APPENDIX?

 

 

 

 

 

 

between the FBI, CIA, or DOD with Stefan Halper—going back as far as
2014—regarding Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove
(of MI6), and Professor Christopher Andrew (connected with MI5) and
Halper’s compensation through the DOD Office of Net Assessment as
evidenced by the whistleblower complaint of Adam Lovinger, addressed
in our brief. This includes David Shedd (former Deputy Director of
DIA) and Mike Vickers, who were CIA officers; James H. Baker; former
DIA Director LTG Stewart; former DIA Deputy Director Doug Wise; and
the DIA Director of Operations (DOD). This should also include any
communications or correspondence of any type arising from the
investigation or alleged concerns about Mr. Flynn that contained a
copy to (as a “cc” or “bcc”) or was addressed directly to the DNI
James Clapper and his senior staff; to CIA Director Brennan and his
senior staff; or to FBI Director Comey, his Deputy Andrew McCabe and
senior staff. With respect to Col. (Ret.) James Baker, the current
head of DOD Office of Net Assessment, production of Col. Baker’s
calendar showing his meetings with or any other communications with
David Ignatius from July 1, 2015 through March 2017.

 

 

No. | De£.’s Requests Gov’ t’s Responses

1 A letter delivered by the British Embassy to the incoming National Not relevant. The government is not aware of information that
Security team after Donald Trump’s election, and to outgoing National Christopher Steele provided that is relevant to the defendant’s false
Security Advisor Susan Rice (the letter apparently disavows former statements to the Federal Bureau of Investigation (“FBI”) on January 24,
British Secret Service Agent Christopher Steele, calls his credibility | 2017, or to his punishment.
into question, and declares him untrustworthy).

2 The original draft of Mr. Flynn’s 302 and 1A-file, and any FBI Already provided. The government has already provided responsive
document that identifies everyone who had possession of it (parts of information to the defendant, including the January 24 interview report,
which may have been leaked to the press, but the full original has all drafts of the interview report, and the handwritten notes of the
never been produced). This would include information given to Deputy interviewing agents. The government has also provided to the defendant
Attorney General Sally Yates on January 24 and 25, 2017. reports of interviews with the second interviewing agent, who attests to

the accuracy of the final January 24 interview report.

3 All documents, notes, information, FBI 302s, or testimony regarding Not relevant. The government is not aware of any information that Nellie
Nellie Ohr’s research on Mr. Flynn and any information about Ohr may have provided that is relevant to the defendant’s false
transmitting it to the DOJ, CIA, or FBI. Any drafts, electronic statements to the FBI on January 24, 2017, or to his punishment. The
communications (“ECs”), emails, and texts related to Nellie Ohr’s government’s response includes consideration of the defendant’s
research on Mr. Flynn, and all CIA cables on the topic as well. September 23, 2019 amendment.

- All payments, notes, memos, correspondence, and instructions by and Not relevant. The government is not aware of information relating to the

to the defendant’s false statements to
to his punishment. The government’s
of the defendant’s September 23, 2019

listed persons that is relevant
the FBI on January 24, 2017, or
response includes consideration
amendment.

 

 

1 This Appendix provides the verbatim language from Mr. Flynn’s Motion to Compel the Production of Brady Material and For An Order to Show Cause, ECF

No.

A, ECF No.

111, and his Amendment to the Brady Motion, ECF No. 116.
122-1.

A-1

It also includes the verbatim language from the government’s responses in its Appendix

 
 

The Flynn 302 dated January 19, 2017, mentioned in the Mueller Report.

Item does not exist. The reference in the Report of the Special Counsel
on Russian Interference in the 2016 Election (“Special Counsel Report”)
to an interview of the defendant dated January 19, 2017, is a
typographical error. It should read “January 19, 2018,” which is an
interview of the defendant at which the defendant’s counsel were
present.

