2 If accepted, the government’s approach would allow endless manipulation by prosecutors:target individuals, run search warrants, seize devices, interrogate for days, threaten familymembers, cajole, but never charge until the clock strikes midnight once a plea is extracted. Yet playing cat-and-mouse with the Due Process Clause is the opposite of what the
Brady-Bagley-Giglio line of cases is all about. Perhaps even more significantly, the government’s positionwholly ignores this Court’s Standing Order, which not only has no such timing requirements, butis issued for the precise purpose of eliminating the games the government played here.
One point is new. Mr. Van Grack finally admits he recognized a serious conflict of interest between Mr. Flynn and the counsel who prepared his FARA filing. Yet, he fails to respond to the point made in Mr. Flynn’s Reply that this conflict existed only because the government
insisted ot only on incessantly attacking Flynn’s FARA registration (beginning within weeks of its filing), but also on demanding its pairing with the completely unrelated White House interview prosecution. Simultaneously, the government did not even advert to the primary argument that he conflict was non-consentable , which meant that even if former counsel had fully disclosed and eplained the risks associated with the conflict, Flynn could not agree to waive it. The Covington& Burling lawyers could not remain in the case. Most important of all, the government did notmove to disqualify the lawyers or bring the matter to the attention of any court.Far from addressing whatever it claims was “new” in Mr. Flynn’s Reply, the government argely regurgitates its prior denials of any
Brady obligation before the first plea. But Mr. Flynn’s otion, Brief, and Reply also highlighted material the government suppressed long after thisCourt’s Brady
order, through what was scheduled to be a sentencing hearing, and continuing to his day—despite persistent, detailed requests by new counsel. Thumbing its nose at this Court’s
Brady Order, ignoring this Court’s gentle reminder of its primacy , and failing even to produce the requested evidence in camera , the government has stonewalled against producing so much as asingle document the government itself identified as exculpatory but provided only heavily-redacted or in meager “summary.”
It is all this conduct that demonstrates contempt for thisCourt’s Order.The government has known since prior to January 24, 2017, that it intended to target Mr.Flynn for federal prosecution. That is why the entire “investigation” of him was created at leastas early as summer 2016 and pursued despite the absence of a legitimate basis. That is why PeterStrzok texted Lisa Page on January 10, 2017: “
Sitting with Bill watching CNN. A TON more out. .. We’re discussing whether, now that this is out, we can use it as a
to go interview some people.
The word “pretext” is key. Thinking he was communicating secretly only with his
A simple review of the confidential June 6 letter from new defense counsel to Deputy AttorneyGeneral Rosen before counsel even appeared officially in the case shows that Mr. Flynn gave thegovernment every opportunity to meet its
obligation on its own and without involving thisCourt. Indeed, counsel strongly hoped the government would do so. The government itself filedthat letter at Dkt.122-2, but instead of producing
and following the mandate of
Berger v.United States,
295 U.S. 78, 88 (1935) “that justice shall be done,” Mr. Van Grack continues toharp on Mr. Flynn’s plea and little else. Nor was there “an extraordinary reversal” pursuant to which Mr. Flynn claims he is innocent.At no time did new, conflict-free counsel affirm the validity of Mr. Flynn’s guilty plea. In thatsame letter, counsel explained that “as was ingrained in [Mr. Flynn] from childhood,” he “tookresponsibility for what the SCO
he did wrong.” Counsel wrote that they “used the ancientLogan Act as a pretext” for his interview, the “FBI interview was worse than ‘entrapment,’” andthat Mr. Flynn was “truthful” with the agents. From undersigned counsel’s first brief in this Court,the defense cited Judge Jed Rakoff’s article on “
Why the Innocent Plead Guilty
.” Dkt. 109 at n.1.Rather, as a matter of procedure, counsel advised the Court that we anticipated seeking dismissalrather than withdrawal. Nothing we have found in the law requires a defendant to withdraw hisguilty plea rather than seek dismissal for egregious government misconduct. Analogously, thisCourt did not have to grant a new trial to Ted Stevens before it could dismiss the entire prosecutionin the interest of justice.
The government claims, without support, that this “
pretext to interview some people
” does notapply to Mr. Flynn. But, Strzok’s admission that he and McCabe then had “many meetings” todecide whether, when, and how to interview Flynn in the next few weeks, and the small groupmeeting on the day before the interview to plan the ambush at the highest levels, belie thegovernment’s claim. Dkt. 133-6. Presumably, Mr. Van Grack was not part of that planning
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 3 of 18
4 paramour before their illicit relationship and extreme bias were revealed to the world, Strzok letthe cat out of the bag as to what the FBI was up to. Try as he might, Mr. Van Grack cannot stuffthat cat back into that bag.
Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set upMr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe toldthe House Intelligence Committee in sworn testimony: “
[T]he conundrum that we faced on theirreturn from the interview is that although [the agents] didn’t detect deception in the statementsthat he made in the interview . . . the statements were inconsistent with our understanding of theconversation that he had actually had with the ambassador.
” McCabe proceeded to admit to theCommittee that “