The new attorney for retired Army Gen. Michael Flynn is putting the scandal-marred Trump-Russia investigation on trial in a bid to make federal prosecutors produce more evidence.
In a court filing, Sidney Powell accused former special counsel Robert Mueller’s staff of being part of a broad “illicit operation” by FBI agents and operatives of 2016 Democratic presidential nominee Hillary Clinton to spread and use a Democratic Party dossier filled with false allegations against President Trump.
Ms. Powell said Flynn, who pleaded guilty in December 2017 to lying to FBI agents, was caught up in this conspiracy. She wants U.S. District Judge Emmet G. Sullivan to order prosecutors to turn over more evidence so she can determine how the Clinton-FBI alliance affected Flynn.
One of the FBI agents who interviewed Flynn at the White House is fired agent Peter Strzok. He headed the Trump-Russia probe, used the dossier and vowed in a text message to “stop” Mr. Trump.
The other agent who interviewed Flynn was the link between the bureau and former Associate Deputy Attorney General Bruce Ohr. Mr. Ohr became the main messenger for Fusion GPS, the Clinton opposition research firm that hired former British spy Christopher Steele. He wrote the now-discredited dossier that alleged a wide Trump-Russia election conspiracy.
What’s more, the Mueller team members who prosecuted Flynn included Andrew Weissmann, whom Mr. Ohr also briefed on Mr. Steele’s long list of conspiracies. Mr. Mueller’s final report said he didn’t establish that a conspiracy existed.
“It is imperative the defense obtain the Bruce Ohr 302s and notes — unredacted — and all evidence of this circuitous and illicit operation,” Ms. Powell told Judge Sullivan. FBI agents file 302 forms on their interviews.
Ms. Powell also wants the judge to order prosecutors to turn over all unredacted text messages between Mr. Strzok and his lover at the time, FBI counsel Lisa Page.
Mr. Ohr was briefing the FBI and Mr. Weissmann months before the two FBI agents interviewed Flynn in January 2017 at the White House. They thus were well aware of Mr. Steele’s allegations against the Trump campaign. In fact, the FBI used the dossier as evidence to obtain a judge-authorized wiretap on at least one campaign adviser.
Former FBI Director James B. Comey has bragged publicly about how he was able to dispatch the two agents without notifying White House counsel because Trump aides were preoccupied with setting up the new government.
Flynn, in office as Mr. Trump’s national security adviser, lied by telling the FBI he had not discussed sanctions relief with then-Russian Ambassador Sergey Kislyak during the transition. Agents had a phone transcript that showed he had.
Flynn, who cooperated with Mr. Mueller on cases unrelated to Trump-Russia, is awaiting sentencing. Ms. Powell wants his sentencing put on hold as she investigates whether the government withheld “Brady” material — evidence that favors a defendant.
Ms. Powell said her efforts forced the prosecution on Aug. 16 to turn over 300 pages of new material. The government said it did not contain Brady evidence, but she disagreed.
“Any reasonable attorney familiar with the allegations against Mr. Flynn would recognize that this evidence contradicts and undermines the prosecutors’ ‘theories’ of any wrongdoing,” she said. “The production of August 16, 2019, also proves that the government has long had this information in its possession.”
In June, Flynn fired the attorneys who made the plea deal. He turned to Ms. Powell, a Texas-based appeals litigator who had been an active cable news and radio talk show critic of Mr. Mueller and especially his former top prosecutor, Mr. Weissmann.
Ms. Powell handled appeal cases in the Enron Corp. scandal, for which Mr. Weissmann served as the top Justice Department prosecutor. She accuses him of withholding exculpatory evidence in that case too.
The convictions of five Merrill Lynch analysts were overturned by an appeals court. The Supreme Court unanimously threw out Mr. Weissmann’s conviction of the Arthur Andersen accounting firm, which collapsed under indictment.
“The government has a crushing 95% or higher conviction rate,” Ms. Powell wrote in her Aug. 30 motion. “It is virtually impossible to defend successfully when the might and power of the federal government focuses on the destruction of an individual, and the government holds all the cards.
“While prosecutors routinely recite their full knowledge of and compliance with their Brady obligations, in truth they often scoff at them and continue to play games to win convictions at all costs. Meanwhile, the defense does not know what the defense does not know.”
Judge Sullivan previously ordered the prosecutor to turn over all Brady material. If Ms. Powell can convince the judge that they didn’t, then she might ask that the guilty plea be erased.
“It is imperative that new counsel for Mr. Flynn be able to see the allegedly inculpatory information to evaluate the government’s allegations against him and to determine how to proceed,” the defense attorney said.
The Justice Department’s inspector general has issued two reports to date that criticize FBI agents in the Trump investigation, but not specifically for the Flynn conviction.
Said Ms. Powell: “The recent reports of the Inspector General demonstrate that constitutional, ethical, and legal violations infected the FBI, the Department of Justice and perhaps other agencies.
“Even if the government deems the evidence it is withholding to be inculpatory, it is imperative that new counsel for Mr. Flynn be able to see the allegedly inculpatory information to evaluate the government’s allegations against him and to determine how to proceed.”
Judge Sullivan is a veteran of Brady battles. In 2009, he threw out the conviction of former Sen. Ted Stevens, Alaska Republican, because the Justice Department Public Integrity Division willfully withheld exculpatory evidence. Stevens died in a 2010 plane crash.
Judge Sullivan also ordered a special counsel investigation that harshly criticized prosecutors.
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