Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 1 of 18 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA UNITED STATES OF AMERICA Plaintiff, v. Criminal Action No. 17-232-EGS MICHAEL T. FLYNN, Defendant. MR. FLYNN’S SUR-SURREPLY IN SUPPORT OF HIS MOTION TO COMPEL PRODUCTION OF BRADY MATERIAL AND FOR AN ORDER TO SHOW CAUSE The government sought and received permission to file a Surreply by complaining that the defendant had bootlegged “new” arguments into his Reply. Yet its Surreply either elides the supposedly new material altogether or does not address it in terms. The government’s Surreply is new only in its stunning admissions and untenable paradoxes. According to the government, it had no obligation to produce its superfluity of Brady evidence before Mr. Flynn pleaded guilty— because he was not a defendant until he was formally charged. And, it had no obligation to produce its cache after he pleaded guilty (the same or next day)—well . . . because his guilty plea erased its obligation.1 1 The government could hardly claim to have been surprised by the defendant’s position on the scope of its Brady obligation. As Mr. Flynn’s lead counsel said in open court: “I think the point is going to be that there is egregious government misconduct and long-time suppression of crucial Brady material that should have been provided to the defense before there ever was a plea. But Mr. Van Grack told counsel that he didn't have an ethical or legal obligation to produce anything pre-plea, and then post-plea he's maintained that he has no obligation to produce it because he pled guilty. So I'm trying to figure out how the government conceives of its Brady obligation in this case, because it seems to be that it doesn't have one.” Hr’g Tr. Sept. 10, 2019, 15:10-20. 1 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 2 of 18 If accepted, the government’s approach would allow endless manipulation by prosecutors: target individuals, run search warrants, seize devices, interrogate for days, threaten family members, cajole, but never charge until the clock strikes midnight once a plea is extracted. Yet playing cat-and-mouse with the Due Process Clause is the opposite of what the Brady-BagleyGiglio line of cases is all about. Perhaps even more significantly, the government’s position wholly ignores this Court’s Standing Order, which not only has no such timing requirements, but is issued for the precise purpose of eliminating the games the government played here. One point is new. Mr. Van Grack finally admits he recognized a serious conflict of interest between Mr. Flynn and the counsel who prepared his FARA filing. Yet, he fails to respond to the point made in Mr. Flynn’s Reply that this conflict existed only because the government insisted not only on incessantly attacking Flynn’s FARA registration (beginning within weeks of its filing), but also on demanding its pairing with the completely unrelated White House interview prosecution. Simultaneously, the government did not even advert to the primary argument that the conflict was non-consentable, which meant that even if former counsel had fully disclosed and explained the risks associated with the conflict, Flynn could not agree to waive it. The Covington & Burling lawyers could not remain in the case. Most important of all, the government did not move to disqualify the lawyers or bring the matter to the attention of any court. Far from addressing whatever it claims was “new” in Mr. Flynn’s Reply, the government largely regurgitates its prior denials of any Brady obligation before the first plea. But Mr. Flynn’s Motion, Brief, and Reply also highlighted material the government suppressed long after this Court’s Brady order, through what was scheduled to be a sentencing hearing, and continuing to this day—despite persistent, detailed requests by new counsel. Thumbing its nose at this Court’s Brady Order, ignoring this Court’s gentle reminder of its primacy, and failing even to produce the 2 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 3 of 18 requested evidence in camera, the government has stonewalled against producing so much as a single document the government itself identified as exculpatory but provided only heavilyredacted or in meager “summary.”2 It is all this conduct that demonstrates contempt for this Court’s Order. The government has known since prior to January 24, 2017, that it intended to target Mr. Flynn for federal prosecution. That is why the entire “investigation” of him was created at least as early as summer 2016 and pursued despite the absence of a legitimate basis. That is why Peter Strzok texted Lisa Page on January 10, 2017: “Sitting with Bill watching CNN. A TON more out. . . We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people.”3 The word “pretext” is key. Thinking he was communicating secretly only with his 2 A simple review of the confidential June 6 letter from new defense counsel to Deputy Attorney General Rosen before counsel even appeared officially in the case shows that Mr. Flynn gave the government every opportunity to meet its Brady obligation on its own and without involving this Court. Indeed, counsel strongly hoped the government would do so. The government itself filed that letter at Dkt.122-2, but instead of producing Brady and following the mandate of Berger v. United States, 295 U.S. 78, 88 (1935) “that justice shall be done,” Mr. Van Grack continues to harp on Mr. Flynn’s plea and little else. Nor was there “an extraordinary reversal” pursuant to which Mr. Flynn claims he is innocent. At no time did new, conflict-free counsel affirm the validity of Mr. Flynn’s guilty plea. In that same letter, counsel explained that “as was ingrained in [Mr. Flynn] from childhood,” he “took responsibility for what the SCO said he did wrong.” Counsel wrote that they “used the ancient Logan Act as a pretext” for his interview, the “FBI interview was worse than ‘entrapment,’” and that Mr. Flynn was “truthful” with the agents. From undersigned counsel’s first brief in this Court, the defense cited Judge Jed Rakoff’s article on “Why the Innocent Plead Guilty.” Dkt. 109 at n.1. Rather, as a matter of procedure, counsel advised the Court that we anticipated seeking dismissal rather than withdrawal. Nothing we have found in the law requires a defendant to withdraw his guilty plea rather than seek dismissal for egregious government misconduct. Analogously, this Court did not have to grant a new trial to Ted Stevens before it could dismiss the entire prosecution in the interest of justice. 