Prosecutors said in filings Friday that “the government has exceeded its discovery and disclosure obligations in this matter.”
Flynn pleaded guilty on Dec. 1, 2017, to lying to the FBI about contacts with then-Russian Ambassador Sergey Kislyak, becoming one of the first Trump associates to cooperate and the highest-ranking official charged in Mueller’s investigation of Russian interference in the 2016 presidential election.
However, Flynn switched defense teams earlier this year, and in a 19-page filing, his new defense attorney, Sidney Powell, said the former three-star general was the subject of an effort by elements of the FBI, CIA and Pentagon “to smear him as an ‘agent of Russia,’ ” or the victim of a criminal leak or other abuses related to classified intercepts of his calls with Kislyak, or “some combination of the above.”
Flynn’s filing wove strands of theories circulating among Trump supporters and echoed by the president that paint his campaign foreign policy adviser as a victim of deep-state persecution. Flynn’s defense provided limited direct evidence of their assertions but asked a court to order the government to turn over more records that they claim might prove their case.
The action came on a day when prosecutors said Flynn has completed his cooperation and could be sentenced before Thanksgiving, even as his defense requested at least a three-month delay in sentencing to see classified documents it contends exist and “almost certainly relate” to his case.
Prosecutors led by Brandon L. Van Grack, a former Mueller team member and one of those targeted by Flynn’s broadside, told the court the government had turned over 22,000 pages of documents before Flynn’s plea and “is not aware of any classified information that requires disclosures to the defendant or his counsel” as asserted by the defense.
U.S. District Judge Emmet G. Sullivan called both sides to a Sept. 10 hearing over the issues.
The defense filing appeared crafted to appeal to at least two audiences: Flynn’s sentencing judge and Trump, who has the power to pardon his former aide.
Flynn’s attorneys have gone out of their way in filings to praise Sullivan’s 2009 reversal of a conviction of former senator Ted Stevens (R-Alaska) for lying on financial disclosures after it was discovered that FBI agents and prosecutors had improperly withheld that their key witnesses had given differing accounts.
At the same time, their court brief echoed criticism that Trump aired in tweets before a hearing for Flynn in December in which the president wished his former adviser “good luck” and expressed outrage at one of the FBI agents who interviewed Flynn, Peter Strzok.
Anti-Trump text messages that Strzok exchanged with another FBI lawyer with whom he was having an affair got him removed from the Mueller investigation and ultimately fired.
Flynn’s new defense team says it wants the original draft of the FBI report of a key Jan. 24, 2017, meeting including Flynn and Strzok, a list of all people who made changes to the report and agents’ notes about the meeting. Prosecutors said they have turned over all versions of the FBI report in the government’s possession.
Sullivan has previously rejected suggestions by Flynn’s initial defense team that he might have been duped into lying to the FBI about his conversations with Kislyak, noting that Flynn had pleaded guilty and made multiple sworn admissions of wrongdoing.
“Arguably, you sold your country out,” Sullivan told Flynn at a Dec. 18 hearing, the same day that Trump launched his Twitter stream. Sullivan cited Flynn’s admissions that he hid the substance of talks with Kislyak and did not disclose work benefiting the Turkish government.
Sullivan warned he might sentence Flynn to prison despite prosecutors’ noting Flynn had cooperated with investigators, leading prosecutors to recommend probation.
Flynn resigned from his top White House post in February 2017 after the White House said he misled Vice President Pence and other administration officials about his contacts with Kislyak.
Flynn’s plea revealed that he was in touch with senior Trump transition officials before and after his communications with the ambassador. The pre-inauguration communications with Kislyak involved efforts to blunt Obama administration policy decisions on sanctions on Russia and a United Nations resolution on Israel.