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3TABLE OF CONTENTS
4ARGUMENTS AND AUTHORITIES IN REPLY....................................................................... 3
5A. The Government’s Suppression of the Actual Strzok-Page Texts Mandates a Finding
6of Contempt................................................................................................................................ 5
71. “A Pretext to Interview Some People.” ............................................................................ 6
82. “Many Meetings” to Strategize the Interview of Flynn.................................................. 7
93. “Off the Rails” ................................................................................................................... 8
104. The Plan Worked: Mr. Flynn was “Relaxed,” “Jocular,” and “Unguarded.”............. 9
115. Reporting Back: Flynn’s “Demeanor Was Sure.”
12He Was Telling the Truth or Believed He Was Telling the Truth................................... 10
136. Agents Manipulate the Flynn 302................................................................................... 10
147. February 14: “Launch f 302.”......................................................................................... 11
158. The Media Leak Strategy with DOJ............................................................................... 12
169. The FBI Opens Obstruction Case on President Trump
17and “Locks In” Case on “Flynn?”...................................................................................... 12
18B. The FBI Knew Its Entire Investigation of Flynn Was A Pretext. .................................. 14
19C. Brady Requires the Government to Produce Exculpatory Evidence in Time for the
20Defense to Use It. ..................................................................................................................... 18
21D. Full, Actual, Unredacted Documents, The Original 302, Drafts Prior to
22February 10, 2019, and the 1A File and Subfiles Must be Produced Pursuant to Brady. 22
231. Agent Strzok’s notes do not appear to have been taken contemporaneously during
24the interview.......................................................................................................................... 24
252. The 302 statement that Mr. Flynn was told the “nature of the interview” is false. ... 25
263. Mr. Van Grack’s Productions of Flynn 302s Were Incomplete and Misleading. ...... 25
274. The Final 302 Falsely States that Mr. Flynn Remembered Making Four to Five Calls
28from the Dominican Republic When Both Sets of Notes State He Does Not Remember.
29................................................................................................................................................ 26
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325. The Notes Provide No Support for a Chunk of the 302 That Purports to Provide a
33“Factual Basis” for the Plea. ............................................................................................... 27
346. Mr. Flynn’s Statements Were Not Material. ................................................................. 27
357. The Flynn 302 Is Discussed in the Page-Strzok Texts and Was Not Approved by
36McCabe Until the Day After Flynn Resigned from the White House............................. 28
37E. Classified Information Will Prove that Any Investigation of Mr. Flynn Was
38Pretextual. ................................................................................................................................ 28
391. Yunis Mandates Disclosure of The Classified Information Requested as Brady........ 28
402. The DIA Reports of Briefing and Debriefings Belie Any Basis to Investigate Mr.
41Flynn and Likely Further Undermine the Factual Basis for the Plea............................. 29
423. The Letter from Sir Mark Lyall Grant to the Incoming National Security Team
43Invalidates Any Use of Information from Christopher Steele, Further Undermines Any
44“Russia” Connection, and is Being Suppressed. ............................................................... 30
45CONCLUSION ............................................................................................................................ 32
46CERTIFICATE OF SERVICE................................................................................................... 33
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49INDEX OF EXHIBITS
50Flynn Timeline of Key Events …………………………………………………….…. Exhibit 01
51Excerpts of Strzok- Page Texts ………………………………………………............. Exhibit 02
52Relevant Comey Memos …………………………………………………………….. Exhibit 03
53CNN Article …………………………………………………………………………. Exhibit 04
54Strzok 7/26/17 Statement [SEALED] ………………………………………………... Exhibit 05
55Strzok 302 [SEALED] …………………………………………………………….….. Exhibit 06
56Steele Dossier Excerpts re Flynn ……………………………………………………... Exhibit 07
57Excerpts from Crossfire Hurricane by Josh Campbell ……………………………… Exhibit 08
58Unnamed Agent’s Notes and Transcription [SEALED] ……………………………… Exhibit 09
59Strozk’s Notes and Transcription [SEALED] ………………………………………… Exhibit 10
60Comparison Draft Flynn 302, 2/10/17 and 2/11/17;
61and Final 302 [SEALED] ………………………………………………………….… Exhibit 11
62Lisa Page 302 [SEALED] …………………………………………………….……... Exhibit 12
6312/2/17 Articles (2) …………………………………………………….…………… Exhibit 13
64Program Information from Flynn Speaking Engagements
65Booked by Leading Authorities …………………………………………………….... Exhibit 14
66Timeline of Meetings with Prosecutors & Government’s
67Productions of Documents ………………………………………………………….... Exhibit 15
68Decl. of Handwriting Expert ……………………………………………………….... Exhibit 16
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71For eighty-seven years, the Supreme Court has held that “[t]he first duties of the officers
72of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for
73the sole purpose of prosecuting and punishing it. . . [I]t is unconscionable, contrary to public policy,
74and to the established law of the land to punish a man for the commission of an offense of the like
75of which he had never been guilty, either in thought or in deed, and evidently never would have
76been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to
77attempt to commit it." Sorrells v. United States, 287 U.S. 435, 444-45 (1932) (quoting Butts v.
78United States, 273 F. 35, 38 (8th Cir. 1921)). Application of the criminal law under such
79circumstances “is foreign to its purpose . . . [and] so shocking to the sense of justice that it has
80been urged that it is the duty of the court to stop the prosecution in the interest of the Government
81itself, to protect it from the illegal conduct of its officers and to preserve the purity of its courts.”
82Id. at 446.
83In this case, high-ranking FBI officials orchestrated an ambush-interview of the new
84president’s National Security Advisor, not for the purpose of discovering any evidence of criminal
85activity—they already had tapes of all the relevant conversations about which they questioned Mr.
86Flynn—but for the purpose of trapping him into making statements they could allege as false.
87This is no paranoid “conspiracy” delusion, as the government implies. It is well
88documented by the evidence already made public, which was long known to the government —
89yet withheld from the defense—until after Mr. Flynn pleaded guilty and in clear violation of Brady
90v. Maryland and its progeny. This includes a still undisclosed discussion by the lead agent to use
91news of the “Steele dossier” as “a pretext to interview some people;” the FBI Director’s calculated
92decision (contrary to FBI/DOJ protocol) not to notify the White House Counsel that the FBI
93wanted to speak with a key member of the President’s staff; a strategically-planned personal call
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96from FBI Deputy Director Andrew McCabe, designed to prevent Mr. Flynn from seeking the
97advice of counsel or notifying the Department of Justice; planning and rehearsing tactics calculated
98to keep Mr. Flynn “relaxed” and “unguarded” so as not to alert him to the significance of the
99conversation; anxious text messages between Agent Strzok and his paramour, Lisa Page—
100McCabe’s Special Counsel—disclosing the deep personal involvement of these officials and others
101in an enterprise without a legitimate law enforcement objective.
102The government works hard to persuade this Court that the scope of its discovery obligation
103is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty.
104However, the evidence already produced or in the public record reveals far larger issues are at
105play: namely, the integrity of our criminal justice system and public confidence in what used to be
106our premier law enforcement institution. When the Director of the FBI, and a group of his close
107associates, plot to set up an innocent man and create a crime—while taking affirmative steps to
108ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this
109amounts to conduct so shocking to the conscience and so inimical to our system of justice that it
110requires the dismissal of the charges for outrageous government conduct.
111“Regard for the requirements of the Due Process Clause ‘inescapably imposes upon this
112Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction]
113in order to ascertain whether they offend those canons of decency and fairness which express the
114notions of justice of English-speaking peoples even toward those charged with the most heinous
115offenses.’” Rochin v. California, 342 U.S. 165, 169 (1952) (Frankfurter, J.) (quoting
116Malinski v. New York, 324 U.S. 401, 416-17 (1945)). When the government transgresses these
117boundaries—as it has here—the Court must dismiss the case and free the defendant to reconstitute
118his life.
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121As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to
122dismiss the entire prosecution based on the outrageous and un-American conduct of law
123enforcement officials and the subsequent failure of the prosecution to disclose this evidence—
124which it had in its possession all along—either in a timely fashion or at all. Moreover, the
125defendant still needs and is still entitled to all the facts in the government’s possession—not just
126those Mr. Van Grack was forced to provide because they had already leaked into the public
127domain. The government’s tactic of disclosing information because it had made its way into the
128news and the internet is tantamount to no Brady disclosure at all, while its self-serving minimized
129disclosures were outright deceptive.
130ARGUMENTS AND AUTHORITIES IN REPLY
131Despite a polite reminder from this Court that its Brady order is paramount,1 the
132government’s response depends heavily on its assertion—forty-five times in twenty pages—that
133Mr. Flynn pleaded guilty, and thirteen assertions that he waived any right to further Brady
134material.2 As expected, the government touts its many Brady disclosures. What it elides, however,
1351 “[T]hat provision is not binding on the Court. That's an agreement between the parties.
136Notwithstanding that information in the plea agreement or any statement therein or subsequent
137thereto that suggests Mr. Flynn has waived his right to further discovery, the government must
138comply with the Court's standing Brady order of February the 16th, 2018, or at some point
139demonstrate why it should not be required to comply with that.” Hr’g Tr. 8:21-24, Sept. 10, 2019.
1402 At the status conference in this Court on September 10, 2019, Mr. Van Grack assured the Court
141he had never claimed that Mr. Flynn’s plea truncated the government’s responsibility to provide
142Brady material or comply with this Court’s Standing Order. Dkt. 114 at 22:13-19. To the contrary,
143however, in his letter to new counsel dated June 26, 2019, he wrote: “[I]n the plea agreement your
144client signed on November 30, 2017, your client waived the right to any further discovery or
145disclosures of information. As such, the government does not anticipate providing additional
146information in response to your letter.” On July 12, 2019, Mr. Van Grack again denied there was
147any further material owed to Mr. Flynn under either Brady or the Court’s Standing Order, noting
148“much of which [production] occurred even after your client had waived his right to any further
149discovery or disclosures of information, pursuant to the plea agreement.”
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152is that its “disclosures” were so limited, misleading, untimely, or deliberately trivialized as to
153render them meaningless—and in some instances, outright deceitful. As the Supreme Court has
154recognized, and which happened in the extreme here, an incomplete response could “represent[]
155to the defense that the evidence does not exist” and cause it “to make pretrial and trial decisions
156on the basis of this assumption.” United States v. Bagley, 473 U.S. 667, 682-83 (1985).
157Every “disclosure” the government touts came after the government had interviewed Mr.
158Flynn for five days, and all but the final version of the much-deliberated 302 came after Mr. Flynn
159agreed to plead guilty. At the same time, the government tries to shift its affirmative obligation to
160produce Brady evidence to former defense counsel, but “[a] rule . . . declaring ‘prosecutor may
161hide, defendant may seek’ is not tenable in a system constitutionally bound to accord defendants
162due process.” Banks v. Dretke, 540 U.S. 668, 696 (2004).
163Here, the government’s limited and misleading productions confirm the suppression of
164additional Brady evidence which warrants a finding of contempt. Remarkably, Mr. Van Grack
165prefaced his blandly eleventh-hour “disclosure” with the disclaimer that he had “no legal or ethical
166obligation” to give the information to the defense. What he described as “electronic
167communications” of “one of the agents who interviewed Mr. Flynn” “showed a preference for one
168of the presidential candidates” was painfully short of the bombshell of truth that exploded in the
169national news only one day after Mr. Flynn’s plea.
170The real evidence the government had long suppressed caused a cavalcade of major
171events—many within mere days of Mr. Flynn’s plea—and all unknown to him before it. Lisa
172Page, Special Counsel to Deputy Director McCabe, resigned; she had edited Mr. Flynn’s 302 and
173was part of the small, high-level group that strategically planned his ambush. Lead Agent Peter
174Strzok was demoted from the Mueller investigation and ultimately fired. Strzok, who had met
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177extensively with McCabe and the high-level, small group, was primarily responsible for creating
178the only basis for the charge alleged against Flynn. Ex. 1.
179The day after Mr. Flynn’s plea, the press exploded with the news of Strzok and Page’s
180prolific text messages, their affair, and their malice toward President Trump.3
181 The Inspector
182General issued a rare statement that he was investigating the entire matter. MTC 23. Bruce Ohr,
183the fourth highest-ranking member of DOJ, was demoted. Judge Contreras, who accepted Mr.
184Flynn’s plea only days before, was suddenly and inexplicably recused—only for it to be disclosed
185much later that he was a topic of conversation in the Strzok-Page texts because he was a friend of
186Agent Strzok.
1874 And, remarkably, DOJ’s Bruce Ohr was demoted a second time. Ex. 1. This is
188merely a snapshot of the aftershock from the earliest revelations into the public domain and to Mr.
189Flynn.
190A. The Government’s Suppression of the Actual Strzok-Page Texts Mandates a Finding of
191Contempt.
192The government’s purported “productions” of the actual Strzok-Page texts also reveal
193contempt for this Court’s order and its Brady obligation. MTC 6, 9, 10, 30, 31. The government
194did not produce a single text message (among the 50,000) until nine months after it had been
1953 However, the government’s disclosure as Mr. Flynn was signing the plea agreement did not even
196name the agent, or the candidate, while the statements by the two key agents showed sheer hatred
197of Mr. Trump; for example: “God trump is a loathsome human,” “Stupid fuck,” “Donald Trump
198is an enormous d*uche,” and “Trump is a fucking idiot.” Ex. 2.
1994 The government knew that well in advance of Mr. Flynn’s plea that Judge Contreras was a friend
200of Peter Strzok and his recusal was even discussed in an exchange of multiple texts. In one text
201exchange between Strzok and Page on July 25, 2016, Page said to Strzok: “I can’t imagine either
202one of you could talk about anything in detail meaningful enough to warrant recusal,” apparently
203referring to Judge Contreras. “Really?” Strzok replied. “Rudy, I’m in charge of espionage for the
204FBI. Any espionage [warrant request that] comes before him, what should he do? Given his friend
205oversees them?” Ex. 2. None of this was disclosed to the defense or in court.
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208handed countless egregious examples; three months after this Court entered its order; and long
209after the actual evidence would have made a material difference to Mr. Flynn. Even then, Mr. Van
210Grack did not provide the texts to the defense to honor his Brady obligation or this Court’s order.
211Rather, he produced them only after they had been exposed publicly by others. The government
212is still suppressing crucial evidence.
213Mr. Van Grack “produced” the first batch on March 13, 2018, by link to texts already
214released to the public by the Senate Judiciary Committee. He produced the second batch on June
21524, 2018, by link to the “Scribd account” of reporter Peter Hasson. Those cannot even be
216downloaded. And for his third production, it gave the defense two pages on October 4, 2018.
217These go precisely to the issue of McCabe’s Special Counsel Lisa Page editing the Flynn 302.
218Ex. 2.
219The government still hides countless damaging texts—exculpatory and material to Mr.
220Flynn—that our independent work only recently uncovered. These were reported by CNN but have
221not been produced. These demonstrate violations of Brady and this Court’s order that go to the
222core of Mr. Flynn’s claim of outrageous government misconduct and to his innocence.
2231. “A Pretext to Interview Some People.”
224On January 10, 2017, Buzzfeed and CNN broke the news of the “Steele dossier” on which
225(it was later revealed) the Carter Page FISA application was premised. MTC 7, 26, 24, 27.
2265 Then5 It was only much later the defense learned what the FBI already knew: This document had been
227bought and paid for by the Clinton campaign and the DNC. Both the FBI and Fusion GPS hired
228former British spy Christopher Steele. Fusion GPS was on the Clinton payroll, and it also hired
229Nellie Ohr—a Russia specialist with CIA ties whose husband Bruce was the fourth highestranking official in DOJ. Ms. Ohr was researching Mr. Flynn also, and his name appears twice in
230the “Steele dossier.” Ms. Ohr and Steele funneled their “work” through Bruce Ohr in a backchannel to the FBI, long after the FBI fired Steele for lying. Ex. 7; MTC 25, 26, 28. Bruce Ohr
231also brought future Special Counsel members Andrew Weissmann and Zainab Ahmad into his
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234Director Comey had briefed the President-Elect about these “salacious and unverified” allegations
235on January 6, 2017, a day after meeting in the Oval Office with President Obama, Vice-President
236Biden, Acting Attorney General Sally Yates, Susan Rice, James Clapper, and John Brennan.