3 The government claims, without support, that this “pretext to interview some people” does not apply to Mr. Flynn. But, Strzok’s admission that he and McCabe then had “many meetings” to decide whether, when, and how to interview Flynn in the next few weeks, and the small group meeting on the day before the interview to plan the ambush at the highest levels, belie the government’s claim. Dkt. 133-6. Presumably, Mr. Van Grack was not part of that planning 3 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 4 of 18 paramour before their illicit relationship and extreme bias were revealed to the world, Strzok let the cat out of the bag as to what the FBI was up to. Try as he might, Mr. Van Grack cannot stuff that cat back into that bag.4 Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set up Mr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe proceeded to admit to the Committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.” Ex. 1. Had the FBI not intended all along to create a false statement case, there would have been no “conundrum” at all. The matter simply would have concluded with the interview. Further, there would have been no comment about “a false statement case”—because no such case would be assumed. Finally, there would be no lamenting the “poor start” of a false statement case,5 because there would not have been “a start.” False statement cases normally arise incidentally when government agents are investigating a matter and the interviewee makes a misstatement about that matter. Agents then seek to get to the truth by giving 1001 warnings to coax truthful process, so his unsupported assertions about what Strzok and Page had in mind when they texted about pretext is pure speculation. Brady entitles a defendant to exculpatory evidence, not unsupported, self-serving denials. 4 Mr. Flynn requests the notes, 302s, statements, recordings of any and all the participants in the meetings of the small group to plan and then debrief his interview. The government did not attempt to rebut these issues because it cannot. 5 House Permanent Select Committee on Intelligence, Report on Russian Active Measures, 54 (March 22, 2017), Ex. 1. 4 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 5 of 18 information from the suspect. But here, to use Strzok’s own words, the investigation was “a pretext;” the object of the interview was to secure, rather than prevent, a 1001 violation. The “poor start” further reveals Mr. McCabe’s determination to create a case despite the agents’ belief Mr. Flynn was telling the truth. Having such concrete evidence as to the prosecution’s thinking processes is rare; having it in text messages and sworn congressional testimony is priceless. 1. The Original 302 Or Evidence of its Attempted Destruction Are Being Suppressed. The government attempts to gloss over the existence of at least one earlier draft of the Flynn 302, then asks this Court to leap blindly to the conclusion that if it did exist, it contained the same information as the government has already deigned to produce. Aside from this inherent contradiction, as explained in Mr. Flynn’s Reply, the FBI Sentinel system can retrieve any draft. Drafts are numerically serialized when placed in the system. Those numbers—apparently redacted from the 302 drafts that have been produced—would probably provide further information. It is no excuse that the original Flynn 302 is not “in the possession of” Mr. Van Grack at this moment. Rather, his obligation is to reach out to his colleagues and obtain it. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“Prosecutors ha[ve] a duty to learn of any favorable evidence known to [] others acting on the government’s behalf.”). It is in the FBI’s system, or can be retrieved, along with the audit trail, the A1 files, information about any attempt made to destroy it, and all the metadata for the changes which are more important now than ever in light of the absurdity of the government’s Surreply. Tellingly, Mr. Van Grack does not deny that such information is, in fact, available. The Strzok-Page text messages confirm that Lisa Page had two opportunities to edit drafts of the crucial 302. Strzok returned to his FBI office the night of February 10, 2017, to input the edits she made on the draft she had earlier left in Bill [Priestap’s] office (about which they hatch a 5 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 6 of 18 cover-story), then sent her another version over the weekend. The government thus implicitly admits there was at least one version prior to the February 10 edition. To add to its brazen disregard for its obligation to preserve and locate exculpatory evidence, the government claims entitlement to a favorable assumption about the suspiciously lost document when it argues that “there is no reason to believe it would materially differ” from other drafts. Dkt. 132 at 7. To the contrary, spoliation law requires the assumption that the evidence is favorable to the defense. See United States v. Cooper, 983 F.2d 928 (9th Cir. 1993) (the district court properly dismissed the indictment due to the government's destruction of evidence, relying on the test articulated by the Supreme Court in California v. Trombetta, 467 U.S. 479, 489 (1984) and Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). 2. The Handwritten Notes Raise Questions that Mandate Production of the Originals and More. The government contends—without any support—that Mr. Flynn’s assertion that Agent Strzok’s notes were not taken contemporaneously with the interview is “divorced from the facts.” Surreply at 4. But according to Mr. Strzok himself, in a 302 created from an interview he gave to Senior Assistant Special Counsel Andrew Goldstein and FBI Supervisory Special Agent Eric Ruona, on July 19, 2017—for which he was warned—Strzok said he asked the questions and that Agent 2 was “primarily responsible for taking notes and writing the FD-302.” Moreover, even a layman can look at the two sets of notes and discern that Strzok’s miniscule, printed, within-the-lines, longer, and more detailed notes bear none of the hallmarks of being written during the press of an interview—much less by the secondary note-taker. That observation is even more obvious when compared with Agent 2’s notes, which do appear to be contemporaneous. Of course, the defense cannot prove this without handwriting samples and the original notes, but there is sufficient basis for this Court to compel the government’s production 6 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 7 of 18 of that original evidence (including the 1A files, the audit trail, and the metadata) and handwriting samples for analysis in light of the government’s dogged insistence that Strzok wrote the notes contemporaneously. The FBI already breached its own protocols in this case and is apparently willing to send a man to prison based on notes that do not seem to be as represented.6 In addition, the notes bear no signature and date as required by the FBI, casting doubt on their authenticity. If the signatures and dates are present in the originals, the government has unjustifiably redacted that information, possibly without leaving a black mark to disclose a redaction, which itself is a form of deception. 