On Wednesday, the previously sealed Motion to Compel filed against federal prosecutors in the Michael Flynn case was made public with only minor redactions. Just the day before, during a hearing before federal judge Emmet Sullivan, Flynn’s attorney, Sidney Powell, had highlighted some of the evidence prosecutors withheld from her defense team. Yesterday’s filing expanded exponentially on the areas of evidence Powell seeks and lays bare Powell’s bigger plan moving forward: to expose the breadth and depth of SpyGate and how flaying Flynn lay at the heart of the soft coup attempt.
In her Motion to Compel, Powell catalogued 40 categories of evidence the government has refused to turn over. She seeks a court order requiring federal prosecutors to provide the withheld evidence under Brady and its progeny. Brady and its offshoots require prosecutors to disclose material exculpatory and impeachment evidence to the defense team. And, as Judge Sullivan made clear during Tuesday’s hearing, that duty exists even though Flynn had already pleaded guilty and even though he had agreed that the government would not be required to provide him with further evidence.
Powell, though, must still establish that the evidence sought is Brady material. Judge Sullivan seemed skeptical of the relevance of some of the evidence Powell mentioned and how it bore on Flynn’s guilt for the offense of conviction, namely lying to FBI agents. But Powell parried well, noting, for instance, that evidence concerning the texts exchanged between former FBI Agent Peter Strzok and DOJ lawyer Lisa Page were impeachment evidence.
In another exchange, Powell stressed that recently disclosed evidence showed the government had concluded that Flynn was not a Russian or Turkish agent, and, in fact that Flynn had briefed the government before meeting with Turkish officials. That evidence was relevant to sentencing, Powell argued, because it negates prosecutors’ claim that they had foregone a FARA violation charge against Flynn. “That’s a good point,” Judge Sullivan concurred.
Powell will have a chance in her reply brief to detail how each piece of evidence sought is either exculpatory or serves as impeachment evidence. Here there’s an interesting twist: Powell seems poised to also argue that the 40 pieces of evidence requested are exculpatory (and thus Brady material), because they will show that “the entire prosecution should be dismissed for egregious government misconduct and long-time suppression of Brady material.”
The law is clear that, in extreme cases, a court can dismiss criminal charges based on egregious prosecutorial misconduct. What is unclear, however, is whether Brady requires the government to disclose evidence unrelated to the charged offense that points to broader prosecutorial or government misconduct. That is an issue of first impression that Judge Sullivan will have to address.
Whether Sullivan will agree with Powell won’t be known for another month or more, but in the meantime, her filings are exposing the depth of the deep state and the evidence that does (or should) exist that has yet to reach the public—evidence that Attorney General William Barr had best be already reviewing!
Some of the evidence Powell seeks is already presumed by many to exist, such as FISA applications pertaining to Flynn and the original 302 written shortly after FBI agents interviewed Flynn about his conversations with the Russian ambassador. But other evidence Powell identifies reveals that she has skinned all the snakes involved in SpyGate and knows exactly what went down. For instance, Powell requested “any information, including recordings or 302s, about Joseph Mifsud’s presence and involvement in engaging or reporting on Mr. Flynn and Mifsud’s presence at the Russia Today dinner in Moscow on December 17, 2015.”
It was at that dinner gathering that Flynn met Vladimir Putin. (A photograph capturing the two at that event has been used to further the Flynn-is-a-Russian-agent narrative.) Powell’s court filing is the first we are learning that Mifsud also attended that gathering—a strange coincidence given the FBI’s claim that it launched its investigation into the Trump campaign upon learning that Mifsud had informed the young Trump advisor George Papadopoulos that the Russians had dirt on Hillary.
Also intriguing is Powell’s request for: “All payments, notes, memos, correspondence, and instructions by and between the FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor Christopher Andrew (connected with MI5) and Halper’s compensation through the DOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam Lovinger, addressed in our brief.”
What is fascinating about this request is that the uninformed will see the 2014 date as evidence that Powell is on a fishing expedition, while in reality, her bid for this information shows that Powell has in three short months pieced together more tiles in the mosaic of the Russia collusion fraud than Robert Mueller did in two years.
That is because the spying on Trump likely began with spying on Flynn, and involved not just the FBI, CIA, and Department of Defense, but their British counterparts, and dated back to Flynn’s time as President Obama’s Defense Intelligence Agency director. Then after Flynn joined Trump’s team, Halper and the British crew peddled a fake story that Flynn was having an intrigue with a Russian agent named Svetlana Lokhova.
For dragging her into their hit job on Flynn, Lokhova, who is a British citizen, sued Halper and the media outlets who published this tale for defamation. As I explained at the time she filed suit, Lokhova’s complaint suggests that the spying on the Trump campaign began in early 2016—not in late July after the FBI learned Mifsud fed Papadopoulos details about the Russians having dirt on Hillary.
Powell doesn’t explain any of this in her request, but the details she does include show she knows. The question is whether Judge Sullivan will allow her access to the evidence she needs to prove that Flynn was a victim of egregious government and prosecutorial misconduct—the scope of which we are still learning.