Flynn's new legal team unleashes on his old lawyers in bid to withdraw guilty plea

The new legal team for former national security adviser Michael Flynn unleashed a withering assault Wednesday on Flynn’s old lawyers, accusing them of a conflict of interest so severe that it merits allowing the ex-Trump aide to withdraw the guilty plea he entered more than two years ago.

Flynn’s current squad of attorneys contend that Flynn’s original legal counsel with the prominent Washington law firm Covington & Burling was too enmeshed in the early stages of Flynn’s legal troubles to give him detached advice about what to do once prosecutors from special counsel Robert Mueller’s office began threatening to prosecute the retired Army lieutenant general.

Flynn’s new lawyers also contend that the old ones failed to capitalize on damaging disclosures about the probe that ensnared Flynn, such as the texts an FBI agent who conducted a key interview of Flynn sent disparaging Donald Trump when he was a candidate during the 2016 election.

“Mr. Flynn’s guilty plea (and later failure to withdraw it) was the result of the ineffective assistance of counsel provided by his former lawyers, who were in the grip of intractable conflicts of interest, and severely prejudiced him,” Flynn’s current lead counsel, Sidney Powell, and her colleagues wrote in the 49-page motion filed on Wednesday afternoon. “That pernicious conflict infected and prejudiced his defense until he retained new counsel in 2019.”

Flynn’s previous attorneys, Robert Kelner and Steven Anthony, referred questions about the accusations to a firm spokesman, who said legal ethics rules precluded them from responding at this time

“Under the bar rules, we are limited in our ability to respond publicly even to allegations of this nature, absent the client’s consent or a court order,” the spokesman said.

Flynn also submitted a formal, written statement to the court on Wednesday proclaiming his innocence and seeking to explain why he pleaded guilty to a crime he now says he didn’t commit.

“I am innocent of this crime and I wish to withdraw my plea,” Flynn wrote in his new declaration. “In truth, I never lied.”

Flynn insisted he never deliberately said anything untrue to the FBI in the key January 2017 interview, in which agents contend he denied discussing the issue of sanctions with the Russian ambassador during the presidential transition.

Flynn also said he had a murky memory of the conversations he was asked about and that, although the FBI agents had security clearances, he might have succumbed to a tendency to keep a close hold on sensitive information.

“I did not lie to them. I believed I was honest with them to the best of my recollection at the time,” the retired general wrote. “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak…My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon ‘need to know’ and the proper level of security clearance.”

Back in December 2017, Flynn offered no objection to prosecutors’ description of the series of falsehoods he told the FBI. Indeed, he sounded unequivocal that he had violated the law.

“Are you entering this plea of guilty because you are guilty and for no other reason?” U.S. District Court Judge Rudolph Contreras asked at the time.

“Yes, Your Honor,” Flynn replied.

Flynn now also appears to be claiming that his lawyers never told him that, at the time of the critical interview, the FBI agents involved thought his demeanor suggested he was being truthful. He now says he never would have pleaded guilty if he had known that.

Explaining why he reaffirmed his plea at another hearing in 2018, almost a year after reports emerged that the FBI agents didn’t think that he was lying to them, Flynn said his ex-lawyers urged him to “stay on the path” and said he would get no jail time.

“Regretfully, I followed my lawyers strong advice to confirm my plea even though it was all I could do not to cry out ‘no’ when this Court asked me if I was guilty,” Flynn wrote. He also apologized to the court, his family, the country, his supporters and Trump for offering the guilty plea — the only such plea in the only case Mueller’s office filed against a Trump administration official.

Flynn’s defense team also offered an unusual public window into the quickly unfolding plea negotiations in the case in the weeks leading up to his plea.

Less than a month before the plea, Flynn’s then-lawyers said they didn’t think his statements to the FBI during the pivotal FBI interview were a big legal problem for him. “We have not thought of the FBI interview as being a significant point of exposure,” Kelner told prosecutors, according to notes from another Covington lawyer.

Another federal judge in Washington, Emmet Sullivan, is currently considering Flynn’s motion to withdraw his plea.

Flynn’s sentencing remains set for Feb. 27, but his lawyers are asking the judge to defer the sentence and instead hold what could be a highly contentious evidentiary hearing exploring Flynn’s allegations of misconduct against Mueller’s prosecution team, the FBI and Flynn’s former lawyers.

Prosecutors have dismissed the conflict-of-interest claim, saying that they raised the issue with Flynn’s attorneys at the time and that he and his lawyers agreed to waive it.

In addition, an email from Anthony to Kelner that Flynn’s new lawyers submitted to the court on Wednesday dismissed the concern about a potential conflict advising Flynn on his guilty plea despite the firm’s earlier role preparing a Foreign Agent Registration Act filing for Flynn about a Turkey-related project.

“Nothing to worry about,” Anthony wrote about two weeks before Flynn’s plea. “I can assure [prosecutors] the client has been made aware of those matters as well, and that he has knowingly consented to going forward with us as his counsel.”

Flynn’s defense team also filed a separate motion on Wednesday arguing that the case against him should be dismissed outright because the Justice Department and FBI essentially entrapped the former Defense Intelligence Agency chief into making false statements during the January 2017 interview at the White House and in filings with Justice’s Foreign Agent Registration Act office about his work for Turkish interests.

“Everything about this prosecution has violated long-standing standards and policy for the FBI and the DOJ,” Powell wrote in the new motion, which seeks to capitalize on a Justice Department inspector general report released last month that found serious shortcomings in the FBI’s handling of its investigation into ties between the Trump campaign and Russia.

“Only the dismissal of this prosecution in its entirety would begin to get the attention of the government, the FBI, and the DOJ needed to impress upon them the ‘reprehensible nature of its acts and omissions,’” Flynn’s current lawyers added.

