Part 1. What were they thinking? FLYNN BRIEF IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF BRADY MATERIAL AND FOR AN ORDER TO SHOW CAUSE

            What were they thinking  is a series probing the human psyche.  Psyche is the human mind, both conscious and unconscious, synonymous with soul, life,  breath, ghost personality and spirit.

            This is an extract of pleadings in an ongoing national security case in Washington. The footnotes have been rearranged or edited for readability.

https://www.courtlistener.com/docket/6234142/109/united-states-v-flynn/

Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 1 of 19  IN THE UNITED STATES DISTRICT COURT THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA Plaintiff, v. MICHAEL T. FLYNN, Defendant. Criminal Action No. 17-232-EGS FLYNN BRIEF IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF BRADY MATERIAL AND FOR AN ORDER TO SHOW CAUSE

       Michael T. Flynn files this brief in support of his Motion to Compel Production of Brady  Material and for an Order to Show Cause. The motion was filed under seal because of references  to information covered by the Protective Order. However, Mr. Flynn will seasonably move to  have it unsealed in the interest of justice and the public confidence in our judicial system.     

1. Introduction         The government has a crushing 95% or higher conviction rate.1 It is virtually impossible  to defend successfully when the might and power of the federal government focuses on the  destruction of an individual, and the government holds all the cards. The rule of Brady v. [i]1       [  Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 2 of 19]  Maryland, requiring the government to disclose evidence favorable to the defense, is probably  the single most important underpinning of Due Process for a criminal defendant—yet it is often  observed only in the breach. Brady v. Maryland, 373 U.S. 83 (1963). While prosecutors  routinely recite their full knowledge of and compliance with their Brady obligations, in truth they  often scoff at them and continue to play games to win convictions at all costs. Meanwhile, the  defense does not know what the defense does not know.

        This problem was demonstrated dramatically in the prosecution of United States Senator  Ted Stevens. In fact, it was the prosecutorial misconduct in that case that led this Court to adopt  the Brady order it now routinely enters in every criminal case.[ii]2 Unfortunately, the government  learned nothing from the rebukes in Stevens. It has engaged in even more malevolent conduct in  the prosecution of Mr. Flynn.

         The very reason this Court adopted its Brady Order was to impress upon prosecutors their  most solemn obligations and to enable the contempt process to address the government’s failure  to comply, rather than leaving openings for any excuses or being hamstrung to consider criminal  contempt charges as it was in Stevens by the absence of a preexisting order.[iii]3 Indeed, this Court 2            Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 3 of 19    became a model for courts across the country when it adopted its Brady Order. While the defense  does not yet request consideration of criminal contempt charges,[iv]4 the suppression of Brady  evidence by the government here is ripe for a finding of contempt of this Court’s Standing Order,  which mandated production of information favorable to the defense—regardless of Mr. Flynn’s  plea of guilty—from the time the case was transferred to its docket. 

           The prosecutors in this case have repeatedly failed to produce Brady evidence despite (i)  the clarity of this Court’s Order, (ii) their ethical and constitutional obligations, (iii) specific  requests for documents the prosecutors know are exculpatory, and (iv) those requests being made  multiple times. Not only have the prosecutors thumbed their noses at this Court’s Order, they  have ignored the rules of ethical conduct for the D.C. Bar. See Imbler v. Pachtman, 424 U.S.  409, 427 n. 25 (1976) (stating that “the prosecutor also is bound by the ethics of his office to  inform the appropriate authority of after-acquired or other information that casts doubt upon the  correctness of the conviction”).[v]5 

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1. Background

The prosecutors here—at the time including Mr. Van Grack, Ms. Zainab Ahmad, and  members of the Special Counsel team under the direction and supervision of Mr. Andrew  Weissmann—engaged in conduct even more pernicious than failing to comply with their legal  and ethical obligations under Brady and the D.C. Rules of Professional Conduct.

        They affirmatively suppressed evidence (hiding Brady material) that destroyed the  credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the  same time putting excruciating pressure on him to enter his guilty plea and manipulating or  controlling the press to their advantage to extort that plea.

     They continued to hide that  exculpatory information for months—in direct contravention of this Court’s Order—and they  continue to suppress exculpatory information to this day.

