(Bloomberg) -- Former National Security Adviser Michael Flynn may have a singular goal in replacing his longtime criminal defense attorneys this month with the politically provocative Sidney Powell -- to win a pardon from his old boss, President Donald Trump.
“This is for an audience of one,” former federal prosecutor Jeffrey Cramer said of Powell’s hiring.
Flynn, a retired U.S. Army general who admitted he lied to government investigators and awaits sentencing, shed the legal team that represented him since the case began in 2017. Powell made her first appearance for Flynn at a status conference Monday in Washington, indicating to U.S. District Judge Emmet Sullivan that her client would continue to cooperate with prosecutors as part of an earlier plea agreement.
Powell, an ex-federal prosecutor, has been a caustic critic of the U.S. Justice Department and Special Counsel Robert Mueller’s Russia probe. Perhaps more pointedly, two weeks before she was hired, Powell referred to the case against Flynn as “the targeted takeout of a very good man.” She also shares her views on two the president’s favorite platforms, Fox News and Twitter.
In a June 13 tweet, Trump cheered Powell’s hiring, saying Flynn was getting a “GREAT” lawyer.
“How can you dispute his decision when you get that reaction and that comment?” said Ryan Fayhee, a former Justice Department attorney. “Clearly this is at least in part designed to position Flynn for a pardon.”
Courting the president may make sense as a legal strategy because Trump has pardoned eight people since March 2018, including anti-immigrant Sheriff Joe Arpaio, political commentator Dinesh D’Souza and one-time media mogul Conrad Black, whom Cramer helped convict. Trump hasn’t pardoned his former campaign manager Paul Manafort, despite repeated public statements by Manafort’s lawyer that the charges had nothing to do with Russian efforts to interfere with the 2016 U.S. presidential election.
The reasons for Flynn’s split with defense attorney Robert Kelner at Covington & Burling LLP haven’t been disclosed in court documents. Kelner told Sullivan only that he was withdrawing because his client had hired new counsel.
There was some discussion of a potential conflict of interest for Covington during a June 13 federal court hearing in a related illegal lobbying case involving Flynn’s former business partner, who the general may testify against. According to transcripts of the hearing in Alexandria, Virginia, the discussion involved the law firm’s role in preparing government documents for the lobbying firm Flynn and his partner owned.
Powell, in an email on Friday, said she is “honored to be representing General Flynn.” She declined to comment on her legal strategy or why she was hired.
During the court hearing Monday, the judge said he felt he should disclose that Powell had sent him a copy of her book in 2014, along with a handwritten note on one of the pages. Sullivan said he never finished reading the book but did read the chapters about himself. He decided not to recuse himself and instead make the disclosure “in the spirit of transparency.”
The switch in attorneys is unlikely to result in Flynn withdrawing his guilty plea, because he’s already admitted his wrongdoing in court on multiple occasions, Fayhee and Cramer said.
Flynn has all but discharged his obligation under the plea agreement to cooperate with the government. He remains a potential witness in the trial slated for July against his former business partner on charges of illegal lobbying for Turkey, conduct for which Flynn has already admitted guilt, even though he wasn’t charged with that offense. Powell told the judge Monday Flynn was still willing to testify at the trial, if necessary. The judge set Aug. 31 as the next date for a status report on Flynn’s case.
“As long as that doesn’t touch the White House and doesn’t touch Trump, a pardon is still in the works,” Cramer said. “That’s the only reason to change horses in mid-stream, is if you’re hiring this lawyer with a clear political bent, sending a message to the White House that you don’t intend on saying anything negative or inculpatory against the president or anyone close to the president.”
If a pardon is Powell’s goal, it isn’t without risks. Among them is that a pardon may not come before the 2020 election, and Flynn may have already served his sentence by then.
In December 2017, Flynn pleaded guilty to misleading investigators who’d questioned him at the White House almost a year earlier about his contacts with then-Russian ambassador to the U.S. Sergey Kislyak. His conviction was the first obtained under the auspices of the Russia probe even though Mueller had not yet been named special counsel at the time of the FBI interview.
Flynn agreed to cooperate with Mueller’s team. In exchange, the special counsel’s lawyers asked Sullivan to spare the general from incarceration, even as the crime carried a maximum sentence of five years in prison.
Still, in a sentencing memo, Flynn’s now-former counsel, Kelner, implied that the agents who questioned his client -- one of whom was then-Deputy Assistant Director Peter Strzok -- had lulled him into believing he was in no legal jeopardy. The judge found that assertion potentially troubling.
At a Dec. 18 sentencing hearing, Sullivan asked Flynn to reaffirm his plea, including that he believed he was, in fact, guilty and that he was satisfied with the work done by his attorneys. After Kelner assured the judge that he wasn’t asserting an entrapment defense for his client, Sullivan warned Flynn that he may not get the deal he bargained for.
“I’m going to be frank with you,” Sullivan said. “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high-ranking security officer with, up to that point, an unblemished career of service to his country. That’s a very serious offense.”
Upon learning that the general was still helping prosecutors assemble their case against his former business partner, Sullivan warned Flynn he wouldn’t get full credit for his cooperation until that task was completed. The sentencing was postponed and has not been rescheduled.
“I think that shook Flynn a little bit,” Cramer said.
Kelner may have misread how his criticism of the investigators’ tactics would play with Sullivan, Fayhee said. Hiring Powell allows for a reset. Still, an overtly political approach could backfire too, resulting in Sullivan’s imposition of a stiffer sentence than sought by prosecutors. Paradoxically, that may not matter to Trump, who wields that ultimate power.
“It’s quite a gamble,” Fayhee said.
The case is U.S. v. Flynn, 17-cr-232, U.S. District Court, District of Columbia (Washington).
(Updates to include results of Monday’s court hearing.)
--With assistance from Tom Schoenberg.
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