Federal prosecutors on Friday completely rejected the claim that they withheld exculpatory evidence in their case against former Trump National Security Advisor Michael Flynn, saying that, in fact, Flynn possessed the information he now claims is favorable to him before he pleaded guilty to lying to the FBI.
In an effort to compel the production of purportedly exculpatory evidence, Flynn attorney Sidney Powell claimed that government failed to produce Brady evidence (i.e. evidence favorable to the defense). Federal prosecutors have responded by saying “each new argument or claim” made by the defense is “unsupported by fact or law, and does not identify favorable and material information that the government has failed to produce.”
Included in the government’s latest filing were exhibits of the FBI’s handwritten interview notes and 302s. You can read those in the embed below.
Here are the key aspects of the government’s response.
Brady requires the government to disclose information favorable to the accused, and the government had no obligation to disclose this information before Flynn was formally accused of committing a crime.
The defendant alleges in his Reply, for the first time, that the government violated Brady when it failed to produce alleged Brady material to him during the government’s pending criminal investigation, in advance of his five voluntary meetings with the government that preceded his December 1, 2017 guilty plea. Brady imposes no such requirement for uncharged individuals. Brady requires the government to disclose all evidence that is “favorable to an accused . . . where the evidence is material either to guilt or punishment.” United States v. Bagley, 473 U.S. 667, 669 (1985) (quoting Brady, 373 U.S. at 87) (emphasis added). Brady is rooted in the Constitutional right to due process. “Due process” imposes constraints on governmental decisions that deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). The defendant identifies no court that has found the Brady doctrine applicable outside the context of a formally charged criminal case.
Here, the defendant alleges that he was “entitled to all the Brady evidence in the government’s possession well before November 2017.” Reply at 20. Prior to December 1, 2017, however, the defendant had not been charged with a crime. After communications between the government and the defendant’s counsel, the defendant agreed to meet with the government in November 2017 (specifically, on November 16, 17, 20, 21, and 29). Each interview was voluntary. The defendant was represented by counsel, was free to leave at any time, and was afforded protections by the government against his statements during those meetings being used against him. During the entirety of the interviews, the government had not filed criminal charges against the defendant, and a plea agreement had not been signed. In short, the government had no obligation to provide the defendant with any information before or during those voluntary interviews.
Flynn is attempting to make a big deal about anti-Trump then-FBI agent Peter Strzok being one of the interviewing agents, but the government disclosed this before Flynn was charged with a crime and before he “willfully and knowingly” pleaded guilty. The government says the disclosures happened on November 30, 2017 and Flynn pleaded guilty on December 1, 2017.
Thereafter, the government disclosed to the defendant multiple pieces of information that he now claims are exculpatory: one of the interviewing agents [Strzok] was under investigation for misconduct relating to certain text messages that showed a preference for one of the candidates for President; the same interviewing agent believed that the defendant had a sure demeanor and did not give any indicators of deception during the January 24 interview; and both interviewing agents had the impression at the time that the defendant was not lying or did not think he was lying. The government also answered various questions from defense counsel. See Government’s Response to Defendant’s Motion to Compel the Production of Brady Material and For an Order to Show Cause at 5-6, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 122) (“Opposition”)
After the government made those disclosures, on November 30, 2017, the defendant signed the plea agreement and the government filed an information with the Court, charging the defendant with one count of “willfully and knowingly” making material false statements about his communications with the Russian Ambassador during an interview with the Federal Bureau of Investigation (“FBI”) on January 24, 2017 (“January 24 interview”). On December 1, 2017, the defendant entered a knowing and voluntary guilty plea. Thereafter, this case was transferred to this Court, which issued its Standing Order.
The government says Flynn and his then-lawyer affirmed on December 18, 2018 that they had neither Brady concerns nor concerns about “relevant material [that] had not been provided to the defendant.”
Beginning on March 18, 2018, after the issuance of a protective order, the government provided additional discovery to the defendant. Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI.
Prosecutors said that Flynn’s claims of innocence and being fooled into pleading guilty are “demonstrably false” and that the defense has not identified relevant and favorable evidence to support the claim. Therefore, the government said, the defense’s motion to compel Brady material should be rejected.
Though rife with new claims, allegations, and arguments, the Reply does not identify information favorable and material to the defendant’s guilt or sentencing that the government did not provide. The defendant’s protestations of innocence and being misled into a guilty plea are demonstrably false, and do not justify the production of additional material under Brady or the Court’s Standing Order. Accordingly, the defendant’s motions to compel production of Brady material should be denied.
The filing comes a couple of days after the prosecution made many of the same overarching statements, but not in as much detail. Prosecutors said in two filings on Tuesday that the evidence sought 1) wasn’t favorable to Flynn; 2) wasn’t relevant to the criminal case; and 3) that Flynn’s claim of innocence was an “extraordinary reversal.”
Prosecutors noted that Flynn already admitted his guilt “under oath, before two federal judges (including this Court).”
[Image via Alex Wroblewski/Getty Images]
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