DOJ casts doubt on proving Michael Flynn’s guilt because of handwritten FBI notes

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Prosecutors, in a 49-page legal brief, described why they now believe the Justice Department could no longer prove at trial Flynn’s guilt for lying to the FBI. They also said Flynn shouldn’t face perjury consequences for admitting his guilt under oath then disavowing his admissions.

The prosecutors’ argument on Wednesday keys in on how closely final FBI memos documenting Flynn’s 2017 interview with investigators adhere to what was actually said. The prosecutors point out that FBI agents hadn’t included in initial handwritten notes exactly what they asked Flynn and what he answered when he lied, insinuating this is a substantial problem for the case but also noting it wouldn’t normally be a significant issue.

Wednesday’s revelation is the latest in the dramatic battle over Flynn’s case. Trump’s first national security adviser twice pleaded guilty to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kislyak during the presidential transition. This year, he moved to withdraw his plea, now claiming innocence, and the Justice Department moved to drop the case entirely, determining Flynn shouldn’t have been under investigation when he was questioned, and thus judging that his lies weren’t “material.”

Flynn and the DOJ are set to appear before his trial judge at a hearing in July, because the judge has hesitated to dismiss the case, and an appeals court is weighing the authority of the trial judge, Emmet Sullivan of the DC District Court.

The Justice Department also continues to argue that only its decision-making matters for prosecutions, and that Sullivan has no authority to keep the case alive if the department wants it to be dismissed.

“The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not,” the DOJ’s filing said Wednesday.

“While such discrepancies would not always be significant, given the other evidence and substantial impeaching materials on the key witnesses, it posed another reason to doubt the government’s ability to make out its case beyond a reasonable doubt to a jury in the circumstances of this case,” the filing added.

Michael Flynn case is the latest test of separation of powers during Trump years

Even with taking a strong position in support of Flynn — an approach that’s caused political backlash across the legal and national security communities — the Justice Department on Wednesday defended the work of its prosecutors. Flynn has accused them of misconduct. But in a footnote in the filing Wednesday, prosecutors from the DC US Attorney’s office wrote that Flynn’s misconduct “allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.”

In Flynn’s team’s own filing on Wednesday, it called the argument of the third-party lawyer, former federal judge John Gleeson, an “affront to the Rule of Law and a raging insult to the citizens of this country who see the abject corruption in this assassination by political prosecution of General Flynn.”

Flynn’s lawyers even end their filing with a long quote of a Gleeson opinion from when he was a federal judge.

“There never should have been so much as an investigation—much less an assassination by political prosecution of General Flynn—a distinguished patriot of thirty three years of exemplary service in total devotion to this country,” Flynn’s lawyers wrote Wednesday.

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