        It is equally concerning that Mr. Weissmann and Ms. Ahmad while at DOJ in 2016-17  were working with Bruce Ohr (then the fourth highest ranking member of DOJ) to feed  information from his wife Nellie at FusionGPS and British citizen Christopher Steele to the FBI  through his secret back-channel. This was happening after the FBI terminated Mr. Steele as a  paid informant because he was keeping the press informed of his “findings.” FusionGPS, Steele,  and Ms. Ohr were all working for the Clinton campaign. In addition, Ms. Ohr worked for the  CIA. The entire operation is further compromised by the fact that the second agent who  interviewed Mr. Flynn along with former agent Strzok, was Bruce Ohr’s contact with the FBI  and conducted numerous debriefings of Mr. Ohr—passing along to the FBI the corrupted and  false information from the Ohrs, Steele, and FusionGps That agent may also have joined Special  Counsel’s team.

        Weissmann and Ahmad were not in the DOJ chain of command to be informed by Mr.  Ohr at all. They had no legitimate reason to be privy to his operation with FusionGPS and                                                    4   Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 5 of 19

   Christopher Steele. Remarkably, despite this involvement, Mr. Weissmann and Ms. Ahmad then  went directly to the Special Counsel team, along with Strzok and possibly the second agent,  thereby calling into question the entire investigation with their illicit involvement with Ohr and  Steele. Closing the circle, Ahmad was co-counsel with Van Grack in the prosecution of Mr.  Flynn. It is imperative the defense obtain the Bruce Ohr 302s and notes—unredacted—and all  evidence of this circuitous and illicit operation.

         When the prosecutors did produce any information that was exculpatory to the defense,  they denied it was such—making it clear to any reasonable attorney that they are unwilling or  unable to recognize and identify Brady information at all. This leaves the public, criminal  defendants, and courts with no trust whatsoever in the willingness or ability of the government  even to identify Brady material, much less produce it.

        For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine  produced 330 pages of documents with an abject denial the production included any Brady  material.[vi]6 Yet that production reveals significant Brady evidence that we include and discuss in  our accompanying Motion (filed under seal because the prosecutors produced it under the  Protective Order).

         Any reasonable attorney familiar with the allegations against Mr. Flynn would recognize  that this evidence contradicts and undermines the prosecutors’ “theories” of any wrongdoing.  The production of August 16, 2019, also proves that the government has long had this  information in its possession, all while the government has made an exhaustive effort to

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   prosecute Mr. Flynn for three years or more. Indeed, the prosecutors spent countless hours  interrogating Mr. Flynn on multiple subjects and cases, yet they chose not to disclose this until  now.[vii]7 This conduct demonstrates contempt for the most solemn obligations of these prosecutors  and for this Court’s longstanding order.

        Nothing will force the government to take its  obligations seriously until individual prosecutors are held to account with findings of contempt  and dismissals of prosecutions.

     III. The Government’s Disregard for Its Brady Obligations Is Longstanding.   

         The government has long demonstrated a strong predisposition to view essentially  everything as “inculpatory.” If something appears on its face to be favorable to the defense, such  as Senator Ted Stevens’s note that he wanted to pay his bill to his contractor, the government  will claim it was said “with a wink and a nod,” and therefore it showed the defendant’s guilt after  all. This “heads we win, tails we win” perspective infected and corrupted the prosecution of  United States Senator Ted Stevens, four Merrill Lynch executives, and untold others across the  country. See, e.g., Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the  Court’s Order dated April 7, 2009 (“Schuelke Report”), In re Special Proceedings, No. 09-mc-  00198-EGS, (D.D.C. Nov. 14, 2011); see generally Weary v. Cain, 136 S.Ct. 1002 (2016);  United States v. Brown, 650 F.3d 581, 591 (5th Cir. 2011) (holding “favorable information was  plainly suppressed”); United States v. Kohring, 637 F.3d 895 (9th Cir. 2010); United States v.  Kott, 423 Fed. Appx. 736 (9th Cir. 2011).

