What is Michael Flynn’s new “GREAT LAWYER, Sidney Powell” up to? And what might it mean for Flynn and those seeking the truth about Spygate? Here’s your legal primer for the five possible scenarios. For background on Flynn’s case and his switch to Powell, read this.
Let’s start with a quick review. On November 30, 2017, Special Counsel Robert Mueller charged President Donald Trump’s former national security advisor, Flynn, with lying to FBI agents about conversations he had in December 2016 with the Russian ambassador, Sergey Kislyak. The next day, Flynn pled guilty to the offense, pursuant to a plea agreement before federal judge Rudolph Contreras.
Less than a week later, for a still-unexplained reason, Flynn’s case was transferred to Judge Emmet Sullivan. Shortly after the case was transferred, Sullivan entered a standing order in the case directing “the government to produce to defendant in a timely manner—including during plea negotiations—any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” Sullivan further ordered the government, if it “has identified any information which is favorable to the defendant but which the government believes not to be material,” to “submit such information to the Court for in camera review.”
After pleading guilty on December 1, 2017, Flynn continued to cooperate with the special counsel’s investigation into possible collusion with Russia—a hoax, as we now know. After more than one year of cooperation, Flynn appeared before Sullivan on December 18, 2018, for sentencing.
‘You Sold Your Country Out’?
At that hearing, Judge Sullivan drilled Flynn’s attorneys on whether their client had truly accepted responsibility for his crime, noting that Flynn’s sentencing memo seemed to excuse Flynn’s conduct. Sullivan also quizzed Flynn on whether he wished to withdraw his guilty plea. Flynn held fast, though, telling the court he was pleading guilty because he was guilty. Flynn also declined Sullivan’s offer to appoint an independent attorney to review his file and provide a second opinion concerning Flynn’s guilty plea.
Following these exchanges, Sullivan proceeded to chastising Flynn. “I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan told the retired lieutenant general, with the long-time federal judge intimating that he may well sentence Flynn to incarceration—as opposed to zero jail time as recommended by the government.
In the midst of his diatribe, Sullivan incorrectly stated that Flynn had been working as a foreign agent while serving as Trump’s national security advisor, and suggested that Flynn may have even committed treason. “Arguably, you sold your country out,” Sullivan seethed.
Sullivan later backtracked on these comments, saying he had misspoken when stating that “Mr. Flynn [was] acting as a foreign agent while serving in the White House.” The judge also downplayed his questions about treason, saying “Don’t read too much into the questions I ask. But I’m not suggesting he committed treason. I just asked a legitimate question.”
Sullivan then asked Flynn whether he wanted to be sentenced at that time, or delay sentencing until after he had completed his cooperation with the government. Flynn wisely—given Sullivan’s tone and demeanor—opted to wait until he had finished assisting the government.
Then Flynn Got a New Attorney
That is where things stood for the last six months. Then, a little more than a week ago, in a surprise development, Flynn’s attorneys, Robert Kelner and Stephen Anthony, from the gilded D.C. firm of Covington and Burling, LLP, filed a motion to withdraw as Flynn’s attorneys of record. According to the motion, Flynn had notified them “that he is terminating Covington & Burling LLP as his counsel and has already retained new counsel for this matter.”
Judge Sullivan granted the motion, after temporarily denying the request on technical grounds. But it was not until late last week that the public learned Flynn had replaced his lawyers with former prosecutor turned defense attorney—and vocal critic of the special counsel investigation—Sidney Powell.
News that Flynn had hired Powell prompted celebrations on social media and speculation that Trump’s former national security advisor intended to withdraw his guilty plea. However, in a statement to The Federalist, Powell stressed Flynn’s cooperation with the special counsel investigation, stating that “he will continue to cooperate with the government.”
Then Friday, in a Joint Status Report filed with Judge Sullivan, Powell and the U.S. attorney for the District of Columbia, Jessie Liu, who took over the case from the special counsel team, proposed providing the court with another status report in 60 days. At that time, as Friday’s filing explained, Flynn’s cooperation would be completed and the parties and court could then address any additional time Powell and newly retained co-counsel may need to review the voluminous file in preparation for Flynn’s sentencing.
Powell’s statement that Flynn will continue to cooperate and the status report’s reference to Powell’s need to prepare for sentencing both suggest that nothing has changed but Flynn’s legal representation. And when asked whether there will be a change in strategy for Flynn, Powell told The Federalist that “General Flynn continues to cooperate with the government according to his plea agreement. That is our focus.” “It will take extensive time for me to review the file,” Powell added.
So, what options does Flynn have once Powell’s review is complete? Let’s go through them.
