SWC Defends The Legal Ethics Of Brandon Van Grack

Questions are coming up about Shipwreckedcrew's defense of Brandon Van Grack's conduct in the Flynn case, and SWC is getting a lot of pushback on his twitter feed. Rather than update the previous post--SWC Now Thinks It's Van Grack Who's Cooperating With DoJ--I'll do a new one. I believe many readers will be interested to see how Shipwreckedcrew tries to field objections to his minimization of possible misconduct by Brandon Van Grack in the Flynn case. I don't find it very satisfactory myself.

Commenter MjH wrote:

Mark, reading your article and Cassander’s comments, isn’t Van Grack doing the threatening of Flynn’s son without legal basis and withholding exculpatory info?

So he is looking at misconduct and loss of law license before his conscience may kick in? Seems like lots of leverage to me or am I not following? I do recall

seeing a govt. submission in Flynn case suggesting FBI may have been hiding some info from Van Grack, Hard to believe he wasn’t involved there to a large extent, though. Thx.

I responded:

Should he have known better, been less willing to accept what he may have been told by the FBI? Almost certainly yes. But we're talking criminal liability here rather than moral liability.

Right now at https://twitter.com/shipwreckedcrew SWC is fielding lots of angry tweets from people who feel the same way as MjH. Read his responses to see how convincing you find his defense of the process. He basically wants to push the blame off onto the FBI, but one does wonder.

Also, one wonders about Barnett's role

These are serious issues, and if you're interested I urge you to read SWC's twitter feed--which is longer than I want to reproduce here. Certainly there was an awful lot of public information that should have put Van Grack on notice that there might be something very hinky going on that he was part of.

Below are those portions of the twitter exchange (including at least two retired AUSAs) challenging SWC. Here's my opinion. I think SWC illustrates the defects of our federal criminal justice system. He shows just how stacked the cards can be against a defendant and how raw a deal can be forced on a defendant who--for purposes that shouldn't enter into it, the prosecutor wants to "get." In terms of "sharp practice," he illustrates how a prosecutor can leave the pursuit of justice--that inconvenient word--far behind without violating legal ethics.

In the end, as you'll see, he seems to be saying--and no doubt he'd say I'm being unfair--that as long as a prosecutor doesn't go as far as Andrew Weissmann they should get a pass. That seems unacceptable as a standard for lawyers in the Department of Justice.

Check it out:

Steve BRITT

@colonelbritt 

 

Replying to @shipwreckedcrew

I see[m] to recall it was Van Grack who negotiated the "wired plea" with Gen Flynn's Covington lawyers, then almost certainly misled or lied to Judge Contreras about the deal not to prosecute young Flynn in return for plea. VG  is no hero.  S.J. Britt (AUSA ret.)

shipwreckedcrew:

I have said, based on my experience, he did some questionable things in how he maneuvered that case to a plea -- beginning with the timing.  He FORCED that plea one day before news of the Strzok-Page text messages hit the NYT and WaPo.

The SCO knew the chances of getting that plea were going to drop once that info was public and Flynn and the C&B lawyers understood the credibility problems of one of the two agents who interviewed him and would have to testify in a 1001 case.

But I think--nearly two years later now--that VG was likely following instructions from more senior folks in the SCO.  As Barnett says, Jeannie Rhee was on that case too in the background, and she was strident about getting Flynn.  So, was VG pushed into making that the outcome?

As long as one's actions are only "questionable" there's no higher ethical standard? Let's be honest--in the real world rather than in the DoJ club, that's not the standard people get held to. And the defense that one was "pushed" into bad conduct wouldn't have worked for Flynn at a trial, either. SWC shouldn't feel comfy saying things like that.

Hans Mahncke

@HansMahncke

Irrespective of how deep Van Grack was in on it, he covertly amended the definition of sanctions, presumably after discovering that Flynn never talked about sanctions. That's consciousness of guilt.

shipwreckedcrew:

That's not "guilt" -- but I think he recognized the mistake he made when he was way more specific than he needed to be in drafting the information and plea agreement.  His drafting reflected his inexperience.

I disagree. It's a subterfuge with regard to a crucial matter. In the real world, that's guilt. 

Gary Haubold

@GaryHaubold

Replying to @shipwreckedcrew

My understanding is that Covington never made the government detail the specific factual statement which constituted Flynn's lie.

Is that correct?

shipwreckedcrew:

Yes - my understanding is VG refused to give them a transcript, and presented the SCO's view of the call.  The approach - which is NOT unheard of - was to say "You know what you said Gen. Flynn, we don't have to show you your own words."

