Friday, October 2, 2020

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 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:

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.)

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

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.

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

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?

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
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


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

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.


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

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


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

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.


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." 


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


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?


  1. -->"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?"<--

    I know I'm splitting hairs, but I'd put the onus on the prosecutor to see the evidence--their responsibility, their requirement. Granted, agents collect the evidence, but presumably prosecutions occur on the basis of known evidence, not agents say-so. FWIW.

  2. I have a pretty good idea what Sidney Powell thinks about Van Grack’s “ethics”….

    SWC can be interesting, but not a guru. Never.

  3. For me, this whole discussion highlights the difference between the SWC's world at the federal level and mine at the state level. I took the "do justice" thing very seriously because I lived in the community - I knew which cops I could trust and which would cut corners, but in the end it was my name on the pleadings and my reputation on the line. Every day.

    1. We see this in every corner of things. The further removed you are from the actual people and day to day workings the more likely the curruption and poor judgment. We've all lately learned how important our sheriff and mayor is.

  4. Thanks for following up on my comment. Reading through your thoughts and contrasting them with SWC comments, it is clear why so many of us are disgusted with the state of the judicial system. We don’t understand “how the gears mesh”? The gears have ripped up Flynn and his family and common sense tells me Van Grack should lose his license even if he flips. If you want to play in the big boys club, you have to know the point at which you need to say no versus “being pushed”. By the way, I think SWC is generally very good.

  5. Two thoughts:

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

    1) If his attitude is prevalent among lawyers, that there are no moral boundaries, only what "ethics" allows a prosecutor to get away with, which is a sliding scale with no end point, then continually eroding integrity is a given.

    2) One wonders how people like Sullivan, Van Grack, Weissmann, SWC think their lives will be improved living in world where the the normal work day for them requires a ballistic vest, transportation to and from the courthouse in MRAP's, having their automobiles and homes frequently swept for IED's. The people that are watching these discussions live in a kinetic world. They are the people that trust in the system and, through that trust, allow it to work. Once they decide conclusively that the game is rigged, or irredeemably corrupt, things will unravel quickly.
    Tom S.

  6. Slippery slope.

    Once you establish that "bending the rules" is OK, it's only a matter of time until the next Andrew Weissmann pops up and puts his next promotions at the top of his list of priorities.

    And yes, all current and former AUSAs are very clever and can easily argue any point of contention on both sides with vigor and a patina of rectitude. So painting VG in the best possible light is easy peasy if you are so inclined.

    But now stand in Flynn's shoes, and witness the destruction of his reputation, wealth, and the truly despicable impact on his family (in essence VG exploited Flynn's infant grandson for leverage).

    That is no trivial thing, and to then attempt to sweep all that under the rug by rationalizing VG's conduct is the equivalent of pouring salt in the wound and then laughing your ass off.

    So now that "bending the rules" is the new OK, does that mean that Durham would be justified in crucifying VG by any means necessary? Can we now dispense with the DC Double Standard and treat the SCO criminals like everyone else out in normal America?

    1. You're absolutely right, but there are those who claim that Barr should be doing exactly that. Instead, he's trying to restore standards.

    2. In his trying to restore standards, if he's stopped by a dearth of willing "line prosecutors", and if this failure to prosecute leads to a Biden win, what choice do patriots have, but to resort to far more vivid means (e.g. as chosen by Franco), than just emulating VG's methods?

  7. Wow. A 'million' words (here and on twitter) to establish that you simply can't prosecute a guy who you know is innocent, regardless of how the gears mesh.

    Some things just aren't that complicated. I'm disappointed in SWC.

    1. Likewise. This doesn't seem like such a tough thing to figure out. But it's how bureaucracies and bureaucrats operate.

  8. @Tom S.

    "If his attitude is prevalent among lawyers, that there are no moral boundaries, only what "ethics" allows a prosecutor to get away with, which is a sliding scale with no end point, then continually eroding integrity is a given."

    Just to change the subject a little, I have written here from time to time about my experience over 40 years as a deal lawyer in large NYC and national law firms.