3. The Notes Do Not Support the Factual Basis for the Plea. Most importantly, the notes, which the government claims are the most “original” interview documents and “detail the defendant’s multiple false statements,” do nothing of the sort. Surreply at 4. Two allegations depend on Ambassador Kislyak’s response to purported questions about the UN vote and sanctions. Read the notes of both agents for hours, and you won’t find a question or an answer about Kislyak’s response on either the UN vote or the sanctions—yet those assertions underpin the factual basis for the plea. Dkt. 133. By failing to join issue on these points, the government has effectively conceded that the notes do not support the purported false statements in the factual basis for the plea. Ironically, neither the Court nor defense counsel even knows what differences exist between what Mr. Flynn told the agents and the actual recordings of the calls to Ambassador Kislyak, Surreply at 5-6, as neither defense counsel nor the Court has ever heard the calls. One would imagine there are differences between the recordings of the calls and what Mr. Flynn recalled to the agents who stopped by his office that day, but that is not evidence that he lied, and he did not. As the agents themselves realized when they spoke to him, he may have been wrong, but he was honest to the best of his recollection at the time. Unlike Lisa Page, Mr. Flynn was not shown the transcript of the call (or a text message) and given an opportunity to say “oh yes, that’s right.” Dkt. 133-12. The upper echelon of the FBI decided in their strategy meeting they would deny him that opportunity, contrary to standard FBI practice when a violation of 18 U.S.C. § 1001 is suspected. 6 7 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 8 of 18 Similarly, the notes do not state that Mr. Flynn “made the specific false statements” to which he pled guilty. The notes do not say that he made any false statement at all. The agents reported back believing he either was honest or believed he was telling the truth. There is nothing in the 302s—draft or final—that says he made false statements. And, the notes do not even match each other—especially on the statements regarding the UN vote and sanctions. As Mr. Comey testified to the House Permanent Select Committee on Intelligence, on March 2, 2017, “the agents . . . discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.” Ex. 1. As many people have used the same language to describe the agents’ reactions, it strains credulity to suggest the original 302 or some other 302 does not exist from the interview of Mr. Flynn that includes these statements or similar ones.7 This Court should order the government to conduct a thorough search of its records, including the FBI’s Sentinel database, and produce unredacted versions of every 302 in this case, including redaction history, audit trail, and metadata. Given the already well documented history of “pretext,” manipulation, violation of standing rules and practices (“screw it”) and other malfeasance by the FBI in this case, there can be no justification for withholding this information from the defense and the Court. 4. There Were Material Changes Made in the 302 Overnight on February 10, 2017. Contrary to the government’s bald assertion that no material changes were made to the Flynn 302, Surreply at 5-6, the drafts of the 302s, the agents notes, and the Strzok-Page texts show 7 Even in its claim of disclosure, the government elides that it shared a minimized version of this information only by last minute phone call with conflicted counsel the day after Mr. Flynn agreed to plead guilty and as they were signing the deal—while it also insisted that the unrelated FARA admissions be included in the plea. 8 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 9 of 18 material changes were made, and this is why, among other reasons, Mr. Flynn requested these documents in his original Motion to Compel. MTC 2, 6, 40. We know that on February 10, 2017, McCabe and possibly Strzok went to the White House to visit Vice President Pence. Then news broke asserting that Mr. Flynn had lied to the Vice President and others about his calls with Ambassador Kislyak.8 That same night, Lisa Page texted Peter Strzok: “[Y]ou need to finalize that asap. I wouldn’t be surprised if following this evening’s events that a request comes in to see it.” Strzok replied: “I’m going back in tonight to do so.” Page then told Strzok that she “gave my edits to Bill to put on your desk.” We do know that the same evening, Strzok went into the office, picked up Page’s edits, and made changes that any reasonable person would deem material to the 302. He added a definitive statement: “FLYNN stated he did not.” This was in response to whether, on the issue of UN vote, Flynn had asked Kislyak to vote in a particular way. This is materially different from the notes which state Flynn did not recall speaking to Kislyak on the UN vote issue. Another material change was to add the entire phrase: “or if KISLYAK described any Russian response to a request by FLYNN” to which Flynn answered “no.” The notes reflect neither a question nor an answer about a “Russian response” to anything at all. This is what the Surreply characterizes as 8 See Timeline for January-February 2017, Ex. 2. 9 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 10 of 18 “largely grammatical and stylistic” edits.9 Surreply at 6. Defendant is entitled to compare Lisa Page’s suggested edits with the changes made by Strzok to determine whether his changes reflected his purported recollection of the event or fabrications suggested by McCabe’s special counsel. Previously, someone added an entire assertion untethered from either set of notes: “The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration.” Although absent from the notes of both agents, this “Russian response” underpins the alleged crime.10 The government does not even attempt to rebut this issue, because it cannot. 10 See Flynn Reply Dkt. 133-2 at 11. 10 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 11 of 18 5. Mr. Flynn’s Statements Were Not Material. The government has been on notice since December 18, 2018, that this Court had serious questions about the materiality of Mr. Flynn’s statements from the factual basis for the plea. After expressing concern earlier in the hearing about the facts that surrounded Mr. Flynn’s statements to the FBI agents on Jan. 24, this Court reiterated its concern at the end of the hearing: “[I]t probably won't surprise you that I had many, many, many more questions . . . such as, you know, how the government's investigation was impeded? What was the material impact of the criminality? Things like that.” Hr’g Tr. 50:12-13, 20-22, Dec. 18, 2018. Defendant is entitled to access the government’s documents that show there was none. Trying to shoehorn the FBI’s interview of Flynn into its investigation of whether the Trump campaign was “coordinating with the Russian government in its activities to interfere with the 2016 presidential election,” the government claims that Mr. Flynn’s “conduct and communications with Russia went to the heart of that inquiry. Actions such as the defendant’s communications with the Russian Ambassador about U.S. sanctions could have been indicative of such coordination.” Surreply at 10. There are serious problems with this mantra. First and foremost, the agents already knew exactly what Mr. Flynn said in all his communications with the Russian Ambassador, so the FBI agents did not ask questions to discover the existence or substance of those communications. And, second, the agents did not ask Mr. Flynn a single question about anything even approaching “interference with the 2016 election.” Nor did the agents try to connect the post-election communications to pre-election interference. The interview, by “pretext,” was purely to “start” a “false statement case” as McCabe admitted in his congressional testimony. 