The federal government’s response Friday to Michael Flynn and his attorney’s bombshell claims of prosecutorial misconduct raises three concerns. First, that the “false statement” Flynn is accused of making was revised and edited since his interview with the FBI. Second, that Flynn never received a copy of the transcript of the conversations he supposedly lied about. And third, that Flynn’s purported “lies” are, in some cases, disputes over the accuracy of vague characterizations about his calls with the Russian ambassador.
As I recently reported, the case has reached a dramatic crossroads as Flynn’s new attorney, Sidney Powell, has forced the prosecution team, led by Brandon Van Grack, to respond to allegations of government misconduct.
A History of Delays and Evasions
To review: On November 30, 2017, the government indicted Flynn, alleging the former Trump campaign figure and National Security Advisor lied to the FBI about his conversations with then-Russian ambassador Sergey Kislyak. The conversations took place after the 2016 election and were not part of any alleged “collusion.” The incoming president asked Flynn to reach out to as many as 20 countries to begin the process of transitioning foreign policy. The FBI obtained surveillance recordings of Flynn’s call with Kislyak.
Deputy Director Andrew McCabe, a longtime Flynn enemy, then sent FBI agents Peter Strzok and Joe Pientka to interview Flynn. Subsequently, the two agents produced records of the interview using the FBI form 302.
Immediately after Flynn pleaded guilty, the story broke that Strzok exchanged politically charged text messages with his lover Lisa Page (who happened to be McCabe’s legal advisor within the Bureau). A few days after that, the judge who accepted Flynn’s plea was mysteriously recused from the case. It turned out, the reassigned judge actually socialized with Strzok and Page.
The new judge, however, was none other than Emmet Sullivan, the same judge who handled a case in which the Justice Department successfully swung a U.S. Senate election by framing Senator Ted Stevens with bribery. Sullivan ordered Flynn prosecutor Brandon Van Grack to come clean and produce all evidence relevant to Flynn’s guilt or innocence.
After nearly a year of mysterious delays to the process, Flynn fired his old attorney and hired Powell to represent him. Since then, Powell has peppered the prosecution with several complaints about how the case had been conducted.
Curious Government Claims
Friday’s 17-page response did not deny that the account of Flynn’s “false statement” was edited by other FBI officials not present for the interview. The government contends the “final interview report and every draft of that report document those same false statements, in a clear and consistent manner.” The government further argues “there were no material changes” after the initial draft reports.
But many of the false statements attributed to Flynn require subjective judgments about whether vaguely worded denials were really intentional false statements.
For example, one of Flynn’s statements charged as materially false was his denial that he called Kislyak to “get a sense of where countries stood on the vote” because he responded to a question with, “Not really. I don’t remember.”
The government gave a particularly curious response to the allegation that it suppressed an early draft of Flynn’s statement to the FBI: “Even if an earlier draft of the interview report once existed, there is no reason to believe it would materially differ from the interviewing agents’ handwritten notes or the other drafts.”
All of this raises the question of why the FBI would not make an audio recording of Flynn’s interview to avoid the need for drafting and editing his statement after-the-fact.
Powell made this point in her motion. “This is one of the many reasons no one should be prosecuted for [making a false statement] unless the statement has been recorded,” she argued. “Every law enforcement officer has that ability on his phone.”
What’s more, it doesn’t appear that the government furnished—at least not publicly—the original recorded conversation between Flynn and the Russian ambassador. Nor does the government’s response appear to address Powell’s complaint that, “the press has long had transcripts of the Kislyak calls that the government has denied to the defense.”
Nevertheless, the prosecution insists it “complied with Brady, and this Court’s Standing Order,” to produce all evidence of Flynn’s guilt or innocence.
Flynn’s attorney has until noon on November 4 to file a response to Friday’s filing from the prosecution. Although Powell has asked Sullivan to dismiss the case, it is more likely that the judge would agree to let Flynn withdraw his original guilty plea and go to trial.