Just days after the Federal Bureau of Investigation finally produced potential evidence of his innocence, the former law firm who handled Flynn’s ‘guilty’ verdict suddenly found over 6800 documents that it failed to produce when ordered by the court in 2019. The firm claimed the lack of compliance was based on a “miscommunication.”
Incidentally, that law firm, Covington & Burling, has Eric Holder as a partner.
Covington & Burling LLP told the court its search team failed to search all of the law firm’s records and missed the documents, mostly emails. The documents were produced to Powell on Tuesday.
“Covington determined that an unintentional miscommunication involving the firm’s information technology personnel had led them, in some instances, to run search terms on
subsets of emails … rather than on the broader sets of emails that should have been searched,” Flynn’s former attorney Robert Kelner told the court in a motion.
“We now have performed another search, using search terms and manual reviews, on a broader universe of material to correct the earlier error and to transfer additional documents that are part of the client file,” Kelner wrote, saying his firm was willing to assist Powell on any other matters and to address any questions the judge may have about the oversight.
Flynn was forced to step down as President Trump’s former national security adviser just weeks into his new job after a transcript of his calls with the Russian ambassador was leaked to the media, raising questions about whether he was part of an effort to collude with Moscow.
Flynn eventually pled guilty to a charge of lying to prosecutors and became a cooperating witnesses for Special Counsel Robert Mueller, who ultimately concluded there was no evidence Flynn or any other Trump official conspired with Russia to hijack the 2016 election.
His plea deal was reached while he was still represented by Kelner.
Powell took over as Flynn’s new lawyer last summer, and the judge in the case order Covington to turn over all defense documents to her.
The court is expected to make public soon the new, but still sealed, FBI documents that were belatedly turned over to Powell, which she argued in a Friday court motion provided evidence that agents engaged in misconduct during the Russia probe.
The federal judge presiding over retired Lt. Gen. Michael Flynn’s case issued a surprise order telling the former national security adviser’s previous attorneys to conduct another search of their entire case archive after it was revealed they failed to turn thousands of documents over to Flynn’s new defense team.
The ruling by Judge Emmet Sullivan was made public Tuesday afternoon after Robert Kelner and Stephen Anthony, Flynn’s former lawyers at the powerhouse firm Covington & Burling, claimed there were 6,800 records they had only just now unearthed and turned over to Flynn’s current defense team, which has been led by former federal prosecutor Sidney Powell since July 2019.
“It is FURTHER ORDERED that Covington & Burling LLP shall re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn,” stated Sullivan’s ruling, which appeared on the public docket. “It is FURTHER ORDERED that Covington & Burling LLP is FORTHWITH DIRECTED to produce to Mr. Flynn’s successor counsel all documents or communications concerning the firm’s representation of Mr. Flynn that were not previously transferred in the rolling productions. It is FURTHER ORDERED that Covington & Burling LLP shall file a notice of compliance with this Order by no later than 12:00 PM on May 4, 2020.”
Around the same time Tuesday afternoon, a seven-page filing from the Covington attorneys was unsealed, showing that Kelner and Anthony had just transferred thousands of documents that they had been sitting on for almost a year to Powell and Flynn’s new team.
Earlier in April, Covington admitted it failed to transfer a number of emails and two handwritten notes over to Powell, but Tuesday showed that this was just the tip of the iceberg.
“Covington has now re-executed the email collection and searches on the broader set of emails, correcting the error made as a result of the miscommunication. In so doing, we again used electronic search terms and manual reviews to target documents in the client file. This effort yielded an additional set of approximately 6,800 documents and emails (including attachments) that were not produced during the client file transfer in July 2019,” Kelner and Anthony said, adding that “these documents, comprising approximately 1% of the 669,800 total documents transferred in this case, were produced to successor counsel today.”
Powell, who took over last year in the spinoff case from special counsel Robert Mueller’s investigation, said that new information provided by the Justice Department on Friday that was related to her client’s prior representation of more than two years showed that Flynn would be exonerated.
“The government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI,” said Powell’s Friday filing on the public docket. “The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”
“Since August 2016 at the latest, partisan FBI and DOJ leaders conspired to destroy Mr. Flynn,” Powell said, adding that “the government’s misconduct in this case is beyond shocking and reprehensible. It mandates dismissal.”
Powell’s filing Friday evening included two exhibits related to March 2018 communications from Flynn’s former legal team at Covington. The first was a redacted email from Kelner to Anthony, stating, “We have a lawyers’ unofficial understanding that they are unlikely to charge [Flynn’s son] in light of the Cooperation Agreement.” The second blacked out email from Anthony to Kelner said: “The only exception is the reference to Michael Jr. The government took pains to give a promise to [Flynn] regarding Michael Jr. so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against who MTF may one day testify.”
In a filing earlier this year, Powell pointed to a section of DOJ Inspector General Michael Horowitz’s report, which showed that the intelligence briefing the FBI gave to then-candidate Trump’s team in August 2016 during the presidential campaign was a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign.
Many experts suggest that this, along with the other evidence against the Obama FBI, could swing Sullivan over and give him the evidence needed to overturn the guilty plea… which was coerced from threats against Flynn’s son.