11 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 12 of 18 The government’s claim that “it was imperative that the FBI determine whether and why such communications with the Russian Ambassador had occurred,” id. at 11, is belied by the unalterable truth that the FBI had recordings and transcripts of those very conversations. It knew exactly whether, what, and why “such communications” “occurred” between Mr. Flynn and the Ambassador. It heard the calls.11 Nothing the agents asked Mr. Flynn on January 24 was material to any valid investigation, and because the agents and Mr. Flynn knew they had the transcripts, recordings, and knew exactly what was said, nothing impeded their purported investigation. In this Circuit, Brady evidence is to be produced promptly to the defense—in time for it to use it. The government here used every conceivable strategy and tactic to circumvent Brady’s letter and spirit, and its own responsibility as a servant of the law, from the inception of this entire operation. The government attempts to paint its pre-plea interactions with Mr. Flynn as cordial and completely voluntary, but that defies reality. Mr. Flynn was one of the Special Counsel’s first four targets—following on from Mr. Comey and Mr. McCabe’s pretextual target selection of mid-2016. After having been compelled by the facts to clear Mr. Flynn in January, Mr. McCabe opened the obstruction case on President Trump and the FBI re-entered the 302 of Mr. Flynn’s interview into the Sentinel system on May 31, 2017, for Mr. Mueller’s special use. Mr. Flynn was named in Mr. Mueller’s first target authorization letter. The Mueller team soon obtained a search warrant and took possession of all 11 Likewise, whatever the Vice-President and others in the White House said publicly or privately that Mr. Flynn told them was not grist for an FBI investigation. The Executive Branch has different reasons for saying different things publicly and privately, and not everyone is told the details of every conversation. If the FBI is charged with investigating discrepancies in statements made by government officials to the public, the entirety of its resources would be consumed in a week. Furthermore, Mr. Van Grack’s team interviewed all the relevant White House officials. The defense has reason to believe there is exculpatory evidence from those interviews, requested at MTC 17, 28, IV(g), that has been withheld as well. 12 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 13 of 18 Mr. Flynn’s electronic devices—phones and computers—which they hold to this day. Then, they obtained authority to target his son, and they seized all his devices. Moreover, the prosecutors mislead by omission when they claim Mr. Flynn was “afforded protections by the government against his statements during those [proffer] meetings being used against him.” Dkt. 132, 2.12 As the Brady Court made clear, a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.” Brady v. Maryland, 373 U.S. 83, 88 (1963). This Circuit has excoriated the government for failing to produce exculpatory evidence as soon as they finished the conversation that revealed it. United States v. Pasha, 797 F.3d 1122, 1133 (D.C. Cir. 2015). In United States v. Nelson, the district court discussed the government’s pre-plea Brady 12 The letter sent by the Special Counsel to Mr. Flynn’s then-counsel, Covington & Burling, before the proffer interviews made clear that, “by receiving [Mr. Flynn’s] proffer, the government does not agree to make any motion on [his] behalf or to enter into a cooperation agreement, plea agreement, immunity agreement or non- prosecution agreement with Client.” Although the letter made a general promise not to use statements made in the interviews against Mr. Flynn, the promise included an important final clause: “Should Client be prosecuted, no statements made by Client during the meeting will be used against Client in the government's case-in-chief at trial or for purposes of sentencing, except as provided below.” (emphasis added). The listed exceptions render the “promise” a practical nullity. It is disingenuous to suggest that the proffer sessions were not adversarial when the government had permission to target Mr. Flynn, seized all his electronic devices, targeted his son, and seized his son’s devices. The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him "the Manafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as Brady, requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision. 13 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 14 of 18 obligations and held the government has the obligation to disclose Brady before a plea. United States v. Nelson, 979 F. Supp. 2d 123, 129 (D.D.C. 2013). The Nelson court noted that “a defendant who is forced to make a choice about going to trial or pleading guilty unaware that the government has not disclosed evidence which if made available, would tend to exculpate him, suffers unfair treatment unworthy of the bedrock ideal inscribed on the Justice Department walls,” and that “precluding a defendant from raising such a Brady claim after a guilty plea could create a risk too costly to the integrity of the system of justice to countenance—tempting a prosecutor to stray from that bedrock ideal and deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.” Id. at 130 (internal quotes omitted). This district and most circuits agree that if this question were put to the Supreme Court, it “would find that the government has an obligation to disclose exculpatory evidence at the plea stage.” Id. at 129. As Judge Betty Fletcher wrote in a companion case to United States v. Stevens, it is “an affront to the integrity of our system of justice” that the prosecutors had withheld “material documents—including FBI reports, memoranda, and police reports” and knowingly suppressed “information that undermine[d] the prosecution’s star witness. United States v. Kohring, 637 F.3d 895, 914 (9th Cir. 2011) (B. Fletcher, J. concurring). 