A Motion to Recuse
One option available is requesting Judge Sullivan recuse from Flynn’s case and the case be reassigned to another judge. Going into the December 2018 sentencing hearing, Flynn and his family likely expected a sentence of no jail time and minimal supervised release. Flynn had cooperated with the special counsel’s office from the get-go and over the course of the investigation provided substantial assistance to Mueller’s team. Additionally, the government agreed that “a sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted.”
But Judge Sullivan’s comments at the sentencing hearing suggested that he was seriously considering incarcerating Flynn for at least some amount of time, even if Flynn favorably completed his cooperation with the government. While a defendant cannot switch judges out of a fear of a tougher sentence, a defendant may seek recusal in a case where a judge’s “impartiality might be reasonably questioned.”
In Flynn’s case, Sullivan said to Flynn “arguably, you sold out your country,” and suggested treason might even be a plausible charge. Yet the only question before Sullivan was the appropriate sentence for Flynn lying to the FBI.
Sullivan also wrongly accused Flynn of serving as a foreign agent while serving as Trump’s national security advisor. Sullivan then gratuitously condemned the slap on the wrist the government gave Gen. David Petraeus. Powell could highlight these exchanges and argue in a motion to recuse that Sullivan should recuse because “his impartiality might reasonably be questioned.”
This strategy is high-risk, though, because controlling law provides that “a motion to recuse should not be ‘lightly granted.’” Thus, “a party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise. To overcome this presumption, the moving party must demonstrate by clear and convincing evidence that a judge has conducted himself in a manner supporting disqualification.”
Additionally, the law provides that the presiding judge determine whether recusal is required, meaning Sullivan will be the one deciding whether to recuse himself. And should Powell seek Sullivan’s recusal and lose, Flynn would then find himself facing an even less sympathetic Judge Sullivan. (While a defendant may appeal a district court’s denial of a motion to recuse, appellate courts rarely overturn the trial court judge’s decision.)
Further, Powell may prefer Judge Sullivan to some of the other D.C. judges because of Sullivan’s history in the Sen. Ted Stevens case. In that case, the federal government had charged Stevens with corruption. After a jury convicted Stevens, Sullivan set aside the verdict and dismissed the indictment with prejudice following revelations that prosecutors had systematically concealed “significant exculpatory evidence.” Sullivan’s outrage over the prosecutorial misconduct in the Stevens case provides another reason Powell may prefer to keep Flynn’s case in his courtroom, especially if she intends to focus on prosecutorial misconduct.
Powell may also prefer that Sullivan continue to preside over Flynn’s case because he entered the standing order directing the government to produce “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment,” and requiring the government to submit any favorable evidence that it believes is not material to the court to allow the court to determine whether it needed to be turned over to Flynn.
While this practice has been standard in Sullivan’s court since the Stevens case, not all federal judges enter such orders. Additionally, in this case, Sullivan’s order came after Flynn had already entered into a plea agreement and pleaded guilty. And in his plea agreement, Flynn agreed to “forego the right to any further discovery or disclosures of information not already provided at the time of the entry of Flynn’s guilty plea.” Another judge may be less inclined to enforce Judge Sullivan’s standing order under these circumstances—and as discussed below, that is likely just what Powell will want to do once she finishes reviewing the file.
So, for all of these reasons, while Powell could file a motion to recuse, that approach seems unlikely.
Motion to Compel, Motion to Comply, or Motion to Show Cause
Instead, the more likely approach will be for Powell to file a motion to enforce Judge Sullivan’s standing order, assuming, of course, that during her review of the file, Powell discovers that the special counsel team did not provide Flynn’s previous attorneys all evidence material to the charges against Flynn. Powell might fashion this motion as a motion to compel or a motion to comply, or could instead file a motion to show cause, requiring the prosecutors to explain to Judge Sullivan why they did not comply with his standing order.
At this time, it is impossible to know what, if anything, the special counsel’s office withheld from Flynn’s attorneys, because the material provided to defense counsel, for the most part, was not filed with the court. However, if something is missing from the file, Powell is best positioned to realize its absence.
She has been researching, writing, and speaking on the Mueller’s investigation and Flynn prosecution for more than a year, and is thus well-versed in the many public details. Powell also has experience with Mueller’s “pit bull” lawyer Andrew Weissmann and his questionable past practices, and accordingly will know special areas meriting a particular focus.
But, for now, Flynn’s supporters will have to wait and to see whether this motion materializes and if so whether the evidence does as well.
Motion to Withdraw the Plea
Third, Powell might file a motion to withdraw the plea on Flynn’s behalf. However, for several reasons, this course of action seems unlikely.
First, at this point Flynn’s chances of success in withdrawing his guilty plea are slim. While prior to sentencing the law provides that plea withdrawals should be “liberally granted,” a defendant must nonetheless “show a fair and just reason for requesting the withdrawal.”
In determining whether there is a “fair and just reason,” courts consider three factors: whether the defendant has asserted a viable claim of innocence; whether the delay in the defendant’s attempt to withdraw his plea has prejudiced the government’s ability to prosecute the case; and whether the guilty plea was somehow tainted.
Any attempt by Flynn to argue actual innocence would likely fail given that on multiple occasions he acknowledged his guilt: in his plea agreement; in court when entering his guilty plea before Judge Contreas; and finally when Judge Sullivan quizzed him at length in December 2018.
Further, both Judge Contreas and Judge Sullivan detailed, at length, the rights Flynn would be foregoing by pleading guilty (what lawyers call a Rule 11 colloquy, after the procedural rule mandating this process), and Flynn acknowledged that he understood his rights and nonetheless wanted to plead guilty, because he was guilty. And Judge Sullivan specifically asked Flynn whether he wished the opportunity to attempt to withdraw his guilty plea, telling him “I will afford you that opportunity,” but Flynn declined the offer.
Flynn also stated that he was happy with his attorneys and did not wish to consult with an independent attorney. Flynn’s attorney further stated, “We have no intention and the defendant has no intention to withdraw the guilty plea, and we’re certainly not asking Your Honor to consider that.” Under these circumstances, it is unlikely that Judge Sullivan would find Flynn’s guilty plea tainted.
That does not mean it would be impossible for Flynn to succeed in a plea withdrawal: Powell could argue that his attorneys were constitutionally ineffective or the file may provide evidence of government misconduct justifying a plea withdrawal. But it is unlikely Flynn would succeed, making the filing of such a motion a high-risk proposition: If Flynn seeks to withdraw his plea and Judge Sullivan denies his motion, Judge Sullivan would likely conclude that Flynn has not accepted responsibility for his crime, resulting in a longer prison sentence.
Moreover, if Flynn withdraws his guilty plea, the government would be free to prosecute Flynn, not just for lying to the government during the January 2017 FBI interview, but for filing materially false statements and omissions pursuant to the Foreign Agents Registration Act (FARA) related to work performed by his and his company, the Flynn Intel Group, Inc. (FIG), for Turkey.
The special counsel made clear during the December 2018 sentencing hearing that it could have charged Flynn in the indictment now pending in the Eastern District of Virginia, charging Bijan Rafiekian and Ekim Alptekin with various FARA violations. Flynn escaped those charges by pleading guilty to one count of making false statements to the FBI and cooperating with the special counsel. (Flynn’s cooperation will be complete following the trial of Rafiekian and Alptekin, which is scheduled to begin in mid-July.) If Flynn were to withdraw his guilty plea at this point, he could then be prosecuted both for lying and for the FARA violation, making that an untenable strategy.
Motion to Dismiss for Prosecutorial Misconduct
A fourth and much more likely option would be for Powell to file a motion to dismiss for prosecutorial misconduct. The Supreme Court has held that a “court may dismiss an indictment upon a finding of outrageous government misconduct that causes prejudice to a defendant,” but “the level of government wrongdoing that occurred must have been quite high.” Dismissal based on prosecutorial misconduct is rare, but so then is the abuse of the rule of law seen since Trump entered the political fray.
Whether Powell moves to dismiss the charges against Flynn will depend on what she discovers over the next two months in her review of the file. We know scant little at this time because, as mentioned above, the material provided Flynn’s defense, with a few exceptions, was not filed with the court. And Flynn’s former attorneys were extremely reticent to include information in their court filings that might upset the special counsel’s office.
This point became clear during the December 2017 sentencing hearing when the court asked Flynn’s attorneys why they had not filed the original 302 interview summary with the court along with the sentencing memorandum. “Prior to the filing, we shared a draft copy of our brief with the Special Counsel’s Office really for two purposes,” Flynn’s attorneys explained to Judge Sullivan: “One was to make sure that we weren’t including anything covered by the protective order, which they objected to our including, which would, perhaps, have to be redacted or filed under seal; and the other reason, frankly, was generally to understand what their reaction might be to particular points in the filing.”
“After that,” Flynn’s attorneys explained to Sullivan, “the Special Counsel’s Office discussed it with us and asked that we consider removing the Strozk 302, and the McCabe memorandum from the brief and to simply cite to them. Given our position as cooperating in the investigation, we acceded to that.”
Defense counsel no longer needs to accede to such demands by the special counsel, because the special counsel is no more and Flynn’s former attorneys are no more. Further, by the time Flynn is up for sentencing again, his cooperation will be complete. These facts, coupled with Powell’s reputation for weeding out prosecutorial misconduct, all point to revelations to come. What exactly those revelations will be, though, remains to be seen.
At this point, however, it is safe to say that seeking to dismiss the criminal charges based on prosecutorial misconduct offers two advantages over Flynn attempting to withdraw his guilty plea. First, seeking dismissal for prosecutorial misconduct will allow Powell to highlight government misconduct without implying that Flynn has not fully accepted responsibility for his crime. Second, and relatedly, such a motion would expose efforts by the U.S. Department of Justice and FBI to spy on, and interfere with, the Trump campaign, transition team, and administration, vis-à-vis Flynn, which would then play well for a future pardon request.
Finally, unless Sullivan tosses Flynn’s case, Powell will eventually file a new Sentencing Memorandum. The new Sentencing Memorandum will provide Powell the opportunity to establish that Flynn deserves a sentence of no jail time, and in the process expose more details about Spygate.
While Flynn’s former attorneys attempted this tack, they went about it wrong, leading Judge Sullivan to view Flynn as blaming the government for his crime and not fully accepting responsibility. Powell, however, can avoid raising Judge Sullivan’s ire by simply addressing questions Sullivan raised during the December 2018 hearing in Flynn’s new sentencing memorandum—the answers of which might well reveal that the government had listened in on Flynn’s calls with the Trump transition team. That in turn could set Flynn up for a pardon, even if it doesn’t affect his sentence.
During the December 2018 sentencing hearing, Sullivan stated that Flynn had “admitted that his false statements or omissions impeded and had a material impact on the investigation.” Judge Sullivan went on to note that he “need[ed] to know answers about how [Flynn] impeded the investigation and what the material impact on the investigation was.” Then, at the conclusion of the sentencing hearing, Sullivan noted that he “had many, many, many more questions,” for the government, and reiterated that he needed to know “How the government’s investigation was impeded” by Flynn’s lies? And “what was the material impact of the criminality?”
Sullivan’s questions are understandable. Before the FBI interviewed Flynn on January 24, 2017, agents were already aware of the content of Flynn’s conversation with the Russian ambassador because they were listening in on the call. How then could Flynn’s false statements have impeded or materially impacted the FBI investigation?
It would be entirely proper for Powell to highlight the lack of actual harm caused by Flynn’s false statements in the updated sentencing memorandum because, in determining the particular sentence to be imposed, a court must consider “the nature and circumstances of the offense.” Powell can do this while admitting that it is a serious offense to lie to the FBI; she would need only stress that in this case, the FBI knew of the content of Flynn’s call to the Russian ambassador, and thus the actual harm was minimal.
Further, in discussing “the nature and circumstances of the offense,” in the Sentencing Memorandum, Powell might well expose more details about the targeting of Flynn—and those details might well implicate the FBI in listening in on calls between Flynn and the Trump transition team.
The Statement of Offense filed in Flynn’s case suggest this is a real possibility. In the Statement of Offense, the government noted that “Flynn falsely stated that he did not ask the Russian Ambassador Sergey Kislyak to refrain from, ‘escalating the situation,’ in response to sanctions the Obama Administration had imposed upon Russia.” The statement then continued to lay out the timeline and what actually happened, as opposed to Flynn’s false statement:
On December the 28th, 2016, then-President Obama signed Executive Order 13757 which was to take effect on December the 29th, 2016. The executive order announced sanctions against Russia as a response to Russia’s interference in the 2016 presidential election. On December the 28th, 2016, the ambassador contacted Mr. Flynn. The next day Mr. Flynn called a senior transition official who was with other senior officials at the Mar-a-Lago Resort. They discussed the sanctions and their shared desire that Russia not escalate the situation. Immediately after this phone call, Mr. Flynn called the ambassador, ‘and requested that Russia not escalate the situation and only respond in a reciprocal manner, end.’ Shortly after this conversation, Mr. Flynn spoke again with the senior official to report on the call. . . . On December 30th, 2016, President Putin announced that he would not take retaliatory measures in response to the sanctions imposed by then-President Obama. On December 31, 2016, the ambassador called Mr. Flynn to inform him that Russia had chosen not to retaliate. After this call, Mr. Flynn spoke with senior members of the transition team about the conversation and Russia’s decision not to escalate the situation.
We already know that the FBI was listening in Flynn’s conversations with the Russian ambassador. But was the FBI also listening in on Flynn’s call to “senior transition officials”? The details in the Statement of Offense raise that question.
While it is true that Flynn may have provided the special counsel’s office a summary of his conversations, that Mueller’s team believes Flynn fully, completely, and truthfully cooperated with its investigation suggests they may have had a way to double-check the information Flynn had told them—just as they did when Peter Strzok questioned Flynn about his January 24, 2017 call with the Russian ambassador.
If the FBI knew of Flynn’s conversations with the senior transition officials prior to interviewing him on January 24, 2017, Flynn’s false statements would have had even less of a chance of impeding the Russia collusion investigation because agents would have already known exactly what went down before Flynn opened his mouth. Powell could include revelations along these lines in Flynn’s revised sentencing memorandum to fully explain the “nature and circumstances of the offense.” But it would do much more—it would help to more fully explain the nature and circumstances of Spygate.