DOJ clashes with Flynn lawyers over bid to oust prosecutors and dismiss case

Justice Department lawyers filed a fiery rebuttal in court Tuesday after former national security adviser Michael Flynn’s legal team leveled a host of allegations against them, amid an apparent bid to remove the prosecutorial team and get the case dismissed.

In their formal response, Justice Department attorneys Brandon Van Grack, Jocelyn Ballantine and U.S. Attorney for the District of Columbia Jessie Liu also claimed that the team's various information requests from the government are “either irrelevant or seek information that has already been provided” to them.

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“Ultimately, the motion is a fishing expedition,” the Justice Department attorneys wrote, referring to a motion filed by Flynn attorney Sidney Powell last month, which included complaints about the origins of the Russia investigation and how it was handled inside the Justice Department and the FBI.

The DOJ attorneys said Powell’s filing last month was “in fact an effort by the defendant to have his case dismissed.”

“Since the beginning of their involvement, the defendant’s new counsel, have sought to get the charges dropped, professed their client’s actual innocence, and perpetuated conspiracy theories, all while stating that the defendant does not intend to withdraw his guilty plea,” they wrote.

Flynn fired his first team of lawyers—Robert Kelner and Stephen Anthony—in June. Less than a week later, Flynn hired Powell, who had been a vocal critic of former Special Counsel Robert Mueller’s team.

The Justice Department claimed Tuesday that Powell’s “first outreach to the government was an effort to get the Department of Justice to dismiss the case.”

“Before even entering an appearance in the case, new counsel sent a letter to the Attorney General and Deputy Attorney General requesting that the Attorney General ‘dismiss the prosecution of General Flynn’ and remove the prosecutors from the case,” they wrote.

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The filing amounted to the latest salvo in an escalating battle between the two legal teams, with Flynn's sentencing still up in the air for his guilty plea over lying to the FBI about his contacts with former Russian Ambassador Sergey Kislyak.

Powell’s filing in August said that Flynn’s case was still “not ready for sentencing,” citing her position as “new counsel” and their timeline of receiving necessary files and documents that would be critical to the defense of her client. Powell also claimed in the filing that the government “continues to deny our request for security clearances” needed to review classified material pertaining to Flynn, including transcripts and recordings of phone calls that “supposedly underpin the charges against” him.

But the Justice Department claimed that Powell did not need “more time” to make their request that the case be dismissed, “because their request did not rely on facts.” The DOJ attorneys also argued that Powell’s requests “seek access to classified information that may or may not exist.”

“A majority of the defendant’s requests pertain to materials that are not relevant to his false statements to the FBI on January 24, 2017, his false FARA filings about the Turkey project, or other legitimate sentencing considerations,” they wrote, noting that some of the requests involve individuals like DOJ official Bruce Ohr and Christopher Steele, the ex-British spy who authored the unverified anti-Trump dossier.

“The defendant is not charged with being an agent of Russia and the government has never alleged in this case that he was an agent of Russia,” they wrote. “His criminal conduct pertains to false statements about his communications with Russian officials, not his affiliation with that country.”

But in a separate filing on Monday, Powell claimed that Van Grack pressured Flynn to enter his guilty plea to making false statements to the FBI and stick with that plea, by using the possibility of further prosecution of Flynn, or his son Michael Flynn Jr., as leverage.

Powell also claimed that when the government charged Flynn’s ex-associates Bijan Rafiekian and Kamil Ekim Alptekin with making false statements and illegal lobbying on behalf of the Turkish government in the U.S., Van Grack tried to force Flynn to testify against his former business associates.

“Mr. Van Grack was determined that Mr. Flynn would testify in the Rafiekian case that he had knowingly signed a false FARA registration, even though Mr. Van Grack knew that was not true and Mr. Flynn had not agreed to that in the course of his plea agreement,” Powell wrote in the filing.

“Mr. Flynn’s refusal to get on the witness stand and lie for the government on that point prompted a heated tirade from Mr. Van Grack with Mr. Flynn’s lead counsel, in which Mr. Van Grack claimed Mr. Flynn had agreed to plead to a knowing and intentional false FARA filing.”

Powell went on to claim that after Flynn rejected the government’s “demand to lie,” they “retaliated” with a gag order, and threatened to bring Flynn’s son, Michael Flynn Jr., in as a witness in the Rafiekian trial. The filing said the government told Flynn’s counsel that it would indict the FARA case, and had “obtained authorization to target Michael Flynn Jr.—who had a newborn—and had seized all his electronic devices.”

“In sum, however, the entire prosecution failed for lack of evidence of any conspiracy or anyone acting as a foreign agent,” Powell wrote.

Ultimately, the Justice Department said that Flynn’s cooperation played a role in the indictment of Rafiekian and Alptekin last year. They said that Flynn could have been indicted in that case had he not cooperated.

The flurry of filings has aired a variety of other allegations, including one pertaining to former FBI Deputy Director Andrew McCabe.

Flynn’s legal team alleged that McCabe once said, “’First we f**ck Flynn, then we f**k Trump,’ or words to that effect,” and that ... McCabe pressured agents to change the January 24 interview report.”

The alleged statement came after then-FBI agent Peter Strzok reported that Flynn had a “sure demeanor and did not give any indicators of deception during the interview.”

The Justice Department, though, claimed that the government “provided extensive evidence” to disprove the allegation, including statements from both Strzok and the second interviewing agent, and said they were “not aware of evidence” that McCabe used such words.

Meanwhile, the government said in late August that the case was ready for sentencing, after months of delays. U.S. District Judge Emmet Sullivan has set a Dec. 18 sentencing date, though it's unclear whether it could be pushed off again.