6. Covington’s Non-Consentable Conflict of Interest Was Not Ameliorated by Mr. Van Grack’s Discussion with Conflicted Counsel. When the government’s Response relied pervasively on Mr. Flynn’s representation by and (theoretical) ability to consult with chosen counsel at all stages of the proceedings, the conflict of interest necessarily became an element of his Reply, and the government is wrong to complain that Mr. Flynn strayed outside the bounds of a proper Reply. Dkt. 131; Surreply at 11. Since it was the government that first raised the supposed impartial advice Mr. Flynn received from his lawyers 14 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 15 of 18 at the time of his plea and then, again, when he confirmed his plea before this Court, this became a proper subject for addressing in Mr. Flynn’s Reply. Even given leave to file a Surreply, however, the government completely ignores the gravamen of Mr. Flynn’s argument. While Mr. Van Grack admits he was aware of the serious conflict of interest inherent in Covington & Burling’s representation of Mr. Flynn in this case because of its responsibility for the FARA registration, Surreply at 11, he concedes he did nothing meaningful about it. In fact, his reaction was wholly inadequate: he accepted at face value the conflicted lawyers’ report that Mr. Flynn was aware of the problem, that they had discussed it, and that Mr. Flynn had agreed to waive the conflict. Id. In such circumstances, the government must do more—much more. The government’s response is not only inadequate as a matter of legal ethics, which it also failed to address, but it ignores the crux of Mr. Flynn’s argument in his Reply. The conflict was non-consentable. Instead of seeking Flynn’s consent to their continued representation of him, Covington lawyers were obligated to withdraw from the representation, regardless of his wishes. Dkt. 133-2, Reply at 16-18. Continued representation under these circumstances, in turn, amounts to constitutionally inadequate representation under the Sixth Amendment. It must be remembered that in Wheat v. United States, 486 U.S. 153 (1988), the district court overrode the formally expressed wishes of both the defendant and his lawyers; the defendant’s chosen counsel was removed from the case on the government’s contested motion. Mr. Van Grack could have avoided this part of the government’s present difficulty by moving to disqualify Flynn’s original counsel years ago, thus putting the ultimate decision into a court’s hands, as in Wheat and other cases. But, he chose to speak only to the very counsel that had either not adverted at all to consentability, or had already reached the self-serving 15 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 16 of 18 determination both that the conflict was consentable and that the client’s purported consent was adequately informed. Mr. Van Grack unilaterally eliminated the possibility that the Court would learn enough to investigate further. He was content to allow hopelessly-conflicted counsel not merely to walk Mr. Flynn into five days of interviews with the Special Counsel team, but into an immediate, highpressured plea of guilty without any demands for or production of Brady material, facilitated the waiver of countless rights, and signed an agreement for endless years of cooperation with the government at extraordinary personal expense. In addition to those benefits, the government was able to turn Mr. Flynn’s own counsel into the equivalent of adverse witnesses against him in the Rafiekian FARA case in the Eastern District of Virginia. All the while, the government was suppressing the evidence we outlined comprehensively in Mr. Flynn’s Reply and this Sur-Surreply. Some conflicts of interest are not waivable as a matter of constitutional law, but a court cannot realistically press the inquiry further unless alerted to it by the parties. By the time of the sentencing hearing before this Court in December 2018, it was simply impossible for the Court to unearth the seriousness of conflict of interest. The normal plea colloquy was insufficient to alert this Court to the problem, and Mr. Flynn did not know what Mr. Flynn did not know. When Mr. Flynn was asked if he was satisfied with the representation he was receiving, he had no way of knowing of the depths of the conflict of interest, and he had no way of knowing that some conflicts of interest are non-consentable. The prosecutors were more than just aware of this issue, they took full advantage of it. Their failure to address the issue in their Surreply concedes the non-consentable conflict. This is precisely why the government is required to focus the court’s attention to the issue by moving to disqualify 16 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 17 of 18 counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel— persuade a defendant that he is getting advice from a safe source. CONCLUSION In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion. Respectfully submitted, /s/ Sidney Powell Molly McCann Sidney Powell, P.C. 2911 Turtle Creek Blvd., Suite 300 Dallas, Texas 75219 Tel: (214) 07-1775 sidney@federalappeals.com Admitted Pro Hac Vice /s/ Jesse R. Binnall Jesse R. Binnall, VSB # 79292 Lindsay R. McKasson Harvey & Binnall, PLLC 717 King Street, Suite 300 Alexandria, VA 22314 Tel: (703) 888-1943 jbinnall@harveybinnall.com W. William Hodes The William Hodes Law Firm 3658 Conservation Trail The Villages, Florida 32163 Tel: (352) 399-0531 wwh@hodeslaw.com Admitted Pro Hac Vice 17 Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 18 of 18 CERTIFICATE OF SERVICE I hereby certify that on November 4, 2019, a true and genuine copy of Mr. Flynn’s SurSurreply in Support of His Motion to Compel Production of Brady Material and for an Order to Show Cause was filed using the Court’s CM/ECF system, which will serve a copy of the filing upon all counsel and record. Jessie K. Liu, U.S. Attorney for the District of Columbia Brandon L. Van Grack, Special Assistant U.S. Attorney Deborah Curtis, Assistant U.S. Attorney Jocelyn Ballantine, Assistant U.S. Attorney 555 4th Street, NEW Washington, D.C. 20530 /s/ Jesse R. Binnall Jesse R. Binnall, VSB # 79292 Harvey & Binnall, PLLC 717 King Street, Suite 300 Alexandria, VA 22314 Tel: (703) 888-1943 jbinnall@harveybinnall.com 18 Case Document 135-1 Filed 11/04/19 Page 1 of 7 House Permanent Select Committee on Intelligence Report on Russian Active Measures March 22, 2018 PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES. Case Document 135-1 Filed 11/04/19 Page 2of7 rector McCabe about whether the primary purpose of the interview Was investigating poten-tiaily misleading statements to the Vice President, which the Vice President echoed publicly abdut- the content of those calls;94 a possible violation of the Logan Act;95 or a desire to obtain more infor? mation as part of the counterintelligence investigation into General Director Comey testi?ed to the Committee that ?the agents . . . discerned no physical indications of deception. They didn?t see any change in posture, in tone, in in?ection, in con? tact. They saw 'nothing that indicated to them that he knew he was lying to them. Deputy Director McCabe con?rmed the in? terviewing agent?s'initial impression and stated that the "conundrum that we faced 1:97 on their return from the interview is that although [the agents] didn?t detectdecep? ?Lion in the statements that he made in the interview. . . the statementswere incon?' I sistent with our understanding of the con? versa?on that he had actually had with the ambassador/?98. Subsequent to use; am meeting with the FBI, two senior DOJ oth- ciais visited the White House on January 25 and January 26 to discuss with White House Counsel Don McGahn the discrepancies be? tw'een the transcripts of General calls and his statements to the