Sullivan has given the government until Feb. 12 to file a formal response to Flynn’s request to withdraw his guilty plea, but prosecutors used another filing on Wednesday to flatly deny one of the defense’s key claims: that the government wanted Flynn to lie in a Foreign Agents Registration Act-related case in which he was expected to testify against a former business partner, Bijan Rafiekian.

“The defendant’s assertions that the government attempted to pressure him to lie about the falsity of FARA statements in the Rafiekian case are incorrect, unsupported and unavailing here,” prosecutors Brandon Van Grack and Jocelyn Ballantine wrote.

If the judge declines to unwind Flynn’s guilty plea or throw the case out altogether, Flynn faces a maximum penalty under the law of up to five years in prison on the single false-statement charge admitted to in December 2017. However, prosecutors are recommending a sentence of between zero and six months, in accordance with federal sentencing guidelines. Flynn’s defense says he should not get any jail time and should simply be put on probation.

Another possibility is that Flynn might score a pardon from Trump, who has repeatedly expressed sympathy for Flynn and praised his decision last year to bring on Powell, well known on cable television as a critic of Mueller and the FBI.

The prosecution’s new filing on Wednesday, which focused on the appropriate sentence for Flynn, seemed to adopt a more lenient tone than earlier submissions from the government.

For instance, in response to Flynn’s lawyers’ arguments that he never admitted that he knew certain foreign-agent registration forms he signed were false, prosecutors acknowledge that the statement of facts agreed to by both sides as part of the plea bargain didn’t address whether Flynn intentionally lied.

“The government concedes that the Statement of the Offense is silent as to his state of mind at the time the filings were made,” prosecutors wrote.

In the wake of defense complaints that prosecutors were treating Flynn unfairly as a result of a dispute that led to his being nixed as a government witness at his ex-partner’s trial last summer, the new prosecution submission is more emphatic than past filings that a sentence of probation would be a reasonable one for Flynn.

Prosecutors also bluntly acknowledged that Flynn’s lengthy record in the Army, including as a combat paratrooper, merited consideration by the judge.

“There is no dispute that the defendant has an unusually strong record of public service,” Van Grack and Ballentine wrote.

While not abandoning the government’s prior stance that as long as six months behind bars would be appropriate, prosecutors pointed to the sentences imposed on two high-ranking Democratic appointees who got probation after admitting to crimes: Sandy Berger, who served as national security adviser under Bill Clinton, and David Petraeus, the retired Army general appointed as CIA Director under President Barack Obama.

The new prosecution filing does not mention that Berger and Petraeus both pleaded guilty to misdemeanors, while Flynn admitted to a felony charge, nor does the prosecution explain why Flynn was not permitted to plead guilty to a misdemeanor charge if his conduct was comparable.

A draft email Kelner prepared for prosecutors a few weeks before Flynn pleaded guilty said the general would never admit to a felony. “We are firmly of the view that he did not commit any felony offenses,” Kelner wrote in the message, filed with the court by Flynn’s new attorneys. “There are no circumstances under which he would plea [sic] to a felony offense.”

Much of the defense’s arguments sent to the judge on Wednesday were focused on the portion of the investigation and prosecution that addressed Flynn’s work during the Trump campaign for a client who prosecutors say was a front for the Turkish government.

While Flynn did make admissions that some statements contained in the FARA filings about the engagement were not true, the episode was not part of the formal charge Flynn pleaded guilty to, which addressed his false statements to the FBI in January 2017 about his dealings with the Russian ambassador and about lobbying of other countries surrounding a U.N. resolution critical of Israel.

It’s unclear whether Sullivan will consider the disagreement about the Turkey project and the related disclosures central enough to Flynn’s plea to merit unwinding it.

Regardless of how the judge rules, the combative approach of Flynn’s new lawyers could leave Covington and its lawyers tarnished by their work for the retired general.

That would be a bitter outcome for the firm, since the raft of internal firm records Flynn’s defense dumped into the public court file on Wednesday includes messages indicating that Covington considered its handling of Flynn’s case so masterful that it sought to capitalize on it to build its legal practice for foreign-agent-related work.

One email from Kelner written four days before the Flynn plea was finalized shows the Covington partner discussing plans to issue an advisory on FARA and embark on a road show that could involve three cities. Kelner also lamented that Flynn was unlikely to ever pay the millions of dollars in legal bills he had run up.

“We may as well strike when the iron is hot, and I think Flynn would be fine with that, since the chances of our getting paid for his case are looking grim,” Kelner wrote.

Internal Covington messages also show the firm celebrating their lawyers’ skill in obtaining such a favorable result for Flynn.

“Congratulations!” the Covington partner Michael Chertoff, a former appeals court judge and Homeland Security secretary, wrote to his colleagues a few days after Flynn’s plea. He was responding to a National Law Journal article that Anthony circulated that said: “It’s hard to imagine a much better outcome for the retired general.”

Flynn’s lawyers also released an email from Kelner to other Covington lawyers indicating that, in the months after Flynn’s guilty plea, the firm had lost out on a chance to advise the highest echelon of Israel’s government on FARA issues.

“I received a call this week letting me know that the Government of Israel decided not to retain us to provide FARA advice,” Kelner wrote. “While our work on the Flynn matter seems to have initially drawn them to us, the Prime Minister’s Office apparently saw things differently and decided that our Flynn representation was a minus and not a plus. They were worried about optics.”

It’s unclear whether Covington was obligated to give Flynn’s new lawyers such internal emails, but it appears the firm took a very broad view of its obligation to give its file on Flynn’s case to his new lawyers, including conducting a wide-ranging email search and turning over even marketing-related messages.