DOJ: We would prefer not to

Judge Emmet Sullivan is presiding over the government’s case against Michael Flynn, who has yet to be sentenced by the court following his plea. Judge Sullivan recently ordered the government to release all transcripts of recordings of Flynn’s phone calls with Russian officials (such as Russia’s ambassador to the United States) and of any other recordings of him. For some reason or other, the government has failed to produce these transcripts.

Adam Goldman covers this disregard of the court order in the New York Times story “Justice Dept. Keeps Wiretaps Secret in Flynn Case, Rejecting Judge’s Order.” According to Goldman, “prosecutors asserted that they did not need to provide the transcripts because they were, in the end, not vital to the prosecution of Mr. Flynn. He pleaded guilty in December 2017 to lying to the F.B.I. after agents interviewed him about what was said on those calls.”

Goldman quotes the prosecutors: “The government further represents that it 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.”

I cannot make sense of the government’s representations to the court. Goldman refers to the “highly classified” nature of the recordings, which is usually an incentive for the Times and the Washington Post to publicize such material. Indeed, the existence of these recordings was originally leaked to the Washington Post by “current and former U.S. officials” in February 2017.

What’s happening here? Goldman doesn’t even raise the question. He simply takes the government’s representations — accessible here on Scribd — at face value and moves on.

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