 

 

 

 

 

 

 

 

6 All and unredacted Page-Strzok text messages. Mr. Van Grack’s October Already provided. The government has already provided the defendant with
4, 2018, letter asserts: "To the extent the text messages appear to be | access to text messages between former FBI attorney Lisa Page and former
incomplete or contain gaps, we do not possess additional messages that | FBI Deputy Assistant Director (“DAD”) Peter Strzok, including text
appear to fill such gaps." The government should be compelled to messages pertaining to the defendant that are not publicly available.
identify to whom “we” refers, where the originals are, and whether any
of the gaps have been filled or accounted for.

7 All documents, reports, correspondence, and memoranda, including any Already provided. The government has already provided any information
National Security letter or FISA application, concerning any earlier that could reasonably be construed as favorable and material to
investigation of Mr. Flynn, and the basis for it. (The existence of sentencing.
these earlier investigations was disclosed in the Mueller Report; see
Vol. II at pp. 24, 26.)

8 All transcripts, recordings, notes, correspondence, and 302s of any Not relevant. The topic is not relevant to the defendant’s false
interactions with human sources or “OCONUS lures” tasked against Mr. statements to the FBI on January 24, 2017, or to his punishment. The
Flynn since he left DIA in 2014. And electronic communications in government’s response includes consideration of the defendant’s
addition to human sources. September 23, 2019 amendment.

9 The unredacted Page-Strzok text messages as well as text messages, Already provided. The government has already provided the defendant with

emails and other electronic communications to, from, or between Andrew | access to any text messages between Page and DAD Strzok that could
McCabe, James Comey, Rod Rosenstein, Bruce Ohr, Nellie Ohr, John reasonably be construed as favorable and material to sentencing.
Carlin, Aaron Rouse, Carl Ghattas, Andrew Weissmann, Tashina Gauhar,
Michael Steinbach, [REDACTED], and Zainab Ahmad, regarding Mr. Flynn
or the FISA applications or any surveillance (legal or illegal) that
would have reached Mr. Flynn’s communications.

10 |All evidence concerning notification by the Inspector General of the Already provided. The government has already provided the defendant with
DOJ to the Special Counsel of the Strzok-Page text messages, including | access to text messages between Page and DAD Strzok that could
the actual text of any messages given to the Special Counsel, and the reasonably be construed as favorable and material to the sentencing. The
dates on which they were given. Although the Inspector General government’s production to the defendant on March 13, 2018, occurred
notified Special Counsel of the tens of thousands of text messages shortly after the Court issued the Protective Order Governing Discovery,
between Peter Strzok and Lisa Page no later than July 2017—the United States v. Flynn, 17-cr-232 (D.D.C. Feb. 21, 2018) (Doc. 22), and
prosecutors did not produce a single text message to the defense until | over eight months before the defendant reaffirmed his guilt before this
March 13, 2018. Court.

11 |All evidence of press contacts between the Special Counsel Office, Not relevant. The topic is unrelated to the defendant’s false statements
including Andrew Weissmann, Ms. Ahmad, and Mr. Van Grack from the to the FBI on January 24, 2017, or to his punishment.
departure of Peter Strzok from Special Counsel team until December 8,

2017, regarding Mr. Flynn.
12 |Unredacted copies of all memos created by or other communications from | Already provided/not relevant. The government has already provided any

 

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.

 

information from interview reports of former FBI Director James Comey
that could reasonably be construed as favorable and material to
sentencing.

 

 
 

13

An unredacted copy of all of James Comey’s testimony before any
Congressional committees.

To the extent the defendant is referring to Director Comey’s
congressional testimony after he was fired, the government does not
possess unredacted copies of such testimony that is not publicly
available.

 

 

 

 

 

 

 

 

 

14 |The James Comey 302 for November 15, 2017, and all Comey 302s that Already provided. The government has already provided any information
bear on or mention Mr. Flynn. from the interview of Director Comey dated November 15, 2017, that could

reasonably be construed as favorable and material to sentencing.

