The federal case against former national security advisor Michael Flynn is winding down. Flynn’s attorneys and those from the Department of Justice (DoJ) both agree that Flynn’s cooperation is complete. Flynn changed his legal team in late-spring and the new team is digesting 13 hard drives of data, containing 300,000 documents.

Flynn defense – CIPA applies

Within the defense team’s update resides a plea to the court to make available information which has been withheld from the defense (both current and former) which falls within arena of classified information and would be subject to the Classified Information Procedures Act (CIPA).

The defense team notes that the government has repeatedly denied their request for security clearances, and they request the court’s intervention. In their case update, they note Flynn held security clearances at the highest level. The lawyers contend that they don’t know, due to their lack of security clearances, what he briefed the Defense Intelligence Agency about his foreign contacts and travel (as required by NISPOM). In their request to the court they argue that this material is relevant to the charges, and that this and other information, including transcripts of Flynn’s calls to then Russian Ambassador to the United States, Sergey Kislyak, have been withheld. The court ordered in May 2019 that the telcon transcripts be released, but then the judge rescinded the order in June 2019.

The defense team notes the FBI has declined to produce the original 302 interview of Flynn, which occurred on January 24, 2017, the 1A file, and those documents and changes to the 302 which may have occurred. (“FD 302” is the nomenclature for the form often associated with the record of an FBI interview with an individual; the “1A” is an envelope in which small physical items are placed, such as photographs, computer printouts of license checks, and agents’ handwritten notes of interviews).

Government – nothing classified here, CIPA does not apply

The government, via DoJ, advises Flynn is ready for sentencing on October 21-23 or November 1-15.

The DoJ also took the opportunity to repeat how the CIPA rules do not apply. DoJ has communicated repeatedly to defense that “discovery and disclosure of classified national security information, as defined under Executive Order 13526 and its predecessor Executive Orders, is governed by the procedures set forth under the Classified Information Procedures Act, 18 U.S.C. App. III. Sections 1-16 (“CIPA”), and specifically CIPA Section 4. A defendant and his/her cleared counsel in a criminal prosecution may only obtain access to classified U.S. government information when such classified material is deemed both “relevant” and “helpful to the defense.””

The prosecutors claim to have already provided all versions of the January 2017 FBI interview of Flynn (the 302s). The government contends that it has not provided any classified materials to the defense as it isn’t aware of any classified material that requires disclosure to the defendant.

With the defense contending that classified information is exculpatory and the prosecutors saying that’s not the case, the arbiter will be Judge Emmet Sullivan.

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Christopher Burgess (@burgessct) is an author and speaker on the topic of security strategy. Christopher, served 30+ years within the Central Intelligence Agency. He lived and worked in South Asia, Southeast Asia, the Middle East, Central Europe, and Latin America. Upon his retirement, the CIA awarded him the Career Distinguished Intelligence Medal, the highest level of career recognition. Christopher co-authored the book, “Secrets Stolen, Fortunes Lost, Preventing Intellectual Property Theft and Economic Espionage in the 21st Century” (Syngress, March 2008).