That is not necessarily unreasonable in a pre-charge deal. AFTER indictment the Defendant has a right to see his own words in a transcript. But not giving him the transcript was part of the deal terms -- he waived discovery. In exchange he got a "no-time" sentence recommendation.

Is the pursuit of justice just a game, in which the government gets to use loaded dice?

james madison

@jamesmadison501

Former trial lawyer for over 40 years, federal prosecutor for 11 of those years.

Replying to @shipwreckedcrew

You were a federal prosecutor too long. I honestly can say, I would never have pleaded a client to a false stmt charge in a case where there was a recording of the underlying call that questions were based on. This alone was ineffective assistance by C&B and sign of conflict too

shipwreckedcrew:

I wouldn't either as a defense attorney.  

But I can see utility as a prosecutor in saying "I'll indict you on 10 felonies tomorrow, or you can plead to a 1001 count via Information and waive discovery.  Here is what we'll allege you said in the call if you don't take the deal."

Prosecutors aren't defense lawyers.  There's usually a reason for offering a pre-indictment "charge bargain." Flynn's exposure here was on the FARA allegations involving his work on Turkey.  Whether that exposure was great or small was for him and his lawyer to figure out.

But note what SWC leaves out of his example--the possibility that the the version of the call that was the SCO's wasn't accurate! He later suggests that for a DoJ lawyer to request that transcript from an FBI agent rather than take his word for the contents would be to exhibit a lack of trust in the FBI. And? Whose name is on all the pleadings? The prosecutor's or the agent's? It's not as if the agent can go elsewhere to get the case prosecuted. DoJ can play hardball with investigators, not just defendants. We are talking about justice here, aren't we?

ar chroi

@Ar_Chroi

Replying to @FupaLewter and @shipwreckedcrew

There is another filing in which Covington tells the court that Van Grack told Covington there was no electronic recording or transcript of the calls between Flynn and Kislyak.

This was a lie.

shipwreckedcrew:

I don't think so. He said the Gov't was not relying on any to establish guilt. In the case of a plea, the gov't was relying on Flynn's admissions. The Court asked Flynn if he was untruthful in his answers to the FBI agents, and he said yes.

But the plea was obtained in circumstances that SWC has already admitted were "questionable". This is what happens when the "questionable" becomes acceptable.

Sir Aaron

@SirAaron_

Replying to @shipwreckedcrew

I have a real hard time believing  you’d have done that before seeing the transcript and 302 yourself.

shipwreckedcrew:

If I had a pros memo that laid out the statement from the conversation in a quote, and I had discussed it with the FBI agent, why would I insist on the transcript?  Isn't that just saying "I don't trust you" to the agent?

It's actually just saying, "Trust but verify." You could call that being prudent. 

james madison

@jamesmadison501

Replying to @shipwreckedcrew

You are showing your bias. A senior fed prosecutor which Van Grack was was "pushed" into the absolute prosecutorial misconduct, lying and withholding of evidence that he did? NO defense. And if any AUSA that ever worked f/me had done that he'd be fired and investigated.

shipwreckedcrew

@shipwreckedcrew

You have no idea how the "gears mesh" on the gov't side, and you making post hoc characterizations that are not necessarily consistent with known facts and rely on assumptions which you are only guessing about.

But @jamesmadison501 was an AUSA for 11 years, so he actually does have an idea of how the "gears mesh." 

Byron

@ByronFackenthal

Replying to @shipwreckedcrew

That a system designed to convict criminals but ripe for abuse.

shipwreckedcrew:

That is an accurate statement.

And it breaks down when you have government actors who reveal a lack of integrity in how they do their job.

People like Andrew Weissmann.

Aren't prosecutors in a system that SWC admits is "ripe for abuse" charged with an awareness of the fragile ethical nature of the system in which they work? Shouldn't they be held to standards of ordinary prudence in verifying the truth of representations they make to a court--like requiring the investigators to show them the actual evidence? Like, a transcript of the phone call, for God's sake? This is, I repeat, about the pursuit of justice. Is the ethical bar really to be measured solely by Andrew Weissmann's conduct--if you're not as bad as Weissmann then you're OK, and 'OK' is good enough? I'll bet Sidney Powell--another former AUSA--has a different take, but she doesn't have time to respond on twitter to SWC. She's too busy trying to get justice for Michael Flynn.

One other note.

It's interesting that once USA Jeff Jensen came on board and took over the "review" of the Flynn case, the sh*t really hit the fan--one revelation, or rather confirmation, of government misconduct after another. Was this because Jensen is such a cracker jack investigator or was it because when he came on board Barr told him, Hey, Jeff, Durham's got an FBI agent who was on Team Mueller, and he's willing to talk with us. And then Barnett told Jensen where to find the dirt?