237Ex. 3.
238 As news of the “salacious and unverified” allegations of the “Steele dossier” dominated
239the media, Strzok wrote to Page: “Sitting with Bill watching CNN. A TON more out. . . We’re
240discussing whether, now that this is out, we can use it as a pretext to go interview some people.”
241The government has not produced this text and others around it, in a stunning violation of Brady
242and this Court’s order. Ex. 4.
2432. “Many Meetings” to Strategize the Interview of Flynn
244In the next two weeks, there were “many meetings” between Strzok and McCabe to discuss
245“whether to interview [] National Security Advisor Michael Flynn and if so, what interview
246strategies to use.” Ex. 5.
247 January 23, the day before the interview, the upper echelon of the FBI met to orchestrate
248it all. Deputy Director McCabe, General Counsel James Baker, , Lisa Page, Strzok,
249David Bowdich, Trish Anderson, and Jen Boone strategized to talk with Mr. Flynn in such a way
250as to keep from alerting him from understanding that he was being interviewed in a criminal
251investigation of which he was the target. Ex.12. Knowing they had no basis for an investigation,6
252they deliberately decided not to notify DOJ for fear DOJ officials would follow protocol and notify
253White House Counsel. They decided not to tell Flynn their true purpose nor give him 1001
254back-channel communications with the FBI, DOJ, and Christopher Steele. Bruce Ohr Testimony
255to Congress, Aug. 28, 2018, https://tinyurl.com/yxcujccg.
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257Ex.6.
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260warnings, so as to keep him “relaxed.” They planned not to show him the transcript of his calls to
261refresh his recollection, nor confront him directly if he did not remember. In short, they planned
262to deceive him about the entire scenario, and keep him “unguarded.” Exs. 5, 6; MTC 34.
2633. “Off the Rails”
264They knew what they were doing was wrong. Lisa Page wrote: “I can feel my heart
265beating harder, I’m so stressed about all the ways THIS has the potential to go fully off the rails.”
266Strzok replied: “I know. I just talked with , we’re getting together as soon as I get in to finish
267that write up for Andy [McCabe] this morning. I reminded about how I told Bill [Priestap]
268and the entire group that we should wait 30 to 60 days after the inauguration to change how we
269were managing this stuff. As it is, he went ahead, and everything is completely falling off the rails.
270I think our stuff is good on our cases, but I have no hope or understanding about what they’re
271doing on Jen [Boone’s] side of the house.” Ex. 2.
272The next day, at Comey’s direction to “screw it” in contravention of longstanding DOJ
273protocols,7 McCabe personally called Flynn to pave the way for the uncounseled conversation.
274They used their “pretext” to circumvent DOJ and ambush interview Mr. Flynn in the White House.
2757 The government did not disclose this to Mr. Flynn until after Mr. Comey bragged about his
276breach on national television—not because Mr. Van Grack was complying with this Court’s order.
277This short video (https://www.youtube.com/watch?v=NxNhjFrjXqI) reveals Mr. Comey’s
278deliberate disregard for DOJ and FBI rules. In fact, Mr. Van Grack only disclosed a bland
279summary four days after Comey gloated about it on national television to a laughing audience—
280four days before Mr. Flynn’s scheduled sentencing, and because this Court entered its minute order
281of December 12, 2017. Dkt. 10. Mr. Flynn seeks disclosure of the full report of Mr. Comey’s
282conduct, any memos, notes, and 302s documenting his decision, which was admittedly the subject
283of “many intensive discussions” within the FBI. There must be at least notes of several others,
284including Comey’s Special Assistant Mr. Campbell, that document the efforts directed against Mr.
285Flynn. Ex. 8; MTC 4, 12-14.
286 As summarized by Inspector General Horowitz: “We have previously faulted Comey for acting
287unilaterally and inconsistent with Department policy. Comey’s unauthorized disclosure of
288sensitive law enforcement information about the Flynn investigation merits similar criticism. In a
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2914. The Plan Worked: Mr. Flynn was “Relaxed,” “Jocular,” and “Unguarded.”
292Strzok admitted Flynn was alone, “relaxed and jocular,” “unguarded,” and saw the two
293agents as “allies.” Flynn gave them a tour. He talked about hotels they stayed in during the
294campaign and the President’s “knack for interior design,” and the long hours of the job. He
295complained about politics, but he “always seemed to work his way to the subject of terrorism.”
296Exs. 5, 6. Of course, the FBI had already read the transcripts of his phone calls, and the agents
297knew there was no criminal intent or any crime in his conversations.
298This and Strzok’s admissions make clear that Comey and McCabe were executing their
299own agenda—not investigating a crime. This is why, in Brady evidence still suppressed, Deputy
300Attorney General Sally Yates candidly opined that the interview “was problematic” and “it was
301not always clear what the FBI was doing to investigate Flynn.”8
302 This is also why Strzok admitted
303that Yates “was not happy” to learn of the interview and PDAG Axelrod argued with FBI General
304Counsel James Baker about the FBI’s unilateral decision to interview Flynn. Ex. 6.
305country built on the rule of law, it is of utmost importance that all FBI employees adhere to
306Department and FBI policies, particularly when confronted by what appear to be
307extraordinary circumstances or compelling personal convictions. Comey had several other
308lawful options available to him to advocate for the appointment of a Special Counsel, which he
309told us was his goal in making the disclosure. What was not permitted was the unauthorized
310disclosure of sensitive investigative information, obtained during the course of FBI employment,
311in order to achieve a personally desired outcome.” Office of the Inspector General, U.S. Dept. of
312Justice, Report of Investigation of Former Federal Bureau of Investigation Director James
313Comey's Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda,
31461, (29 Aug. 2019), olg.justice.gov/reports/2019/o1902.pdf. By so doing, “Comey set a dangerous
315example for the over 35,000 current FBI employees—and the many thousands more former FBI
316employees—who similarly have access to or knowledge of non-public information.”. Id. at 60
317(emphasis added).
3188 The prosecutors disclosed a seven-line summary of Ms. Yates statement six months after Mr.
319Flynn’s plea. Obviously, the Department of Justice knew this around the time of the interview.
320The same is true for PDAG Axelrod. MTC 2, 9, 18, 19.
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3235. Reporting Back: Flynn’s “Demeanor Was Sure.”
324He Was Telling the Truth or Believed He Was Telling the Truth.
325The agents returned from interviewing Mr. Flynn, describing their excitement over it, and
326with a belief contrary to what they expected, that he had been honest with them. After the
327interview, they briefed it three times. Strzok texted Page: “Describe the feeling, nervousness,
328excitement knowing we had just heard him denying it all. Knowing we’d have to pivot into asking.
329Puzzle round and round about it. Talk about the funny details. Remember what I said that made
330Andy laugh and ask if he really said that.”
331Strzok urged: “Also have some faith in and my assessment. . . . I’m finding it hard to
332go out on a counterintuitive yet strongly felt ledge with so many competent voices expressing what
333I feel too: bullsh*t – that doesn’t make sense. [] I made some joke about what F said. Something
334patriotic or military.”
335Page responded: “It was clear that you both walked in and felt very strongly, so that
336obviously counts for something. [] You made a joke about a military band.” Ex. 2. The agents did
337three briefings the day of the interview. They reported he had a sure demeanor, and he was telling
338the truth or believed he was—even though he did not remember it all. Ex. 6.
339Not long after, the FBI and DOJ wrote an internal memo dated January 30, 2017,
340exonerating Mr. Flynn of acting as an “agent of Russia;” and, they all knew there was no Logan
341Act violation. The government owes Mr. Flynn the full versions of these exculpatory statements.
342MTC 9, 18, 19, 26. He has been smeared as being an agent of a foreign government for several
343years now.
3446. Agents Manipulate the Flynn 302.
345On February 10, 2017, the news broke—attributed to “senior intelligence officials”—that
346Mr. Flynn had discussed sanctions with Ambassador Kislyak, contrary to what Vice President
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349Pence had said on television previously. Overnight, the most important substantive changes were
350made to the Flynn 302. Those changes added an unequivocal statement that “FLYNN stated he
351did not”—in response to whether Mr. Flynn had asked Kislyak to vote in a certain manner or slow
352down the UN vote. This is a deceptive manipulation because, as the notes of the agents show, Mr.
353Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens
354of countries. Exs. 9, 10, 11.
355Second, they added: “or if KISLYAK described any Russian response to a request by
356FLYNN.” That question and answer do not appear in the notes, yet it was made into a criminal
357offense. The typed version of the highly unusual “deliberative” 302 by that date already included
358an entire section from whole cloth that also serves as a criminal charge in the Information and
359purported factual basis regarding “Russia’s response” to any request by Flynn. The draft also
360shows that the agents moved a sentence to make it seem to be an answer to a question it was not.
361Exs. 9, 10, 11.
362Flynn resigned and left the White House on February 13, 2017. Ex. 1.
3637. February 14: “Launch f 302.”
364The next day, Valentine’s Day, Strzok texted: “Also, is Andy good with F 302?” Page
365replied: “Launch f302.”
366The same day, David Laufman in the National Security Division of DOJ, with whom they
367also worked, personally called Covington & Burling to pressure them to file the FARA registration
368form for Flynn Intel Group. Ex. 1. MTC 39.
3699
3709 Mr. Kelner and two more Covington lawyers even had an extensive meeting with six members
371of the FARA section including Heather Hunt, David Laufman, and others to decide how
372to write the registration and review a draft, and they had a follow-up call with them. Kelner had
373never seen the FARA section “this engaged.” Dkt. 98.
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376Also, the same day, Strzok and Page discussed the Bureau’s leak to the press regarding a
377New York Times article describing the FBI’s interview of Mr. Flynn. Again, the government has
378withheld these texts in contempt of this Court’s order and Brady:
379Strzok: “Bottom line Mike [Kortan] ran through the boss’ thinking/timeline/narrative of
380this. Bunch of additional detail [redacted] has etc.”
381Page: “Did you mention my attendance to kortan [Mike]?”
382Strzok: “Not to Mike, he had left. The guys left seemed to think no, said Mike was going
383to talk to you.”
384Another message refers to cooperation and “access” but they do not name the outlet.
385“Going to be very apparent we cooperated and gave access A LOT for an article that I
386think is going to be very negative. Bad enough for negative press. Far worse to chose [sic] to”
387Ex. 4.
3888. The Media Leak Strategy with DOJ.
389April 20, 2017, Strzok texts Page: “I had literally just gone to find this phone to tell you I
390want to talk to you about media leak strategy with DOJ before you go.” Ex. 2.
3919. The FBI Opens Obstruction Case on President Trump
392and “Locks In” Case on “Flynn?”
393On May 9, 2017, the day Comey was fired, Strzok texted: “We need to open the case we’ve
394been waiting on now while Andy is acting.” Ex. 2.
395On May 10, McCabe opened the “obstruction” investigation of President Trump as
396suggested by Comey’s memo of February 14. Ex. 1.
397Also on May 10, in an important but still wrongly redacted text, Strzok says: “We need to
398lock in [redacted]. In a formal chargeable way. Soon.” Page replies: “I agree. I’ve been pushing
399and I’ll reemphasize with Bill [Priestap].” Ex. 2. Both from the space of the redaction, its timing,
400and other events, the defense strongly suspects the redacted name is Flynn. But, whether it is
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403Flynn or someone else, it shows the extraordinary deliberation of specific (and now mostly fired)
404elements of the FBI to “target” certain people in their pretextual investigation—antithetical to the
405Rule of Law.
406Mr. Mueller was named Special Counsel on May 17, and the Flynn 302 was reentered on
407May 31, 2017, for Special Counsel Mueller to use. The government has refused to produce
408unredacted text messages for this crucial time.
409Mr. Flynn made critical decisions based on a belief that none of this evidence existed. He
410was placed on a path to cooperate with the government, work out a deal, and meet with Special
411Counsel for days—all under false pretenses. Then after he was compelled by multiple
412circumstances to agree to plead, the government made a deliberately misleading revelation at the
413eleventh hour in a self-serving attempt to avoid the outcry and ramifications of the imminent media
414explosion of damning truths.
41510 The government continues to hide evidence of the original 302,
416other exculpatory texts, and other forms of information completely. By its incomplete and
417trivialized disclosure, the government effectively “represented to the defense that the [real and
418egregious] evidence does not exist” and caused it “to make . . . decisions on the basis of this
419assumption.” Bagley, 473 U.S. at 682-83; see also, United States v. Ferrara, 456 F.3d 278, 293
42010 Not only did Mr. Van Grack not disclose a single text message before Mr. Flynn agreed to plead
421guilty, but Special Counsel apparently managed to control the press on the issue until the plea was
422entered on December 1, 2017, in Judge Contreras’s court. It defies credulity to suggest that it was
423only unlucky for Mr. Flynn that the story broke the very next day. Part of the evidence we request
424includes communications between the press and SCO, which will likely establish that Special
425Counsel intensified pressure on Mr. Flynn to plead immediately while it was pressuring the press
426not to explode the truth that destroyed the entire case. Karoun Demirjian, Top FBI official assigned
427to Mueller’s Russia probe said to have been removed after sending anti-Trump texts, THE WASH.
428POST (Dec. 2, 2017), https://www.washingtonpost.com/world/national-security/two-senior-fbiofficials-on-clinton-trump-probes-exchanged-politically-charged-texts-disparagingtrump/2017/12/02/9846421c-d707-11e7-a986-d0a9770d9a3e_story.html; MTC 11; Ex. 13.
429Case 1:17-cr-00232-EGS Document 129-2 Filed 10/24/19 Page 17 of 37
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431n.11 (1st Cir. 2006) (“When the government responds incompletely to a discovery obligation, that
432response not only deprives the defendant of the missing evidence but also has the effect of
433misrepresenting the nonexistence of that evidence.”).
434B. The FBI Knew Its Entire Investigation of Flynn Was A Pretext.
435The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid
436basis for a counter-intelligence investigation against an American citizen, and they all knew it.
43711
438Exs. 5, 6. The evidence the defense requests will eviscerate any factual basis for the plea and
439reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this
440prosecution for egregious government misconduct.
441The government’s assertion that Mr. Flynn “is not charged with being an agent of Russia
442and the government has never alleged in this case that he was an agent of Russia” is false. Dkt.
443122. That was the FBI’s public pretext for investigating Mr. Flynn—although the agents did not
444inform Mr. Flynn they were actually “investigating” him for anything. MTC 23. Obviously,
445someone in DOJ understood Mr. Flynn was accused of being a Russian agent, because there is an
446internal document dated January 30, 2017, exonerating Mr. Flynn. Having been publicly and
447falsely accused of treason and being a “foreign agent,” assertions which also misled this Court,
448Mr. Flynn is entitled to all documentation that exonerates him. The accusations were a stake
44911 Under federal law, to establish that an American is acting as an agent of a foreign power, the
450government must show that the American is purposefully engaging in clandestine activities on
451behalf of a foreign power, and that it is probable that these activities violate federal criminal law.
452See FISA, Title 50, U.S. Code, Section 1801(b)(2). Mr. Comey and Mr. McCabe publicly admitted
453that in the summer of 2016, they took it upon themselves to single out four individuals associated
454with the Trump campaign for investigation. Admittedly, the FBI had no evidence that any of the
455four had committed a crime—much less that they “knowingly engage[d] in clandestine intelligence
456gathering activities for or on behalf of a foreign power.” Id; see Ex. 3.
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459through the heart of a thirty-three-year Army veteran who wrote a blank check on his life for five
460years in active combat in devotion to our country.12
461The Mueller Report established that there was no conspiracy between anyone in the Trump
462campaign and Russia. It is also apparent now, or will be upon the release of the FISA report of
463the Inspector General, that the FBI and DOJ had no legal basis to obtain a FISA warrant against
464Carter Page or to investigate Mr. Flynn.
46513 Yet, the government wants us to accept its word that
46612 Mr. McCabe pointed to Mr. Flynn’s “very public interactions with Vladimir Putin and other
467Russians.” These “interactions” seem to have arisen from the work of CIA/FBI operatives Stefan
468Halper and Joseph Mifsud, and bookings made by Mr. Flynn’s American speakers’ bureau,
469Leading Authorities (which books engagements for countless former government officials and
470prominent people). Leading Authorities booked him for three events with “Russian connections”:
471one in Moscow for RT and two in Washington. All were well attended by prominent persons from
472around the world because of the important issues discussed and the presence of other recognized
473experts on the programs. See Ex. 14; MTC 4, 16.
