Today the DOJ files their surreply to the game-changing Flynn motion to compel Brady material filed by defense attorney Sidney Powell (full pdf below). Within the DOJ filing the prosecution generally makes four arguments:
- The government had no legal obligation to provide exculpatory Brady material prior to the plea agreement (Nov 30th, 2017).
- After the plea agreement the government had no legal obligation to provide exculpatory Brady material that was not directly related to the evidence about the charge of Flynn lying to investigators during the January 24th, 2017, interview.
- The government uses odd language to claim a draft of the Flynn interview report (FD-302) does not exist prior to their Feb 10th construct: “Even if an earlier draft of the  once existed, there is no reason to believe it would materially differ” from the agents’ notes. Sounds sketchy, like they know an earlier draft does likely exist.
- The government severely understates the conflict of interest created by the DOJ using the leverage of an incorrectly completed FARA submission to pressure the Flynn plea.
Flynn’s attorney Sidney Powell will now be allowed to file a sur-surreply to the position of the DOJ prosecutors.
♦Taking the #4 bullet-point first, the DOJ is being profoundly obtuse. Flynn’s original defense lawyers (firm: Covington, Kelner, Anthony, and Langton Inc.) were the attorneys who advised Flynn on how to complete the FARA paperwork/filing. When the DOJ threatened to use the FARA filing as evidence against Flynn, in essence the DOJ was accusing Covington of manufacturing false documentation.
The Covington lawyers held a material interest in the DOJ dropping the FARA aspect to their prosecution; and by extension the Covington lawyers recommending that Flynn accept a plea agreement to remove that legal issue is a profound conflict. The DOJ downplays this conflict despite the DOJ taking copious and careful notes about it during the time they were using the FARA violation to compel the plea deal.
♦On the issues of there not being a pre-Feb 10th 302 report: on its face that seems absurd. The interview was January 24th, the FBI standard dictates a 302 report to be written as soon as possible (within 24 hours) upon completion of the interview. The prosecution hides the Page/Strzok texts showing a narrative process under construction:
The 302 was edited, shaped, approved and entered into the system on Feb 11th and Feb 14th. This was a deliberative process, Andrew McCabe was approving (per “launch 302”) and Lisa Page did some of the edits.
We know there was a deliberative process in place, seemingly all about how to best position the narrative, because we can see the deliberations in text messages between Lisa Page and Peter Strzok: See above/below (note the dates):
The text message conversation above is February 14th, 2017. The Michael Flynn FD-302 was officially entered into the record on February 15th, 2017, per this version of the FBI FD-302 report released June 6th, 2019:
Oddly, in the reply today which included the DOJ providing the FD-302 as “Exhibit 3“, the DOJ provides another FD-302 report with the entry date February 14th, 2017? WTF?
In a letter from prosecutor Van Grack to Judge Sullivan last year he said there was only one edit after the date of entry; and that edit took place in May 2017.
Whoopsie, based on what we just outlined above, it would appear Mr. Van Grack was previously lacking candor with Judge Sullivan. I shall digress….