Former national security adviser Michael Flynn’s claims of prosecutorial misconduct are “unfounded,” the Justice Department argued Wednesday in a court filing that nevertheless persists in the government’s unusual attempt to abandon the criminal case he pleaded guilty to 2½ years ago.
“Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office,” Justice Department attorneys said in the filing, suggesting that the government has other reasons for seeking to back away from its case against Flynn.
The denial of wrongdoing by DOJ prosecutors, contained in a lengthy footnote buried in the 49-page filing, came despite Flynn’s lawyers’ repeated attacks on prosecutor Brandon Van Grack, some of which they reiterated Wednesday in their own submission to the U.S. District Court in Washington. Flynn is fighting efforts by the judge in his case, Emmet Sullivan, to probe Attorney General William Barr’s abrupt decision to drop the case.
Van Grack, who served on special counsel Robert Mueller’s staff and acted as lead prosecutor on Flynn’s case, later assumed a senior position at Justice Department headquarters and continued heading up the prosecution of Flynn in the year since Mueller’s operation shut down.
Last month, Van Grack signaled his disagreement with Barr’s decision to drop the Flynn case by declining to sign the government’s motion and formally withdrawing from the case.
While the Justice Department submission indicates that the Flynn legal team’s numerous accusations of misconduct against Van Grack and other prosecutors are unwarranted, the filing gives no similar pass to the FBI. Indeed, the government’s brief is replete with suggestions of impropriety on the part of various senior FBI officials and agents.
With the exception of the Justice Department’s defense of its prosecutors, Flynn and the government largely agreed that Sullivan has no authority to investigate the reason Barr opted to drop the charge against Flynn.
In his plea, Flynn admitted to lying to the FBI about his conversations with then-Russian Ambassador to the U.S. Sergey Kislyak during the presidential transition after the 2016 election. Flynn’s statements took place during an interview in his White House office just four days after President Donald Trump was sworn in.
The government’s latest filing maintains the prosecution’s silence about how Flynn’s plea fit into a broader effort to resolve his potential criminal liability beyond the FBI interview, including in connection with paid work he did for Turkish interests at the height of the 2016 campaign and inaccurate reports filed with the Justice Department about that project.
Barr has argued that any misstatements Flynn made in the FBI interview weren’t legally material because at the time bureau agents had largely wrapped up a probe into the possibility that he was co-opted by the Russian government. However, other veteran prosecutors and defense attorneys insist Barr baldly misstated the minimal impact a statement can have to be considered material.
The separate briefs both the government and Flynn filed Wednesday challenge arguments a court-appointed former federal judge, John Gleeson, submitted last week urging Sullivan to reject the government’s motion and proceed to sentence Flynn on the single felony false-statement charge he pleaded guilty to in December 2017.
While the prosecution’s filing seeks to dispute Gleeson’s arguments point by point, Flynn’s combative lawyer Sidney Powell attacked the former judge with gusto, unleashing a fusillade of insults at the retired, Bill Clinton-appointed judge invited by Sullivan to present counterarguments in the case after the Justice Department reversed course.
“Amicus’s filing is a ‘wrap-up smear,’” Powell and her fellow attorneys wrote. “It is an affront to the Rule of Law and a raging insult to the citizens of this country who see the abject corruption in this assassination by political prosecution of General Flynn. This court exuviated any appearance of neutrality when it unlawfully appointed Amicus as its own adversary to make these scurrilous arguments.”
In another fiery passage, Flynn’s legal team accused Gleeson of mounting “a flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States.”
Powell also raged at Sullivan for selecting Gleeson to argue against the government’s motion to drop the case. She argued the former judge should not have been picked because just days earlier he co-wrote a Washington Post op-ed urging Sullivan to reject the Justice Department’s stance.
“The choice of this particular amicus to appear against the Government and the defense is appalling,” Powell wrote.
Flynn’s case is currently proceeding on two parallel tracks. While Sullivan is receiving briefs from all sides and outside parties about what he should do with respect to the government’s request to drop the prosecution, a federal appeals court is considering a petition from Flynn’s lawyers trying to force the judge to dismiss the case without further ado.
A panel of three D.C. Circuit Court of Appeals judges heard arguments on that issue last Friday and seemed reluctant to order Sullivan to change course, at least at this juncture.
Prosecutors are backing Flynn’s move to shut down Sullivan’s plans to consider various arguments about the government’s motion.
A top Justice Department lawyer made clear at the appeals court arguments last week that if Sullivan orders any effort to explore the department’s process for arriving at the decision to seek to withdraw the case, officials plan to return to the D.C. Circuit to head that off.
Sullivan, a Clinton appointee, has set a July 16 hearing on the government’s motion to drop the case. However, the appeals court is expected to issue some sort of ruling before that on Flynn’s bid to short circuit the process.