            It is well documented that systematic, intentional misconduct has been pervasive in the  Department of Justice. See Schuelke Report (“The investigation and prosecution of U.S. Senator  

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  Ted Stevens were permeated by the systematic concealment of significant exculpatory  evidence.”). But the government learned nothing from the excoriating action this Court took in  Stevens. In the related cases of Kott and Kohring, shortly thereafter, the prosecutors tried again  to avoid any consequences for their egregious misconduct—claiming the same violations they  committed in Stevens were not “material” to those defendants. The Ninth Circuit vehemently  disagreed.   Judge Betty Fletcher wrote a blistering concurring decision. She called out the  government’s “reckless disregard” for the rights of the defendants and would have dismissed the  indictment because the prosecutors’ “unrepentant attitude indicates that no lesser remedial action  would be effective.” Kohring, 637 F.3d at 913. Judge Fletcher wrote that only the extreme  remedy of dismissal would “impress upon the government the reprehensible nature of its acts  and omissions.” Id. at 914.

        Yet, the government’s conduct has only worsened. Its abuse of power has spread and  deepened. The recent reports of the Inspector General demonstrate that constitutional, ethical,  and legal violations infected the FBI, the Department of Justice and perhaps other agencies.[viii]8  Even if the government deems the evidence it is withholding to be inculpatory, it is imperative  that new counsel for Mr. Flynn be able to see the allegedly inculpatory information to evaluate  the government’s allegations against him and to determine how to proceed.[ix]9 Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 8 of 19

 
       IV.      There Are Serious Fourth Amendment Violations.             In addition, there are egregious Fourth Amendment violations at issue in this case. Either  Mr. Flynn was (i) the subject of a pretextual counter-intelligence investigation apparently  resulting from an FBI/CIA operation routed and funded through the Office of Net Assessment in  the Department of Defense, using Stefan Halper to smear him as an “agent of Russia;” (ii) part of  the documented abuses of the NSA database; (iii) the subject of a criminal leak of classified  information regarding his conversations with Ambassador Kislyak; (iv) illegally unmasked; or  (v) some combination of the above. 

           Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious  Fourth Amendment violations by the FBI in areas that likely also involve their actions against  Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only  did the last administration—especially from late 2015 to 2016—dramatically increase its use and  abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very  serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained  information among federal agencies.[x]10 Judge Collyer determined that former FBI Director  Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The  8           Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 9 of 19    court also noted that “the improper access granted the [redacted] contractors was apparently in  place [redacted] and seems to have been the result of deliberate decision making” including by  lawyers.[xi]11, [xii]12

      V.      This Court Should Issue an Order to Show Cause and Hold Government  Counsel in Contempt For Their Disregard of This Court’s Brady Order.

          While the defense is reviewing the massive file counsel does have, it is what we do not  have that is crucial. A finding of contempt by this Court will trigger the appointment of new  prosecutors—unrelated to the Special Counsel investigation or the U.S. Attorney’s Office for the  District of Columbia, which is now equally implicated in the suppression of evidence favorable  to the defense.[xiii]13 As in Stevens, counsel expects that in a matter of weeks, new and untainted  counsel for the government could find and produce the evidence the current team has hidden.

            “Courts have the inherent power to enforce compliance with their lawful orders through  civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966). “A civil contempt action is  characterized as remedial in nature, used to obtain compliance with a court order or to  compensate for damages sustained as a result from noncompliance.” United States v. Shelton, 9

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   539 F. Supp. 2d 259, 262 (D.D.C. 2008) (citing Evans v. Williams, 206 F.3d 1292, 1294-95  (D.C. Cir. 2000)). Indeed, this Court utilized a contempt order against the government to compel  it to produce documents responsive to the Court’s earlier order. See In re Contempt Finding in  United States v. Stevens, 744 F. Supp. 2d 253 (D.D.C. 2010) (aff’d by United States v. Stevens,  663 F.3d 1270 (D.C. Cir. 2011)).

         The “moving party for a civil contempt finding . . . bears the initial burden of  demonstrating by clear and convincing evidence that: (1) there was a clear and unambiguous  court order in place; (2) that order required certain conduct by [the nonmoving party]; and (3)  [the nonmoving party] failed to comply with that order.” United States v. Latney’s Funeral  Home, Inc., 41 F. Supp. 3d 24, 29-30 (D.D.C. 2014). “In the context of civil contempt, the clear  and convincing standard requires a quantum of proof adequate to demonstrate a reasonable  certainty that a violation occurred.” Phillips v. Mabus, 894 F. Supp. 2d 71, 91 (D.D.C. 2012).

