Flynn attorneys, prosecutors spar over sentencing

Flynn attorneys, prosecutors spar over sentencing
© Aaron Schwartz

Prosecutors and attorneys for Michael Flynn agree that President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE’s former national security adviser is done cooperating with the government, but are sparring over when he should be sentenced.

Flynn’s new defense team argued in a new filing that they need more time to review the volume of evidence related to his case — amounting to 13 hard drives containing over 300,000 documents — before the judge schedules sentencing. The lawyers asked to file another status report in 90 days.

But prosecutors in Washington, D.C., said Flynn is ready to be sentenced and proposed the court schedule it for a time during the date ranges of Oct. 21-23 or Nov. 1-15.


The two sides also disagree over the defense’s access to classified information, with Flynn’s attorneys accusing the government of refusing to give them clearances and withholding classified evidence germane to their client’s case.

Flynn, who pleaded guilty to lying about his conversations with the Russian ambassador in connection with former special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s investigation into the Kremlin's interference in the 2016 election, was originally supposed to be sentenced last December.

He had his sentencing delayed in order to finish out his cooperation on the foreign lobbying case against his onetime business partner, which concluded last month.

Ultimately, it will be up to Judge Emmet Sullivan, an Obama appointee, to decide whether Flynn’s sentencing should move forward. The parties asked for a status conference to be scheduled to resolve their disputes. Flynn’s attorneys asked that it be scheduled for at least 30 days out but ultimately left it up to Sullivan to decide.

Flynn hired a new team of lawyers led by Sidney Powell, a critic of Mueller and the Justice Department, in June. 

In the new filing, his attorneys took aim at the government, accusing prosecutors of withholding the original draft of the FBI’s first interview with Flynn in January 2017, as well as transcripts or recordings of Flynn’s phone call with the Russian ambassador that underpinned his case.

They argued that they need clearances to review material from the Defense Intelligence Agency related to Flynn’s briefings with the agency about his foreign contacts and travel, including what is most likely “Brady material,” or evidence that is material to the determination of a defendant’s guilt. 

And they argued they should have access to classified material underpinning forthcoming reports from the Justice Department inspector general related to the Russia investigation. 

“Our attempts to resolve that issue with the government have come to a dead end, thus requiring the intervention of this Court,” the defense attorneys wrote. 

Prosecutors, meanwhile, said they had “exceeded” their discovery obligations in Flynn’s case, noting that a defendant and his or her attorneys in a criminal prosecution can only obtain access to classified information if it is deemed to be “relevant” and “helpful to the defense.”

They wrote that they have provided no classified information to Flynn or his attorneys — new or old — and that they were not aware of any classified material that would require disclosure to Flynn under Brady v. Maryland, a landmark Supreme Court case establishing that prosecutors must turn over all evidence that is material to the guilt or innocence of a defendant.

“We take very seriously our discovery and disclosure obligations, to include those specifically imposed by the Court in this case,” prosecutors wrote. “The government has exceeded its discovery and disclosure obligations in this matter.”