Multiple congressional committees approached Michael Flynn’s original defense counsel to raise the prospect of immunity in exchange for Flynn’s congressional testimony but were spurned, multiple sources familiar with the interactions told The Federalist.
After Flynn pleaded guilty to making false statements to federal investigators, representatives of multiple congressional committees with oversight responsibility for national security matters asked Flynn’s lawyers if Flynn would testify before Congress in exchange for a congressional grant of immunity. Robert Kelner, Flynn’s attorney at the time, immediately dismissed the overtures, sources told The Federalist. During one conversation, Kelner allegedly responded that in situations like the one facing Flynn, the prosecution essentially “owns” the defendant and added that he would be unlikely to pursue congressional testimony without the approval of former Spygate Special Counsel Robert Mueller’s office.
Flynn was not told of these immunity conversations with congressional officials before they were rejected on his behalf, a source familiar with Flynn’s case told The Federalist. The former White House national security adviser and three-star Army general fired Kelner and the rest of his defense team at the Covington law firm in June 2019 and is currently trying to withdraw his guilty plea.
In court filings, Flynn has claimed that Kelner and others provided ineffective legal counsel and had significant unwaivable conflicts of interest that precluded them from diligently representing him in court, effectively denying him the constitutional right to counsel. Flynn is currently represented by attorney Sidney Powell, a former federal prosecutor with a history of exposing law enforcement corruption.
Kelner’s alleged rejection of congressional immunity overtures following Flynn’s guilty plea is especially curious given Kelner’s claimed attempts to explore congressional immunity for Flynn before Mueller had even been appointed to investigate the Trump campaign for illegal collusion with the Russian government to steal the 2016 election from former Secretary of State Hillary Clinton. In March 2017, prior to Mueller’s appointment, Kelner released a public statement affirming news reports that Flynn had sought congressional immunity in exchange for his testimony.
“General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit,” Kelner wrote on March 30, 2017. “Out of respect for the Committees, we will not comment right now on the details of discussions between counsel for General Flynn and the House and Senate Intelligence Committees, other than to confirm that those discussions have taken place.”
“Nothwithstanding his life of national service, the media are awash with unfounded allegations, outrageous claims of treason, and vicious innuendo directed against him,” Kelner continued. “No reasonable person, who has the benefit of advice from counsel, would submit to questioning in such a highly politicized, witch hunt environment without assurances against unfair prosecution.”
Flynn’s new attorneys argue that the entire investigation of Flynn was not only unfair from the outset, but legally unjustified as well. The judge overseeing the case has not yet ruled on Flynn’s motion to withdraw his plea or his motion to dismiss the case in its entirety due to egregious government misconduct.
Federal statute gives Congress and its committees the authority to grant immunity in exchange for testimony that might otherwise be protected by the Fifth Amendment to the U.S. Constitution. Oliver North, a former national security official in the Ronald Reagan administration, saw his federal convictions related to the Iran Contra scandal overturned due to immunized testimony he had provided to Congress.
There is a raging debate over the implications and even the constitutionality of the federal congressional immunity authority statute, and it is unclear how a congressional grant of immunity in exchange for testimony might affect a guilty plea in an ongoing trial, given the lack of directly analogous court precedents on the matter.
According to the Congressional Research Service, the mere existence of congressionally immunized testimony can make prosecutions more challenging, as was demonstrated in the North case.
Daniel French, a former federal prosecutor, told The Federalist that failure to inform a client of any kind of immunity overture would be a shocking derelection of duty.
“If they failed to get Flynn’s input on whether to pursue congressional immunity, that is an amazing example of ineffective assistance of counsel,” French said. “That is a fundamental failing of the role of an advocate as an attorney.”
Reached by phone on Wednesday afternoon, Kelner’s only comment in response to multiple phone calls and e-mails seeking comment was that he would respond briefly by e-mail. No e-mail response had been received by the time this article was published. Vanessa Le, counsel for the majority on the Senate Select Committee on Intelligence (SSCI), and Caitlin Carroll, a spokesman for SSCI, also did not respond to multiple requests for comment about Senate immunity-for-testimony overtures to Flynn’s defense team after Flynn’s guilty plea.
