Not too long ago, I was privileged to represent a former big city police officer who had been charged with raping two young women of questionable virtue. He had met one of them through an online site where, among other things, prostitutes advertised their services. That purported victim had introduced him to her friend, who became the second complainant. It was no secret — and the prosecution was well aware — that the two young women were hookers. Nevertheless, despite the fact that my client had retired after being grievously wounded in the line of duty, he was arrested in a guns-drawn, break-down-the-door SWAT raid and remanded to jail on astronomically high bail pending trial.
In a previous cultural era, my client might not have been charged — much less swatted and subjected to prolonged pretrial incarceration — on the word of such witnesses. But, unfortunately for him, the #MeToo movement was in full cry, and the authorities were afraid not to afford full faith and credit to the highly implausible accusations leveled by these two beauties. My client was in serious trouble and faced a life sentence.
But then sources (who must remain nameless) secretly advised me that the complainants were living in a motel with all lodging, meals, and expenses being paid by the prosecution. Later these same confidential sources said that the two complainants had been arrested by a suburban police department with no ties to the prosecution for plying their trade out of their taxpayer-funded motel room.
This is what we trial lawyers call an opportunity. I served the prosecution with a discovery request demanding the disclosure of all bills, invoices, checks, payment records, etc. pertaining to the taxpayer-funded care, lodging, and feeding of the two complainants as well as all records relating to their arrest on prostitution charges while they were being cosseted at taxpayers’ expense and under the supervision of the district attorney’s office.
I could be wrong, but it appears that the prosecutors took one look at the discovery demand and vapor locked. Shortly after they received the motion, the rape charges were withdrawn.
And that is how graymail discovery tactics work. They force the prosecution to weigh the benefit of proceeding with its case against the pain of being humiliated or otherwise harmed by public disclosure of its most deeply held embarrassing secrets.
This brings us to the inspired and recently unsealed motion to compel production of exculpatory evidence filed by Sidney Powell, former Lt. Gen. Michael Flynn’s new lawyer.
As you may recall, there are many disturbing questions surrounding the federal government’s investigation, arrest, and prosecution of Flynn. Although he has pled guilty to a flimsy and corruptly contrived charge of lying to the FBI, that plea came about after he had — according to media reports — bankrupted himself by paying $4 million in legal fees to the Washington law firm that represented him prior to Powell. In short, it appears that Flynn pled guilty because he couldn’t afford any more justice.
In addition to the law firm’s impressive professional achievement of turning a mere guilty plea proceeding into a reported $4 million payday, the known facts and circumstances surrounding the Flynn case are equally remarkable. We know that the charges arise out of an ambush interview orchestrated by former FBI Director James Comey and Deputy Director Andrew McCabe regarding contacts that Flynn, the incoming Trump administration’s National Security Adviser, had with Russian Ambassador Sergei Kislyak. According to Powell’s thorough, broadly worded, and aggressive discovery motion, recently produced (and previously withheld) government documents disclosed that “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 [former Director of National Intelligence] James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. Clapper’s actions.” In addition, at the bar of the Court, Powell advised U.S. District Judge Emmet Sullivan that the recently disclosed documents showed the government had concluded that Flynn was neither a Russian nor a Turkish agent.
So why and how was Flynn targeted for destruction by the FBI and Justice Department? Powell’s discovery motion seeks answers to these questions by demanding the production of evidence exposing the links between the investigation and prosecution of Flynn to the Obama administration’s efforts to target, spy on, and frame Donald Trump. To that end, the motion requests that Judge Sullivan enter an order compelling the government to produce a range of exculpatory evidence including, but not limited to, the following:
“Any and all evidence that during a senior-attended FBI meeting or video conference, Andrew McCabe said, ‘First we f–k Flynn, then we f–k Trump,’ or words to that effect….
“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 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 … Andrew Weissmann … regarding Mr. Flynn or the FISA applications or any surveillance (legal or illegal) that would have reached Mr. Flynn’s communications….
“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 … and Halper’s compensation through the DOD Office of Net Assessment….
“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….
“All information provided by Kathleen Kavalec at the Department of State to the FBI regarding Christopher Steele prior to the first FISA application….
“An internal DOJ document dated January 30, 2017, in which the FBI exonerated Mr. Flynn of being ‘an agent of Russia.’ …
“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.”
The motion seeks production of 40 separate categories of documents as well as production of unredacted FBI FD “302 reports and any notes or recordings in any form” of nine meetings or interviews including, but not limited to, the following:
“Former Deputy Director Andrew McCabe, regarding Mr. Flynn, his calls with Ambassador Kislyak, members of the White House discussing those, and his discussions, planning session, and debriefing session with agents before and after the Flynn [FBI] interview on January 24, 2017.
“Recordings, notes, and memoranda by any and all persons who participated in the planning session for the interview of Mr. Flynn, at which it was decided that the agents would not inform him that it was an actual interview or that he was under investigation — so as to keep him ‘relaxed.’ (These persons include … Peter Strzok, Lisa Page … and Andrew McCabe.)”
The list goes on, but you get the idea. The motion indicates that, far from conducting a fishing expedition, the defense is aware of highly embarrassing and potentially incriminating activities by officials of the FBI, Justice Department, and Special Counsel’s Office and wants the documents, recordings, and other evidence pertaining to those matters.
In her public comments, Powell has stated that she hopes to have Judge Sullivan dismiss the case against Flynn based on the government’s misconduct in hiding exculpatory evidence. Just so. But to those of us familiar with the dark art of graymail extortion, it is apparent that the motion has been carefully crafted and calculated to scare the bejesus out of the government at the mere possibility that Judge Sullivan might actually order production of even a small fraction of the demanded discovery.
Moreover, if Judge Sullivan grants the defense even partial relief, the prosecutors will then be faced with a bitter choice, to wit:
(a) They can produce the damning evidence of the government’s corrupt activities in order to continue the prosecution of their ludicrous and petty false statements case against Flynn. Or (b) the prosecutors can do the smart thing by dropping the charges and quietly disappearing into the witness protection program.
If the prosecutors want my advice, in the event Judge Sullivan grants any part of Powell’s lethal motion, they should pick option (b) and ask the U.S. Marshal’s Service to relocate them to Arizona. I hear it’s nice there in the winter, and retirees can live comfortably on even a modest government pension.
George Parry is a former federal and state prosecutor. He is a regular contributor to the Philadelphia Inquirer and blogs at knowledgeisgood.net. He may be reached by email at email@example.com.