Government Misconduct Cannot Go Unpunished

Editor’s note: The following is a letter of complaint to the D.C. Court of Appeals’ Board on Professional Responsibility, alleging federal prosecutor Brandon Van Grack violated several rules of professional conduct in making the government’s case against former National Security Advisor Michael Flynn. The Justice Department on Thursday dropped all charges against Flynn, who had pled guilty in late 2017 to lying to the FBI.

Office of the Disciplinary Counsel
Board on Professional Responsibility
District of Columbia Court of Appeals
515 5th Street NW
Building A, Suite 117
Washington, D.C.

May 8, 2020

Subject: Ethics complaint against Brandon Van Grack; Prosecution of Michael Flynn; Rule 3.3, 3.8

Dear Disciplinary Counsel

I write to lodge a complaint regarding the apparent professional misconduct of Brandon Van Grack, an attorney licensed in the District of Columbia. Mr. Van Grack prosecuted Michael T. Flynn (D.C. District Court Case No. 1:17-cr-00232-EGS) for one count of false statement in violation of 18 U.S.C. §1001. Under 18 U.S.C. §1001, a lie is only a crime if it is “materially false,” and “within the jurisdiction,” of the FBI. Because the FBI did not have a valid criminal or counterintelligence investigation, the entire conversation was not within the FBI’s jurisdiction. We have since learned of a strong political bias of the FBI agent who both kept the investigation open in bad faith and conducted the interview with Flynn. Van Grack knew, or through appropriate diligence should have known, about these flaws and either should have dismissed the case himself or at least disclosed the exculpatory circumstances.

On May 7, 2020, superiors of Mr. Van Grack within the Department of Justice dismissed the case because the government had failed to establish a legitimate investigative purpose for the interrogation of Flynn. The FBI used the interview to get Flynn talking until he contradicted the wiretap transcript of a legal phone call he had with the ambassador of Russia.

Details of the wiretapped phone conversation leaked causing unfair damage to Flynn’s reputation and likely weakening his position in plea negotiations. News accounts reflect that prosecutors threatened to prosecute Flynn’s son to gain leverage in plea negotiations. Mr. Flynn pleaded guilty to the charge December 1, 2020, shortly after Van Grack filed the indictment. Recently, before dismissing the case, the government finally produced an email that appeared to confirm that the government coerced Flynn with threats to prosecute his son. It has also been reported that prosecutors threatened Flynn’s attorneys with criminal liability unless they pressured their client to enter a guilty plea.

Shortly after Flynn entered his plea, several stunning developments emerged. For example, we learned that the FBI agent who interviewed him, Peter Strzok, had a strong political bias against the candidate Flynn conspicuously supported, Donald Trump. Text messages emerged in which Strozk promised to “stop” Donald Trump from becoming president. Prior to being targeted by the FBI, Mr. Flynn engaged in core constitutional activity of publicly supporting and speaking out on behalf of candidate Donald Trump. Van Grack’s team terminated its relationship with Strzok after the Justice Department’s office of inspector general unearthed Strzok’s highly-political texts expressing deep animus towards the candidate Flynn supported, Mr. Trump. These texts were highly relevant to the question of whether the FBI was, in good faith, investigating criminal activity or targeting an innocent man for political reasons. But even after these texts were discovered and while the indictment of Flynn was imminent, Van Grack’s team allowed many un-reviewed texts on Strzok’s phone to be permanently destroyed leaving enormous gaps in the evidentiary record.

In addition, we learned that Strzok did not make an audio recording of his interview with Flynn. Instead, he summarized the interview using an FBI 302 based on Strzok’s memory of the interview. Then, without Flynn’s knowledge or consent, Strzok permitted other FBI officials to participate in the editing of that statement, thus totally contaminating the evidentiary record of Flynn’s statement. Van Grack initially did not in a timely way disclose that there existed multiple drafts of Flynn’s statement and that it had been edited by people not present in the interview. 

