Justice Department Rebuffs Court Order to Turn Over Flynn Conversations

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The Department of Justice has refused to abide by a judge’s order to make public transcripts of conversations between Michael Flynn and Russia’s former ambassador to the U.S., Sergey Kislyak.

The Justice Department also did not make public redacted portions of the Mueller report pertaining to Flynn, as ordered by U.S. District Judge Emmet G. Sullivan earlier this month. Sullivan had ordered the public release of the materials by Friday.

In a short court filing reported by The Washington Post, prosecutors Brandon Van Grack and Assistant U.S. Attorney Deborah Curtis wrote that the government “is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.”


It should be noted that Van Grack was part of Special Counsel Robert Mueller’s team investigating Russia’s attacks against the 2016 presidential election in the U.S. and the possible links to the Trump campaign.

As to the redacted sections of the Mueller report, the prosecutors said that “limited remaining redactions pertain to sourcing of information, such as references to grand jury subpoenas.”

Due to the limited scope of the Justice Department’s response, it’s difficult to immediately determine what prompted the prosecutors to ignore a federal judge’s order. Nor is it clear how Sullivan will respond.

The conversations between Flynn and Kislyak in December 2016—after Donald Trump had been elected, but before he took office—are at the center of Flynn’s guilty plea for lying to the FBI. Flynn, who briefly served as Trump’s national security adviser, eventually began cooperating with Mueller’s investigation. He has not yet been sentenced.


The Mueller report mentions these conversations, but an exact transcript has never been made public. Flynn and Kislyak allegedly discussed sanctions that had been imposed on Russia by the Obama administration as retaliation for Russia’s attacks on the U.S. election. Flynn reportedly had asked Kislyak that Russia avoid escalating the situation following the announcement of the sanctions. Flynn also discussed Russia’s vote on a U.N. resolution condemning Israeli settlements in the West Bank, according to The New York Times.

Former Justice Department official Joshua Geltzer told the Times that it would be “rare” for the department to make public the intelligence collection targeting a Russian ambassador, which is believed to have been the product of a wiretap authorized by the Foreign Intelligence Surveillance Court.


“What you see in [Friday’s] filing is the government trying to avoid disclosing that material,” Geltzer told the newspaper.

Former U.S. attorney Barbara McQuade told the Post: “I’m sure they spent a ton of time thinking about how to do this — to protect intelligence equities, to protect their case, to try not to annoy the judge, to balance all those interests.”


How annoyed the judge actually is over the department’s response will be a good indicator as to why the order was ignored.

Prosecutors did not ignore, however, an order by Sullivan to release the full transcript of a voicemail from Trump’s former private attorney, John Dowd, to Flynn’s attorney in November 2017, about the same time Flynn was reaching a cooperation deal with federal prosecutors on the Mueller team.


Much of that voicemail already had been described in the Mueller report.

As reported by the Post, Dowd had said:

“I understand your situation, but let me see if I can’t state it in starker terms,” he said, adding that if “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,” he added. “Um, just for the sake of protecting all our interests if we can, without you having to give up any...confidential information....remember what we’ve always said about the President and his feelings toward Flynn and, that still remains.”


On Friday, Dowd angrily responded in a statement saying, “This is clearly a baseless, political document designed to smear and damage the reputation of counsel and innocent people.”