In the case against Lt. General Michael Flynn, his lawyer Sidney Powell previously filed a motion to compel (MTC) Brady material from the prosecution (here). Because the MTC raised stunning, potentially game-changing, legal and ethical issues the prosecution requested the opportunity to file a surreptitious reply to the court; a “surreply”. (here)
Judge Sullivan directed the prosecution to file their surreply, and then granted the defense the opportunity to file a sur-surreply, a response to the prosecution’s last argument. Today Flynn’s attorney Sidney Powell filed that response (full pdf below).
Having read thousands, perhaps tens-of-thousands, of legal filings, motions and court documents presenting arguments of material consequence, this sur-surreply to the arguments of the prosecution is artful in its succinct intent of getting to the nub of it.
What makes this articulate reply to the court so effective, in addition to the declared truth within it, is how it is written to both Judge Emmet Sullivan and the public. This is a motion deserving of a read by anyone who has followed the travesty of the Flynn inquisition in detail or in summary. Do not cheat yourself out of the enjoyment; read it.
The response to the prosecution argument cuts through the chaff and countermeasures and identifies the ridiculous and necessary schemes played by the prosecution, starting with their preposterous position that Flynn’s plea did not require the government to provide exculpatory, Brady, evidence. Page One:
Flynn’s defense calls out the ridiculous. The prosecution argues it had no obligation to tell the target about any material favorable to the defense while the prosecution was piling-on pressure to generate a plea agreement. Then, once the plea was coerced, the prosecution claims they have no obligation to provide Brady material because the target signed a plea.
Flynn’s defense points out the ridiculous nature of the prosecution claiming they don’t possess any FD-302 draft prior to the lengthy back-and-forth, discussion and editorial process within the FBI small group that resulted in the February 15th “official” FD-302 report.
Just because prosecutor Van Grack doesn’t have the original draft in his pocket, “if it did exist”, does not mean the government does not have access to produce the 302 draft everyone knows exists within the FBI’s electronic filing system.
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, and then later against Michael Flynn Jr., in essence the DOJ was accusing Covington of participating in the 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 was a profound conflict.
In their surreply the DOJ downplayed this conflict despite the prosecution taking copious and careful notes about it during the time they were using the FARA violation to compel the plea deal. The defense team does not allow the DOJ to be so obtuse in their sur-surreply.
Every page is filled with articulate facts and sound legal justification that deconstruct the position of an ethically challenged prosecution. However, this footnote is particularly cogent in outlining the question everyone, including Judge Sullivan, holds in the back of their mind.
The defense team notes the profound conflict of interest that was carried by Mr. Flynn’s original defense team during their interview sessions prior to the plea agreement; and the defense appropriately puts that defense conflict into context amid the pressure simultaneously being applied by the government.
In essence: ‘Nice family you have there Mr. Flynn, it would be a shame if something happened to them; by the way, how’s that new grand-baby getting along?’…
The defense articulates that sometime in the future they will likely file a motion to dismiss this case…. However, in the interim the defense is proceeding on a proper course to determine the scale, scope and backroom shenanigans that took place throughout the FBI and DOJ effort against their client.
The sur-surreply is truly a great read and this motion presents Judge Sullivan with information that not only supports the original Motion to Compel, but also provides important context for how this abusive case metastasized within a special counsel who was purposed on a precondition that targeting Michael Flynn was a priority.
For the prosecution in this case, the continuation of the brady process to discover the background information/evidence might just be a worse option than withdrawing the charges.
Please read the full filing:
Lt. General Michael Flynn is very well represented. It will be interesting to see how Judge Emmet Sullivan responds to these latest developments.