The federal judge presiding over retired Lt. Gen. Michael Flynn’s case issued a surprise order telling the former national security adviser’s previous attorneys to conduct another search of their entire case archive after it was revealed they failed to turn thousands of documents over to Flynn’s new defense team.
The ruling by Judge Emmet Sullivan was made public Tuesday afternoon after Robert Kelner and Stephen Anthony, Flynn’s former lawyers at the powerhouse firm Covington & Burling, claimed there were 6,800 records they had only just now unearthed and turned over to Flynn’s current defense team, which has been led by former federal prosecutor Sidney Powell since July 2019.
“It is FURTHER ORDERED that Covington & Burling LLP shall re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn,” stated Sullivan’s ruling, which appeared on the public docket. “It is FURTHER ORDERED that Covington & Burling LLP is FORTHWITH DIRECTED to produce to Mr. Flynn’s successor counsel all documents or communications concerning the firm’s representation of Mr. Flynn that were not previously transferred in the rolling productions. It is FURTHER ORDERED that Covington & Burling LLP shall file a notice of compliance with this Order by no later than 12:00 PM on May 4, 2020.”
Around the same time Tuesday afternoon, a seven-page filing from the Covington attorneys was unsealed, showing that Kelner and Anthony had just transferred thousands of documents that they had been sitting on for almost a year to Powell and Flynn’s new team. Earlier in April, Covington admitted it failed to transfer a number of emails and two handwritten notes over to Powell, but Tuesday showed that this was just the tip of the iceberg.
“Covington has now re-executed the email collection and searches on the broader set of emails, correcting the error made as a result of the miscommunication. In so doing, we again used electronic search terms and manual reviews to target documents in the client file. This effort yielded an additional set of approximately 6,800 documents and emails (including attachments) that were not produced during the client file transfer in July 2019,” Kelner and Anthony said, adding that “these documents, comprising approximately 1% of the 669,800 total documents transferred in this case, were produced to successor counsel today.”
Flynn, 61, is fighting to dismiss the government’s case against him. He pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak about sanctions on Russia and a United Nations resolution on Israel, but in January, he told the U.S. District Court in Washington, D.C., that he was “innocent of this crime.” He filed to withdraw his guilty plea after the Justice Department asked the judge to sentence Flynn to up to six months in prison — though afterward, the department said probation would also be appropriate. Powell is pressing for the dismissal of his case by arguing that the FBI unfairly treated Flynn.
The Covington attorneys blamed “an unintentional miscommunication involving the firm’s information technology personnel” that had led them, in some instances, to run search terms on subsets of emails for a case involving Flynn’s former business partner Bijan Kian for a related Foreign Agents Registration Act case “rather than on the broader sets of emails that should have been searched.”
Powell, who took over last year in the spinoff case from special counsel Robert Mueller’s investigation, said that new information provided by the Justice Department on Friday that was related to her client’s prior representation of more than two years showed that Flynn would be exonerated.
“The government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI,” said Powell’s Friday filing on the public docket. “The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”
U.S. Attorney Timothy Shea enclosed a letter directly to Powell on Friday providing Flynn’s legal team with an update on the work being carried out by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen, who was selected by Attorney General William Barr in January 2020 to conduct a review of the Flynn case.
“The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation personnel associated with the investigation,” Shea said. “The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review. Additional documents may be forthcoming.”
The documents Flynn’s team believes will be critical for his case were filed under seal, but Powell said they could be unveiled to the public in the next day or two.
Flynn’s defense lawyers also said Friday that they “found further evidence of misconduct” by former Mueller prosecutor Brandon Van Grack, claiming that he made “baseless threats” to indict Flynn. Flynn’s lawyers also claimed Van Grack put together a “side deal” not to prosecute Flynn’s son “as a material term of the plea agreement” but required that the deal be kept secret “expressly to avoid the requirement” of Giglio v. United States, a Supreme Court case about the responsibilities of prosecutors when putting together plea deals.
“Since August 2016 at the latest, partisan FBI and DOJ leaders conspired to destroy Mr. Flynn,” Powell said, adding that “the government’s misconduct in this case is beyond shocking and reprehensible. It mandates dismissal.”
Former FBI Director James Comey admitted that he took advantage of the chaos in the early days of President Trump’s administration when he sent agent Peter Strzok and another FBI agent to talk to Flynn. Flynn agreed to cooperate with Mueller’s Russia investigation, admitting and then reaffirming his guilt in 2017 and 2018. The defense team that negotiated the plea deal was fired and, since taking over last summer, Powell has argued that “there never would’ve been a plea to begin with” if Flynn knew how much information the Justice Department was hiding from him.
The Justice Department called Flynn’s claims of innocence “an extraordinary reversal.” The agency insists it never concealed any exculpatory evidence from Flynn.
Powell’s filing Friday evening included two exhibits related to March 2018 communications from Flynn’s former legal team at Covington. The first was a redacted email from Kelner to Anthony, stating, “We have a lawyers’ unofficial understanding that they are unlikely to charge [Flynn’s son] in light of the Cooperation Agreement.” The second blacked out email from Anthony to Kelner said: “The only exception is the reference to Michael Jr. The government took pains to give a promise to [Flynn] regarding Michael Jr. so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against who MTF may one day testify.”
In a filing earlier this year, Powell pointed to a section of DOJ Inspector General Michael Horowitz’s report, which showed that the intelligence briefing the FBI gave to then-candidate Trump’s team in August 2016 during the presidential campaign was a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign.
Trump said in March he is considering a full pardon for Flynn.
“I will only say this: I think that Gen. Flynn is a wonderful man. He had a wonderful career, and it was a disgrace what happened to Gen. Flynn,” Trump said on Monday. “Let’s see what happens now, but what happened to Gen. Flynn should never happen again in our country. What happened to other people should never happen again in our country. What happened to your president of the United States should never again be allowed to happen.”
