Motion To Compel Brady Material Unsealed: Flynn Took Polygraph In 2016 And Passed
Former National Security Advisor Army Lt. Gen. Michael Flynn’s defense attorney filed a motion Wednesday to compel the government to turn over a trove of documents, recordings, internal texts, emails and notes that the defense believes will vindicate Flynn, while at the same time revealing the ‘egregious’ behavior of government prosecutors.
Defense attorney Sidney Powell filed the motion unsealed to U.S. District Court Judge Emmet Sullivan on Wednesday. The motion was originally filed on August 30, and is requesting that the court compel the government to deliver the Brady Material pursuant to the court’s scheduling order yesterday.
The motion also reveals that Flynn took a polygraph in 2016, passed the exam and had his security clearance renewed, despite former Director National Intelligence James Clapper’s refusal to assist in the investigation or renewal process for Flynn’s clearance, Powell said. It occurred at roughly the same time the government was continuing to investigate him. It also reveals that he had briefed the Defense Intelligence Agency prior to meeting with Turkish and Russian officials. However, the prosecutors are still hiding all the exculpatory evidence, which shows the details of his workings with the DIA prior to his meetings with any foreign contacts. Flynn, who was previously director of the DIA, had briefed his former agency since he resigned in 2014.
“Yet again, in the Status Report filed today, the prosecutors exude arrogance in their flat denials of both our request for security clearances and the production of Brady material,” argued Powell in her motion. “Production of obvious Brady material while repeatedly and stoutly denying any such material exists prompts questions of how much more is still outstanding and whether these prosecutors are willing or able to recognize it when they see it. The only alternative explanation is even worse.”
Powell’s ‘Motion to compel the production of Brady Material and for an order to show cause,’ also reveals insight into Flynn’s case and what the retired Army General has endured over the past several years during the Special Counsel’s investigation.
That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed, Powell’s Motion States.
According to Powell’s motion, prosecutors, who early contended their was no Brady material, ended up producing last week “an additional 330 pages that included information that any reasonable attorney would understand as Brady evidence in light of Special Counsel’s investigation and assertions that Mr. Flynn was an undisclosed “agent of Russia” or an “agent of Turkey.”
“That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed. This was at the same time the FBI seems to have been investigating him under the pretext that he was an “agent of Russia” and/or of Turkey. Interestingly, the new production also shows that James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. (James) Clapper’s actions.”
She is requesting a hundreds of pages of documentation, recordings and other government material related to Flynn’s case.
Powell revealed in court Tuesday the existence of a Justice Department memo from Jan. 30, 2017 that she said exonerates Flynn of any collusion with Russia. The memo, which has still not been made available to Flynn’s attorney Sidney Powell, is part of a litany of Brady material she is demanding from prosecutors. The memo is currently under protective order and Powell is working with prosecutors to get it disclosed, SaraACarter.com has learned.
Sullivan set a tentative Dec. 18 sentencing date for Flynn. He told the prosecution and defense that the sentencing date could be moved depending on the outcome of requests for Brady material requested by Powell and how the case will unfold in the upcoming months. Sullivan also noted during the hearing that the Brady order takes precedence over the plea agreement.
List Of Brady Material Requested By Powell
- A letter delivered by the British Embassy to the incoming National Security team after Donald Trump’s election, and to outgoing National Security Advisor Susan Rice (the letter apparently disavows former British Secret Service Agent Christopher Steele, calls his credibility into question, and declares him untrustworthy).
- The most recent production demonstrated that Mr. Flynn briefed the Defense Intelligence Agency on the people he was likely to meet on the Turkey project and the subject of that scheduled meeting before it happened. These prosecutors are still suppressing evidence that he did so on all his foreign contacts from the time he left DIA.
- The original draft of Mr. Flynn’s 302 and 1A-file, and any FBI document that identifies everyone who had possession of it (parts of which may have been leaked to the press, but the full original has never been produced). This would include information given to Deputy Attorney General Sally Yates on January 24 and 25, 2017.
