Federal prosecutors responded on Tuesday to former Trump National Security Advisor Michael Flynn and his attorney, after the latter accused prosecutors of burying evidence favorable to the defense and questioned the legitimacy of the charges Flynn previously pleaded guilty to. Prosecutors said in two filings that the evidence 1) isn’t favorable; 2) isn’t relevant to the criminal case; and 3) that Flynn’s claim of innocence was an “extraordinary reversal.”
Here’s what U.S. Attorney Jessie K. Liu et al. had to say regarding Sidney Powell’s motion to compel the production of Brady evidence (i.e. exculpatory evidence or evidence favorable to the defense):
In the motion, the defendant requests information pertaining to two phones that allegedly “were used by Mr. Joseph Mifsud” and are allegedly in the possession of the government. Id. at 2. According to the defendant, the phones contain information on individuals tasked against the defendant as early as 2014.
The requested materials are not favorable and material to the defendant’s guilt or punishment, or even relevant to this criminal case. See, e.g., United States v. Bagley, 473 U.S. 667, 667 (1985) (“favorable to an accused . . . where the evidence is material either to guilt or punishment.”); Standing Order at 2, United States v. Flynn, No. 17-cr-232 (D.D.C. Feb. 16, 2018) (Doc. 20) (requiring the government to produce “any evidence in its possession that is favorable to the defendant and material to either the defendant’s guilt or punishment.”). Mifsud has no connection to the defendant’s communications with the Russian Ambassador in December 2016, or to the defendant’s work on behalf of the Republic of Turkey, and the defendant offers no argument or facts to the contrary. Rather, Mifsud is connected to the criminal activity of George Papadopoulus, who on October 7, 2017, pleaded guilty to lying to the Federal Bureau of Investigation (“FBI”) about the nature and timing of his interactions with Mifsud. See Statement of Offense, United States v. George Papadopoulos, 17-cr-182 (D.D.C. Oct. 5, 2017) (Doc. 19). None of the references to Mifsud in the Special Counsel Report are connected to the defendant. See SPECIAL COUNSEL ROBERT S. MUELLER III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION (Mar. 2019), Vol. I. at 5, 81-93, 192-93. Accordingly, at this time, the government is not aware of any information pertaining to the defendant’s motion that are even relevant to the defendant’s false statements to the FBI on January 24, 2017, or to his punishment. And, thus, the defendant’s motion should be denied.
In summary, the government says that the purportedly exculpatory evidence sought isn’t favorable to the defense and has nothing to do with the false statements Flynn pleaded guilty to making to the FBI. In addition, prosecutors say, the defense made “no argument or facts” proving that Joseph Mifsud — a Maltese professor deposed in a now-criminal probe into the origins of the Mueller investigation — was somehow connected to Flynn’s communications with Russian ambassador Sergey Kislyak or Flynn’s work on behalf of Turkey.
In a second filing on Tuesday, the government noted Flynn’s “extraordinary reversal,” namely that he “now claims that he is innocent of the criminal charge in this case.” Prosecutors pointed out that Flynn already admitted his guilt “under oath, before two federal judges (including this Court)”; they asked the court for guidance on how to proceed in responding to Flynn’s Brady claim given that new arguments, “unsupported by fact or law,” have been raised:
To the extent the defendant refers to potential Brady material, the subject of the original motion, he raises numerous arguments and claims for the first time in his Reply. For example, he asserts, inter alia, that the government had an obligation to provide Brady material to him prior to charging him in a criminal case (Reply at 4, 18-20); that the government suppressed the “original 302” of his January 24, 2017 interview with the Federal Bureau of Investigation (“January 24 interview”) (Reply at 23-24); that the government fabricated certain January 24 interview notes and reports documenting his false statements (Reply at 23-24); that the government suppressed text messages that “would have made a material difference” to the defendant (Reply at 6); that the defendant’s false statements were not material (Reply at 27-28); that the defendant’s attorneys were acting under an “intractable conflict of interest,” which the government exploited to extract a guilty plea (Reply at 17-18); and that the “FBI had no factual or legal basis for a criminal investigation” (Reply at 14-16). Each new argument or claim is unsupported by fact or law.
In light of the new claims raised in the Reply, the government was prepared to file a motion seeking leave to file a surreply. On October 28, 2019, however, the Court issued a minute order stating, “In view of the parties’ comprehensive briefing concerning  Defendant’s Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 7, 2019.” In light of this minute order, it may be that the Court intends to strike any arguments or claims raised for the first time by the defendant in his Reply. And it may be that the Court plans to require the defendant to raise any new claims for relief in a properly pled motion to which the government can respond fully. Accordingly, the government is filing this Notice and seeking guidance from the Court. Should the Court wish to address the claims raised for the first time in the Reply, the government respectfully requests the opportunity to file a surreply that concisely addresses only newly-raised Brady issues, such as those identified above. The government would be prepared to file a surreply within 48 hours.
You can read the short filings below.
RE: Brady evidence.
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