A federal judge has ordered the former attorneys for retired Lt. Gen. Michael Flynn to search anew for case documents after their firm acknowledged failing to turn over thousands of emails and other materials to his new defense counsel.
The firm, Covington and Burling, represented Flynn when he pleaded guilty in December 2017 to a charge of lying to the FBI in a deal with special counsel Robert Mueller.
Mr. Flynn terminated the firm in June and retained Sidney Powell. She launched a sustained legal campaign to force the Justice Department to turn over what she believes is evidence that shows he was “framed.” She wants the judge to dismiss the case on grounds of FBI and prosecutor misconduct.
During that battle, Covington has been obligated to transfer its case record to Ms. Powell, but admitted in a new filing on Tuesday it has come up short.
That prompted U.S. District Court Judge Emmet Sullivan to issue a new order that, “Covington & Burling LLP shall re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn. It is further ordered that Covington & Burling 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 production.”
Ms. Powell says she has already confirmed from Covington material that, in a secret deal, prosecutors promised not to file charges against Flynn’s son if the former head of the Defense Intelligence Agency pleaded guilty.
Mr. Mueller investigated Flynn in the Russia election probe but never found any evidence he conspired with the Kremlin. The probe thus centered not on Russia, the reason for which Mr. Mueller was appointed, but rather on Flynn’s FBI interview and how he ran his consulting business.
Robert K. Kelner, Flynn’s lead counsel at Covington, filed a four-page note to Judge Sullivan explaining the process whereby the firm failed to find all documents.
With the arrival of Ms. Powell, the firm “transferred the vast bulk of its client file,” he said.
“Covington had maintained in the working case file its key work product documents, letters, pleadings, interview notes, research memoranda, document productions, document binders, chronologies, and other significant materials related to the representation,” he said.
The transferred of 580,000 documents was completed on June 14.
Ms. Powell was not satisfied and asked Covington for specific material she believed the firm missed.
Covington searched again and found 83,000 addition documents, taking the handover to 663,000.
But Covington still did not fully comply.
Judge Sullivan issued a new order in March, prompting Covington to find more emails that, Mr. Kelner said, “had been inadvertently omitted from the previous file transfer.”
The firm blamed a “miscommunication” with its technology personnel.
A new search found 6,800 Flynn documents and emails which were turned over on Tuesday.
Mr. Kelner said, “In sum, Covington sought last year to go beyond producing the working case file that was routinely maintained throughout the representation. Covington used such e-discovery tools as electronic search terms, as well as manual reviews, to identify other emails and documents that could be part of the client file. 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.”
Judge Sullivan so far has denied Ms. Powell’s motions to force the Justice Department to turn over more material. The judge said the items either do not exist or are not relevant.
But the legal game changed last week when the U.S. attorney in Missouri, Jeffrey Jensen, notified the Justice Department that he has found new evidence. Ms. Powell says the material, still under seal, shows Flynn was “framed” by the FBI.
Attorney General William Barr appointed Mr. Jensen to review the Flynn prosecution.