Legal

Prosecutors urge judge to reject ‘fishing expedition’ by Flynn’s defense

Flynn's lawyers are seeking information to back up a wide range of allegations against Robert Mueller’s office and the FBI.

Michael Flynn

Federal prosecutors are denouncing as a “fishing expedition” a demand by Michael Flynn’s new defense attorneys for nearly 50 categories of information that they contend will undercut the felony false-statement charge the former national security adviser pleaded guilty to nearly two years ago.

In a filing Tuesday, government lawyers urged U.S. District Court Judge Emmet Sullivan to proceed with Flynn’s long-delayed sentencing and reject the move by Flynn’s defense counsel to delve into a wide range of allegations against former special counsel Robert Mueller’s office and the FBI. The allegations include a claim that they deliberately set out to frame Flynn in an effort to target President Donald Trump.

Prosecutors argued that the slew of records Flynn’s defense is demanding is largely irrelevant to the task before the judge of fashioning a sentence for the crime Flynn admitted to under oath in federal court in December 2017.

“The defendant predicates much of his request on conspiracy theories, demanding that the government engage in a fishing expedition for documents that could offer support for those theories. Irrespective of whether such documents exist, a fact that the government does not concede here, the defendant fails to establish that such information is relevant—let alone favorable and material—in this criminal case,” says the prosecution brief, signed by former Mueller prosecutor Brandon Van Grack.

The prosecution submission says many of the topics the defense is demanding information on don’t ultimately bear on Flynn’s admission that he lied to a pair of FBI agents in a January 2017 interview, particularly when he denied speaking with the Russian ambassador during the presidential transition.

The defense seeks more details on discussions by top FBI officials about whether to notify the White House counsel or other officials about the planned interview, but prosecutors say that isn’t germane to whether Flynn lied.

“Whether or not the FBI or DOJ contacted members of the White House before the defendant’s January 24 interview has no bearing on whether the defendant lied to the agents during that interview. Nor do any communications that the FBI or DOJ had with members of the White House after the interview, since by then the crime had already occurred,” prosecutors wrote.
The prosecution submission gives little ground, but it does offer at least one disclosure that could buttress arguments from Flynn’s new attorneys that he didn’t have an opportunity to fully explore some aspects of the investigation before deciding whether to plead guilty.

The government filing acknowledges that just one day before Flynn’s guilty plea, his former lawyers were told about an internal investigation into text messages sent by one of the FBI agents who interviewed him, Peter Strzok, including messages “that showed a preference for one of the candidates for President” — an allusion to Strzok’s expressions of support for Democratic presidential nominee Hillary Clinton.

Prosecutors also acknowledged that Strzok didn’t think Flynn was lying at the time of the interview, saying the national security adviser seemed to have “a sure demeanor” and exhibited no signs of deception. Notwithstanding that assessment, the prosecution contended that “both interviewing agents have been clear, since the beginning and in their documentation, that the defendant made false statements to them on January 24, 2017, about multiple topics.”

Still, the timing of the disclosures to Flynn’s prior defense counsel — coming on the same day Flynn signed the paperwork for his guilty plea and just a day before a judge accepted it — could fuel claims that he was badgered into admitting guilt when he should have fought any charges.

However, prosecutors note that at the time of the guilty plea, Flynn acknowledged he was giving up his rights to challenge the government’s evidence against him. In addition, they note that at the first sentencing hearing Sullivan held last year, he asked Flynn if he understood by continuing with his guilty plea he was “forever” forfeiting the right to challenge the circumstances under which he was interviewed.

The retired general said he was aware of that and also said he had no concern that his lawyers at the time lacked any information they needed.

At the time of his guilty plea and the hearing last year where the judge ultimately postponed imposing a sentence, Flynn was represented by Robert Kelner, an attorney with the prominent Washington law firm Covington & Burling.

In June, Flynn retained a new legal team helmed by Dallas attorney Sidney Powell, who had been a vocal critic of the Mueller probe and its prosecutors.

Within days of the shift, Flynn’s defense team and prosecutors were at odds, with a row breaking out over testimony Flynn was expected to give at a trial of his former business partner, Bjian Rafiekian, on charges relating to work the two men did for Turkish interests during the Trump campaign.

Flynn was abruptly dropped as a witness in the case, even though Sullivan delayed Flynn’s final sentencing specifically to allow him to complete that testimony.

One notable gambit by the prosecution in the new filing Tuesday was to call Sullivan’s attention to the fact that while Powell has been praiseworthy and solicitous of the judge at court hearings, she expressed a different opinion about him in dealings directly with the Justice Department.

Prosecutors publicly filed a copy Tuesday of a letter Powell sent in June to Attorney General Bill Barr and Deputy Attorney General Jeffrey Rosen, seeking to have the Flynn prosecutors reassigned and demanding a top-to-bottom review of the case.

Powell’s letter is sharply critical of Sullivan, accusing him of parroting talking points from cable news when he lit into Flynn at a sentencing hearing last December where he speculated about whether the retired Army general and Defense Intelligence Agency chief could’ve been charged with treason.

“Arguably, you sold your country out,” the judge declared during the session. He later walked his comments back.

“Judge Sullivan was completely wrong on the facts of the case, and his rant seems to have come straight from MSNBC comments of the previous night,” Powell wrote in her letter to Barr and Rosen.

Van Grack told Sullivan at the December 2018 hearing that there was no consideration of charging Flynn with treason. The new prosecution filing says the government does not plan to argue at sentencing that the former national security adviser was working for Russia at any time.

“The defendant is not charged with being an agent of Russia and the government has never alleged in this case that he was an agent of Russia,” prosecutors wrote. “His criminal conduct pertains to false statements about his communications with Russian officials, not his affiliation with that country.”

The prosecution also referred to unspecified evidence shared with Flynn’s defense “that would undermine the contention that he was an agent of Russia.”

Sullivan has set a hearing for Nov. 5 on Flynn’s demands for additional disclosures from the government. His continued sentencing hearing is tentatively set for Dec. 18.