MR. FLYNN’S SUR-SURREPLY IN SUPPORT OF HIS MOTION TO COMPEL PRODUCTION OF BRADY MATERIAL AND FOR AN ORDER TO SHOW CAUSE
In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.
What Powell is referring to when she speaks of "conduct so shocking to the conscience and so inimical to our system of justice" is the Due Process clause of the US Constitution, the Fifth Amendment:
No person shall ... be deprived of life, liberty, or property, without due process of law ...
The SCOTUS has repeatedly held that conduct that violates our fundamental ideas of justice and fair play violate the Fifth Amendment guarantee of Due Process and requires a prosecution to be dismissed. Thus, US v. Russell, as cited by Powell, repeatedly speaks of Due Process in terms such as: conduct that violates "fundamental fairness, shocking to the universal sense of justice," as "mandated by the Due Process Clause of the Fifth Amendment." At issue in the Russell case was whether the government had entrapped the defendant by instigating the criminal acts in question. As we'll see, Powell maintains that the government engaged in similar conduct and, for that reason, will in the future move to dismiss the Flynn case "in the interest of justice." Which is what Due Process is all about--whatever views to the contrary federal prosecutors in this day may hold.
So there's the principle. The idea is simple enough. The business of a federal court is to see "that justice shall be done." There is no trick involved here. It's a question of justice and fundamental fairness.
It should come as no surprise, therefore, that Powell begins her reply by pointing out what, in the past, I have been at great pains to stress: that there was no "predication" for the FBI to investigate Flynn in the first place. They investigated Flynn not because they had reason to suspect that he had committed or would commit a crime, but because they wished to find a reason to prosecute Flynn. Such conduct is offensive to our concept of fundamental justice and fair play. This fundamental violation of Flynn's due process rights actually precedes and underlies all the rest of the egregious government misconduct--and so Powell places it at the very beginning of her reply.
To illustrate this, I'll quote Powell at some length. The italics are in the original, but I have bolded words and phrases that relate to the concept of Due Process as regards the actual inception of the investigation. You'll notice, too, how Powell repeatedly places certain words in italics to indicate that the FBI's actions were not legitimate or, as I put it, Setting False Statement Traps Is Not Official FBI Business. The FBI was, from the very moment it targeted Flynn, engaged in a conspiracy to deprive Flynn of his Due Process rights under the US Constitution, and so the case must be dismissed:
The government has known since prior to January 24, 2017, that it intended to target Mr. Flynn for federal prosecution. That is why the entire “investigation” of him was created at least as early as summer 2016 and pursued despite the absence of a legitimate basis. That is why Peter Strzok texted Lisa Page on January 10, 2017: “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.”
The word “pretext” is key. Thinking he was communicating secretly only with his paramour before their illicit relationship and extreme bias were revealed to the world, Strzok let the cat out of the bag as to what the FBI was up to. Try as he might, Mr. Van Grack cannot stuff that cat back into that bag.
Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set up Mr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview ... the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe proceeded to admit to the Committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.” Ex. 1.
Had the FBI not intended all along to create a false statement case, there would have been no “conundrum” at all. The matter simply would have concluded with the interview. Further, there would have been no comment about “a false statement case”—because no such case would be assumed. Finally, there would be no lamenting the “poor start” of a false statement case, because there would not have been “a start.” False statement cases normally arise incidentally when government agents are investigating a matter and the interviewee makes a misstatement about that matter. Agents then seek to get to the truth by giving 1001 warnings to coax truthful information from the suspect. But here, to use Strzok’s own words, the investigation was “a pretext;” the object of the interview was to secure, rather than prevent, a 1001 violation. The “poor start” further reveals Mr. McCabe’s determination to create a case despite the agents’ belief Mr. Flynn was telling the truth. Having such concrete evidence as to the prosecution’s thinking processes is rare; having it in text messages and sworn congressional testimony is priceless.
Having established the overall context, Powell enumerates examples of government misconduct.