474 Mifsud was present at the RT dinner in Moscow, and it is his cell phones recently obtained by
475the government that are expected to confirm that he was working for “western intelligence.” Dkt.
476124.
477 Stefan Halper is a known long-time operative for the CIA/FBI. He was paid exorbitant sums
478by the FBI/CIA/DOD through the Department of Defense Department’s Office of Net Assessment
479in 2016. His tasks seem to have included slandering Mr. Flynn with accusations of having an
480affair with a young professor (a British national of Russian descent) Flynn met at an official dinner
481at Cambridge University when he was head of DIA in 2014. Flynn has requested the records of
482Col. James Baker because he was Halper’s “handler” in the Office of Net Assessment in the
483Pentagon, and ONA Director Baker regularly lunched with Washington Post Reporter David
484Ignatius. Baker is believed to be the person who illegally leaked the transcript of Mr. Flynn’s calls
485to Ignatius. The defense has requested the phone records of James Clapper to confirm his contacts
486with Washington Post reporter Ignatius—especially on January 10, 2017, when Clapper told
487Ignatius in words to the effect of “take the kill shot on Flynn.” It cannot escape mention that the
488press has long had transcripts of the Kislyak calls that the government has denied to the defense.
489MTC 34, 35, 37.
49013 The government’s Brady violations have suppressed evidence of Fourth Amendment defenses
491Mr. Flynn was entitled to pursue, especially if that evidence also shows government misconduct.
492Information was obtained against Mr. Flynn either through the illegal FISA warrant on Carter
493Page, baseless National Security Letters, an undisclosed FISA warrant, or the abuses of the NSA
494database documented in the heavily redacted opinion of Judge Rosemary Collyer
495(https://www.dni.gov/files/documents/icotr/51117/2016_
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498the defense has everything to which it is entitled. Fortunately Brady exists to protect the accused
499“from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about
500criminal accusations.” Kyles v. Whitley, 514 U.S. 419, 440 (1995).
501While Flynn was cooperating extensively on all issues the Special Counsel wanted to
502address, the government has trickled out productions over the last year that reveal many things.
503Ex. 15. Some of the most notable include :(i) the original notes of the agents differ materially from
504the 302s; (ii) there were material alterations to the 302s to set up the “false statements,” and (iii)
505the government has extensive reports of Mr. Flynn’s briefings and debriefings on all his foreign
506contacts—including his Russia trip and his meeting with Turkish officials—giving lie yet again to
507the public pretext of the FBI “investigation” of Mr. Flynn. Further, what is still a heavily redacted
508302 for former Agent Strzok, since January 2017, the government knew, but still has not disclosed
509the full statements and notes that show Deputy Attorney General Sally Yates said the interview of
510Mr. Flynn was “problematic,” and she was “unclear” why the FBI was investigating or
511interviewing Mr. Flynn at all.
512Neither Mr. Flynn nor his former counsel had any of these documents or knowledge of the
513plethora of information discussed above when Mr. Flynn entered his plea. However, one of the
514government’s chief arguments is that because Mr. Flynn was represented by counsel (Covington
515& Burling) at all stages of the proceedings, and because counsel was present at all interviews and
516other critical events including his plea and concomitant Brady waiver, that either excuses the
517government's failures or renders his waiver of them conclusive.
518Cert_FISC_Memo_Opin_Order_Apr_2017.pdf), and the more recent decision of Judge Boasberg
519(https://www.intelligence.gov/assets/documents/702%20Documents/declassified/2018_Cert_FIS
520C_Opin_18Oct18.pdf).
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523The government fails to acknowledge, however, that Covington & Burling was the very
524firm that Mr. Flynn paid more than $1 million to investigate, prepare, and then defend the FARA
525registration in response to NSD/FARA section’s and David Laufman’s demands. See n.9 supra.
526By August 2017, when the government threatened Mr. Flynn with criminal charges related to the
527same FARA registration, former counsel were immediately caught in the vice of an intractable
528conflict of interest that they never escaped until Flynn engaged new counsel. By no later than
529August 2017, the conflict between Mr. Flynn and his former lawyers was non-consentable and not
530subject to waiver. Even if Mr. Flynn had been fully informed in writing of the conflict at that time,
531the lawyers were obligated to withdraw from the representation without regard to his wishes.14
532Some conflicts of interest are so likely to interfere with the effectiveness of counsel, and
533so destructive of the fairness of the proceeding, that courts must prophylactically override a
534defendant’s proffered waiver of the right to conflict-free counsel. Wheat v. United States, 486
535U.S. 153, 162 (1988) (“[W]here a court justifiably finds an actual conflict of interest, there can be
536no doubt that it may decline a proffer of waiver, and insist that defendants be separately
537represented.”). In other words, conflicts of interest that are non-consentable according to
538professional norms are also not subject to waiver by a criminal defendant under the Sixth
539Amendment.
540“Federal courts have an independent interest in ensuring that criminal trials are conducted
541within the ethical standards of the profession and that legal proceedings appear fair to all who
54214 According to D.C. Rule of Professional Conduct 1.7(c)(2), conflicted representation may not
543commence or continue unless the affected client provides informed consent, after full disclosure
544of the possible adverse consequences “and the lawyer reasonably believes that the lawyer will be
545able to provide competent and diligent representation to each affected client.” Comment [7] to this
546Rule ensures that the words are taken seriously: the client can be asked to weigh in and judge its
547own interests only after the lawyer has become “satisfied that the representation can be
548wholeheartedly and zealously undertaken.”
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551observe them.” Id. at 160. Although in another case, a court could have remedied this, this Court
552had no way of learning the extent of the conflict. That difficulty lies, in part, at the government’s
553door. After Wheat, it is open to the government to bring such matters to the attention of the court,
554because public rights are also at stake. Here, the government sat back and harvested a guilty plea.
555C. Brady Requires the Government to Produce Exculpatory Evidence in Time for the
556Defense to Use It.
557For almost six decades the Supreme Court has held that “the suppression by the prosecution
558of evidence favorable to an accused . . . violates due process where the evidence is material either
559to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.
560Maryland, 373 U.S. 83, 87 (1963). A Brady violation “has three components: “[1] The evidence
561at issue must be favorable to the accused . . .; [2] that evidence must have been suppressed by the
562State, either willfully or inadvertently; and [3] prejudice must have ensued.” United States v.
563Pasha, 797 F.3d 1122, 1133 (D.C. Cir. 2015) (quoting Strickler v. Greene, 527 U.S. 263, 281-82
564(1999)).
565 Brady’s mandate is central to due process and crucial to ensure that prosecutors fulfill
566their obligation to seek justice rather than convictions. The rule of Brady does so “[b]y requiring
567the prosecutor to assist the defense in making its case,” and in that respect “the Brady rule
568represents a limited departure from a pure adversary model.” Bagley, 473 U.S. at 675 n.6. Most
569fundamentally, Brady is enforced “to ensure that a miscarriage of justice does not occur.” Id. at
570675. By claiming “conspiracy theories” and “fishing expeditions,” the government engages in
571“label-lynching” to avoid addressing the facts, its misconduct, and the law.
57215 But the government
573is bound to see that “justice shall be done.” United States v. Berger, 295 U.S. 78, 88 (1935)
57415 The government relies on out of Circuit cases that provide more support for the defense than for
575the prosecution. The government cites United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir.
576Case 1:17-cr-00232-EGS Document 129-2 Filed 10/24/19 Page 22 of 37
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578This Circuit holds that exculpatory and impeaching evidence must be disclosed in time for
579a defendant to use in preparing his defense. In Pasha, the court slammed the government for
580suppressing important exculpatory evidence from a witness for eight months, until the eve of trial.
581797 F.3d at 1133. The appellate court agreed with the district court that this delay was
5822005), for the proposition that “Brady does not permit a defendant to conduct an in camera fishing
583expedition through the government’s files.” Mr. Flynn agrees with this unexceptional point of law,
584and Caro-Muniz is an excellent case to underscore why his request is far from what courts consider
585fishing expeditions. In Caro-Muniz, the FBI sent an undercover informant to talk with the
586defendant multiple times before indicting him on charges of bribery. There were 140 tape
587recordings and the government disclosed 71 prior to trial. The defendant moved for the production
588of the rest of the tapes “on the basis that they might contain exculpatory or impeachment evidence.”