Earlier this week, evidence emerged that Flynn’s Covington lawyers had negotiated a secret side deal with prosecutors working for Mueller. In that deal between Flynn’s then-attorneys and Mueller prosecutor Brandon Van Grack, prosecutors made clear that they would not go after Flynn’s son if Flynn pleaded guilty, raising the prospect that Flynn may have been coerced into pleading guilty to a crime he did not commit in order to protect his family.
“We have a lawyers’ unofficial understanding that [prosecutors] are unlikely to charge Junior in light of the Cooperation Agreement,” Kelner wrote in an e-mail about the secret side deal.
Stephen Anthony, a colleague of Kelner at Covington, noted in a separate e-mail that the deal to not go after Flynn’s son was not formally put on paper so as to avoid federal court requirements that all plea terms be disclosed to the court.
“The government took pains not to give a promise to [Flynn] regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom [Flynn] may one day testify,” Anthony wrote in an e-mail to Kelner and Covington colleagues Alexandra Langton and Brian Smith.
News reports from late 2017 indicate that Mueller’s office was investigating the overseas business work of Flynn’s son and considering criminal legal action against him.
Van Grack, Mueller’s lead prosecutor in the Flynn case, personally attested in documents provided in federal court that “[n]o agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements, promises, understandings, or representations be made unless committed to writing and signed by your client, defense counsel, and the Special Counsel’s office.” It is difficult to square Van Grack’s claims to the court in light of the evidence suggesting a secret understanding between Flynn’s attorneys and Mueller’s prosecutors that Flynn’s son would no longer be targeted by Mueller if Flynn pleaded guilty.
On Tuesday, Kelner informed the federal judge overseeing Flynn’s case that Covington had recently discovered thousands of pages of records related to Flynn’s case that the law firm had previously failed to turn over to Flynn after he fired them. In the court filing, Kelner claimed the law firm had accidentally searched the wrong case file in its initial attempt to find and deliver all documents related to Flynn’s criminal case and Covington’s representation of him in that case.
“Covington determined that an unintentional miscommunication involving the firm’s information technology personnel had led them, in some instances, to run search terms on subsets of emails the firm had collected for its response to document requests in United States v. Rafiekian, the case involving Mr. Flynn’s business partner and their FARA-related work through their consulting firm, rather than on the broader sets of emails that should have been searched,” Kelner wrote in the filing.
Judge Emmet T. Sullivan, who took over the case after the previous judge was recused following reports the latter had an undisclosed personal relationship with Peter Strzok, one of the Federal Bureau of Investigations (FBI) agents overseeing the investigation of Flynn, immediately ordered Covington to execute a new and thorough source of all firm files and documents related to its legal representation of Flynn.
“It is FURTHER ORDERED that Covington & Burling LLP shall re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn,” Sullivan decreed. “It is FURTHER ORDERED that Covington & Burling LLP is FORTHWITH DIRECTED to produce to Mr. Flynn’s successor counsel all documents or communications concerning the firm’s representation of Mr. Flynn that were not previously transferred in the rolling productions. It is FURTHER ORDERED that Covington & Burling LLP shall file a notice of compliance with this Order by no later than 12:00 PM on May 4, 2020.”
Covington’s admission that it had failed to turn over all relevant files to Flynn came just days after the Department of Justice (DOJ) informed the court that it had also discovered in its records significant exculpatory information about Flynn that it had previously failed to provide to Flynn as required by law. It is not known whether Covington’s disclosure was made as a result of DOJ’s disclosure, or whether there may be any overlap in the records that had been withheld from Flynn.
Powell, Flynn’s current defense attorney, tweeted on Wednesday morning that she and DOJ had jointly agreed that the exculpatory evidence DOJ turned over last week should be unsealed and made available for public review.
“Prosecutors have provided @GenFlynn defense with redacted copies of the few pages of emails and notes produced this past Friday,” she wrote. “We will be filing a consent motion (under seal) jointly requesting the exhibit be unsealed immediately.”