'Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence.'
Earlier this week, Michael Flynn’s star attorney, Sidney Powell, filed under seal a brief in reply to federal prosecutors’ claims that they have already given Flynn’s defense team all the evidence they are required by law to provide. A minimally redacted copy of the reply brief has just been made public, and with it shocking details of the deep state’s plot to destroy Flynn.
While the briefing at issue concerns Powell’s motion to compel the government to hand over evidence required by Brady and presiding Judge Emmett Sullivan’s standing order, Powell’s 37-page brief pivots between showcasing the prosecution’s penchant for withholding evidence and exposing significant new evidence the defense team uncovered that establishes a concerted effort to entrap Flynn. Along the way, Powell drops half-a-dozen problems with Flynn’s plea and an equal number of justifications for outright dismissal of the criminal charges against Flynn.
What is most striking, though, is the timeline Powell pieced together from publicly reported text messages withheld from the defense team and excerpts from documents still sealed from public view. The sequence Powell lays out shows that a team of “high-ranking FBI officials orchestrated an ambush-interview of the new president’s National Security Advisor, not for the purpose of discovering any evidence of criminal activity—they already had tapes of all the relevant conversations about which they questioned Mr. Flynn—but for the purpose of trapping him into making statements they could allege as false.”
‘The Upper Echelon of the FBI Met to Orchestrate It All’
First came FBI agent Peter Strzok’s text to FBI attorney Lisa Page “as news of the ‘salacious and unverified’ allegations of the ‘Steele dossier’ dominated the media.” “Sitting with Bill watching CNN. A TON more out. . . We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people,” Strzok told his paramour.
Then, quoting from a sealed statement by Strzok, Powell reveals that over next two weeks, there were “many meetings” between Strzok and [FBI Deputy Director Andrew] McCabe to discuss “whether to interview [] National Security Advisor Michael Flynn and if so, what interview strategies to use.” And “on January 23, the day before the interview, the upper echelon of the FBI met to orchestrate it all. Deputy Director McCabe, General Counsel James Baker, Lisa Page, Strzok, David Bowdich, Trish Anderson, and Jen Boone strategized to talk with Mr. Flynn in such a way as to keep from alerting him from understanding that he was being interviewed in a criminal investigation of which he was the target.”
Next came “Comey’s direction to ‘screw it’ in contravention of longstanding DOJ protocols,” leading McCabe to personally call Flynn to schedule the interview. Yet none of Comey’s notes on the decision to interview Flynn were turned over to defense. Even Obama-holdover “Deputy Attorney General Sally Yates candidly opined that the interview ‘was problematic’ and ‘it was not always clear what the FBI was doing to investigate Flynn,” Powell stressed. Yet again, the prosecution did not turn over Yates’ notes, but only “disclosed a seven-line summary of Ms. Yates statement six months after Mr. Flynn’s plea.”
Following Strzok’s questioning of Flynn, he exchanged more texts with Page: “Describe the feeling, nervousness, excitement knowing we had just heard him denying it all. Knowing we’d have to pivot into asking. Puzzle round and round about it. Talk about the funny details. Remember what I said that made Andy laugh and ask if he really said that.”
The texts also confirmed Strzok did not believe Flynn thought he was lying: “Also have some faith in and my assessment. . . . I’m finding it hard to go out on a counterintuitive yet strongly felt ledge with so many competent voices expressing what I feel too: bullsh*t – that doesn’t make sense. [] I made some joke about what F said. Something patriotic or military.” Page responded: “It was clear that you both walked in and felt very strongly, so that obviously counts for something. [] You made a joke about a military band.”
A sealed statement from Strzok confirmed that the “agents did three briefings the day of the interview,” and that Strzok had reported that Flynn “had a sure demeanor, and he was telling the truth or believed he was—even though he did not remember it all.” This led the FBI and DOJ to then write “an internal memo dated January 30, 2017, exonerating Mr. Flynn of acting as an ‘agent of Russia’” and expressing no concern of a possible Logan Act violation.
Then the Switch on the 302
But then things change.
“On February 10, 2017, the news broke—attributed to ‘senior intelligence officials’—that Mr. Flynn had discussed sanctions with Ambassador Kislyak, contrary to what Vice President Pence had said on television previously.” Following this leak, “overnight,” Flynn’s 302 was changed—and substantively so. “Those changes added an unequivocal statement that ‘FLYNN stated he did not’—in response to whether Mr. Flynn had asked Kislyak to vote in a certain manner or slow down the UN vote.”
“This is a deceptive manipulation” Powell highlighted, “because, as the notes of the agents show, Mr. Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens of countries.” The overnight changes to the 302 also included the addition of a line, indicating Flynn had been question on whether “KISLYAK described any Russian response to a request by FLYNN.”
But the agent’s notes do not include that question or answer, Powell stressed, yet it was later made into the criminal offense charges against Flynn. And “the draft also shows that the agents moved a sentence to make it seem to be an answer to a question it was not,” Powell added.
Then, the day after those changes were made, Strzok texted Page asking: “Also, is Andy good with F 302?” Page replied: “Launch f302.” Simultaneously, David Laufman in the National Security Division of DOJ, called Flynn’s law firm, Covington and Burling, to pressure them to file the FARA registration form for Flynn Intel Group. Those FARA registration forms would later be used to press Flynn to plead guilty.
Ties to Collusion against President Trump
The timeline continued to May 10 when McCabe opened an “obstruction” investigation into President Trump. That same day, Powell writes, “in an important but still wrongly redacted text, Strzok says: ‘We need to lock in [redacted]. In a formal chargeable way. Soon.’” Page replies: “I agree. I’ve been pushing and I’ll reemphasize with Bill [Priestap].”
Powell argues that “both from the space of the redaction, its timing, and other events, the defense strongly suspects the redacted name is Flynn.” That timing includes Robert Mueller’s appointment as special counsel on May 17, and then the reentering of Flynn’s 302 on May 31, 2017, “for Special Counsel Mueller to use.”
That final Flynn 302 shows yet another inconsistency from the notes turned over to Powell. Both agents’ notes state: “Flynn does not remember making four to five calls to Ambassador Kislyak from the Dominican Republic, where he was on vacation, but that if he did so, it was because phone service was poor and he kept getting dropped. ‘I don’t remember making 4-5 calls. If I did lousy place to call.’” Yet, Powell stressed, the final 302 stated the opposite: “Flynn remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues.”
Powell pieced together this timeline and this disturbing evidence of a government out to destroy a man only after Flynn pleaded guilty and without benefit of the exculpatory evidence the prosecution was required to provide. And that’s a problem, Powell argues: “Neither Mr. Flynn nor his former counsel had any of these documents or knowledge of the plethora of information discussed above when Mr. Flynn entered his plea.”
Federal prosecutors attempt to sidestep this problem by stressing that Flynn was represented by Covington and Burling, but that does not excuse the government’s withholding of evidence Judge Sullivan had ordered turned over, Powell stresses. As a backstop, Powell highlights that Covington and Burling had a conflict-of-interest that Flynn could not waive.
How Judge Sullivan will rule on Powell’s motion to compel and motion for sanctions is unclear. But as Powell said in the opening of her reply brief, she has “made clear from her first appearance, [that] Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.”