FEEL99 Gen? erai resigned on February 13, 2017; Although Deputy Director McCabe acknowl? edged that ?the two people who in?ter-_ viewed didn?t think he was lying, [which] was not great beginning of a PROERPTY OETHE .s. HOUSE false statement case/10? General piea'ded guilty to 'one count of making false - I .101 statements on December 1, 201]. (U) Finding #23: Executive Branch of?ciais did not notify the Trump campaign that members of the campaign were assessed to be potential counterinteliigence con? cerns. The Committee found that the Trump'campaign was not noti?ed that members of the campaign were potential concerns. This lack of noti?cation meant that the campaign was unable to address the problems with each campaign member and was ignorant about the potential national security concerns; recalled that, during her ?rst meeting with Director Comey and McCabe about Page, ?one of the three of us discussed was whether or not to provide what is cailed a defensive briefing to the 4 . campaign, wherein there would be a meeting with a senior person with the Trump campaign to alert them to the fact that. . . there may be efforts to compromise ., . 102 someone With their campaign.? (U) Such a defensive brie?ng would not have been undsual. According to . is not an uncommon thing to do. . . in inteliigence matters.?103 HoweVer, the FBI did not provide any such warning about Page, although it was again discussed by the administration?s most senior policymakers after Director Comey briefed the'Nationai Security Council Principals about the Page information in ?late. spring? 2016..104 54 OF REPRESENTATIVES Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 3 of 7 (U) The Trump campaign did not re- the indictment that any American was a ceive a general co unterintelligence briefing knowing participant in the alleged unlawful until August 2016, and even then, it was activity. There is no allegation in never specifically notified about Papado- ment that the charged conduct altered t he outcome of t h~ 2016 election.'' 107 poulos, Page, Ma nafort, or General Flynn's Russia ties. 1 o.; the indict- Further, the counterintelli- gence briefing provided to Trump and his top advisors did not identify any individuals by name, but rather focused on the general threat posed by adversaries, including Russia and China. (U) Finding #24: The February 2018 indictment ·o f the Internet Resee1rch Agency and Russian nationals exposes Russian actors and their intent to spread distrust towards the candidates and the political system in general. (U) In mid-February 2018, the Department of Justice charged 12 Russians and the Russia-based Internet Research Agency LLC with interference operations targeting the United States political and electoral process· es. The lndictment claims that th~ stated goal of the Russian actors was to " spread distrust towards the candidates and the political system in general" and provides insight into the metl10ds used by the IRA, such as the use of stolen identities, travel to the U.S. for the purpose of collecting intelli- gence, and the procurement of computer infrastructure to hide t he Russian origin of 05 activities. ~ The indictment by Special Counsel Mueller contains assertions that are · consistent with information examined by the Committee during its investigation. Spe- cifically, according to an accompanying DOJ announcement, "There ls no allegation in PROPERTY OF :HE u .s_ HOUSE OF REPRESECl.'TA.Tl\ic S 55 Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 4 of 7 v, l. 7.. 3. Hr SCI, "RuS$la1l /\clive Mca~ure~lnve5ti;:otion", Mar. 20, 201,, HPSCf, ''Russla11 Actlvn Moasuw~ lnvc~tlgot1on", M.:ir. 20, 2017, d. s. G. 7. 8. 9. HrSCI, Executive Session Interview oUake Sullivan, Dec. 21, 2.017, 10. I-IPSCJ, "Russian Active rvteasurns investigation», Mar. 20, 2017. 11. HPSCI, "RUS5ia Investigative Task Force Heating with former Secretaf'/ of Homeland Setu rity Jeh Johnson," June .21, 2017. 12. HPSCI, "Russia Investigative Task Force HearinB with Former Secretary of Homeland Security Jeh JohnsQn/ June 21, 2017. 13. DHS, Reodovt of Secretary Johnso11's Cali Wit/1 State Election Officials About Cybersecurity, !J!t.eWwww.dhs.eov/ news/2016/08/15/[e<1dout·~ecretY•llt1tirm';· r:l1!~1tP.t)~ Sopl. 16, 1016. 19. Puul O. Rynn, Nancy 1>01osl, Mitch McConnull, Harry Rold, Li:11,1r to Toud Vulci1t/11a, Sept. 281 2016. 20. DHS, Statement by Sacretory Johnson About EICGtton Systems' C}'IJC!rsccurlty, ~ !!d.lli!Y.l:.~.l?-OJ.6ll..QL!11.L ~li>kpir.nt·secr<~lilrY- 1ohn;o1\.,,~0lrt•sl,1c11oq-&YW\ (JI S•c;:r:b N ~ Oct. l, 2016. 21. DH~. Joint Stotemunr from the Deportment of liomeland Secut/1)' otld 0,(Jice of tile Director of Noo·onal lntelllat:nce on Election Security, Z!Jt1l~Jb·1ww,t1hu:cw/"Q~ 01 C,/10/07llnl Qt;llilteme~ P..a!.!mJl 111-lrotM ln nd•security·il nd-office · dlrector-na1fonaJ, Oct. 7, 2016. 22. DHS, Update Dy Secretcrry Johnson On OHS Election Cybersecurlty Services, btt1?$://wv,w.d l!J!.4.Qy/t1ewsn.01G/lO/lO/ Jtl2f!.itiP,·5PC{P,tary· loh nson,d lls,eJectlon-cybe rs1 Jeh Johnson.'' Jtme 21, 2017. 25. The Office of Secretary of State of G eorgla, Letter to Secretary Jeh lohnsor\ Dec. 8, 2016. 26. DHS, Statement by ~ecretary Jeh Johnson on the Designation of Election Infrastructure as a Critical Infrastructure Subsec- Lor, .l:!StmJb:.VV-'W.d hs.gov/ncws/2017l01/0&/~totament-~?.cret:irv•loimson-6oslgnallon-election-lnf;astructure crirtc.al, Jan. 6, 2017. · 27. HPSCI, Executive Session lntarvlew of Loretta Lynch, Oct. 20, 2Q1/. 28. '"The Global DlglLaJ Challenge Initiative - Xey11ote Address,'' .llil)arl:isan Policy Center video, 38:2S, http://br.ove.me/ zff9r41)q, May 18, 2016. 29. HPSCI, E:lne1 level h1teragc11c~· forum for r.o nsldcrln r, pollc11 l$~u os that MftH:t the national u:curlty lntcro~ts of the United Stutes. Regular attendees of tho Prlnd p.ils Commlttcofori~f.', tho At\ornuv Goncrol, thu Sor.retary ol l:norgy, tho C:hfaf of Staff to the Pro~ldcnt. tho Director of Notion ul rntclllgtmr.o, the CJiurrmon of the Joint Chlo#$ oi Stnlf, the Director of th~ Centro I lntolll11oncv Ai;oncy. the Nat1onol Soc~ulty Advisor, tho Homeland Security A.TIVt:S 56 . Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 5 of 7 ,esemati~s. the Majcf.ty .,rui Minority lead= of the U..S. Senate, 3J:td the Chai!mrll\ and V:~ Chairman of !:he Sc!Ed Com mitt~ on ln.effigC11ce of tr£ U.S. ~ate. 33. >-IPSO, Ex!:cutive 52S1icn lnteNle:.v of Susan Riro, Sap. 8, 2017. 34. l-ll'SCT, "Russian Aclive Measures Ou ring the 2016 Election Cam~ai!;O. May 23, 2017. 35. HFSO, ·Russi,:m Aai'-'e r·Jl.!asurcs Duri:,g 'the 2016 Election Ca."n~;;ign." May 23, 2017. 36. H?SC!, Ell!!f,...,., ofS!tSa n Rke,Sep. 8, 2011. 38. Dl"iS,Joinr Statemellt from the OeporrmeflC of Hame/cr.d Secvrizy and Ojficeof the Ui:ecto, of Nutionof lntelfig.:m:e on Eleaion Secority, N ~ps, f / ww,.-.,.dt-s.go·,./ r'l;!w.!}201 G/10/07 Ao.:-Ct, uRussia Investigative T~5k Force Hearing wflh Fomter Secretary of Hoimiland ~curity leh Johmon,° June 21, 20l7. 42. HPSCI, "'Russia lm.·~tigative Task Force Hearing wi,h Fe~padopc•.Jlos (1:11-cr-1S2, Dislrict ofColum~}. S9. 60. t!>- - 61. 