Mike Flynn’s attorneys said the government is hiding evidence that could help President Trump’s former national security adviser.
Sidney Powell, the head of Flynn’s new legal team, claimed in court Tuesday the Justice Department withheld evidence related to Andrew McCabe, Peter Strzok, Lisa Page, James Comey, Flynn’s FBI interview notes, and more.
“There never would’ve been a plea to begin with” if Flynn knew how much information DOJ was hiding, Powell said. Flynn pleaded guilty in 2017 for lying to investigators about conversations with the Russian ambassador.
Judge Emmet G. Sullivan, who is presiding over the case, gave Powell an unusual amount of leeway as she argued the government withheld information from her client to pressure him into accepting a guilty plea, which he never would’ve done had he been aware of all the facts. Flynn’s sentencing has been delayed for a year as he cooperated with the government.
Powell said Flynn’s legal team doesn’t plan to withdraw Flynn’s guilty plea, but “the entire prosecution should be dismissed for egregious misconduct and the withholding of Brady material,” referring to the Supreme Court decision in Brady v. Maryland that requires prosecutors to turn over exculpatory evidence.
She claimed documentation exists that shows then-FBI deputy director McCabe ruled out Logan Act charges against Flynn in January or February of 2017, yet DOJ “egregiously” held the possibility of being charged under the 18th-century statute over his head during plea negotiations anyway.
Powell said the defense still hadn’t been given access to all the interview notes from Flynn’s discussions with FBI agents, including one written by agent Joe Pientka that the government claims it no longer has.
She also claimed there is an an internal DOJ memo from January 2017 that “completely exonerates Mr. Flynn as being an agent of Russia” that the defense has not received. Flynn’s lawyer said texts between FBI special agent Strzok and FBI lawyer Page hadn’t been made fully available before his plea deal. The defense attorney argued details about former FBI Director Comey’s “ambush interview” of Flynn were only revealed to Flynn’s lawyers because Comey was “bragging about it on TV.” She claimed a letter from the British embassy “completely discredits Christopher Steele,” though she didn’t fully discuss its relevance.
Flynn’s attorney argued DOJ used a Turkish meeting to threaten him with a Foreign Agents Registration Act violation despite Flynn telling the Defense Intelligence Agency about the meeting beforehand. And Powell said Flynn passed a polygraph test in April 2016, arguing there’s evidence of a “pre-existing investigation” into Flynn.
Sullivan noted Flynn’s plea deal included giving up his right to further discovery, but said the agreement was between the prosecution and defense and wasn’t binding upon the court. The judge said that showing the evidence material could theoretically be related to the case wasn’t enough to force the government to hand over classified information, and that new discovery must be “relevant and helpful with regard to Mr. Flynn’s sentencing.”
Brandon Van Grack, formerly of special counsel Robert Mueller’s team who now heads up DOJ’s FARA unit, told the judge that “following the court’s standing Brady order has always been the guideline the government has pursued.” The prosecutor said that, before Flynn’s plea deal, Flynn had been made aware of the Strzok-Page texts “before the public knew they existed.”
“The government has never alleged that Mr. Flynn was an agent of Russia,” Van Grack said. “He pleaded guilty to lying to the FBI about particular issues related to Russia, not about being an agent of Russia.”
And Van Grack claimed DOJ turned over all the drafts of Flynn’s FBI interview report as well as all the FBI agent’s notes it possessed.
The judge set a tentative sentencing hearing for Dec. 18.