        “Once the court determines that the movant has made the above three-part showing, the  burden shifts to the [non-moving party] to justify the noncompliance.” Int’l Painters & Allied  Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F. Supp. 2d 35, 38  (D.D.C. 2010). The alleged contemnor must justify its noncompliance “categorically and in  detail.” Id. at 40. The court “need not find that [the] failure to comply with the orders was willful  or intentional because the party’s intent is irrelevant when making a civil contempt  determination.” Latney’s Funeral Home, Inc., 41 F. Supp. 3d at 30 (citing SEC v. Bilzerian, 112  F. Supp. 2d 12, 16 (D.D.C. 2000)).

        This Court’s Order could not be more clear. It specifically required the government to:  “produce to defendant in a timely manner any evidence in its possession that is favorable to  defendant and material either to defendant’s guilt or punishment. This government responsibility                                                    10        Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 11 of 19    includes producing, during plea negotiations, the same evidence.

” Likewise, it is clear that the  government has refused to comply with that order, despite requests by the defense that it do so.

      VI.    This Court Should Compel the Production of All Brady Material Requested by The Defense.

       Under Brady, prosecutors have an “affirmative duty to disclose evidence favorable to a  defendant.” Kyles v. Whitley, 514 U.S. 419, 432 (1995). That duty is broad and automatic. It  applies equally to “exculpatory and impeachment evidence.” Id. at 433. Further, it applies  “regardless of request” by the defendant. Ibid. This obligation exists because of “the special role  played by the American prosecutor in the search for truth in criminal trials.” Strickler v. Greene,  527 U.S. 263, 281 (1999). The prosecutor is not just another advocate. Rather, he or she  represents “a sovereignty whose obligation to govern impartially is as compelling as its  obligation to govern at all,” and he or she shares its “interest…not that it shall win a case, but  that justice shall be done.” Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Where  the government withholds favorable evidence, the Supreme Court has said, the prosecutor  abandons that role and assumes “the role of an architect of a proceeding that does not comport  with the standards of justice.” Brady, 373 U.S. at 87-88; Kyles, 514 U.S. at 433.

         Moreover, in this District, and under the rules of the D.C. Bar, a prosecutor cannot avoid  Brady by asserting that information is not “material” to the defense. The prosecutor is in no  position to make that determination. As this Court knows, “prosecutors are neither neutral…nor  prescient, and any such judgment [about whether evidence would affect a trial’s  outcome]necessarily is speculative on so many matters that simply are unknown or unknowable  before trial begins.” United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005). Accordingly,  this District and others require disclosure of all favorable evidence, “without regard to whether  the failure to disclose it likely would affect the outcome of the upcoming trial.” Id.; see also        11        Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 12 of 19  
 United States v. Acosta, 357 F. Supp. 2d 1228, 1233 (D. Nev. 2005); United States v. Carter, 313  F. Supp. 2d 921, 924-925 (E.D. Wis. 2004); United States v. Sudikoff, 36 F. Supp. 2d 1196,  1198-1199 (C.D. Cal. 1999).

         The government has not complied with its Brady obligations. In their belated letters and  productions, Mr. Van Grack and his team have admitted they are in possession of evidence favorable to the defense, but they have steadfastly refused to produce the actual evidence. This  includes FBI 302s specifically requested, information identified in the Mueller Report, and  information specifically exonerating Mr. Flynn.

         The government’s most stunning suppression of evidence is perhaps the text messages of  Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of  the Department of Justice advised Special Counsel of the extreme bias in the now infamous text  messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to  the defense until March 13, 2018, when he gave them a link to then-publicly available  messages.[xiv]14   12         Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 13 of 19

           Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent  Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier  because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the  Special Counsel team—and because of their text messages and conduct. One would think that  more than a significant subset of those messages had to have been shared by the Inspector  General of the Department of Justice with Special Counsel to warrant such a high-level and  immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her  conduct, and Agent Strzok was terminated from the FBI because of it.

         Likewise, the prosecutors did not produce evidence of Weissmann’s and Ahmad’s  relationship and work with Bruce Ohr on transmitting the corrupt information to the FBI, and the  numerous 302s resulting from the interviews of Bruce Ohr by the second agent.

          Counsel for Mr. Flynn has repeatedly requested the unredacted messages between Strzok  and Page, the unredacted 302s of Bruce Ohr, as well as details of the information the Department  and Special Counsel had of their messages prior to Mr. Flynn’s plea. Mr. Van Grack has refused  to provide it.[xv]15

      VII.   The Government Must Be Required to Produce the Actual Evidence—Not   Meager “Summaries.”

          The government must be compelled to produce the actual evidence. Its purported  “summaries” or references to information it possesses is insufficient. This Court has 13  Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 14 of 19    described prosecutors’ Brady obligation as an “affirmative duty to disclose evidence.” Kyles, 514  U.S. at 432 (emphasis added). See Connick v. Thompson, 131 S. Ct. 1350, 1358 (2011) (crime  lab report); Cone v. Bell, 129 S. Ct. 1769, 1777 n.10 (2009) (“‘statements of’” six witnesses and  “‘statements contained in official police re-ports’”); Id. at 1783-1784 (“documents” and  “undisclosed notes”); Id. at 1784 (referring to “the quantity and quality of the suppressed  evidence”); Brady, 373 U.S. at 84 (co-defendant’s “extrajudicial statements”).

         In yet another recent demonstration of egregious government misconduct, the  government completely changed the meaning of exculpatory information in a declassified  version of a report—by omitting the word “not.” This case, involving Adam Lovinger, is related  to issues involving Mr. Flynn, as Mr. Lovinger was wrongly charged (and secretly cleared) after  blowing the whistle on the fraudulent payments to FBI/CIA/DOD operative Stefan Halper—a  central figure in the government’s targeting and intelligence abuses of the last several years—  including against Mr. Flynn.

        Mr. Lovinger had been an analyst at the Pentagon for more than ten years when he was  detailed to the White House at then-National Security Advisor Flynn’s request. Mr. Lovinger  voiced concerns internally regarding the Pentagon’s Office of Net Assessment for prioritizing  academic reports (one of which was written by Stefan Halper) at the expense of real threat  assessments. He was recalled to the Pentagon, accused of mishandling sensitive information,  stripped of his security clearance, and suspended.        As it turned out, the Naval Criminal  Investigative Service conducted a thorough examination of his electronic devices, but “[a]gents  found no evidence he leaked to the press, as charged, or that he was a counterintelligence risk.” [xvi]16     14            Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 15 of 19 

             Even though the investigation exonerated Mr. Lovinger of these charges a full month  before Mr. Lovinger’s hearing, the government did not reveal to Mr. Lovinger’s attorneys that  this investigation occurred.[xvii]17 Even worse, the declassified version of the NCIS left out a crucial  “not”. It read that the investigation “did yield any classified or sensitive information,”[xviii]18 when  the truth was the investigation “did not yield any classified or sensitive information.”[xix]19 The  declassified version omitted the word “not.”[xx]20

             Accordingly, the government must be compelled to produce the actual 302s, text  messages, notes, and all actual documents the defense has requested—and we must see them  unredacted.      Summaries are not evidence. Thus, disclosure via a summary cannot satisfy  Brady.[xxi]21 Even in ideal circumstances, summaries present unnecessary risks of mistake and 15         Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 16 of 19    misrepresentation. They pose the same cognitive-bias problems that arise whenever the  government is afforded discretion over what it discloses to defendants. In fact, they compound  the problem in several ways. The prosecutor must ask himself not only which items to disclose,  but which aspects of those items to describe—adding another filter between favorable evidence  and the defendant and amplifying the risk that favorable evidence will be suppressed. Written  summaries require characterization of the evidence that a prosecutor—even the most well-  intentioned—has no business making. The prosecutor assumes the role not merely of compiler,  but of editor.[xxii]22 Summaries license the prosecutor to put his or her own spin on evidence. Even  “[s]ubtle shifts in tone” can have a significant impact on how a document is interpreted. United  States v. Omni Int’l Corp., 634 F. Supp. 1414, 1425 (D. Md. 1986). “Minor modifications today  could be become significant alterations tomorrow, based on the judgment of the reviser.” Id. at  1426.

