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Flynn Reply Docket Entry 135
Flynn Reply Docket Entry 135
Plaintiff,
MICHAEL T. FLYNN,
Defendant.
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
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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-Bagley-
Giglio 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
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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 heavily-
redacted 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
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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
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
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
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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.
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
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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
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
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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
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.
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
6
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.
7
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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
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
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
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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
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
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“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
10
See Flynn Reply Dkt. 133-2 at 11.
10
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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
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
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
11
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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
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
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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.
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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
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
(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
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at the time of his plea and then, again, when he confirmed his plea before this Court, this became
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
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
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
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
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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, high-
pressured 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
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
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counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel—
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
Respectfully submitted,
W. William Hodes
The William Hodes Law Firm
3658 Conservation Trail
The Villages, Florida 32163
Tel: (352) 399-0531
[email protected]
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 Sur-
Surreply 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
18
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(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 the indict-
never specifically notified about Papado- ment that the charged conduct altered t he
poulos, Page, Ma nafort, or General Flynn's outcome of t h~ 2016 election.'' 107
1
Russia ties. o.; 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 Rus-
sia and China.
v,
7.
8.
56 .
PROPERTY OF THE U .S. HOUSE OF REPRESENT,'!>.TIVt:S
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!!<uti\'-e Session lnter.ri::w of Lorena tynci1, Oct. 20, W17.
37. 1-if'SO, fxe.:um•e Session loter>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<nt-stiltt2.-ner,t-deoa rt-nent-homaland-secu rit'{•a:1d-uifice-
din~g:cr-rc1tio ni!I, Oct. 1, 201E.
3!t. HPSCI, "Russia ?1westigai;,;e Task Force Hearing wi,h R;rmerSecreu,ry of Homeland ~curity Jeh lohn5on, Ju ne 2.l. 2 0'.i.7.
0
40. H~I, &.2cuti-1e Session lntel\liew of John !locksra, Jun€! 27, 201'1.
41. Hl>.:-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<mer Secretary of llcmel.ir,d Security Jah Jofmson,.. June 2i. 2017.
-13 .
t!>- -
54. U.S.·;. Ge-:lfge Pa~;iopoutos (1:17~-1S2, District: of Cohani'.!1,iJ.
55. U.S. v. Geotgc P~dopou:os (l:l?-c.-1&2, District of Cof11ml;;;1); Email from George Fapadop<,ulos to
#Re: Me~ti.."lg ·,,•il:r. Russi-am leaderst-,ip - indud'ifll; P(itin," Ma~. 14, 2016.[DJTFP00010i1ll.
U.S.~·- Gecrge ~dcp0".1fo5 (1:.17-cr-182,-District of Columbia}; Email from Georg•:? f'.;ipado;;oulos
Fwd: (R1mian Outreadl)t May 4, 2016 {OJ1FFO()!}U40S}.
S7. U.S.•:. George Popcdopo,..ifos (l:17-cr-182, Distric:: of Colu~t.iJ).
58. U.S. v. G2org~ !>~padopc•.Jlos (1:11-cr-1S2, Dislrict ofColum~}.
S9.
60.
61.
52..
o3.
J
PP.O?ERTY OF TIIE U.S. HOU~ OF REPRE:.S~NTATl\fES
57
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1
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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-part-
two/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, Pence first Press Conference as V.P.-elect (messaging from Bossert)
New York City 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-russias-
hacking/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-pence-
knowledge-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/2018-02-
28%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/us-
counterintelligence-officials-are-examining-possible-ties-between-russia-and-
trump-associates/2017/01/19/7e10f31c-debd-11e6-918c-
99ede3c8cafa_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/2018-02-
08%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-flynns-
calls-with-russian-ambassador-but-found-nothing-illicit/2017/01/23/aa83879a-
e1ae-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
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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-to-
russia/
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-us-
election.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-James-
Comey-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-security-
adviser-flynn-discussed-sanctions-with-russian-ambassador-despite-denials-
officials-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
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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-identity-
called-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-it-
comes-to-his-contacts-with-russia-michael-flynn-has-bigger-problems-than-the-
logan-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-pressure-
over-russia-contacts-trump-remains-silent/2017/02/12/2b58f31e-f15e-11e6-b9c9-
e83fce42fb61_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-department-
warned-white-house-that-flynn-could-be-vulnerable-to-russian-blackmail-officials-
say/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-political-
assassination-of-michael-flynn
6
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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-in-
the-foot-l7gfpbghr
May 17, 2017 Robert Mueller named Special Counsel