589Id. at 28.
590Without any further showing, the trial court tasked an FBI agent to listen to all the tapes to
591make sure “the [defendant’s] voice [wa]s not heard in any of them and nor is he or anyone related
592to the facts of this case mentioned in these recordings.” After that review, the court ordered the
593production of “three recordings where [the defendant’s] voice could be heard, six additional
594recordings that were directly or indirectly related to the [] investigation, and transcripts of eight
595recordings that were not directly or indirectly related to the investigation.” Id.
596As a last-ditch effort, the defendant requested more tapes on appeal, which is when the
597First Circuit affirmed the lower court’s production order, but denied the defendant’s request for
598even more tapes because he “presented neither a theory regarding the existence of potentially
599exculpatory evidence on the tapes, nor has he made any showing that the tapes would be of
600substantial assistance to his defense.” Id. By the First Circuit’s standard, Mr. Flynn is entitled to
601all Brady material he has listed. Mr. Flynn has shown ways this material would have been of
602substantial assistance to him in defeating the government’s allegations. It is also relevant to the
603motion to dismiss he expects to file.
604Similarly, the government quotes Kasi v. Angelone, 300 F.3d 487 (4th Cir. 2002), for the
605proposition that “the Brady right to obtain exculpatory evidence [does not] equate to a right to
606rummage through government files” but, again, in that case, the Fourth Circuit noted that the
607defendant “concedes that he cannot point a specific identifiable piece of evidence that may have
608been favorable or in any way material to his guilt or innocence” and that he had not “giv[en] a
609clue” as to what evidence would be useful to him. Mr. Flynn has specifically identified the
610evidence he requests and how it relates to his case.
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613“inexcusable,” for the Government should have understood as soon as they were finished talking
614with that gentleman they had an obligation to give that information to the defense.” Id.16
615Mr. Flynn was entitled to all the Brady evidence in the government’s possession well
616before November 2017. The D.C. district court’s decision in United States v. Quinn underscores
617Bagley’s rule that both late and incomplete disclosures are tantamount to suppression of evidence
618and violate a defendant’s due process rights. 537 F. Supp. 2d 99 (D.D.C. 2008).17 The court studied
619the government’s limited disclosure and concluded “the government had no excuse for
620withholding this information from [the defendant], and its decision to do so violates its Brady duty
621of disclosure.” Id. at 112 (citing a S.D.N.Y. case where the court dismissed because the
622government “failed to inform the defense until a week before trial that it would not be calling a
623witness whose credibility was now in doubt by the government”). Many high-profile cases make
62416 The Pasha court footnoted the district court’s chastisement of the prosecutors, wherein the
625district court noted that “failure to comply with Brady obligations had more than once been a
626problem in this case.” 797 F.3d at n.8. The district court also noted: “What is particularly troubling
627is that this is the second time in this case that the Government has withheld significant Brady
628information for an extended period of time. When is the Government going to learn?” Id.
629Apparently not by January 2017, despite the district court’s decision nine years earlier.
63017 In Quinn, the government did not disclose to the defendant that its chief witness was almost
631certainly lying about the defendant’s conduct, Quinn, 537 F.Supp. at 105, and instead only
632announced—after trial began—that it no longer planned to call the witness. Id. The court held
633that “the government must disclose Brady information at such a time as to allow the defense to use
634the favorable material effectively in the preparation and presentation of its case.” Id. at 108.
635Although the government claimed that it did not know with absolute certainty that its star
636witness had lied, the Quinn court held that this “constituted a breach of the government’s duty to
637search for Brady” id. at 110 [quotations omitted], and the defendant “was misled and left with the
638incorrect perception that he alone doubted [the witness’s] credibility.” Id. at 109.
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641clear that the government will not learn until prosecutions are dismissed and it is held to the highest
642standard of accountability.18
643The government dismisses its duty to produce impeachment evidence in a single sentence,
644claiming the Supreme Court has held its Brady obligation “does not extend to impeachment
645evidence.” United States v. Ruiz, 536 U.S. 622 (2002); Gov. Reply Brief, 7, Oct. 1, 2019. But Ruiz
646did not overrule Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the ‘reliability of a
647given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence
648affecting credibility falls within the general rule [of Brady.]”), and Bagley, 473 U.S. at 676-77
649(stating emphatically “[t]his Court has rejected any such distinction between impeachment
650evidence and exculpatory evidence”). Both hold that impeachment evidence is encompassed
651within Brady, and no court has held that Ruiz radically altered the Brady/Giglio landscape. Rather,
652Ruiz focused on the voluntariness of the plea, and there was not even an allegation that any
653information was withheld.
654This Circuit applies the Giglio and Bagley standard that “‘impeachment evidence . . . as
655well as exculpatory evidence falls within the Brady rule.’” In re Sealed Case No. 99-3096 (Brady
656Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999) (quoting Bagley, 473 U.S. at 676). This is
657because “evidence that impeaches the [government’s witnesses] is almost invariably ‘favorable’
658to the accused, because by making the government’s case less credible it enhances the defendant’s”
659case. 185 F.3d at 893. When impeachment evidence is exculpatory, as noted in Giglio and Bagley,
660it is Brady like any other. McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003). The
66118 In re Contempt Finding in United States v. Stevens, 744 F. Supp. 2d 253 (D.D.C. 2010) (aff’d
662by United States v. Stevens, 663 F.3d 1270 (D.C. Cir. 2011); United States v. Kohring, 647 F.3d
663895 (9th Cir. 2011); United States v. Kott, 423 Fed. Appx. 736 (9th Cir. 2011); United States v.
664Brown, 459 F.3d 509 (5th Cir. 2006).
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667government cannot be the “architect of a proceeding that does not comport with standards of
668justice.” Brady, 373 U.S. at 88.
669The government views the charges against Mr. Flynn in a vacuum, arguing “[w]hether or
670not the FBI or DOJ contacted members of the White House before the defendant’s January 24
671interview has no bearing on whether the defendant lied to the agents during the interview.” Dkt.
672122 at 16. But, circumstances that brought about his improper interview, the conduct and
673credibility of the agents who interviewed him, and the broader landscape that precipitated this
674unjust prosecution are all relevant to Mr. Flynn’s alleged guilt. Here, the conduct of the
675government is "so outrageous that due process principles would absolutely bar the government
676from invoking the judicial process to obtain a conviction." United States v. Russell, 411 U.S. 423,
677431-32 (1973). Indeed, this entire investigation and prosecution is so fundamentally unfair as to
678be "shocking to the universal sense of justice." Id. at 432.
679D. Full, Actual, Unredacted Documents, The Original 302, Drafts Prior to
680February 10, 2019, and the 1A File and Subfiles Must be Produced Pursuant to Brady.
681The only basis for the allegations against Mr. Flynn depends on the agents’
682characterizations of his statements to them in January 24, 2017, in the ambush interview. Yet,
683their own notes contradict the 302, fail to support it at all in other ways, do not support the factual
684basis for the plea, and cannot serve as evidence of any crime. Mr. Strzok’s “notes” appear that
685they were not taken contemporaneously with the interview, which only creates more suspicion.
686Both sets of notes are redacted, but neither redacted documents nor summaries can substitute for
687the actual, full documents—especially in this case. Summaries are not evidence at all, and as this
688Court has warned, “they are opportunities for mistake and mischief.” Tr. of Mot. Hr’g 9, United
689States v. Stevens, No. 08-231 (D.D.C. Apr. 7, 2009); Flynn Br. in Supp. of Mot. to Compel
690Production, Dkt. 109 at 16.
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693Inexplicably, the government asserts: “both interviewing agents have been clear, since the
694beginning and in their documentation, that the defendant made false statements to them on January
69524, 2017, about multiple topics.” But the government has no cite for this claim, nor does the
696defense have one. To the contrary, Mr. Flynn was honest with the agents to the best of his
697recollection at the time, and the agents knew it. The belatedly-disclosed Strzok-Page texts make
698clear that the agents left the interview with a firm conviction Mr. Flynn was being honest, and they
699maintained that conviction despite strong expressions of disbelief and cries of “bullshit” from their
700colleagues. Ex. 2. Nonetheless, for whatever reason, the agents did not record all Mr. Flynn’s
701responses, nor did they record them all correctly in their notes, and the ultimate 302 and
702prosecution are even more questionable. Exs. 9, 10, 11.