    There came a time...its hard to remember exactly when...the 90s perhaps...maybe a bit earlier, when I noticed that our (mostly pretty fancy) clients were often and increasingly less interested in my legal advice, as in "what is permissible under the law", and more interested in "but will I get caught?" and "if I do get caught, what's the penalty?"

    In addition to being relatively horrified by this line of questioning, I always laughed to myself when confronted with this newer way of asking for legal advice, not because I thought it was funny, but because I was utterly unprepared to answer these questions. My training had been completely a matter of what the correct interpretation of the law was.

    Law schools back in the day didn't teach "How To Advise Your Client On How To Get Away With Breaking the Law", "What Are the Odds of Getting Caught" and "Is it Worth it to Break the Law and Pay the Fine (or Serve the Time)".

    I wouldn't be surprised to see these courses being taught today, however.

    1. Morality is a wall, ethics is a forever morphing rationalization seeking a way to a goal. Most who pursue the latter get so caught up in the sophistry necessary to work around the wall that they come to believe their own cleverness is the goal in and of itself, e.g. a "smart" lawyer.

      During the '60's New Age "Religion" was seized upon as a way to excuse/rationalize around basic Christian precepts of morality in the pursuit of "if it feels good do it". This is more of the same translated into legalese. This goes to the wisdom of the Founders when they set up our system. Checks and balances because humans are infinitely corruptible while accepting that, at the end of the day, the citizenry must be more than merely clever. "A republic, if you can keep it." Well, apparently we can't.

  9. @MjH

    "The gears have ripped up Flynn and his family..."

    As the gears (of asymmetrical power) will rip up anybody who disagrees with the Left. And the asymmetrical damage is unconscionable.

    The result is no place I want to live.

    1. If the Dems win this election, they'll be delighted to ensure, that this'll be no place you (or I) want to live.

  10. Barr’s goal of restoring standards-the “tone at the top”- is clearly the correct approach in a reasonable world. It will take several years of like minded thinkers
    to achieve that goal. Sign me up. In the meantime, the application of some asymmetrical damage to Brennan, Comey et al resulting in anxiety induced depression, innumerable sleepless nights and financial ruin sounds about right to me. To those who believe it is over the top, I respectfully suggest that the other side will not get the message with anything else, and maybe not even then.
    Christian forgiveness is way down the list for me right now.

  11. The assumption is that Van Grack rolled.

    That’s a good thing if true. Should he fully get off? No. Should he get a better deal due to this? Yes.

    Time honored tactic. A tactic that Obama’s minions had to manufacture bad guys (Page, Flynn, and Papa) in the hope they would roll. Even Manafort, very questionable ethics, had to have the SCO to get busted because, magically, more evidence appeared long after the FBI/DoJ passed on charging him.

    Thing is, will this really lead to bigger fish?

    To defend him and his actions is not good.

    Realistically, it’s our system and has been for a very, very long time.

    - TexasDude

  12. I think all the thugs are holding out for a Flynn pardon.

    If prosecutors and agents lied in their statements leading to indictments of Flynn, they could be personally liable pursuant to Kalina v. Fletcher.

    1. This is why, unlike SWC and--surprisingly, the DoJ lawyers--I'm opposed to "without prejudice" and have argued that it intrudes on the executive. I'm quite sure Powell understands this, which is why she told Trump she doesn't want a pardon.

    2. If the case is dismissed without prejudice, the DoJ lawyers can hold out hope they will not be held as accountable than it's with prejudice.

  13. As Conrad Black has written, based on personal experience, the US Justice System is broken.

    prosecutorial immunity Is part of the reason.

    The culture that law school has created is part of this. That winning is all that matters. That the end justifies the means. Note, Adam Schiff, is a Harvard Law School graduate and has lied a lot.

    This helps create a 93% conviction rate, of the 5% of Federal cases that actually go to trial.

    With over charging, it’s much safer to settle.