- All documents, notes, information, FBI 302s, or testimony regarding Nellie Ohr’s research on Mr. Flynn and any information about transmitting it to the DOJ, CIA, or FBI.All payments, notes, memos, correspondence, and instructions by and between the FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor Christopher Andrew (connected with MI5) and Halper’s compensation through the DOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam Lovinger, addressed in our brief. This includes David Shedd (former Deputy Director of DIA) and Mike Vickers, who were CIA officers; James H. Baker; former DIA Director LTG Stewart; former DIA Deputy Director Doug Wise; and the DIA Director of Operations (DOD). This should also include any communications or correspondence of any type arising from the investigation or alleged concerns about Mr. Flynn that contained a copy to (as a “cc” or “bcc”) or was addressed directly to the DNI James Clapper and his senior staff; to CIA Director Brennan and his senior staff; or to FBI Director Comey, his Deputy Andrew McCabe and senior staff.
- The Flynn 302 dated January 19, 2017, mentioned in the Mueller Report. All and unredacted Page-Strzok text messages. Mr. Van Grack’s October 4, 2018, letter asserts: “To the extent the text messages appear to be incomplete or contain gaps, we do not possess additional messages that appear to fill such gaps.” The government should be compelled to identify to whom “we” refers, where the originals are, and whether any of the gaps have been filled or accounted for.
- All documents, reports, correspondence, and memoranda, including any National Security letter or FISA application, concerning any earlier investigation of Mr. Flynn, and the basis for it. (The existence of these earlier investigations was disclosed in the Mueller Report; see Vol. II at pp. 24, 26.)
- All transcripts, recordings, notes, correspondence, and 302s of any interactions with human sources or “OCONUS lures” tasked against Mr. Flynn since he left DIA in 2014.
- The unredacted Page-Strzok text messages as well as text messages, emails and other electronic communications to, from, or between Andrew McCabe, James Comey, Rod Rosenstein, Bruce Ohr, Nellie Ohr, John Carlin, Aaron Rouse, Carl Ghattas, Andrew Weissmann, Tashina Gauhar, Michael Steinbach, and Zainab Ahmad, regarding Mr. Flynn or the FISA applications or any surveillance (legal or illegal) that would have reached Mr. Flynn’s communications.
- Unredacted copies of all memos created by or other communications from James Comey that mention or deal with any investigation, surveillance, FISA applications, interviews, or use of a confidential human source or “OCONUS lures” against Mr. Flynn.
- An unredacted copy of all of James Comey’s testimony before any Congressional committees.
- The James Comey 302 for November 15, 2017, and all Comey 302s that bear on or mention Mr. Flynn.
- Notes and documents of any kind dealing with any briefings that Mr. Flynn provided to DIA after he left the government.
- Any information, including recordings or 302s, about Joseph Mifsud’s presence and involvement in engaging or reporting on Mr. Flynn and Mifsud’s presence at the Russia Today dinner in Moscow on December 17, 2015.
- All notes, memoranda, 302s, and other information about the McCabe-Strzok meeting or meetings with Vice President-Elect or Vice President Pence (these meetings were referenced in the Mueller Report at Vol II, p. 34).
- All Mary McCord 302s or interviews, including when she knew that Mr. Flynn did not have “a clandestine relationship with Russia.”
- All evidence concerning notification by the Inspector General of the DOJ to the Special Counsel of the Strzok-Page text messages, including the actual text of any messages given to the Special Counsel, and the dates on which they were given. Although the Inspector General notified Special Counsel of the tens of thousands of text messages between Peter Strzok and Lisa Page no later than July 2017—the prosecutors did not produce a single text message to the defense until March 13, 2018.
- All evidence of press contacts between the Special Counsel Office, including Andrew Weissmann, Ms. Ahmad, and Mr. Van Grack from the departure of Peter Strzok from Special Counsel team until December 8, 2017, regarding Mr. Flynn.