          As this Court noted in Stevens: “[t]he use of summaries is an opportunity for mischief  and mistake.” Tr. of Mot. Hr’g 9, United States v. Stevens, No. 08-231 (D.D.C. Apr. 7, 2009)  (dismissing indictment against former Senator Ted Stevens for Brady violations). Summaries  present prosecutors with dangerous opportunities—and temptations—to selectively cull and  frame the “favorable” evidence they choose to disclose. Accordingly, the government must be  compelled to provide the actual documents, notes, 302s, and A-1 files the defense has requested  and any other actual documents, notes, emails, texts or other materials that are exculpatory or  might lead to exculpatory evidence. 16        Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 17 of 19

VIII.    Conclusion

       Sunlight is the best disinfectant, and no court can do justice until it knows the truth. To  restore any measure of trust and credibility in our law enforcement institutions, the government  must be held to the highest standards. See, e.g., United States. v. Harvey, 791 F.3d 294, 300 (4th  Cir. 1986) (citation omitted). “[C]oncerns for the honor of the government, public confidence in  the fair administration of justice, and the effective administration of justice in a federal scheme  of government” demand it. Id.

         For these reasons, Mr. Flynn requests that this Court (i) issue an order to show cause why  the government should not be held in contempt because of their violation of this Court’s  Standing Order and their legal and ethical duties to produce exculpatory and impeachment  evidence to the defense; (ii) thereafter find the prosecutors in contempt of this Court’s Brady  order; (iii) issue an order to them and to the Department of Justice to preserve all evidence,  emails, notes, documents, texts, cell phones—including those of the Special Counsel team—and  (iv) order the Department of Justice to produce all evidence the defense requests in our  accompanying Motion and any and all other Brady information in the government’s possession.         Dated: August 30, 2019                                               Respectfully submitted,        /s/ Sidney Powell  Sidney Powell                                              Molly McCann  Sidney Powell, P.C.       2911 Turtle Creek Blvd., Suite 300    Dallas, Texas 75219      Tel:     sidney@**.com        Admitted Pro Hac Vice                                              molly@**s.com        17 Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 18 of 19   Admitted Pro Hac Vice   /s/ Jesse R. Binnall                              Jesse R. Binnall      Lindsay R. McKasson    Harvey & Binnall, PLLC   717 King Street, Suite 300  Alexandria, VA 22314    Tel:    ** jbinnall@**.com                              lmckasson@h**.com     Admitted Pro Hac Vice     W. William Hodes     The William Hodes Law Firm     3658 Conservation Trail     The Villages, Florida 32162    Tel: **     Fax:       Admitted Pro Hac Vice                                    18           Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 19 of 19
                        CERTIFICATE OF SERVICE       I hereby certify that on Friday, August 30, 2019, I filed a copy of the above and foregoing  in the office of the Clerk via the CM/ECF system, which will provide notice to all counsel of  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/ Sidney Powell                                                                       Sidney Powell, P.C.         2911 Turtle Creek Blvd.,                                                                       Suite 300       Dallas, Texas 75219                                                                       Tel:     sidney@**.com           Admitted Pro Hac Vice                                                    19

[i]  1    This is one of the reasons, as Judge Rakoff wrote, “Why Innocent People Plead Guilty.” Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. OF BOOKS (Nov. 20, 2014), http://www.nybooks.com.mutex.gmu.edu/articles/2014/11/20/why-innocent-people-plead-guilty/ (“How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. . . . let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.”).

[ii] 2   Standing Order, Dec. 12, 2017, U.S. v. Flynn, No. 17-232-EGS; Order, Feb. 16, 2018, U.S. v. Flynn, No. 17-232-EGS.

[iii] 3     “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness. Months after the trial, when a new team of prosecutors discovered, in short order, some of the exculpatory information that had been withheld, the Department of Justice (“DOJ”) moved to set aside the verdict and to dismiss the indictment with prejudice. New prosecutors were assigned after U.S. District Judge Emmet G. Sullivan held two of the previous prosecutors in contempt for failing to comply with the Court’s order to disclose information to Senator Stevens’s attorneys and to the Court regarding allegations of prosecutorial misconduct which were made after trial by an FBI agent who had worked on the case.” Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order dated Apr. 7, 2009 (“Schuelke Report”) at 1, In re Special Proceedings, No. 09-mc-00198-EGS, (D.D.C. Nov. 14, 2011).

[iv] 4     18 U.S.C. Section 401(3); see Schuelke Report at 507.

[v] 5     See generally the D.C. Rules of Prof. Conduct, Rule 3.8(e): The prosecutor in a criminal case shall not . . . (e) Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. Significantly, unlike the constitutional rule set out in Brady v. Maryland, the applicable ethical rule in the District of Columbia contains—by design—no “materiality” requirement; see In re Kline, 113 A.3d 202 (D.C. 2015).