52.. o3. J PP.O?ERTY OF TIIE U.S. HOU~ OF REPRE:.S~NTATl\fES 57 Case Document 135-1 . Filed 11/04/19 Page Evgeny Buryakov, a/k/a and-IS. Southern District of New York, Janu~ ary 23, 2013m, ?RussianSpies Tried to Recruit Carter Page Before He Advised Trump,? The New York Times, Apr. 4, 2017; D01, Foreign Intelligence Surveillance Court Application, Oct. 21, 2016,which was?made availa ble for review by members and staffon'March 17, October 31, November 2, December 14, December 15, and December 18, 2017. 69- - 74. US v. Paul J. Manafort,Jr. and Richard W. Gates (1:17-cr-201, District of Columbia). . 75. Counterintelligence lnvestigations,?Mar. 2, 2017. 79. Michael G. Email messages to Russian Embassy In United States, lntel Group Production, 00000500, 0000.7542 80. MichaeiG F.l,ynn Email message to Russian Embassy in United States, lntel Group Production, 00000500, 00007542. 82. Counterinteiligencel nvestigations, Ma. 2, 2017. 83. Executive Session lnterview ofAndrew McCabe, Dec. 19, 2017. 84. US v. Michael T. District ofColumbia). 85. US. v. Michael T. (1:17?cr?232, District of Columbia). 86. US. v. Michael T. District of Columbla). 87. 0.5. v. MichaelT. District ofColumbia). 88. Barack Obama, SHEET: Actions in Response to Russian Malicious CyberActivityand Harassment,? The White House, Dec. 29 2016. 89. U. S. v. MichaelT. (1: 17- cr?232, District ofColumbie). ._v.Mic_ha IT Flnn_ 1: 17-cr? 92. US v. Michael T. District of Columbia). 93. Counterintelligence lnvestigations,? Mar. 2,2017. 94. Executive Session lnterview of Sally Yates, Nov. 3, 2017. 95. Counterinteliigence lnvestigations," Mar. 2, 2017; Executive Session lnterview of Sally Yates, Nov. 3, 2017. PROPERTY OF THE 0. S.- HOUSE OF Case Document 135-1 Filed 11/04/19 Page 7 of 7 96. I-IPSCI, Executive Session Interview of Andrew McCabe, Dec. 19, 2017. 97. HPSCI, Counterintelligence Investigations,? Mar, 2, 2017. 98. HPSCI, Executive S?ssiOn Interview ofAndrew McCabe, Dec. 19, 2017. . . :99; HPSCI, Executive Session interview ofSally Yates, Nov. 3, 2017, p.57, 71; HPSCI, Executive Session Interview of Mary WCord, Nov. 1, 2017. . 100. HPSCI, Executive Session Interview of Andrew McCabe, Dec. 19, 2017 101. us. v. Michael T. (1:17-cr-232, District ofColumbia). 102. HPSCI, Executive Session Interview of Loretta Oct. 20, 2017. 103. HPSCI, Executive Session Interview of Loretta Oct. 20, 2017. A104. HPSCI, Executive Session Interview of Loretta Oct. 20, 2017. 105. HPSCI, Staff meeting with Bill Priestap, FBI Assistant Director, Head ofthe Counterintelligence Division, Oct 31, 2017. 106. US v. Internet Research Agency, at al. (1:18-cr-32, District of Columbia). 107. DOJ, ?Grand Jury indicts Thirteen Russian Individuals and Three Russian Companies for Scheme to Interfere in the United States Political System,? Feb. 16, 2018. PROPERTY OF THE US. HOUEE 0F 59 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 1 of 7 Expanded Timeline of January-February 2017 Jan 5, 2017 Obama, Biden, Rice, Yates, Clapper, Brennan and Comey meet in Oval Office regarding Steele dossier. Link is Grassley’s letter and includes Rice letter outlining what occurred at the Jan. meeting https://www.judiciary.senate.gov/imo/media/doc/2018-0208%20CEG%20LG%20to%20Rice%20(Russia%20Investigation%20Email).pdf?platfo rm=hootsuite Jan. 5, 2017 Former CIA director James Woolsey and Trump break ties ahead of major intelligence briefing https://www.rawstory.com/2017/01/former-cia-director-james-woolsey-andtrump-break-ties-ahead-of-major-intelligence-briefing/ Jan. 6, 2017 Comey briefs President-Elect on salacious aspects of the dossier https://thefederalist.com/2018/04/20/comeys-memos-indicate-dossier-briefing-oftrump-was-a-setup/ Excerpt: “I said the Russians allegedly had tapes involving him and prostitutes at the Presidential Suite at the Ritz Carlton in Moscow from about 2013,” Comey wrote of his conversation with Trump in a classified memo that was released in redacted form late Thursday. “I said I wasn’t saying this was true, only that I wanted him to know both that it had been reported and that the reports were in many hands.” No media organizations had reported the allegations at the time Comey briefed Trump. “I said media like CNN had them and were looking for a news hook,” Comey added in his memo about the briefing Jan. 7, 2017 Released: Intelligence Community Assessment. The ICA reports Russia helping Trump https://www.dni.gov/files/documents/ICA_2017_01.pdf (dated Jan. 6, 2017) NSA Director Mike Rogers would not sign up to the “high confidence” claims Jan. 10, 2017 Passing the Baton Ceremony—Susan Rice to Mike Flynn Jan. 10, 2017 Clapper calls David Ignatius of the Washington Post with instructions to the effect of “take the kill shot” on Flynn Jan. 10, 2017 BuzzFeed News publishes Steele Dossier: These Reports Allege Trump Has Deep Ties To Russia https://www.buzzfeednews.com/article/kenbensinger/these-reports-allegetrump-has-deep-ties-to-russia Excerpt: A dossier making explosive — but unverified — allegations that the Russian government has been “cultivating, supporting and assisting” Presidentelect Donald Trump for years and gained compromising information about him has 1 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 2 of 7 been circulating among elected officials, intelligence agents, and journalists for weeks. CNN reported Tuesday that a two-page synopsis of the report was given to President Obama and Trump. Now BuzzFeed News is publishing the full document so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government. Jan. 10, 2017 Peter Strzok/Lisa Page Communications (re “pretext”) Source Authority (See Defendant’s Reply, filed 10-24-19, at Exhibit 129-6 and https://www.cnn.com/2018/09/14/politics/page-strzok-texts-parttwo/index.html) Strzok to Page (January 10, 2017) in text government suppressed: “Sitting with Bill watching CNN. A TON more out. Hey let me know when you can talk. We’re discussing whether, now that this is out, we use it as a pretext to go interview some people.” Jan 11, 2017, New York City Pence first Press Conference as V.P.-elect (messaging from Bossert) https://www.alternet.org/2018/09/heres-incriminating-case-against-mike-pence/ Jan. 11, 2017 Covington sends a letter to the DOJ, need to do FARA registration but unsure about the foreign principal. Jan. 12, 2017 Why did Obama dawdle on Russia’s hacking? David Ignatius https://www.washingtonpost.com/opinions/why-did-obama-dawdle-on-russiashacking/2017/01/12/75f878a0-d90c-11e6-9a36-1d296534b31e_story.html Except: “…Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.” Jan 12, 2017 BIDEN meets with Pence. Biden reports that they talked about RUSSIA and UKRAINE. https://www.rferl.org/a/us-vice-president-biden-praises-successor-mike-penceknowledge-russia-tips-on-ukraine-iraq/28230559.html Jan. 12, 2017 Sir Mark Lyall Grant letter disavowing and discrediting Steele hand-delivered to NSC team Jan. 12, 2017 Second FISA Renewal: https://www.grassley.senate.gov/sites/default/files/judiciary/upload/2018-0228%20CEG%20LG%20to%20DOJ%20OIG%20%28referral%29.pdf 2 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 3 of 7 Jan. 15, 2017 Pence Says