A former top prosecutor for Robert Mueller’s special counsel investigation abruptly withdrew from the case against retired Lt. Gen. Michael Flynn.
Brandon Van Grack, a special assistant U.S. attorney and the chief of the Foreign Agents Registration Act Unit at the Justice Department, submitted a notice of withdrawal to the U.S. District Court for the District of Columbia on Thursday.
A reason for his withdrawal was not given, but soon after, the Justice Department announced that it was dropping the criminal charges against Flynn.
Van Grack left the case facing rising criticism from Flynn’s legal team and allies of President Trump, who believe he did not comply with the judge’s order to produce all evidence in the government’s possession “that is favorable to defendant and material either to defendant’s guilt or punishment.”
Trump has said he is considering a pardon for his former national security adviser, and late last month, he said he would consider bringing Flynn back into his administration, noting he was “essentially exonerated.”
Several documents have been released in recent weeks (part of a Justice Department review by Jeffrey Jensen, the U.S. attorney for the Eastern District of Missouri) stating that Van Grack did not inform the court about or provide to Flynn’s defense team. These include FBI records that suggest now-fired FBI agent Peter Strzok and the FBI’s leadership stopped the bureau from closing its investigation into Flynn in early January 2017 after investigators had uncovered “no derogatory information” on him. There were also emails from later that month showing how Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
Flynn’s defense team, led by former federal prosecutor Sidney Powell, argued in October that the information she was seeking was Brady material, referring to the Supreme Court decision in Brady v. Maryland requiring prosecutors to turn over exculpatory evidence. “Brady’s mandate is fundamental to due process and crucial to ensure that prosecutors fulfill their obligation to seek justice rather than convictions,” Powell said.
Van Grack rejected this argument.
“It is a fishing expedition in hopes of advancing conspiracy theories related to the U.S. government’s investigation into Russian interference in the 2016 presidential election,” Van Grack told the court last year.
In January, Powell claimed a report on the FBI’s Russia investigation from DOJ Inspector General Michael Horowitz revealed Flynn had been unfairly targeted by the FBI.
“Even though the investigation pertains to the abuses of the FISA process, not the FBI and DOJ’s misconduct regarding Mr. Flynn, the IG report simultaneously documents at least some of [the] FISA process abuses and misconduct against Mr. Flynn,” Powell told the court. “The IG report is replete with exculpatory evidence that, had it been known to Mr. Flynn, he never would have pleaded guilty.”
Powell pointed to a revelation that showed the intelligence briefing the FBI gave to Trump’s team in August 2016 during the presidential campaign was actually a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign. The FBI agent who led that briefing, referred to as “SSA 1” in Horowitz’s report but believed to be FBI agent Joseph Pientka, was the same man who accompanied Strzok in their controversial interview of Flynn in January 2017.
Van Grack argued against these claims in February.
“The errors and misconduct described in the OIG report … do not amount to ‘egregious government misconduct’ necessitating the dismissal of the charge against the defendant for making material false statements to the Federal Bureau of Investigation on Jan. 24, 2017,” he wrote.
“The fact of the briefing is neither exculpatory nor impeaching,” the Justice Department said. “SSA 1’s participation in a briefing of the defendant in August 2016 has no impact on whether the defendant lied to SSA 1 five months later.”
Records recently released by the Justice Department in late April also included handwritten notes from former FBI Assistant Director of the Counterintelligence Division Bill Priestap on the day the FBI interviewed Flynn.
The notes show Priestap wondering whether the goal of the Flynn interview was to get Flynn to tell the truth or to catch him in a lie so that he could be charged with a crime or removed from his position.
“I agreed yesterday that we shouldn’t show Flynn [REDACTED] if he didn’t admit,” but “I thought about it last night and I believe we should rethink this,” Priestap wrote. “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
He also suggested, “If we get him to admit to breaking the Logan Act, give facts to DOJ and have them decide … or, if initially lies, then we present him [REDACTED] and he admits it, document for DOJ, and let them decide how to address it.”
“If we’re seen as playing games, WH will be furious,” Priestap wrote. The list ended with a bullet point that said: “Protect our institution by not playing games.”
Powell has said this new information would exonerate Flynn.
“The government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI,” Powell told the court. “The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”