15 |Notes and documents of any kind dealing with any briefings that Mr. The government is not aware of any information in possession of the
Flynn provided to DIA after he left the government. Defense Intelligence Agency that is favorable and material to

sentencing, including the information that the government provided on
August 16, 2019. Specifically, the information of which the government
is aware, including that August 16 production, is either inculpatory or
has no relevance to the defendant’s false statements to the FBI on
January 24, 2017, or to the FARA Unit.

16 |Any information, including recordings or 302s, about Joseph Mifsud’s Not relevant. The topic is unrelated to the defendant’s false statements
presence and involvement in engaging or reporting on Mr. Flynn and to the FBI on January 24, 2017, or to his punishment. The government
Mifsud’s presence at the Russia Today dinner in Moscow on December 10, | appreciates the correction included in the defendant’s September 23,
2015. 2019 amendment.

17 |All notes, memoranda, 302s, and other information about the McCabe- Not relevant. Any briefings or meetings that occurred after January 24,
Strzok meeting or meetings with Vice President-Elect or Vice President | 2017, among the listed individuals are not relevant to whether defendant
Pence (these meetings were referenced in the Mueller Report at Vol II, |made false statements to the FBI on January 24, 2017, or to his
p. 34). punishment.

18 |All Mary McCord 302s or interviews, including when she knew that Mr. Already provided. The government has already provided the defendant with
Flynn did not have “a clandestine relationship with Russia.” information from former National Security Division Acting Assistant

Attorney General Mary McCord’s interview report that could reasonably be
construed as favorable and material to sentencing.

19 |Any Sally Yates 302s or other notes that concern Mr. Flynn, including Already provided. The government has already provided the defendant with
treatment of her meetings with FBI Agents on January 24 and 25, 2017, information from former Department of Justice (“DOJ”) Deputy Attorney
her meetings with anyone in the White House, and the draft 302 of the General Sally Yates’ interview report that could reasonably be construed
Flynn interview on January 24 she reviewed or was read into. as favorable and material to sentencing. The meetings Deputy Attorney

General Yates had with persons in the White House after the January 24
interview are not relevant to whether defendant made false statements to
the FBI on January 24, 2017, or to his punishment. The government has
already provided the defendant with all drafts in its possession of the
January 24 interview.

20 |An internal DOJ document dated January 30, 2017, in which the FBI Already provided/not relevant. The government has already provided the

exonerated Mr. Flynn of being “an agent of Russia.” defendant with information from the internal DOJ document about the
defendant not being “an agent of Russia.” That information, however, is
not relevant to whether defendant made false statements to the FBI on
January 24, 2017. The defendant is not charged with and has not been
accused by the government in this case of being “an agent of Russia.”

21 |All information provided by Kathleen Kavalec at the Department of Not relevant. The government is not aware of information that Department

 

State to the FBI regarding Christopher Steele prior to the first FISA

application.

 

of State Deputy Assistant Secretary Kathleen Kavalec may have provided
that is relevant to the defendant’s false statements to the FBI on
January 24, 2017, or to his punishment.

 

 
 

22

Any and all evidence that during a senior-attended FBI meeting or
video conference, Andrew McCabe said “First we fuck Flynn, then we
fuck Trump,” or words to that effect.

Already provided. The government has already provided extensive evidence
to the defendant disproving this allegation, including statements from
both interviewing agents. The government is not aware of evidence that
former FBI Deputy Director Andrew McCabe said “First we f**k Flynn, then
we £**k Trump,” or words to that effect.

 

 

 

 

 

 

 

 

 

 

 

 

23 |The two-page Electronic Communication (EC) that allegedly began the Not relevant. The topic is unrelated to the defendant’s false statements
“Russia Collusion” investigation. to the FBI on January 24, 2017, or to his punishment.

