The Justice Department said Friday it shared with Michael Flynn’s lawyers a number of documents uncovered in a review ordered by Attorney General William Barr, raising the prospect that the department now believes potentially exculpatory information wasn’t turned over as required before the former Trump national security adviser pleaded guilty.
In a Friday court filing, prosecutors didn’t provide details on the documents that were produced in the review by St. Louis-based US Attorney Jeffrey Jensen, but said that they “involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation personnel associated with the investigation.”
Barr appointed Jensen earlier this year to re-examine Flynn’s case and other high profile investigations, and the filing Friday amounted to the first public acknowledgment that he had produced some findings.
As part of his probe, Jensen reviewed whether the FBI and prosecutors with former special counsel Robert Mueller’s office mishandled their legal obligation to share all potentially exculpatory evidence with Flynn’s lawyers before he entered his guilty plea, people briefed on the matter said. The documents that were handed over to Flynn’s counsel on Friday included some findings by Jensen that could indicate potential missteps by the officials who built Flynn’s case, the people said.
Flynn has twice, before two separate judges, affirmed his December 2017 agreement to plead guilty to charges that he lied to FBI about his interactions with the then-Russian ambassador during the Trump presidential transition. But in recent months, he fired his original defense team and waged a campaign to try to get a judge to reverse his guilty plea.
In a separate court filing Friday, prosecutors also said that Covington and Burling, the law firm that previously represented Flynn, had turned over hundreds of pages of documents relevant to Flynn’s latest claim that he was ineffectively represented by his former lawyers who helped arrange his guilty plea.
Flynn attorney Sidney Powell said in her own court filing Friday that the government had turned over “evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI. …The government has deliberately suppressed this evidence from the inception of this prosecution – knowing there was no crime by Mr. Flynn.”
She cited portions of emails between Covington lawyers describing “an unofficial lawyers’ understanding” that the government would not bring charges against Flynn’s son as part of the father’s guilty plea agreement.
Barr’s appointment of Jensen raised criticism that it represented political interference in the Justice Department’s handling of prosecutions. It became public in February amid a tumult inside the Justice Department over the attorney general’s decision to intervene in overruling prosecutors on the sentencing of former Trump friend Roger Stone.
If Jensen has uncovered documents that the department now believes should have been turned over previously to Flynn’s lawyers, it could serve to bolster Flynn’s push to renege on the guilty plea he agreed to in December 2017.
In recent months, Flynn’s legal team has complained in court that prosecutors failed to turn over potentially exculpatory evidence before his guilty plea, thereby violating their so-called Brady obligations under which prosecutors are required to share information with the defense.
Flynn’s new legal team has argued in recent months that prosecutors had violated their obligations by failing to turn over potentially exculpatory evidence ahead of his guilty plea. In court and in conservative media, they have waged a campaign claiming in part that Flynn was the victim of politically motivated prosecution.
But a judge in 2019 rejected Flynn’s claims that the government wrongly withheld documents that could have made a difference in his case.
“Mr. Flynn bears the burden of showing a reasonable probability of a different outcome,” US District Judge Emmet Sullivan ruled. “Mr. Flynn cannot overcome this hurdle.”
The Justice Department told the court Friday that since March, Covington and Burling has produced five “timely and substantial” documents to prosecutors and, on Thursday, handed over signed declarations from four attorneys.
The declarations are “detailed” and “span numerous topics that arose during Covington’s 30-month representation of Mr. Flynn,” prosecutors wrote Friday, adding that they have shared them with Flynn’s new defense team.
Flynn has claimed his former attorneys from Covington withheld information from him and pressured him into taking a plea deal during the Mueller. Covington declined to comment Friday on the declarations.