703The evidence the defense requests, if produced, would defeat the factual basis for the plea.
70419
705The original 302 is crucial to this as are the original notes. The government elides the truth that
706the FBI has it and any other drafts prior to February 10, 2017. The FBI can retrieve it from its
70719 This is one of the many reasons no one should be prosecuted for a violation of 18 USC 1001
708unless the statement has been recorded. Every law enforcement officer has that ability on his
709phone. Sidney Powell & Harvey Silverglate, Conviction Machine (Encounter Books 2020).
710Everyone knows a simple difference in tone can completely change the meaning of a sentence.
711Note that the criminal referral of former Deputy Director McCabe is predicated on several
712recorded interviews, under oath, with full knowledge of the purpose of the proceedings and an
713opportunity to correct any misstatements. After initially lying to James Comey by claiming or
714leading the then-Director to believe that “McCabe had not authorized the disclosure [to the media]
715and did not know who did,” the INSD of the FBI interviewed him under oath where he again
716claimed “he had not authorized the disclosure to the WSJ and did not know who did.” Several
717months later, under oath to the OIG—in a recorded interview—he swore that he was unaware his
718own Special Counsel Lisa Page was authorized to speak to the media on the issue or where she
719was at that time, and finally some four months after that, McCabe lied under oath about having
720lied under oath in all the previous incidents. The OIG determined McCabe authorized the leak to
721the WSJ via his Special Counsel “to advance his personal interests at the expense of Department
722leadership,” and referred his case for prosecution. Office of the Inspector General, U.S. Dept. of
723Justice, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director
724Andrew McCabe, Feb. 2018.
725Case 1:17-cr-00232-EGS Document 129-2 Filed 10/24/19 Page 27 of 37
72624
727Sentinel system that logs and serializes the drafts, or the FBI can retrieve it from the file or subfile in which it is buried. Neither the FBI nor its Sentinel system loses the most important of its
728reports that is supposed to support the federal felony of the President’s National Security Advisor.
729The only reason for it to be suppressed is that it is favorable to the defense. If the agents recorded
730in the original 302 their impressions that Flynn was being truthful, had “a sure demeanor,” and
731“showed no signs of deception,” and that was edited out, it is “game over” for the government.
732Tellingly, Mr. Van Grack has chosen his words carefully, and he has not denied an original 302
733exists.
734This was the most important interview the FBI did—carefully orchestrated by the Director
735and Deputy Director after many internal discussions, and extensive meeting of the upper crust of
736the FBI for no valid purpose. 20 The original 302 is not “missing.” If the government will not
737produce it, it could only have been deliberately destroyed, and this prosecution should be dismissed
738on that basis alone. United States v. Cooper, 983 F.2d 928 (9th Cir. 1992) (holding that the district
739court properly dismissed the indictment due to the government's destruction of evidence by relying
740on the test articulated by the Supreme Court in California v. Trombetta, 467 U.S. 479, 489 (1984)
741and Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
7421. Agent Strzok’s notes do not appear to have been taken contemporaneously during
743the interview.
74420 The FBI knew that its questions had nothing to do with “Russian interference” in the election.
745Indeed, it had nothing to do with the election at all. As recently apparent from the Report of the
746Inspector General, this was Comey and McCabe’s personally motivated operation in defiance of
747all protocols and procedures—deliberately circumventing DOJ. Office of the Inspector General,
748U.S. Dept. of Justice, Report of Investigation of Former FBI Director James Comey’s Disclosure
749of Sensitive Investigative Information and Handling of Certain Memoranda, August 2019. The
750government is also required to produce these statements under Fed. R. Crim. P. 16(a)(B)(i).
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753Only the junior agent was taking notes during the interview. Strzok’s 302 of July 2017 says
754that he was handling the interview and his partner was taking notes. A 302 is to be written into
755Sentinel within five days. Notes are to be signed and dated by the notetaker. Inexplicably, we
756have two sets of notes with significant redactions—neither of which is signed and dated as
757required. Exs. 9, 10. Agent Strzok’s notes are far more detailed, lengthy, and written in a way
758that would not appear to be physically possible to write in a contemporaneous, casual setting. Ex.
75910. The defense requests production of the actual, original notes, and handwriting samples of
760Strzok of contemporaneous and non-contemporaneous notes to evaluate another anomaly that
761further calls into question the entire effort by the FBI to manipulate and set up Mr. Flynn, and its
762report of that interview. Ex. 16.
7632. The 302 statement that Mr. Flynn was told the “nature of the interview” is false.
764As discussed supra, the government is suppressing evidence of notes, reports, or recordings
765of the significant meeting the upper echelon of the FBI held to orchestrate the agents’ ambush of
766Mr. Flynn so as to keep him “relaxed.” They purposely did not tell him they were investigating
767him and strategized at length to avoid raising any concerns. Ex. 6 (“Flynn was unguarded and
768clearly saw the FBI agents as allies.”).
7693. Mr. Van Grack’s Productions of Flynn 302s Were Incomplete and Misleading.
770But it gets worse. When Mr. Van Grack made his first official production to former counsel
771of any actual documents (other than the (final) Flynn 302 produced on Nov. 22, 2017) on March
77213, 2018—all of which should have been produced before Mr. Flynn pleaded guilty—Mr. Van
773Grack made it sound like there was only one 302:
774Attachment I, which consists of two documents, is the interview report for the
775January 24, 2017, interview. SSA [redacted] and DAD Strzok digitally signed and
776certified the report on two occasions. They first digitally signed and certified the report
777in February 2017. They later digitally re-signed and re-certified the report in order to
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780remove a header. Specifically, the [sic] initially signed and certified the report, dated
781February 15, 2017 had mistakenly stated that it was a “DRAFT;” the documents are
782otherwise identical.
783This is false.
784On May 25, 2018, Mr. Van Grack dribbled out another production—again denying any
785obligation to do so under Brady or the Court’s Standing Order. This included a draft 302 dated
786February 10, 2017, as if it were the only other one.
787That was also misleading. After former counsel called Mr. Van Grack, on June 1, 2018,
788the government produced two more drafts of the 302—these dated February 11, 2017, and
789February 14, 2017. Mr. Van Grack did not explain why all these intervening drafts were not
790produced in March, nor how they suddenly turned up, and there are material differences—
791especially from February 10 to February 11. Ex. 11.
792Obviously, there are drafts of the 302, including an original draft in the files or subfiles of
793the Sentinel System of the FBI dating back to January 24, 2017, or so—the date of the actual
794interview of Mr. Flynn. Brady requires the production of the original 302, all drafts, notes,
795recordings, statements, and all testimony of the two agents along with all participants in any of the
796meetings to plan the ambush of Mr. Flynn “to keep him relaxed.” If they are not there, then they
797were wrongfully destroyed. Either way, the government must be held to account.
7984. The Final 302 Falsely States that Mr. Flynn Remembered Making Four to Five
799Calls from the Dominican Republic When Both Sets of Notes State He Does Not
800Remember.
801Notes by both agents state that Mr. Flynn does not remember making four to five calls to
802Ambassador Kislyak from the Dominican Republic, where he was on vacation, but that if he did
803so, it was because phone service was poor and he kept getting dropped. “I don’t remember making
8044-5 calls. If I did lousy place to call.” The final 302 states the opposite: “Flynn remembered
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807making four to five calls that day about this issue, but that the Dominican Republic was a difficult
808place to make a call as he kept having connectivity issues.” Ex. 11. This dramatically demonstrates
809the wrongheadedness of allowing a 302 to create a federal felony.
8105. The Notes Provide No Support for a Chunk of the 302 That Purports to Provide a
811“Factual Basis” for the Plea.
812Two out of four of the alleged false statements in the Statement of Offense are based on
813what the agents claim Mr. Flynn said or did not say about the response of the Russian Ambassador
814on two separate issues.
81521 Even if we assume the skimpy, vague, and ambiguous notes correctly
816represent anything the agents might claim, the notes provide no support for a question or an answer
817about the Russian Ambassador’s response—either to the UN vote or the sanctions. Exs. 9, 10.
