On Friday, while most of America prepared for the long Labor Day weekend, things exploded in the Michael Flynn case. What began with an intriguing status report, which exposed the chasm between Flynn’s new powerhouse attorney Sidney Powell and prosecutors, culminated with Powell’s filing of a 19-page brief detailing prosecutorial misconduct and seeking sanctions against government attorneys for withholding evidence.
Flynn, who pleaded guilty in late 2017 to lying to FBI agents about conversations he had in December 2016 with Russian Ambassador Sergey Kislyak, awaits sentencing before federal Judge Emmett Sullivan. In Friday’s status report, prosecutors told Sullivan that Flynn’s “cooperation has ended” and that the case is ready for sentencing.
Conversely, Powell argued “the case is not ready for sentencing,” first because new counsel still needs “a significant amount of time” to review the mountainous file. But it was the additional reasons for a delay Powell detailed that piqued the interest of pundits.
“There are serious issues to be addressed by the Court before we can proceed further,” prosecutor-turned-defense-attorney Powell wrote. “First, the government continues to deny our requests for security clearances,” and the impasse requires court intervention, Powell argued. Among the classified information Powell sought clearance to review are “the transcripts and recordings of the phone calls that supposedly underpin the charges against Mr. Flynn,” and “the original or first draft of the FBI 302 of the interview of Mr. Flynn on January 24, 2017,” as well as “any records or documents that show everyone who made changes to that 302.”
Powell’s status report position ended with a note that Flynn’s defense team “expect[ed] to identify more issues for the Court promptly, and we will file the appropriate motions to address those issues as soon as possible.”
Powell soon proved to be a woman of her word, when hours later she filed a “Motion to Compel Production of Brady Material” under seal, and an accompanying brief in support of that motion, which was filed on the public record. (Under Brady and its progeny, the government must turn over material favorable evidence—called exculpatory evidence—as well as material evidence adversely affecting the credibility of a government’s witness, known as impeachment evidence.)
In her brief in support of the motion to compel, Powell pulled no punches. “The suppression of Brady evidence by the government here is ripe for a finding of contempt of this Court’s Standing Order,” Powell pronounced, referencing the order Judge Sullivan entered shortly after the case was transferred to him in December 2017.
That order required the “the government to produce to defendant in a timely manner—including during plea negotiations—any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” Sullivan further ordered the government, if it “has identified any information which is favorable to the defendant but which the government believes not to be material,” to “submit such information to the Court for in camera review.”
From there, Powell’s brief focused on two seemingly disconnected complaints. First, Powell highlighted evidence not provided to the defense team, in violation of Brady. Second, she detailed the many abuses in the Russian investigation, such as the Department of Justice’s use of Bruce Ohr and his wife, Nellie, to feed supposed intel from “Christopher Steele to the FBI through his secret back-channel,” after the FBI terminated Steele as a confidential informant. Powell’s brief also narrated a flow chart of the incestuous interactions between FBI agents and DOJ attorneys involved both in the Ohr-Steele shenanigans and Flynn’s targeting and prosecution.
Federal prosecutors will now need to respond to Powell’s motion to compel, although from the status report, their position seems clear. “We take very seriously our discovery and disclosure obligations,” the DOJ attorneys wrote, adding that “the government has exceeded its discovery and disclosure obligations in this matter,” and “is not aware of any classified information that requires disclosure to the defendant or this counsel under Brady or the Court’s Standing Order.”
Because a protective order necessitated the filing of the underlying motion under seal, it is difficult to assess the strength of Powell’s arguments. And it is impossible to predict Judge Sullivan’s reaction to the filing.
When Flynn’s former attorneys highlighted the strange circumstances of the FBI’s interview of Flynn, Judge Sullivan became unhinged and accused Trump’s former national security advisor of treason, before later back-peddling his statements and suggesting instead that Flynn had not truly accepted responsibility and might well see prison time.
What can be predicted, though, is that Judge Sullivan’s response will depend on whether Powell showed a clear violation of Brady, and Powell’s brief is not a mere spew of hyperbole.
In her brief, Powell argued that the government “affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness” and “impugned their entire case against Mr. Flynn.” “They continued to hide that exculpatory information,” Powell stressed, “and they continue to suppress exculpatory information to this day.”
To illustrate her point, Powell then noted that “just two weeks ago,” federal prosecutors “produced 330 pages of documents with an abject denial the production included any Brady material.” Yet, as Flynn’s new attorney noted, “that production reveals significant Brady evidence that we include and discussion in our accompanying Motion.”
If Powell succeeds in revealing significant Brady evidence withheld by the prosecutors—or, for that matter, even one piece of Brady evidence the government lawyers hid—prosecutors have something to fear in Judge Sullivan, who made history when he launched an investigation into the DOJ’s misconduct in a criminal case against now-deceased Sen. Ted Stevens.
How this issue plays out will likely also set the tone on Powell’s requests for access to information concerning potential misconduct by FBI and DOJ agents related to Ohr and Steele. Federal prosecutors will pooh-pooh this request, arguing it is irrelevant to Flynn’s sentencing. But Powell has a solid argument that that evidence bears on the credibility of government witnesses.
So why does Powell want this evidence? Does she intend to pull Flynn’s guilty plea? “That is not what I want to see happen here,” Powell said during an interview on Friday on Lou Dobbs Tonight. “I expect frankly that we find evidence that warrants dismissal of the case for egregious government misconduct.”
But first Powell needs access to that evidence, and whether she will get it will have to await Judge Sullivan’s decision, which will be some time coming. However, when the parties appear at the hastily scheduled status conference on September 10, 2019, we may get an inkling of Judge Sullivan’s perspective.