He Is Unaware of Flynn’s Discussions: Face the Nation – Pence Full Interview https://www.cbsnews.com/video/full-interview-mike-pence-january-15/ Jan. 19, 2017 U.S. counterintelligence officials are examining possible ties between Russia and Trump associates https://www.washingtonpost.com/world/national-security/uscounterintelligence-officials-are-examining-possible-ties-between-russia-andtrump-associates/2017/01/19/7e10f31c-debd-11e6-918c99ede3c8cafa_story.html Excerpt: U.S. counterintelligence officials are sifting through intercepted communications and financial data as part of a wider look at possible ties between the Russian government and associates of President-elect Donald Trump, officials said. But while it has been clear for months that a broad investigation is underway, what remains murky — even to lawmakers receiving closed briefings — is its scope and target. It is unclear if the intercepts being examined have any connection to the Trump campaign. Jan. 20, 2017 Inauguration Day Jan. 20, 2017 Rice “By the Book” Email to Self (names Jan. 5 meeting attendees – Obama, Rice, Biden, Yates, Comey) Link is letter from Grassley, which includes Rice “by the book” email to self: https://www.judiciary.senate.gov/imo/media/doc/2018-0208%20CEG%20LG%20to%20Rice%20(Russia%20Investigation%20Email).pdf?platfo rm=hootsuite Jan. 22, 2017 Mike Flynn sworn in as NSA Director Jan. 22, 2017 U.S. Eyes Michael Flynn’s Links to Russia (NOTE: Appeared in the Jan. 23, 2017, print edition as 'U.S. Looks at Flynn’s Russian Links.') Counterintelligence agents have investigated communications by President Trump’s national security adviser, including phone calls to Russian ambassador in late December https://www.wsj.com/articles/u-s-eyes-michael-flynns-links-to-russia-1485134942 Jan. 23, 2017 FBI reviewed Flynn’s calls with Russian ambassador but found nothing illicit https://www.washingtonpost.com/world/national-security/fbi-reviewed-flynnscalls-with-russian-ambassador-but-found-nothing-illicit/2017/01/23/aa83879ae1ae-11e6-a547-5fb9411d332c_story.html Excerpt: Although Flynn’s contacts with Russian Ambassador Sergey Kislyak were listened to, Flynn himself is not the active target of an investigation, U.S. officials 3 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 4 of 7 said. The Wall Street Journal reported Sunday that U.S. counterintelligence agents had investigated the communications between Flynn and Kislyak. McCabe, Strzok, Page, Bowdich, General Counsel Baker and others met to plan interview of Flynn to keep him “relaxed” Jan. 24, 2017 Comey says “Screw it” to longstanding protocols and tells McCabe to send agents to White House as planned. Strzok & Agent2 interview Mike; Strzok briefed McCabe and redacted. McCabe briefed Comey. Strzok was aware that redacted later argued about the FBI’s decision to interview Flynn. • Agents reported back they believed Flynn was not lying. Jan. 24, 2017 FBI clears Michael Flynn in probe linking him to Russia https://nypost.com/2017/01/24/fbi-clears-michael-flynn-in-probe-linking-him-torussia/ Jan. 26, 2017 Yates and McCord knew what the FBI knew when she raced over to the White House to warn Trump’s general counsel that Flynn was “compromised.” Jan. 27-28, 2017 Russians Charged With Treason Worked in Office Linked to Election Hacking https://www.nytimes.com/2017/01/27/world/europe/russia-hacking-uselection.html Jan, 27, 2017 Yates goes to White House again to talk with McGahn Jan. 30, 2017 DOJ internal memo exonerates Flynn of being an agent of Russia—still not produced to defense Feb. 8, 2017 Comey in WH – Preibus asks if “there’s a FISA on Flynn” – Comey Memos Link: https://www.documentcloud.org/documents/4442900-Ex-FBI-Director-JamesComey-s-memos.html 4 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 5 of 7 Feb. 8, 2017 Person in White House goes up to Flynn’s office, reports to Strzok that he was unable to get valuable intel Feb. 9, 2017 National security adviser Flynn discussed sanctions with Russian ambassador, despite denials, officials say https://www.washingtonpost.com/world/national-security/national-securityadviser-flynn-discussed-sanctions-with-russian-ambassador-despite-denialsofficials-say/2017/02/09/f85b29d6-ee11-11e6-b4ff-ac2cf509efe5_story.html Excerpt: Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.” Feb. 9, 2017 HEATHER HUNT of FARA division further pressures Covington to file Flynn’s FARA registration Feb. 10, 2017 Multiple Clips of Spicer and Pence Feb. 10, 2017 Strzok/Page Texts (SEE Defendant’s Reply, Exhibit 129-4) 5 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 6 of 7 Feb. 11, 2017 Mifsud was interviewed by the FBI in the US during a conference. He left the U.S. on Feb. 11 and apparently has not been seen since. https://www.washingtontimes.com/news/2019/oct/20/joseph-mifsud-identitycalled-trump-russia-probe-o/ Feb. 11, 2017 When it comes to his contacts with Russia, Michael Flynn has bigger problems than the Logan Act https://www.washingtonpost.com/blogs/post-partisan/wp/2017/02/11/when-itcomes-to-his-contacts-with-russia-michael-flynn-has-bigger-problems-than-thelogan-act/ Feb. 12, 2017 As Flynn falls under growing pressure over Russia contacts, Trump remains silent https://www.washingtonpost.com/politics/as-flynn-falls-under-growing-pressureover-russia-contacts-trump-remains-silent/2017/02/12/2b58f31e-f15e-11e6-b9c9e83fce42fb61_story.html Feb. 12, 2017 Flynn advised the President that he may have forgotten details of his calls with Ambassador Kislyak, but he did not lie. Feb. 13, 2017 Justice Department warned White House that Flynn could be vulnerable to Russian blackmail, officials say https://www.washingtonpost.com/world/national-security/justice-departmentwarned-white-house-that-flynn-could-be-vulnerable-to-russian-blackmail-officialssay/2017/02/13/fc5dab88-f228-11e6-8d72-263470bf0401_story.html Flynn resigned Feb. 13, 2017 David Laufman of NSD/FARA Division personally calls Covington & Burling to pressure filing the FARA registration Feb. 13-14, 2017 Strzok, Page and McCabe launch Flynn 302 Feb. 14, 2017 The Political Assassination of Michael Flynn https://www.bloomberg.com/opinion/articles/2017-02-14/the-politicalassassination-of-michael-flynn 6 Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 7 of 7 Feb. 14, 2017 Former Director Comey and President Trump discuss Mike Flynn. Former Director Comey uses the purported details of this conversation in a memo to allege obstruction of justice against President Trump despite all undisclosed internal reports Flynn had been cleared. See Comey Memo 4 discussed in detail by DOJ OIG Report Comey (August 2019) and see entire report https://oig.justice.gov/reports/2019/o1902.pdf and also see Defendants Reply Exhibits 129-3 and 129-10 Feb. 14, 2017 Feb. 15, 2017 McCabe-approved FLYNN 302 entered in Sentinel Feb. 19, 2017 Stefan Halper pushes the smear against Flynn. CHRISTOPHER ANDREWS, The Sunday Times (UK Media) “Impulsive General Misha shoots himself in the foot” https://www.thetimes.co.uk/article/impulsive-general-misha-shoots-himself-inthe-foot-l7gfpbghr May 17, 2017 Robert Mueller named Special Counsel 7