24 |All information that underlies the several FISA applications, The request is overly broad, and does not pertain to information that
including any information showing that any of the assertions in the would be favorable and material to sentencing.
applications were false, unverified, or unverifiable.

25 |All documents, notes, information, FBI 302s, or testimony regarding Not relevant. The government is not aware of information relating to DOJ
any debriefing that Bruce Ohr gave to anyone in the FBI or Department attorney Bruce Ohr that is relevant to the defendant’s false statements
of Justice regarding Christopher Steele. to the FBI on January 24, 2017, or to his punishment.

26 |Testimony, interviews, 302s, notes of interviews of all persons who The request is overly broad, and does not pertain to information that
signed FISA applications regarding Mr. Flynn or anyone that would have | would be favorable and material to sentencing.
reached Mr. Flynn’s communications, without regard to whether those
applications were approved or rejected.

27 |All FISA applications since 2015 related to the Russia matter, whether |The request is overly broad, and does not pertain to information that
approved or rejected, which involve Mr. Flynn or reached his would be favorable and material to sentencing.
communications with anyone.

28 |Information identifying reporters paid by Fusion GPS and/or the Penn The request is unrelated to the defendant’s false statements to the FBI
Quarter group to push “Russia Collusion,” communications regarding any | on January 24, 2017, or to his punishment.
stories about Mr. Flynn, and any testimony or statements about how the
reporters were used by the government regarding Mr. Flynn.

29 | FBI 302s of KT McFarland, notes of interviews of her or her own notes, |As described in the Special Counsel Report, after the defendant pleaded
and text messages with Mr. Flynn from approximately December 27, 2016, | guilty on December 1, 2017, former Deputy National Security Advisor K.T.
until Flynn’s resignation. McFarland stated in an interview that the defendant relayed to her that

he had conversations with the Russian Ambassador in December 2016, about
which the defendant made false statements to the FBI on January 24,
2017. See SPECIAL COUNSEL ROBERT S. MUELLER III, REPORT ON THE
INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL
ELECTION (Mar. 2019) (“Special Counsel Report”), Vol. I. at 169-73.

30 |Any information regarding the SCO’s and DOJ’s destruction of the cell |Not relevant. The topic is unrelated to the defendant’s false statements
phones of Peter Strzok and Lisa Page (after being advised of the to the FBI on January 24, 2017, or to his punishment.
thousands of text messages that evidenced their bias) that has been
classified or otherwise not available to the public from the published
Inspector General Report.

31 |Any information regarding [REDACTED] eradication of cell phone data, Not relevant. The request is unrelated to the defendant’s false
texts, emails, or other information belonging to Peter Strzok and Lisa | statements to the FBI on January 24, 2017, or to his punishment.

Page that created the “gap” identified by the IG.

32 | Information about any parts of any polygraph examinations failed by Not helpful. Whether or not such information exists, it does not pertain
Peter Strzok after Mr. Flynn was first the subject of any FBI to information that would be favorable and material to sentencing.
investigation—authorized or unauthorized.

33 | Brady or Giglio material newly discovered by the government (and by Already provided. The government has already provided the defendant with

 

the Inspector General in his separate investigations) in the last two

years.

 

all Brady material; it is not obligated to provide Giglio material
pursuant to the Court’s Standing Order, United States v. Flynn, 17-cr-
232 (D.D.C. Feb. 16, 2018) (Doc. 20).

 

 
 

34

A full unredacted and copies of the recordings of Mr. Flynn’s calls
with Ambassador Kislyak or anyone else that were reviewed or used in
any way by the FBI or SCO in its evaluation of charges against Mr.
Flynn.

Not helpful. Whether or not such information exists, it does not pertain
to information that would be favorable and material to sentencing.

 

 

 

 

 

 

 

 

 

35 |All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, Not relevant. Former Director of National Intelligence James Clapper had
and the cell phone and home phone records of Mr. Clapper and David no role in the criminal investigation of the defendant, and the
Ignatius between December 5, 2016, and February 24, 2017. government is not aware of information relating to Director Clapper that

is relevant to the defendant’s false statements to the FBI on January
24, 2017, or to his punishment.

