interviewing agent was Joe Pientka, who, according to Powell, authored the first 302 draft.

The prosecutors said they informed Flynn about the existence of the Strzok–Page messages before he pleaded guilty, though it seems he was only given a description of what the texts revealed and that Strzok had a “preference” for one of the presidential candidates.

Powell also criticized the government for, in some cases, only providing a summary of evidence instead of the underlying documents.

U.S. District Judge Emmet Sullivan seemed to have trouble connecting how Powell’s arguments related to Flynn’s current situation, since Flynn hasn’t withdrawn his guilty plea and is only awaiting sentencing. The prosecutors already recommended a low sentence for him, including no prison time, in light of his extensive cooperation with the government on several cases.

Powell, however, appeared to make a larger case, alleging government misconduct in the failure to give the defense exculpatory information. She argued the government should be held in contempt of court and the case should be dismissed and taken over by a new team of prosecutors willing to provide the information.

She acknowledged that she didn’t know where the additional information would lead, but promised that in a future motion, she would explain in what context each of her arguments connects with exonerating Flynn.

“I think the point is going to be that there is egregious government misconduct and long-time suppression of crucial … material [favorable to the defense] that should have been provided to the defense before there ever was a plea,” Powell said.

Powell also said the government failed to give the defense lawyers security clearances needed to view some classified information helpful to the defense. The prosecutors denied having any such information.

The judge put forward a standard for releasing classified information based on the 1989 case of United States v. Fawaz Yunis. “Mere showing of theoretical relevance” of the information isn’t enough to force the government to hand it over, Sullivan said.

He said he will first address whether the government needs to hand over more information, classified or otherwise, before deciding whether the lawyers need clearances.

He set a “targeted sentencing date” on Dec. 18, noting the date may change.

The judge told prosecutors to file a reply to Powell’s arguments by Sept. 24. The defense is then to file a counter-argument by Oct. 15. Sullivan scheduled the next hearing for Oct. 31.

Flynn is a career military intelligence officer whose career culminated at the post of the head of the Defense Intelligence Agency during the Obama administration. After leaving the post, he founded a consultancy firm, the Flynn Intel Group, and went on to advise the Trump campaign. He was appointed national security adviser by Trump, but was fired because he gave inaccurate information to Vice President Mike Pence about his phone calls with Russian Ambassador Sergey Kislyak, with whom he communicated as part of his job for Trump’s post-election transition team.

Ivan Pentchoukov contributed to this report.

Correction: A previous version of this article inaccurately described the government’s failure to reveal the Page-Strzok text messages to Michael Flynn’s defense. The government initially failed to provide the messages. A previous version of this article also incorrectly described the sentencing date set by U.S. District Judge Emmet Sullivan. It was “targeted sentencing date.” The Epoch Times regrets the errors. 

Petr Svab
Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.