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Michael Flynn lawyers claim client was 'set up' as FBI denies reports of exculpatory evidence cover-up

Washington Examiner logo Washington Examiner 4/25/2020 Jerry Dunleavy
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The legal team for retired Lt. Gen. Mike Flynn claimed newly released evidence showed the former Trump national security adviser was “set up” by the FBI, while the bureau denied reports by multiple outlets that its leadership purposely concealed exculpatory evidence.

Sidney Powell, Flynn’s lead attorney who took over last year after he dropped the high-profile white collar firm Covington & Burling in the spin-off case from special counsel Robert Mueller’s investigation, said the new information provided by the Justice Department on Friday, which related to her clients prior representation of more than two years, was damning.

“This afternoon, the government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI,” Powell’s Friday evening legal filing said. “It also defeats any argument that the interview of Mr. Flynn on January 24, 2017 was material to any ‘investigation.’ The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”

Flynn, 61, is fighting to dismiss the government's case against him. He pleaded guilty in December 2017 for lying to investigators about his conversations with Russian diplomat Sergey Kislyak on sanctions on Russia and a United Nations resolution on Israel, but in January he told the U.S. District Court in Washington, D.C., that he was "innocent of this crime." He filed to withdraw his guilty plea after the Justice Department asked the judge to sentence Flynn up to six months in prison, though afterward the department said probation would also be appropriate. Powell is pressing for the dismissal of his case by arguing the FBI unfairly treated Flynn.

Flynn’s defense lawyers said Friday that they had also “found further evidence of misconduct” by ex-Mueller prosecutor Brandon Van Grack, claiming that he made “baseless threats” to indict Flynn. Flynn’s lawyers also claimed Van Grack put together a “side deal” not to prosecute Flynn’s son “as a material term of the plea agreement” yet required that the deal be kept secret between himself and the Covington attorneys “expressly to avoid the requirement” of Giglio v. United States, a Supreme Court case which dealt with the responsibilities of prosecutors when putting together plea deals.

“Since August 2016 at the latest, partisan FBI and DOJ leaders conspired to destroy Mr. Flynn. These documents show in their own handwriting and emails that they intended either to create an offense they could prosecute or at least get him fired,” Powell claimed, adding, “The government’s misconduct in this case is beyond shocking and reprehensible. It mandates dismissal.”

Two right-leaning outlets cited FBI sources on Friday claiming that the FBI’s top leadership had sought to conceal exculpatory evidence from Flynn’s defense team, but the FBI issued a stern denial. An article by the Federalist cited an "FBI official” who claimed that FBI general counsel Dana Boente led an internal battle to stop the Justice Department from disclosing these new materials. An FBI official told the Washington Examiner that “it’s false that Mr. Boente was trying to stop exculpatory evidence from being released.”

A follow-up piece by the Daily Caller cited “a source with direct knowledge of the situation” who claimed FBI Director Christopher Wray coordinated with Boente to stop any exonerating information from being made public in the Flynn case. Brian Hale, the assistant director of the FBI's Office of Public Affairs, released a statement to the Washington Examiner saying “the assertion that Director Wray pushed to withhold exculpatory evidence in the Michael Flynn case is absolutely false.”

Former FBI Director James Comey admitted he took advantage of the chaos in the early days of the Trump administration when he sent special agent Peter Strzok and another FBI agent to talk to Flynn. Flynn agreed to cooperate with Mueller's Russia investigation, admitting then reaffirming his guilt in 2017 and 2018. The defense team that negotiated the plea deal was fired and, since taking over last summer, Powell has argued “there never would’ve been a plea to begin with” if Flynn knew how much information the Justice Department was hiding from him.

The Justice Department called Flynn’s claims of innocence “an extraordinary reversal.” The agency has continuously insisted that it never concealed any exculpatory evidence from Flynn.

Earlier on Friday, U.S. Attorney Timothy Shea said the government was continuing to look into allegations of inadequate representation following the waiver of attorney-client privilege related to Flynn’s prior representation. The Justice Department said Covington “has provided to the government five timely and substantial productions of documents ‘reasonably necessary’ to respond to the ‘specific allegations’ made by the defendant in his motions to withdraw his plea." This includes Covington providing the government with signed declarations from four Covington attorneys, which were handed over to Flynn’s team. The Justice Department said those declarations “comprise more than 100 pages of text and more than 500 pages of partly-redacted exhibits." The DOJ told the court that it needs additional time to review these declarations and to determine whether it needs to conduct any interviews of Covington personnel.

Shea enclosed a letter directly to Powell, providing Flynn’s legal team with an update on the work being carried out by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen, who was selected by Attorney General William Barr in January 2020 to conduct a review of the Flynn case.

“The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation personnel associated with the investigation,” Shea said. “The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.”

For months, Powell has insisted the original draft of the FBI’s notes from its interview with Flynn has gone missing. In one September 2019 filing, Powell asked the judge to help produce “the original draft of Mr. Flynn’s 302 and 1A file, and any FBI document that identifies everyone who had possession of it.”

Powell tweeted that Jensen “should demand the Original Flynn 302 and audit trail” because “as former FBI, he knows it’s not ‘missing.'”

Powell’s eight-page filing Friday evening included two exhibits related to communications from Flynn’s former legal team at Covington. The first was an email from former Flynn lawyer Robert Kelner to another attorney on the case, Stephen Anthony, on March 19, 2018. It is almost entirely redacted, but one visible line states “we have a lawyers’ unofficial understanding that they are unlikely to charge Junior [Mike Flynn’s son] in light of the Cooperation Agreement.” The second was an email on March 27, 2018 from Anthony to Kelner, again mostly blacked out, stating “the only exception is the reference to Michael Jr. The government took pains to give a promise to MTF [Michael Flynn] regarding Michael Jr. so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against who MTF may one day testify.”

In a filing earlier this year, Powell pointed to a section of DOJ Inspector General Michael Horowitz’s report that showed the intelligence briefing the FBI gave to then-candidate Donslf Trump’s team in August 2016 during the presidential campaign was a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign.

President Trump has said that he is considering a full pardon for Flynn.

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