- Any Sally Yates 302s or other notes that concern Mr. Flynn, including treatment of her meetings with FBI Agents on January 24 and 25, 2017, her meetings with anyone in the White House, and the draft 302 of the Flynn interview on January 24 she reviewed or was read into.
- An internal DOJ document dated January 30, 2017, in which the FBI exonerated Mr. Flynn of being “an agent of Russia.
- All information provided by Kathleen Kavalec at the Department of State to the FBI regarding Christopher Steele prior to the first FISA application.
- Any and all evidence that during a senior-attended FBI meeting or video conference, Andrew McCabe said “First we fuck Flynn, then we fuck Trump,” or words to that effect.
- The two-page Electronic Communication (EC) that allegedly began the “Russia Collusion” investigation.
- All information that underlies the several FISA applications, including any information showing that any of the assertions in the applications were false, unverified, or unverifiable.
- All documents, notes, information, FBI 302s, or testimony regarding any debriefing that Bruce Ohr gave to anyone in the FBI or Department of Justice regarding Christopher Steele.
- Testimony, interviews, 302s, notes of interviews of all persons who signed FISA applications regarding Mr. Flynn or anyone that would have reached Mr. Flynn’s communications, without regard to whether those applications were approved or rejected.
- All FISA applications since 2015 related to the Russia matter, whether approved or rejected, which involve Mr. Flynn or reached his communications with anyone.
- Information identifying reporters paid by Fusion GPS and/or the Penn Quarter group to push “Russia Collusion,” communications regarding any stories about Mr. Flynn, and any testimony or statements about how the reporters were used by the government regarding Mr. Flynn.
- FBI 302s of KT McFarland, notes of interviews of her or her own notes, and text messages with Mr. Flynn from approximately December 27, 2016, until Flynn’s resignation.
- Any information regarding the SCO’s and DOJ’s destruction of the cell phones of Peter Strzok and Lisa Page (after being advised of the thousands of text messages that evidenced their bias) that has been classified or otherwise not available to the public from the published Inspector General Report.
- Any information regarding eradication of cell phone data, texts, emails, or other information belonging to Peter Strzok and Lisa Page that created the “gap” identified by the IG.
- Information about any parts of any polygraph examinations failed by Peter Strzok after Mr. Flynn was first the subject of any FBI investigation—authorized or unauthorized.
- Brady or Giglio material newly discovered by the government (and by the Inspector General in his separate investigations) in the last two years.
- A full unredacted and copies of the recordings of Mr. Flynn’s calls with Ambassador Kislyak or anyone else that were reviewed or used in any way by the FBI or SCO in its evaluation of charges against Mr. Flynn.
- All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.
MOTION: Although not previously requested, the government should be compelled to produce:
- Unredacted scope memos written for the Special Counsel and any requests by Special Counsel that mention Mr. Flynn or his son.
- All FBI 302s or any notes of interviews of David Ignatius or any other reporter regarding the publication of information concerning Mr. Flynn and/or the reporters’ contacts with James Clapper, Andrew McCabe, John Brennan, Michael Kortan, or anyone in the FBI, DNI, DOD, DOJ, or CIA regarding Mr. Flynn.
- FBI 302s and interview notes of Jim Woolsey, including notes by SCO members of conversations with Woolsey about Mr. Flynn, Flynn Intel Group, the Turkey project, and his separate meeting with officials of Turkey after the meeting that was the subject of the FIG FARA filing.
- All communications between Mr. David Laufman, Ms. Heather Hunt and any other member of the National Security Division regarding the FARA registration for Mr. Flynn and FIG and notes, reports or recordings of their interaction with Covington & Burling with regards to the filing and its contents. See Def.’s Resp. to the Ct.’s Order of July 9 & Gov.’s Filing of July 10, Ex. D, July 11, 2019, No. 17-232-EGS.