Brandon Van Grack, the Robert Mueller Justice Department holdover who continues to prosecute Michael Flynn for lying to the FBI, just filed a new “notice” with the court including the stunning admission that he had “misidentified the authorship of the handwritten notes from the January 24, 2017 interview with the defendant.”
That’s the critical interview the government is using as the sole basis for prosecuting President Trump’s former national security adviser.
It’s a mistake Van Grack could never have made in good faith if he had bothered to inform himself with the basics of his case. He should start paying attention because the case not only has ruined a man’s life, it has also undermined public confidence both in the Justice Department and the FBI.
This is the latest crack in a case that is disintegrating in plain sight.
That Van Grack did not know which agent wrote which set of interview notes suggests a fatal weakness in his case. Van Grack cannot answer this fundamental question: What exactly did Flynn say to FBI agents Peter Strzok and Joe Pientka in their January 24, 2017 interview?
Nearly two years after Michael Flynn pleaded guilty to lying to the FBI about calls with the Russian ambassador, the answer to that question remains unclear. As I reported here and here, the FBI produced multiple drafts of the “FD-302” which is the form the agents used to record Flynn’s statement. The government, in effect, has conceded that it cannot account for all drafts of this form and that there may be at least one version that remains unaccounted for.
Since the time Flynn spoke to Strzok and Pientka, senior FBI figures Lisa Page, Bill Priestap, and Andrew McCabe all had a hand in editing the account of Flynn’s statement. These changes were made without the knowledge or consent of the person whose words were being edited: Michael Flynn.
Worse yet, as noted by Flynn’s attorney and Twitter sleuth Techno Fog, these edits were far from superficial. But there’s actually another half to this equation. The thing he “lied” about remains a secret. This is because the government withheld the transcripts of the phone calls with the Russian ambassador. It made this representation to the court on May 31, 2019, “The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.”
If the government were forced to take this case to trial, it would have to prove to the jury exactly what Flynn said in the January 24, 2017 interview. But the government apparently has no audio recording of the actual Flynn interview, it has only the notes and summaries prepared by the FBI agents. Indeed, the original charged “lies” as charged in the indictment aren’t even direct quotes, just general paraphrasing of the gist of what Flynn said in the interview. The jury would need to know exactly what Flynn said before convicting him of lying.
How odd. We know Strzok possessed a smartphone with which he could have recorded the conversation with Flynn. We know this because we’ve read the text exchanges with his lover Lisa Page in which they discussed, among other things, their intent to use the power of the FBI to “protect” the country from the results of the 2016 election.
To prove that Flynn violated 18 USC 1001, the government must clearly demonstrate Flynn’s statement was false. But how can it do that without actual transcripts of the calls with the Russian ambassador? A jury would need to know exactly what Flynn said to the Russian ambassador in order to gauge whether Flynn’s retelling of those calls was false.
Van Grack would also have to prove, “the falsity concerned a material matter.” That means Van Grack will have to explain what the FBI was investigating and why Flynn’s misstatement statement was relevant to that investigation. The FBI is not supposed to be able to strike up a random conversation about innocent behavior in order to turn inadvertent misstatements into felony prosecutions. Neither the original indictment nor the “statement of offense” explain what crime the FBI was investigating in the January 24 interview with Flynn.
The government’s December 4, 2018 sentencing memo claims, “the FBI had an open investigation into the Russian government’s efforts to interfere in the 2016 presidential election, including the nature of any links or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump.” But, as noted by Flynn’s recent filing,
the agents asked him nothing relevant to ‘efforts to interfere in the 2016 election.’ Likewise, nothing about his calls to Kislyak in late December 2016 as part of the transition into office had anything to do with coordination between anyone in the campaign and Russia. The agents did not ask even a single question about any coordination.
Van Grack would have to argue to a jury that Flynn lied about “an important fact” that had “a natural tendency to influence or is capable of influencing a decision of a department or agency in reaching a required decision.” That’s hard to do when the government already has a recording of the call in question.
Van Grack would also have to prove that Flynn made the “false” statements “willfully, knowing that the statement was false.” But consider this testimony quoted by Powell in her brief,
On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe proceeded to admit to the Committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”
Van Grack wears two hats and now leads the powerful Justice Department unit in charge of prosecuting Americans acting as “agents” of disfavored foreign interests. The definition of an “agent” remains highly discretionary and tends to mean different things depending on whether the politics of the prosecutor match those of the target.
Van Grack continues to pursue a prosecution that has publicly imploded. At this point, it doesn’t appear he can prove a single element of the alleged offense. This leads one to wonder whether Van Grack really is part of an effort to isolate American foreign policy from the elected president.
As in the Ukraine impeachment inquiry currently underway, the establishment became incensed by the incoming president using trusted advisors to conduct foreign policy instead of deferring to the permanent bureaucracy. In the Ukraine farce, the president outraged the foreign policy establishment by tapping his personal attorney, Rudy Giuliani. In the Flynn case, the FBI acted with outrage over the president using his future national security advisor instead of the foreign relations apparatus held over from the Obama Administration.
Both the Ukraine farce and the Flynn case involve the media and Trump’s political opponents criminalizing legitimate contacts with foreign leaders and activities the president was elected to handle. If they succeed in wresting control of foreign affairs from our elected leader, it will sever all such issues from the ballot box. While this might serve the interests of bureaucrats, it’s very bad for democracy. Van Grack and Adam Schiff are on the front lines of that effort.