The presiding judge ordered Van Grack to produce to the defense all relevant evidence of the case. (Document 20). Van Grack certified he did so. But the government’s May 5, 2020 motion clearly evidences the existence of key exculpatory evidence which Van Grack withheld from the defense. The most material of the withheld evidence showed that the FBI had no legitimate investigatory interest in the interview with Flynn. This was known from the outset by the FBI and may never have been disclosed to the defense team but for intervention by Mr. Van Grack’s supervisory chain. 

The term “materially” is not incidental surplusage. The qualifier exists to prevent law enforcement agencies from targeting innocent people with interrogations for the purpose of ginning up a crime. “Materiality” is the distinction that separates a legitimate law enforcement interview from a police state interrogation meant to criminalize political opponents; which is exactly what happened here. Again, when Strzok briefed Justice Department attorney Dana Boente, he identified “to get him to lie” as one of the stated goals of the interview. Combined with Strzok’s clear animus against Flynn’s political allegiances, the conclusion is inescapable: Van Grack sponsored a criminal prosecution for the purpose of punishing a political opponent. The prosecution of Michael Flynn is widely seen as motivated by his political affiliation with the candidate. Van Grack’s actions chill freedom of speech, freedom of association, and free participation in the democratic process. 

I respectfully submit that Brandon Van Grack violated the D.C. bar’s rules of professional conduct by:

  1. Continuing to prosecute an allegedly “false” statement that was never material to any legitimate criminal or counterintelligence investigation in violation of RPC 3.8(b) and (c).
  2. Potentially permitting pre-trial leaks regarding a classified wiretap of Flynn’s conversation with the Russian ambassador in violation of RPC 3.8(f).
  3. Failing to diligently and timely disclose key exculpatory evidence including the FBI internal determination that the Flynn investigation should be closed prior to the Flynn/Strzok interview. This violates RPC 3.8(d) and/or (e). This material was so exculpatory that it later formed the basis for the Justice Department decision to dismiss the case.
  4. Certifying to the court that the prosecution complied with Judge Sullivan’s February 16, 2018 Order (document no. 20) to “produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” Van Grack falsely certified compliance with this order on at least one occasion (October 1, 2019, document 122). These actions violate RPC 3.3(a)(1)
  5. Permitting agent Strzok’s cell phone to be returned and reformatted when the prosecution team knew the phone would likely contain additional exculpatory evidence of Strzok’s candid and contemporaneous expressions of bias and bad faith. The failure to preserve Strzok’s texts violates RPC 3.8(d).

As the 2020 election approaches, candidates seek to recruit and retain the most talented staff available. Unfortunately, the prosecution of General Michael Flynn chills participation of potential staffers so long as attorneys like Brandon Van Grack are permitted to abuse their law licenses to punish political opponents. Van Grack’s misconduct has brought dishonor upon the legal profession and directly undermines public faith that attorneys steward their special roles within government for the betterment of our constitutional democracy. I believe that the public must know that the legal profession’s rules of professional responsibility do not permit Van Grack’s abuse of his D.C. law license. I am therefore furnishing a copy of this complaint to American Greatness for publication. 

I am not involved in the Flynn prosecution. I know neither Mr. Van Grack nor Michael Flynn. I have simply followed, with dismay, the publicly-available accounts and records of Mr. Van Grack’s work. Mr. Van Grack persecuted Mr. Flynn in the public square under an international spotlight. I respectfully suggest that the public nature of these apparent ethics violations call for a swift and public response by the D.C. Disciplinary Counsel. Americans need to know that the legal profession enforces its rules and polices their own.

Sincerely,

Adam Mill

CC: American Greatness

Jeffrey R. Ragsdale
Acting Director of the Office of Professional Responsibility
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington DC 20530-001

Note: Adam Mill is a pen name.

About Adam Mill

Adam Mill is a pen name. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

Photo: Getty images

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