On Sept. 23, the attorney for President Trump’s former national security advisor, retired Lt. Gen. Michael Flynn, filed a three-page amendment to their Motion to Compel the government to turn over evidence previously withheld from Flynn’s defense counsel. The latest court filing came the same day Flynn’s attorney, former federal prosecutor turned defense attorney Sidney Powell, swatted down Democrat Rep. Adam Schiff’s demand that Flynn testify before the House Intelligence Committee.
Flynn “will not appear before your committee on September 25, 2019, to be paraded, harassed, or disparaged,” Powell wrote. Not only does Flynn have a Fifth Amendment right not to appear before the committee, “much of the testimony you seek would most likely be foreclosed by Executive Privilege,” Powell explained. She then closed the one-page letter, noting that in their prior correspondence, her legal team had exposed Schiff’s “disregard for propriety, professionalism, prior practices, and ethics in your theatrical demand.”
While Powell’s letter to Schiff proved entertaining, the amendment to the Motion to Compel proved edifying: We now know more of the strands of SpyGate that Powell has weaved together since taking over as Flynn’s defense attorney a few short months ago.
Since June, when Powell took over for Flynn’s prior attorneys, she has been busy reviewing the entire record related to Flynn’s guilty plea for making false statements to the FBI. This revealed several pieces of evidence prosecutors had withheld—evidence Powell claims the government was required to turn over as Brady material and under the terms of presiding judge Emmett Sullivan’s standing order.
After the government refused, Powell filed a Motion to Compel and sought sanctions against the federal prosecutors. She has since suggested that the government’s egregious conduct justifies dismissing the charge against Flynn. The original motion, filed last month, highlighted several areas of inquiry, which hint to several blockbuster discoveries in the wings. Sept. 23’s amendments provide additional insights into the information Powell believes exists that will benefit Flynn and further her argument of egregious government abuse.
So, what did Flynn ask for?
Most significantly, Powell added a request for a copy of Col. (Ret.) James “Baker’s calendar showing his meetings with or any other communications with David Ignatius from July 1, 2015 through March 2017.” Ignatius, a columnist for The Washington Post, broke the story on January 12, 2017, that “Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.”
“What did Flynn say, and did it undercut the U.S. sanctions?” Ignatius asked, while suggesting the calls implicated the Logan Act, which “(though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about ‘disputes’ with the United States.”
The FBI later questioned Flynn about those calls, and then the special counsel charged that Flynn made false statements to the FBI agents, one of whom was the now-disgraced and fired Peter Strzok. While Flynn pleaded guilty to that charge and awaits sentencing, the government has refused to give Powell a copy of the recorded conversation between Flynn and Kislyak. She also seeks access to that in her motion to compel.
But that Powell is pushing for Baker’s calendar and any notation of meetings or communications Baker had with Ignatius suggests she thinks she may have found the “senior U.S. official” who leaked details of Flynn’s conversations with Kislyak, or at a minimum was responsible for other leaks to Kislyak. To date, the leaker has yet to be identified—or prosecuted.
In addition to Baker’s calendar, Powell wants more information concerning Nellie Ohr’s research on Flynn. Nellie is the wife of twice-demoted DOJ lawyer Bruce Ohr, who fed her husband information concerning the Trump campaign team that she had been paid to compile by Fusion GPS.
Powell originally asked for “all documents, notes, information, FBI 302s, or testimony regarding Nellie Ohr’s research on Mr. Flynn and any information about transmitting it to the DOJ, CIA, or FBI,” suggesting Nellie Ohr played a bigger role in the targeting of the Trump campaign than previously known. Powell now seeks “any drafts, electronic communications (‘ECs’), emails, and texts related to Nellie Ohr’s research on Mr. Flynn, and all CIA cables on the topic” as well, indicating Flynn’s new attorney has determined additional methods Nellie Ohr used to communicate with the government, especially the CIA.
Finally, Powell wants to ensure that the government lawyers don’t play a game of “it depends what the meaning of is is,” and clarified that in addition to “all transcripts, recordings, notes, correspondence, and 302s of any interactions with human sources or ‘OCONUS lures’ tasked against Mr. Flynn since he left DIA in 2014,” she wants copies of any electronic communications.
Federal prosecutors have maintained all along that they have already turned over all the evidence that matters, and their position isn’t about to change now. So, expect the government lawyers to object to producing this evidence as well.
But that’s where things get even more interesting because Powell then has a chance to lay out in her reply brief exactly why this evidence is relevant. Since Powell’s argument is that the case against Flynn should be dismissed for “egregious government misconduct,” expect that misconduct to be laid out in excruciating detail.