[vi] 6   “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

[vii]   7  One would think that anyone investigating a person who had served our country for thirty- three years would first obtain his full government file, which as to Mr. Flynn—who had worked for James Clapper and then headed the DIA—should and would likely include everything the DIA possessed.

[viii] 8  See U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download.

[ix] 9     Mr. Flynn may also have other defenses that prior counsel did not explore. Although it is obvious that the government’s discretion to pursue a prosecution is broad, it is not without constraint. United States v. Armstrong, 517 U.S. 456, 464 (1996). It has often been repeated that “it is unconstitutional to administer the law with an evil eye and an unequal hand so as practically to make unjust and illegal discrimination between persons in similar circumstances.” United States v. Napper, 574 F. Supp. 1521, 1523 (D.D.C. 1983) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)). Selective prosecution requires that a defendant show (1) he was                                                 7  singled out for prosecution from among others similarly situated, and (2) that his prosecution was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465; United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007). It is highly likely this is such a case. Some of the Brady material we identify in our motion speaks directly to these issues.

[x] 10    See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-intercepted- communications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

[xi] 11   FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

[xii] 12     This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

[xiii] 13      “DOJ assigned a new team of prosecutors after District Judge Emmet G. Sullivan held William Welch, the Chief of the Public Integrity Section, Brenda Morris, his Principal Deputy Chief, and another senior DOJ attorney, in contempt on February 13, 2009, for failing to comply with the Court’s order to provide certain information to Senator Stevens’s attorneys, Williams & Connolly, and to the Court regarding a complaint filed by FBI Agent Chad Joy in December 2008 which “raised serious allegations of prosecutorial and governmental misconduct in the investigation and trial of Senator Stevens.” Stevens, Mem. Op., Oct. 12, 2010, at 2 (Dkt. No. 421); see also id., Mem. Op. & Order, Dec. 19, 2008 (Dkt. No. 255); id., Order, Dec. 22, 2008 (Dkt. No. 256); id., Order, Jan. 14, 2009 (Dkt. No. 261); id., Op. & Order, Jan. 21, 2009 (Dkt. No. 274); Schuelke Report at 32.

[xiv]  14      There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018),     https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trump- from-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

[xv] consistently  15     Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf.

[xvi]  16   Rowan Scarborough, EXCLUSIVE: Probe clears pro-Trump Pentagon analyst, report withheld from defense team, THE WASHINGTON TIMES (Aug. 14, 2019), http://amp.washingtontimes.com/news/2019/aug/14/investigation-clears-analyst-accused-of- leaking-da/ .

[xvii] 17      Id.

[xviii]  18    “A review of the contents of S/LOVINGER’s NIPR and SIPR Joint Service Provider (JSP) accounts was conducted and did not reveal any potential CI concerns. *** An interview of former ONA contractor [redacted] ClIV, did not yield any information of concern. A review of the case by NCISHQ and NCISRA Washington, DC determined all logical investigative steps have been completed and the investigation could be closed. ONA was apprised of the status of the investigation. As this investigation has not disclosed indicators S/LOVINGER leaked sensitive information to members of the media and all logical investigative steps were completed, this case is now closed.” Naval Criminal Investigative Service, Records Management Division, Lovinger, Adam, https://tinyurl.com/y6l85hsg.

[xix] 19      Id. (emphasis added).

[xx] 20    Id. at p. 2 (“[redacted] conducted a key word search of the hard drive maintained in S/LOVINGER’s USG-issued Dell “0ptiPlex 9020” computer tower, which did yield any classified or sensitive information.”)

[xxi] 21    “Evidence” need not be admissible to fall within Brady; it is enough that it “could lead to admissible evidence” or “be an effective tool in disciplining witnesses during cross- examination.” United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (collecting cases). Likewise, favorable evidence is not exempt from disclosure simply because it is in some way a “summary” of facts, e.g., contemporaneous notes of a witness interview. Rather, Brady requires the government to give defendants the same raw material that prosecutors possess—whatever its form—rather than reprocessing that material into summaries prepared for the purpose of disclosure.

[xxii] 22       The insufficiency and myriad problems of using summaries is the subject of excellent briefing by Amicus in support of the Petition for Writ Of Certiorari in Brown v. United States, available at https://federalappeals.com/wp-content/uploads/2018/05/Enron_2_OnPetition.pdf.

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