    Barr seems to be focused on making the system less political. He is willing to defend practices and actions that are legal, but I’m not sure are right (Ruby Ridge)

    I have not seen any action to change the current system. Some changes would require legislation. For the FBI the Mueller centralization needs to be undone, where there is a career path to higher levels at district offices, and you are not forced to relocate to DC. Somehow the top of the FBI needs to be from the FBI, agent background, instead of parachuted in from the DOJ. Perhaps the fbi needs to be split up. Part of it becomes an mi5 type organization, and the other goes back to focusing on interstate crime.

    What I would also like to see is law reform. Same concept that has happened with deregulation. The book 3 felonies a day postulates that average person commits 3 felonies a day.

    1. Legal accountability for misconduct is necessary. As for organizational reforms, I won't even attempt it. The fundamental problem to me isn't that the FBI does both Cr and CI but that the USIC that Congress set up has become a power base that's as much beholden to Congress as to the POTUS. I'm not sure how to deal with that.

    2. A large complex system cannot change easily or quickly, and even when change occurs, the endpoint is oft times unpredictable. Sometimes you get an outcome contrary to your intent.

      So what to do?

      Best solution is to create a feedback loop that nudges the broken complex system in a desirable direction, monitor the incremental change (if any), and adjust accordingly. Take a long view and be persistent.

      So what is a practical means of instituting an effective and corrective feedback?

      Well, Sydney Powell is a good model upon which to build. Start a new legal foundation based upon this model and turn loose thousands of advocates to press the Federal Court system into actually doing it's job. No more pleas bargains. To trial we go with lots and lots of discovery along the way. Yes, there will be many lost cases initially, but the burden of a gazillion cases going to trial will shake DOJ to the core. Truth be told, most of their attorneys are lifelong bureaucrats and not courtroom tigers. Throw down the gauntlet.

    3. That's the problem--it's almost impossible to foresee the nefarious uses an entrenched bureaucracy and a permanent political class in Congress will make of "reform".

    4. "the USIC that Congress set up has become a power base that's as much beholden to Congress....
      To trial we go with lots and lots of discovery....
      impossible to foresee the nefarious uses..."

      All of these are key aspects to consider.
      Maybe Const. Amends. would help, requiring term-limits, esp. for Senators, and/or committee chairs.
      And, giving command of DS agencies to the Veep, and preventing PotUS & Veep from running as one ticket, like things were when Adams had Jefferson as Veep, nipping at his heels.

      I understand, why the 12th Amend. was passed to avoid the messiness of the 1800 election, but recent events have dramatized the risks of a *totally* Unitary Executive (which lacks incentive to enable Discovery, vs. abusive prosecutions).
      I'm fine with Barr's pursuit, of a Unitary Executive vs. Cong. meddling.
      But I urge consideration, of ways to incentivize Discovery, vs. abusive prosecutions.

    5. Our justice system at the federal level is broken broken broken. Why is no longer the question. What now, is. To that end, the remedy for corruption is diffusion of power. Break up DOJ and FBI among all 50 states and give the resources proportionally to each state. Leave one, lonely office in the worst location for coordinating between the states as needed. Otherwise, these feds are under the direction and control of each state government. Do the same thing for most of the federal agencies in DC. The only way to solve Big Government in DC is devolve it to the states. Yes, we may get states that go nuts but people can move. A federal bureaucracy we have now leaves nowhere to hide.

    6. Fine with me, if they devolve it to the states.

    7. The justice system is not broken. The problem lies with those who control it.

      The problem is there is currently no real way to hold the people controlling it accountable.

  14. The intelligence community has so much shit on members of Congress and many judges, they are pretty much immune from criminal prosecution.

    I cannot be convinced that the Deep State had knowledge of a few skeletons in CJ Roberts' closet that he knew would be exposed if he didn't vote to uphold Obamacare.

  15. "note what SWC leaves out of his example--the possibility that the version of the call that was the SCO's wasn't accurate!"

    Exactly my thought when he says "we'll allege you said". First, Flynn himself knew his intentions in the call and should have known that nothing he communicated was inappropriate or illegal. Had C&B been providing him with effective counsel, there would have been no waiver of discovery. His attorneys' response should have been "Bring your ham sandwich, we're going to have it for lunch in court".