Flynn’s Lawyer to Prosecutors: Give Us Exculpatory Information, Then We’ll Move to Have Case Dismissed

November 4, 2019 Updated: November 4, 2019

Retired Lt. Gen. Mike Flynn’s lawyer has told a federal judge that Flynn first wants the prosecutors to hand over a plethora of information that he believes is exculpatory and then, partly based on that information, Flynn will ask the judge to dismiss the case.

“At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice,” lawyer and former prosecutor Sidney Powell said in a Nov. 4 court filing (pdf). “Mr. Flynn is entitled to discovery of the materials he has requested … that will help him support such a motion.”

Flynn pleaded guilty on Nov. 30, 2017, to one count of lying to the FBI. He’s been expected to receive a light sentence, including no prison time, after extensively cooperating with the government on multiple investigations.

In June, he fired his lawyers and hired Powell, who has since accused the prosecutors of withholding exculpatory evidence or providing it late. She has also alleged that the government had no proper reason to investigate in the first place. The prosecutors said Flynn was already given all the evidence he was entitled to and that the FBI was in the right to interview Flynn.

Flynn, former head of the Defense Intelligence Agency, was interviewed by two FBI agents, Joe Pientka and Peter Strzok, on Jan. 24, 2017, two days after he was sworn in as President Donald Trump’s national security adviser.

The prosecutors argued that the FBI had a “sufficient and appropriate basis” for the interview because Flynn days earlier told members of the Trump campaign, including soon-to-be Vice President Mike Pence, that he didn’t discuss with the Russian ambassador the expulsion of Russian diplomats in late December 2016 by then-President Barack Obama.

Flynn later admitted in his statement of offense that he asked the ambassador, Sergei Kislyak, for Russia to only respond to the sanctions in a reciprocal manner and not escalate the situation.

The FBI was then investigating whether Trump campaign aides coordinated with Russian 2016 election meddling. No such coordination was established by the probe, which concluded more than two years later under then-special counsel Robert Mueller.

“Actions such as the defendant’s communications with the Russian Ambassador about U.S. Sanctions could have been indicative of such coordination,” the prosecutors said in a Nov. 1 filing (pdf). “It was imperative that the FBI determine whether and why such communications with the Russian Ambassador had occurred.”

Powell disagreed.

“Whatever the Vice-President and others in the White House said publicly or privately that Mr. Flynn told them was not grist for an FBI investigation,” she said in Flynn’s filing. “The Executive Branch has different reasons for saying different things publicly and privately, and not everyone is told the details of every conversation. If the FBI is charged with investigating discrepancies in statements made by government officials to the public, the entirety of its resources would be consumed in a week.”

Moreover, the FBI had transcripts of Flynn’s calls with the ambassador, and thus “knew exactly whether, what, and why ‘such communications’ ‘occurred’,” she said.

Powell also pointed out that “the agents did not ask Mr. Flynn a single question about anything even approaching ‘interference with the 2016 election.’ Nor did the agents try to connect the post-election communications [with Kislyak] to pre-election interference.”

The interview, extensively deliberated over at the highest levels of the FBI and the Justice Department, was “purely” to try to establish a case that Flynn lied to the FBI, according to Powell.

The prosecutors countered that the agents “prompted him [Flynn] repeatedly to correct his statements” during the interview.

Strzok told the Mueller team in July 2017 (pdf) that “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, such as [redacted] to try to refresh his recollection,” as the prosecutors pointed out.

But Strzok also said that “if Flynn still would not confirm what he said [redacted], they would not confront him or talk him through it.” The prosecutors omitted this in their filing.

Normally, if agents suspect a Section 1001 violation—making false statements to government—they would “seek to get to the truth by giving 1001 warnings to coax truthful information from the suspect,” Powell said.

“But here … the object of the interview was to secure, rather than prevent, a 1001 violation.”

Powell suggested Flynn didn’t remember what exactly he told Kislyak, but didn’t intentionally lie.

“One would imagine there are differences between the recordings of the calls and what Mr. Flynn recalled to the agents who stopped by his office that day, but that is not evidence that he lied, and he did not,” she said, complaining that neither the judge nor the defense could say what the differences are for sure since the government has refused to produce the recordings or transcripts.

Powell further alleged that Flynn made his plea deal under pressure, having a lawyer with a conflict of interest.

The prosecutors said Flynn consented to keeping his lawyers despite being aware of the conflict, but Powell said the ethical requirement was for the prosecutors to ask the judge to dismiss the lawyers regardless.

She also said Flynn wouldn’t have made the deal if provided at the time with all the information he later requested and which the government had before his plea.

The prosecutors argued that Flynn wasn’t entitled to exculpatory evidence prior to being charged.

But Powell countered that this is “playing cat-and-mouse with the Due Process Clause” because Flynn wasn’t formally charged up until he agreed to the plea deal.

“Brady [exculpatory] evidence is to be produced promptly to the defense—in time for it to use it,” she said. “The government here used every conceivable strategy and tactic to circumvent Brady’s letter and spirit, and its own responsibility as a servant of the law, from the inception of this entire operation.”

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