Flynn Case Takes New Twist With McCabe Claim of Distorted Notes

(Bloomberg) -- The tangled prosecution of Michael Flynn took more twists Wednesday with the former national security adviser's lawyer demanding the judge overseeing the case step down and former FBI Deputy Director Andrew McCabe claiming his personal notes from the agency are being distorted.

The case has veered from Flynn's initial guilty pleas to lying to federal agents during the investigation of Russian interference in the 2016 election, to the government's surprise decision in May to drop it and U.S. District Judge Emmet Sullivan's refusal to rubber-stamp the request.

In an attempt to persuade Sullivan to toss the prosecution, the Justice Department and Flynn have produced what they say is evidence the investigation of Flynn was a politically corrupt setup with Obama administration officials wanting to entrap the former national security advisor.

As part of that effort, Flynn's lawyers said in a Sept. 24 filing that McCabe's “newly produced notes” show he briefed the Senate Intelligence Committee on May 10, 2017. “They were trying very hard to pin something on General Flynn,” the lawyers said without providing context. Their filing instead pointed to a heavily redacted page of McCabe's notebooks.

But McCabe, who claims in a separate suit that he was unlawfully fired because he didn't vote for Trump in 2016, disputed that claim in a letter to Sullivan and said the evidence was distorted.

He says he participated in a public hearing with the committee on May 11, 2017, as well as a closed briefing with other intelligence officials on global threats, but that neither “had anything to do with Mr. Flynn.”

McCabe said it's “ironic” that the Justice Department had provided his notes to Flynn's lawyers while refusing to hand them over to him. He says he needs them to prepare for scheduled testimony this month before the Senate Judiciary Committee.

“Our requests for his personal notebooks and daily calendars have been denied in full because they are purportedly voluminous and burdensome,” McCabe's lawyer said in the filing.

Neither the Justice Department nor Flynn's lawyer Sidney Powell immediately responded to messages seeking comment.

Powell filed a separate motion Wednesday requesting Sullivan remove himself from the case, claiming the judge is biased. Sullivan was overly critical of Flynn after he pleaded guilty, Powell argues. The judge is also improperly refusing to dismiss the case, she says.

“The circumstances of this case lead any reasonable observer to believe that the current judge has a personal interest in the outcome, is irreparably biased against General Flynn, and is actively litigating against him,” Powell said in the filing. “His continued presence in the case has become a national scandal undermining confidence in the impartiality of the federal judicial system.”

Beth Wilkinson, a lawyer who represented Sullivan in an appeals-court fight over the judge's right to decide on his own whether to dismiss the case, didn't immediately return a call for comment.

Read More: Flynn Case Dismissal Reflects Trump Pressure, Ex-Judge Says

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