1. The Original 302 Or Evidence of its Attempted Destruction Are Being Suppressed.
Powell shreds Team Mueller prosecutor van Grack's excuse that he does not possess the "original" 302. The FBI's file management system, Sentinel, can easily locate the document. Case law establishes that it is the prosecutor's duty to seek out such documents. The fact that an original 302 existed before versions that are known to have been edited by Lisa Page came into existence makes the original relevant to the defense. In fact, the presumption under law must be that the evidence of lost or destroyed documents is favorable to the defense.
2. The Handwritten Notes Raise Questions that Mandate Production of the Originals and More.
Powell scores important points by pointing out that a cursory examination of both the physical 302 notes as well as Strzok's later testimony under oath strongly suggest that Strzok's "interview notes" in fact are a rough draft of the 302 itself and may not represent the actual interview. Strzok appears, in this light, to have committed perjury.
3. The Notes Do Not Support the Factual Basis for the Plea.
Those suspicions are confirmed, Powell then argues, by examining the content of the notes and comparing that content to the terms of the guilty plea. The notes fail to raise the issues to which Flynn pled guilty. That, in turn, suggests an evolving FBI "narrative" about the interview--a "team effort" to concoct a narrative that would fit a false statement case that wasn't actually based in the facts of the interview. As a result, however, it was necessary for the government to prevent the defense from seeing the original notes and 302, so they wouldn't know what was going on. Instead, the government coerced a guilty plea from Flynn, then had him sign on to their narrative.
The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him "the Manafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as Brady, requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision.
4. There Were Material Changes Made in the 302 Overnight on February 10, 2017.
This section title largely speaks for itself. However, I'll provide one example of how the changes made to the 302 by virtue of Lisa Page's "edits" were "material changes" and not, as the government claims "largely grammatical and stylistic”:
Another material change was to add the entire phrase: “or if KISLYAK described any Russian response to a request by FLYNN” to which Flynn answered “no.” The notes reflect neither a question nor an answer about a “Russian response” to anything at all.
Any fairminded person would agree that the addition of that lengthy phrase was a material change--and would want to see the original document.
5. Mr. Flynn’s Statements Were Not Material
Again, this section title largely speaks for itself. The point is simply that the FBI knew all about Flynn's conversation with Ambassador Kislyak, had listened to it. And this, quite obviously goes back to the whole issue of the complete lack of predication for the entire investigation:
First and foremost, the agents already knew exactly what Mr. Flynn said in all his communications with the Russian Ambassador, so the FBI agents did not ask questions to discover the existence or substance of those communications. ... The interview, by “pretext,” was purely to “start” a “false statement case” as McCabe admitted in his congressional testimony.
The government’s claim that “it was imperative that the FBI determine whether and why such communications with the Russian Ambassador had occurred,” id. at 11, is belied by the unalterable truth that the FBI had recordings and transcripts of those very conversations. It knew exactly whether, what, and why “such communications” “occurred” between Mr. Flynn and the Ambassador. It heard the calls. Nothing the agents asked Mr. Flynn on January 24 was material to any valid investigation, and because the agents and Mr. Flynn knew they had the transcripts, recordings, and knew exactly what was said, nothing impeded their purported investigation.
6. Covington’s Non-Consentable Conflict of Interest Was Not Ameliorated by Mr. Van Grack’s Discussion with Conflicted Counsel.
The prosecutors were more than just aware of this issue, they took full advantage of it. Their failure to address the issue in their Surreply concedes the non-consentable conflict. This is precisely why the government is required to focus the court’s attention to the issue by moving to disqualify counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel— persuade a defendant that he is getting advice from a safe source.
I'm convinced that Powell will win this case for Flynn, no matter what Judge Sullivan does with this motion. The easy way out for the judge is to simply dismiss the case.
ADDENDUM: Greg Re at Fox News has a very good summary of yesterday's developments. The article is far more wide ranging than the title would lead you to believe: