Yesterday, Michael Flynn’s legal team, led by powerhouse attorney Sidney Powell, filed a “Supplemental Motion to Withdraw Plea of Guilty” on behalf of the retired lieutenant general. Between the motion and the accompanying exhibits, which together exceeded 200 pages, Powell exposed several more troubling details about the prosecution of Flynn, involving both the special counsel team and Flynn’s previous attorneys.
Flynn had pled guilty on December 1, 2017, to one count of making a false statement to FBI agents Peter Strzok and Joe Pientka when the duo questioned Flynn on January 24, 2017 about telephone conversations he had with Russian ambassador Sergey Kislyak. At the time Flynn entered his plea, he was represented by Robert Kelner and Stephen Anthony of the well-respected Washington firm of Covington and Burling, LLP.
Kelner and Anthony continued to represent Flynn until he fired them in June 2019 and replaced them with Powell. Powell sought a delay in Flynn’s sentencing, which had already been postponed from December 2018. She then sought to compel the federal prosecutors to produce previously withheld evidence, including a copy of the transcript and audio of the January 24, 2017, telephone call.
In mid-December 2019, presiding Judge Emmet Sullivan denied Powell’s motion to compel and set Flynn’s sentencing for January 28, 2020. Sullivan also directed the government to submit an updated sentencing memorandum, which it did. In its updated sentencing memorandum, the prosecutor backtracked on its previous position that Flynn had provided substantial assistance to the government and then government attorneys withdrew a previously filed motion for a reduction in sentence.
That was a problem, though, because the government had pledged in the plea agreement to file a motion for a substantial assistance, leading Powell to file on Flynn’s behalf a motion to withdraw his guilty plea based on the government’s breach of the plea agreement. In that motion, Powell noted there were additional grounds for a plea withdrawal, which she would present in a forthcoming motion.
Adding to Reasons for Withdrawing His Plea
Judge Sullivan provided Powell a Wednesday noon deadline to present any additional arguments. While Powell missed the deadline by 50 minutes due to computer problems, she sought leave to file the late motion yesterday. While Flynn’s original motion to withdraw rested on the government’s breach of the plea agreement, Flynn’s supplemental motion to withdraw his guilty plea relied on Flynn’s claim that his Covington lawyers provided ineffective assistance of counsel.
Flynn’s claim of ineffective assistance of counsel proves important, legally, because a court need not allow a defendant to withdraw a guilty plea. Rather, under federal law, a defendant may withdraw a guilty plea before sentencing only “if the defendant can show a fair and just reason for requesting the withdrawal.”
In determining whether a “fair and just reason” exists, courts consider three factors: “(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government’s ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.”
Powell’s brief walked through these three factors, stressing first that Flynn is innocent of the charge that he lied to the FBI. Powell’s analysis of this factor followed her opening plea to Judge Sullivan to recall that “more than a year ago, at the December 18, 2018, Sentencing Hearing, this Court declared that it could not ‘recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty,’ and that it did not ‘intend to start’ that day.”
Next, Powell argued that there is no prejudice to the government’s ability to prosecute the case. No witnesses have died, no evidence has been lost, and the prosecution remains equally able to make out its case—if it had one—now as at the time Flynn entered his guilty plea.
Finally, Powell addressed the heart of the issue: the third factor and whether Flynn’s plea was somehow tainted. It was, Powell posited, because of the ineffective assistance of counsel Flynn received both at his December 2017 plea hearing and again when Sullivan quizzed him about his guilt at the December 2018 sentencing hearing.
After setting out the governing legal standard for ineffective assistance of counsel—that “counsel’s advice was not ‘within the range of competence demanded of attorneys in criminal cases,’ and that as a result he was prejudiced, i.e. ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’”—Powell dedicates the remaining 30-plus pages of her brief to proving Flynn’s Covington lawyers provided ineffective assistance to Flynn.
Did Michael Flynn Receive Ineffective Counsel?
In arguing that Flynn’s prior attorneys provided ineffective assistance of counsel, Powell first hammers the conflicts of interest facing the Covington lawyers. Here, Powell stresses a mistake she alleges Kelner made in handling the legal work for Flynn’s Foreign Agent Registration Act (FARA) filings: Kelner inaccurately informed the government that Flynn had initiated an op-ed concerning Turkey, when Flynn had in fact made clear that his business partner, Bijan Rafiekian, had drafted the op-ed.
Powell then notes that internal communications showed the Covington lawyers were discussing “among themselves their own potential civil and criminal FARA liability,” and the “substantial ‘headline risks.’” Simultaneously, it seems from the briefing, the Covington team was looking to market itself and its FARA services following resolution of the Flynn case.
These conflicts, Powell argued, could not be waived. But even if Flynn could have waived Covington’s conflicts of interest, Flynn did not provide an informed consent to allow Covington to continue to represent him, Powell posited.
Here, Powell highlighted some troubling facts. Although Flynn’s Covington lawyer first received a call from special counsel prosecutor Brandon Van Grack on October 31, 2017, demanding a meeting with Flynn’s lawyers, it was not until November 19, 2017, when Covington sent Flynn a written request for him to consent to their representation notwithstanding a “potential” conflict of interest.
Special Counsel Threatens Flynn’s Lawyers
But before then, on November 1, 2017, during a meeting with Covington lawyers, the special counsel highlighted what it saw as Flynn criminal exposure for “(1) FARA (failure to register); (2) FARA false statements; and (3) false statements to government officials.” Van Grack also informed the Covington lawyers of the special counsel’s possible interest in their own testimony.
“There’s one more issue I want to bring up,” Van Grack said. “Because Covington prepared the FARA registration, that would make you [Kelner] a fact witness.” “If we were to get to that point, we would litigate it very aggressively.” Kelner retorted, “We saw what you guys did with [Paul] Manafort, and we’ll definitely raise it with our client.”
However, according to Flynn’s motion, Kelner did not raise the conflict of interest at that time. Then, after several back-and-forths with the special counsel’s office, Covington arranged for their client to sit down and talk with Robert Mueller’s prosecutors on November 16, 2017. That morning, government lawyer Van Grack called Anthony “to discuss whether they had talked with Mr. Flynn about the conflict.”
In summarizing the call for Kelner, the partner noted there was “Nothing to worry about. They wanted to ask what they’d previously asked: have we considered and disclosed to the client (a) [Kelner]’s potentially being a fact witness and (b) Covington’s own interest with respect to its prior advice to [Flynn] regarding FARA—and that the client is OK proceeding with us? Answer: yes.”
Flynn answered questions for the government for the next two days and then, the afternoon before he was to sit down for the third day of questioning, Covington emailed the request for Flynn’s “informed consent” on its conflict of interest. That letter included the CYA claim that Covington had already discussed the conflict with Flynn, but the only other time it was raised, according to Flynn, was a passing reference to a conflict when his business partner was indicted.
This Was Not Informed Consent
While Flynn responded to Covington’s request for “informed consent” that he was very confident in the team and trusted them, in the motion to withdraw his plea, Powell stresses that the request came too late and was ineffective to inform Flynn of the extent of the conflict. And “absent the actual secret self-interest of Mr. Flynn’s conflicted former counsel: (i) he would have terminated Covington in August 2017; (ii) he would not have gone into the proffer; (iii) he would not have pled guilty in 2017; and, (iv) he would have withdrawn his plea in 2018,” Flynn maintains.
Beyond the conflict of interest, Powell highlighted several other deficiencies in Covington’s representation, the most serious of which is her claim that the Covington lawyers did not inform Flynn that on November 30, 2017, the day before he pleaded guilty, the special counsel’s office “disclosed to Covington that ‘one of the agents who interviewed Mr. Flynn was being investigated by the DOJ Inspector General’ and had electronic communications that ‘showed a preference for one of the candidates for President.’”
Flynn also asserts that his attorneys did not inform him that the special counsel had just disclosed that “the agents said Mr. Flynn had a ‘sure demeanor,’ and ‘did not give any indicators of deception’ and that the agents ‘had the impression at the time that Mr. Flynn was not lying or did not think he was lying.’”
Here, Powell also stressed that before Flynn signed the plea, he “specifically instructed Anthony and Kelner to call [the Special Counsel] immediately and ask if the agents believed that he lied. However, when Kelner and Anthony returned to the room where Mr. Flynn was about to sign the plea agreement, they did not inform the Flynns that Van Grack said, ‘both agents said ‘they saw no indication of deception,’ he had ‘a sure demeanor,’ and they ‘did not believe he was lying or he did not believe he was lying.’” Instead, according to Flynn, they said “the agents stood by their statement.”
His Lawyers Told Him Not to Withdraw His Guilty Plea
A second significant issue in the Covington representation Powell highlighted concerned the Statement of Offense’s discussion of the FARA filings. An email attached to the motion quotes one Covington lawyer, noting that “Paragraph 5 of the Statement (regarding FARA) is hardly brief or passing, as they suggested it would be.”
The email then noted, while using scare quotes around “false statements”—suggesting his legal team did not believe Flynn’s FARA filings were fraudulent—that “several of the ‘false statements’ are contradicted by the caveats or qualifications in the filing.” Nonetheless, Covington advised Flynn to sign the Statement of Offense, which though later modified, created the inaccurate impression that Flynn had admitted to knowingly filing false FARA registration statements.
Covington’s ineffective assistance of counsel continued, Powell argued, when, before the originally scheduled December 18, 2018, Sentencing Hearing, “Mr. Flynn’s lawyers essentially advised him only to ‘stay the path,’ say as little as possible, and refuse to consider any suggestion by the Court that he might want to withdraw his plea.” “They explicitly told him: ‘If the judge offers you a chance to withdraw your plea, he is giving you the rope to hang yourself. Don’t do it,’” Powell wrote.
Flynn took their advice, telling Judge Sullivan that he did not want to withdraw his plea, and that he was pleading guilty because he was guilty. But that decision was premised on ineffective assistance of counsel, Powell argued.
Michael Flynn Was Threatened, Too
Flynn’s plea and his decision to stand by that plea when appearing before Judge Sullivan in December 2018, was also the result of “undisclosed promises and threats,” Powell argued. “The government leveraged the threat of charges against Mr. Flynn’s son to induce that agreement,” Powell maintained, adding, “yet the government’s decision not to charge his son was not reduced to writing as part of the plea agreement; it was a secret, side deal between counsel.”
It was “that ‘understanding,’” however, that “was one of two necessary preconditions for Mr. Flynn to enter into the plea agreement,” Powell stressed. But “the government and Mr. Flynn’s prior counsel chose not to disclose that agreement to this court,” Powell concluded.
It may be some time before we know how Judge Sullivan reacts to Powell’s latest filing, as the government has until February 18, 2020 to file its reply to the Flynn’s supplemental motion to withdraw his guilty plea. In the meantime, or soon after, the long-time federal judge will likely call on the Covington lawyers to testify under oath concerning Flynn’s allegations. Flynn and even the federal prosecutors might also find themselves facing questions from Judge Sullivan.
No matter how Judge Sullivan ultimately rules, however, there is much more to come. Should Judge Sullivan deny Flynn the opportunity to withdraw his guilty plea, sentencing will proceed, but then an appeal is a near certainty, with the sentence likely being stayed pending appeal. Conversely, should Judge Sullivan grant Flynn’s motion, the government can still proceed on the current charge of lying to the FBI—unless the court also grants the second motion Powell filed yesterday: a motion to dismiss for egregious government misconduct and in the interest of justice.