The Justice Department, yet again, shot down several allegations of prosecutorial misconduct made by ex-National Security Adviser Michael Flynn in a court filing addressing one of the many Flynn disputes with prosecutors that has thrown his case into chaos.
The Department’s rebuttals came in a court filing submitted Wednesday that opposed Flynn’s request that the case be dismissed due to the alleged “egregious” misconduct. U.S. District Judge Judge Emmet Sullivan had initially laid out a briefing schedule that could have resolved the dispute before a sentencing hearing that was scheduled for later this month. However, that hearing was canceled after Flynn made a separate set of allegations against his old attorneys that have threatened a major fight over attorney-client privilege in the proceedings. It is now unclear when he will be sentenced.
Wednesday’s DOJ filing focused on Flynn claims that the Justice Department inappropriately withheld from Flynn evidence of misconduct that was revealed in the recent DOJ inspector general report on surveillance warrants sought in the FBI’s Russia probe.
While conceding that the inspector general had found “significant errors and omissions” in the warrants, prosecutors argued that none of those issues were relevant to the crime Flynn pleaded guilty to in December 2017: lying to the FBI in January 2017 about his communications with Russian officials.
Flynn was not a target of any of the surveillance warrants in question, the prosecutors noted. The DOJ also rebutted Flynn’s claims that the Justice Department had violated discovery rules by withholding information, covered in the IG report, about one of the FBI agents who interviewed him in January 2017.
“As always, the government is aware of its ongoing discovery and disclosure obligations, and continues to review information that arguably could be pertinent to the defendant’s guilt or punishment with those obligations in mind,” the filing said. “However, the defendant relies on allegations that do not pertain to his case, that the Court already rejected, and that have no relevance to his false statements to the FBI on January 24, 2017.”
Wednesday’s filing cited the legal standard for the government’s discovery obligations that Judge Sullivan himself laid out in a prior dispute between Flynn and the prosecutors.
Prosecutors argued the report’s information about that FBI agent was not relevant to the crime Flynn pleaded to. At best, the prosecutors said, the information was only useful for the purposes of potentially impeaching the agent. The prosecutors pointed out that they had already agreed to delay a sentencing hearing that was scheduled in December 2019, just as the IG report was coming out.
“As the Court stated, defendant was not entitled to impeaching information before pleading guilty,” the filing said. “And with respect to sentencing, the government ensured that the defendant had access to that information before his sentencing hearing, as it sought to delay that hearing until the Report’s release.”
The other allegations of prosecutorial misconduct brought by Flynn were either already rejected by the judge in that previous dispute, the prosecutors argued Wednesday, or had to do with his foreign lobbying work that was not relevant to the crime he pleaded to.
“The defendant’s motion does not provide new information to justify the Court revisiting its prior holdings, and by extension, does not provide a basis to dismiss the charge against him,” the DOJ filing said.
The filing came as the Justice Department has come under scrutiny for the moves by political appointees to overrule the decisions of the career prosecutors leading the cases against Trump associates. According to NBC News, top DOJ officials were involved in a sentencing memo filed in Flynn’s case last month that softened the DOJ’s posturing towards his sentence. Much attention has been given to the fact that the signature of Brandon Van Grack — a career prosecutor who has led the Flynn prosecutor and worked on the special counsel probe — has been missing from some of the the DOJ filings in the case since. He is signed on to the court filing submitted Wednesday.
Read the filing below: