A federal judge said Tuesday that the Department of Justice no longer has to publicly file a transcript of a fateful phone call between former national security adviser Michael Flynn and the Russian ambassador to the United States, an abrupt and unexplained reversal from his previous order last month
The development comes as Republicans allege that a separate court-ordered transcript release in the case showed that Special Counsel Robert Mueller's report contained a conspicuously -- and allegedly deceptive -- edited version of a voicemail message from former Trump lawyer John Dowd to Flynn's lawyer, Rob Kelner.
U.S. District Judge Emmet Sullivan had previously directed prosecutors to release details of a December 2016 call in which Flynn discussed sanctions with Sergey Kislyak, then the Russian envoy to Washington.
Sullivan had also given government attorneys until May 31 to produce redacted portions of Mueller's report that relate to Flynn as well as a transcript of a phone message a lawyer for Trump left for Flynn's attorney after Flynn had decided to start cooperating with prosecutors.
On Friday, prosecutors publicly filed the transcript of the call between the lawyers and said all of the information in the report that Flynn had provided had been unredacted. But they declined to produce a transcript of Flynn's call with Kislyak, saying they were not relying on that conversation to establish his guilt or to determine his sentence.
In a brief written order Tuesday, Sullivan said that "upon consideration of the government's submissions in response to those orders, the government is not required to file any additional materials or information on the public docket." He did not elaborate on why he had changed his mind, and apparently left open the possibility he might order the documents to be produced under seal in the future.
Flynn is awaiting sentencing before Sullivan after pleading guilty in 2017 to lying to the FBI about his contact with Kislyak. He was supposed to be sentenced in December, but midway through the hearing, took the judge up on his offer to postpone it so that he could continue cooperating with prosecutors and earn credit toward a lighter sentence.
Meanwhile, Republicans have focused renewed attention on the transcript that was released Friday. Dowd, Trump's ex-lawyer, left the voicemail message for Kelner after Flynn exited a joint-defense agreement and agreed to cooperate with Mueller. Mueller's team analyzed the message as part of their inquiry into whether President Trump obstructed justice.
According to the Mueller report, Dowd said: "I understand your situation, but let me see if I can’t state it in starker terms ... [I]t wouldn’t surprise me if you’ve gone on to make a deal with ... the government ... [I]f ... there's information that implicates the President, then we've got a national security issue ... so, you know ... we need some kind of heads up. Um, just for the sake of protecting all our interests if we can ... [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains."
But the full transcript revealed Dowd made clear he was not seeking confidential information -- and raised questions as to why Mueller would have omitted apparently exculpatory information. The transcript excerpt in the Mueller report attracted substantial press attention at the time.
The full quote reads, with emphasis added: "Hey, Rob, uhm, this is John again. Uh, maybe, I-I-I-‘m-I’m sympathetic; I understand your situation, but let me see if I can’t … state it in … starker terms. If you have … and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have, there’s information that … implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to-we got to deal with, not only for the President, but for the country. So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information. So, uhm, and if it’s the former, then, you know, remember what we’ve always said about the President and his feelings toward Flynn and, that still remains, but — Well, in any event, uhm, let me know, and, uh, I appreciate your listening and taking the time. Thanks, Pal."
Rep. Devin Nunes, R-Calif., called for the release of “all backup and source information” for the Mueller report on Friday following the revelation of the edited transcript, and Dowd told Fox News the Mueller report was a "fraud."
"This is a very, very serious issue," he said. "The distortion of the Dowd quote is very serious. Especially since, remember, that a report by a special counsel is always going to be one-sided. Therefore, you have to trust it."
Fox News' Catherine Herridge and The Associated Press contributed to this report.