8186. Mr. Flynn’s Statements Were Not Material.
819At the conclusion of the December 18, 2018, hearing, this Court expressed concern about
820the factual basis for the plea on the issue of materiality, and rightfully so. The government publicly
821asserted the “FBI had an open investigation into the Government of Russia’s (‘Russia’) efforts to
822interfere in the 2016 presidential election, including the nature of any links between individuals
823associated with the Campaign and Russia, and whether there was any coordination between the
824Campaign and Russia’s effort.” Statement of Offense, pg. 1. However, the Brady material
825disclosed long after the plea and still undisclosed evidence shows that the agents asked him nothing
826relevant to “efforts to interfere in the 2016 election.” Id. Likewise, nothing about his calls to
827Kislyak in late December 2016 as part of the transition into office had anything to do with
82821 “FLYNN also falsely stated that he did not remember a follow-up conversation in which the
829Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as
830a result of FLYNN’s request.” ¶3, Statement of Offense. “FLYNN also falsely stated that the
831Russian Ambassador never described to him Russia’s response to FLYNN’s request regarding the
832resolution.” ¶ 4, Id.
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835coordination between anyone in the campaign and Russia. The agents did not ask even a single
836question about any coordination.
837To the extent one can say the “interview” addressed “the nature of any links between any
838individuals associated with the campaign and Russia,” all pretexts for the interview of Mr. Flynn
839are belied by evidence that the FBI knew exactly what Mr. Flynn had discussed with the Russian
840Ambassador on the issue of sanctions and the UN vote. They asked no question related to election
841interference or coordination between the campaign and Russia, and policy discussions by the
842incoming National Security Advisor were none of the FBI’s business.
843Whatever Mr. Flynn said to anyone regarding the UN issues had nothing to do with the
844FBI’s alleged “investigation” about the 2016 election and could not be the basis for false
845statements “material” to that issue. According to the notes, he was not even sure he had spoken to
846Kislyak on that issue. Exs. 9, 10.
8477. The Flynn 302 Is Discussed in the Page-Strzok Texts and Was Not Approved by
848McCabe Until the Day After Flynn Resigned from the White House.
849Flynn resigned on February 13, 2017. The next day, Strzok texts: “Is Andy good with
850[Flynn] 302?” Page replies: “Launch on f[lynn] 302.” It is no accident that McCabe himself
851approved the Flynn 302 the day after Mr. Flynn left the White House—three weeks after the
852interview and a prolonged “deliberative process” —which is not even appropriate for a 302.
853E. Classified Information Will Prove that Any Investigation of Mr. Flynn Was Pretextual.
8541. Yunis Mandates Disclosure of The Classified Information Requested as Brady.
855The balancing test in Yunis only applies to classified information for which the government
856affirmatively asserts a valid privilege against production. United States v. Yunis, 867 F.2d 617
857(D.C. Cir. 1989). In its opposition to Mr. Flynn’s Motion to Compel, the government does not
858assert a privilege against disclosure of information or even identify which information the defense
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861has requested is classified. Accordingly, it should all be produced because either (i) Yunis does
862not apply unless information is classified, and most of the Brady evidence the defense requests is
863not classified; or (ii) the government has failed to assert a privilege. Id. at 623 (“the requested
864discovery and the response of privilege trigger a further inquiry”). The privilege asserted in Yunis
865is the basic national security privilege and is analogous to the informant’s privilege. It protects
866critical “intelligence sources and methods.” Id. at 620. There are no sources or methods to protect
867in this case.
868The government cannot conceal its wrongdoing behind a claim of classification. As
869President Obama made clear in Executive Order 13526, §1.7: “In no case shall information be
870classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal
871violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person,
872organization, or agency.” Yunis is merely a final protection to make sure that classified
873information is properly requested, but once a showing has been made, the door opens to
874accommodate a defendant’s constitutional rights.
8752. The DIA Reports of Briefing and Debriefings Belie Any Basis to Investigate Mr.
876Flynn and Likely Further Undermine the Factual Basis for the Plea.
877The defense is entitled to the reports the DIA has of all the work Mr. Flynn did for the
878Agency while the FBI was asserting he was a foreign agent. The government has long known that
879Mr. Flynn pre-briefed the DIA on his meeting with Turkish officials in New York in September
8802016, yet it produced nothing until August 2019—again, when Mr. Van Grack learned it was being
881produced elsewhere. This undercuts (i) the government’s contention that he ever worked as an
882“agent of Turkey” in violation of 18 U.S.C. §951; (ii) the factual basis for his plea; and (iii) that
883he received any benefit from not being charged with a FARA-related violation. See United States
884v. Rafiekian, No. 1:18-cr-457-AJT-1 (E.D. Va. Sept. 24, 2019).
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888Mr. Van Grack knows about this letter, and he questioned people about it. He may have
889seen it and have a copy of it. It was written by the United Kingdom’s National Security Advisor,
890Sir Mark Lyall Grant, and hand-delivered January 12, 2017, from the British Consulate to the
891incoming National Security team in New York. It was not classified. Protocol dictates that it was
892also provided to the then active national security advisor—Susan Rice. This was two weeks before
893the pretextual interview of Mr. Flynn, and it eviscerates the credibility of Christopher Steele whose
894false and unverified assertions mention Mr. Flynn and were used by the FBI to obtain illegal FISA
895warrants that likely reached the communications of Mr. Flynn. It undermines the entire “Russiacollusion” fable that Comey, McCabe and others used to justify their unlawful conduct. Ex. 7.
896(two pages of Steele dossier). In fact, that letter alone should have mandated termination of the
897FISA warrant, which was wrongly renewed twice after the Grant letter was delivered—including
898once for the wrongful benefit of Special Counsel. Anything obtained as a result of that warrant
899would have to be suppressed and could not be used against Mr. Flynn.
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902CONCLUSION
903In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice
904so egregious it is “repugnant to the American criminal system.” Russell, 411 U.S. at 428 (citations
905omitted). For these reasons and those in our original Motion and Brief in Support, this Court
906should compel the government to produce the evidence the defense requests in its full, unredacted
907form. Given the clear and convincing evidence herein, this Court should issue an order to show
908cause why the prosecutors should not be held in contempt; and should dismiss the entire
909prosecution for outrageous government misconduct.
910Dated: October 22, 2019
911Respectfully submitted,
912Jesse R. Binnall
913Jesse R. Binnall, VSB # 79292
914Lindsay R. McKasson
915Harvey & Binnall, PLLC
916717 King Street, Suite 300
917Alexandria, VA 22314
918Tel: (703) 888-1943
919jbinnall@harveybinnall.com
920W. William Hodes
921The William Hodes Law Firm
9223658 Conservation Trail
923The Villages, Florida 32163
924Tel: (352) 399-0531
925wwh@hodeslaw.com
926Admitted Pro Hac Vice
927Sidney Powell
928Sidney Powell
929Molly McCann
930Sidney Powell, P.C.
9312911 Turtle Creek Blvd., Suite 300
932Dallas, Texas 75219
933Tel: (214) 07-1775
934sidney@federalappeals.com
935Admitted Pro Hac Vice
936Case 1:17-cr-00232-EGS Document 129-2 Filed 10/24/19 Page 36 of 37
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938CERTIFICATE OF SERVICE
939I hereby certify that on October 22, 2019, a true and genuine copy of Mr. Flynn’s Motion
940for Leave to File Under Seal was filed under seal using the Court’s CM/ECF system. The same
941copy was sent to all counsel of record by electronic mail, including:
942Jessie K. Liu, U.S. Attorney for the District of Columbia
943Brandon L. Van Grack, Special Assistant U.S. Attorney
944Deborah Curtis, Assistant U.S. Attorney
945Jocelyn Ballantine, Assistant U.S. Attorney
946555 4th Street, NEW
947Washington, D.C. 20530
948/s/ Sidney Powell
949 Sidney Powell, P.C.
950 2911 Turtle Creek Blvd.,
951Suite 300
952Dallas, Texas 75219
953Tel: 214-707-1775
954sidney@federalappeals.com
955Admitted Pro Hac Vice
956Case 1:17-cr-00232-EGS Document 129-2 Filed 10/24/19 Page 37 of 37