On Wednesday, Michael Flynn attorney Sidney Powell and the U.S. Attorney’s Office for the District of Columbia filed responses to the amicus curiae brief filed last week by John Gleeson. Both eviscerated Gleeson’s argument that presiding Judge Emmet Sullivan could and should deny the government’s motion to dismiss the criminal charge against Flynn. In addition, a footnote buried in the U.S. attorney’s brief reveals a troubling truth: Career federal prosecutors have yet to come to terms with their colleagues’ malfeasance.
On December 1, 2017, Flynn pleaded guilty to making a false statement to FBI agents during their questioning of him on January 24, 2017 about Flynn’s post-election conversations with the Russian ambassador to the United States. However, after firing his original attorneys and replacing them with a team headed by Powell, Flynn moved to withdraw his guilty plea. While that motion was pending, Attorney General William Barr appointed an outside U.S. attorney, Missouri-based Jeff Jensen, to review the government’s handling of the Flynn case.
Jensen’s review revealed significant evidence withheld from Flynn’s legal team and other questionable conduct by the FBI. As a result, he recommended dismissal of the criminal charge against Flynn. The acting U.S. attorney filed a motion to dismiss the charge against Flynn, but rather than granting that motion, Judge Sullivan appointed Gleeson as amicus curiae to argue against this dismissal.
Gleeson later submitted a 70-page brief that disparaged Barr and President Trump and recommended Judge Sullivan refuse to dismiss the charge. Gleeson also concluded that Flynn had committed perjury but recommended against prosecution for perjury and instead suggested Judge Sullivan consider Flynn’s purported perjury during sentencing.
Powell had attempted to short-circuit the side-show Sullivan opened when he named Gleeson amicus by filing a petition for mandamus with the D.C. Circuit Court of Appeals. The federal appellate court heard oral arguments last week on that petition, which sought a court order directing Sullivan to dismiss the charge against Flynn. Comments from the bench suggested the three-judge panel preferred to allow Sullivan to rule on the motion to dismiss, but a majority of the panel seemed to believe dismissal was required.
With no ruling by the D.C. Circuit yet, Powell and federal prosecutors were forced to respond to Gleeson’s briefing, and both filed their briefs on Wednesday. Those briefs fully countered Gleeson’s arguments and established that separation of powers concerns require dismissal of the criminal count against Flynn. Further, the briefs made clear that the proffered perjury offense failed as a matter of law and that, in any event, the district court lacked the authority to charge or punish Flynn for perjury.
But it wasn’t the arguments on the merits of the motion that stood out—those arguments have already been fully briefed as part of the mandamus petition. Rather, it was the carefully phrased response to Powell’s long-standing claims of prosecutorial misconduct that struck a startling chord.
In footnote one of the government’s brief, after noting that before Flynn’s 2017 guilty plea the government had provided Flynn various pieces of evidence, federal prosecutors noted that they “subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce ‘any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.’”
Then came this disconcerting passage: “The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.”
This passage proves disconcerting for several reasons. First, the paragraph’s construction creates the false impression that there was no prosecutorial misconduct involved, while, in reality, it does not say that at all. Rather, Assistant U.S. Attorney Jocelyn Ballantine, who signed the brief, merely asserted in the government’s brief that it’s “motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct.”
But what about narrow and specific allegations of prosecutorial misconduct and specifically Powell’s claim that federal prosecutor Brandon Van Grack—who has since withdrawn from the case—improperly withheld material exculpatory evidence from Powell?
Ballantine doesn’t address that question at all. In fact, she avoids the issue altogether by presenting the belated disclosure of the evidence Jensen uncovered as merely “relevant to the government’s discretionary decision to dismiss this case…”
But the reason this previously withheld evidence was “relevant to” the DOJ’s decision to dismiss the case was because it established Flynn was not guilty of the crime. Specifically, the evidence showed that, even if Flynn had lied to FBI agents, those lies were not material because the questioning of Flynn was not related to a legitimate ongoing investigation.
Yet Van Grack withheld that evidence from Flynn, even though Judge Sullivan ordered the government to provide Flynn “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Sullivan further ordered the government to present to the court any evidence prosecutors believed was favorable to the accused, but not material.
Van Grack, however, did not present the recently revealed evidence to Judge Sullivan either. Thus, Van Grack appears to have been in direct violation of Sullivan’s standing order.
Rather than acknowledge these specific instances of prosecutorial misconduct, Ballantine misdirects by maintaining that Flynn’s “broad allegations of prosecutorial misconduct” did not prompt the motion to dismiss and that “Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.”
Ballantine is doing her office no favors. Every American not delirious from Trump Derangement Syndrome watched as Jensen, in the run-up to the motion to dismiss, slowly handed off previously withheld evidence to Powell.
Likewise, the public understands how significant this newly disclosed evidence is to Flynn’s case. Ballantine would have been much better served to acknowledge the misconduct, then explain that her staff is working with Jensen and Barr—or had already cooperated with the duo—to ensure that all cases are handled with the utmost integrity.
Ballantine’s approach may also haunt her if Jensen and Barr turn up further evidence of prosecutorial misconduct, as she has seemingly vouched for the propriety of the prosecution. Further, Ballantine’s downplaying of the evidence of prosecutorial misconduct only cements in the public’s mind the idea that career federal prosecutors are part of the swamp.
This latter point is especially ironic because, in refusing to dismiss the charge against Flynn, Judge Sullivan expressed concern that no line prosecutor had signed the motion to dismiss. Ballantine’s signature on the brief supporting dismissal of the charge against Flynn counters that concern, while footnote one reveals who the real partisans are. And it’s not the political appointees—it’s the career folks.