36 |Unredacted scope memos written for the Special Counsel and any Not helpful. The request does not pertain to information that would be

requests by Special Counsel that mention Mr. Flynn or his son. favorable and material to sentencing. The government also notes that the
Special Counsel Report states that the Acting Attorney General
confirmed, in memoranda, the Special Counsel’s authority to investigate
the defendant. See Special Counsel Report, Vol. I at 11-12.

37 |All FBI 302s or any notes of interviews of David Ignatius or any other | Not relevant/not helpful. The request is unrelated to the defendant’s
reporter regarding the publication of information concerning Mr. Flynn | false statements to the FBI on January 24, 2017, or to his punishment.
and/or the reporters’ contacts with James Clapper, Andrew McCabe, John
Brennan, Michael Kortan, or anyone in the FBI, DNI, DOD, DOJ, or CIA
regarding Mr. Flynn.

38 | FBI 302s and interview notes of Jim Woolsey, including notes by SCO Not helpful. The government is not aware of information from Jim Woolsey
members of conversations with Woolsey about Mr. Flynn, Flynn Intel that would be favorable and material to sentencing.

Group, the Turkey project, and his separate meeting with officials of
Turkey after the meeting that was the subject of the FIG FARA filing.

39 |All communications between Mr. David Laufman, Ms. Heather Hunt and any |The first part of the request concerns internal, deliberative Department
other member of the National Security Division regarding the FARA of Justice communications that are not discoverable. As for notes of the
registration for Mr. Flynn and FIG and notes, reports or recordings of | interactions between the Department of Justice and the defendant’s
their interaction with Covington & Burling with regards to the filing counsel, defendant’s counsel participated in those interactions and
and its contents. See Def.’s Resp. to the Ct.’s Order of July 9 & possess their own notes.

Gov.’s Filing of July 10, Ex. D, July 11, 2019, No. 17-232-EGS.

40 |Unredacted notes of the [REDACTED] and Strzok from the interview of Not helpful. The government has already provided the defendant with the

Mr. Flynn on January 24, 2017. interviewing agents’ handwritten notes of the January 24 interview. The
limited redactions of those notes do not refer to information that would
be favorable and material to sentencing.

a. [U]nredacted 302 reports and any notes or recordings in any form of Already provided. The government has already provided any information
the following meetings or interviews: Former Deputy Director Andrew from interviews with Deputy Director McCabe that could reasonably be
McCabe, regarding Mr. Flynn, his calls with Ambassador Kislyak, construed as favorable and material to sentencing.
members of the White House discussing those, and his discussions,
planning session, and debriefing session with agents before and after
the Flynn interview on January 24, 2017.

b. [U]nredacted 302 reports and any notes or recordings in any form of Already provided/not helpful. As discussed above, debriefings/meetings

 

the following meetings or interviews: 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 David Bowdich, Jen Boone, [REDACTED], Peter Strzok, Lisa Page,
Trish Andersen, and Andrew McCabe.)

 

that occurred before the January 24 interview are not favorable and
material to sentencing for making false statements to the FBI on January
24, 2017. Nevertheless, the government has already provided to the
defendant any information that could reasonably be construed as
favorable and material to sentencing about such pre-interview
discussions, including the language quoted in the request.

 

 
 

[U]nredacted 302 reports and any notes or recordings in any form of

the following meetings or interviews: Recordings, notes, and memoranda

by any and all persons who participated in the debriefing sessions
following the interview of Mr. Flynn, including [REDACTED], Peter
Strzok, Jon Moffa, Andrew McCabe, Bill Priestap, David Bowdich,
[REDACTED], Trish Andersen, and James Comey.

Already provided/not helpful. The government has already provided any
information about such post-interview debriefings that could reasonably
be construed as favorable and material to sentencing.

 

[U]nredacted 302 reports and any notes or recordings in any form of
the following meetings or interviews: Former Principal Associate
Deputy Attorney General Matthew Axelrod regarding Mr. Flynn.

Already provided. The government has already provided any information
from former Principle Associate Deputy Attorney General Matthew
Axelrod’s interview report that could reasonably be construed as
favorable and material to sentencing.

 

[U]nredacted 302 reports and any notes or recordings in any form of

the following meetings or interviews: Former Acting Assistant Attorney
General Mary McCord regarding the FBI’s decision not to give Mr. Flynn
a Title 18, Section 1001 warning, and the decision not to re-interview

him despite the general practice of the FBI to give subjects that
opportunity.

Already provided. The government has already provided any information
from Acting Assistant Attorney General McCord’s interview report that
could reasonably be construed as favorable and material to sentencing,
including the information quoted in the request.

 

[U]nredacted 302 reports and any notes or recordings in any form of
the following meetings or interviews: Former Acting Attorney General

Sally Yates, regarding her opinion that the January 24, 2017, surprise
interview of Mr. Flynn was problematic and her lack of clarity of the

FBI’s purpose in investigating Mr. Flynn.

Already provided. The government has already provided any information
from Deputy Attorney General Yates’ interview report that could
reasonably be construed as favorable and material to sentencing,
including the information quoted in the request.

 

[U]nredacted 302 reports and any notes or recordings in any form of
the following meetings or interviews: White House and transition

officials regarding Mr. Flynn’s conversations with Ambassador Kislyak.

The requested information pertains to information that is inculpatory,
and not helpful to the defendant. As the government communicated to the
defendant on May 25, 2018, the Special Counsel’s Office (“SCO”)
conducted interviews and reviewed documents that referenced statements
the defendant made to White House and transition officials about the
defendant’s conversations with the Russian Ambassador. That
investigative activity yielded information consistent with the
defendant’s publicly reported statements and his statements to the SCO,
in which the defendant initially denied having discussed sanctions with
the Russian Ambassador. Those are the same denials that the defendant
made to the FBI on January 24, 2017. After February 8, 2017, however,
the defendant stated that he could not be certain that sanctions never
came up in his conversations with the Russian Ambassador.

 

 

 

[U]nredacted 302 reports and any notes or recordings in any form of
the following meetings or interviews: Michael Boston, Phil Oakley,
Carl Pilgrim, Graham Miller, regarding Flynn Intel Group and Mr.
Flynn, and Brian McCauley, regarding Mr. Flynn’s desire to file FIG’
FARA registration “the right way” with the DOJ.

Ss

 

Already provided/not helpful. The government had previously provided
information from the interview reports of the listed persons pertaining
to the defendant’s desire to register “the right way” with the DOJ. The
only listed person who made such a statement was Brian McCauley; the
quoted language in the request comes from a government disclosure about
McCauley. That prior disclosure is consistent with McCauley’s public
testimony at trial in United States v. Rafiekian, 18-457 (E.D. Va. July
23, 2019), as well as interviews conducted by prosecutors in the Eastern
District of Virginia. To the government’s knowledge, McCauley is the
only listed person who indicated that the defendant expressed a desire
to register “the right way.” The government, however, has not accused
the defendant of willfully failing to register under FARA. Rather, the
defendant willfully made false statements and omissions in his FARA

 

 
 

filings.

 

 

 

[U]nredacted 302 reports and any notes or recordings in any form of
the following meetings or interviews: The entire report of the SCO’s
interview of James Comey, provided in camera to the Court, but only
summarized to defense counsel in the SCO’s letter of December 14,
2018.

 

Already provided/not helpful. The government has already provided any
information from the interview of Director Comey dated November 15,
2017, that could reasonably be construed as favorable and material to
sentencing.

 

 
