Flynn Alleges Former Lawyers Misled Him on Their Conflict of Interest

January 31, 2020 Updated: January 31, 2020
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On Nov. 30, 2017, just as Lt. Gen. Michael Flynn was preparing to sign his guilty plea, he again told his lawyers he didn’t believe he was guilty of the crime the government was accusing him of—lying to the FBI. He told them to go back to the prosecutors and ask whether the FBI agents believed he lied to them. The lawyers left the room. When they returned, they informed Flynn that the “agents stand by their statements.”

“The agents believed that I had lied,” Flynn recollected his understanding from that day in Jan. 29 declaration to court. Fearing the government would put him in prison for 15 years and perhaps imprison his son, too, he signed the plea.

But he was wrong. What his then-attorneys were actually told—and what he now asserts they failed to tell him—was that one of the agents believed that Flynn had “sure demeanor” during the interview 10 months earlier and that he “did not give any indicators of deception,” the prosecutors later told the court (pdf). “Both interviewing agents had the impression at the time that the defendant was not lying or did not think he was lying.”

Flynn now wants to withdraw his plea. He has accused the prosecutors of acting in bad faith and his former lawyers of providing faulty advice due to a conflict of interest.

On Nov. 29, Flynn’s lawyers filed more than 200 pages of documents, including declarations of Flynn and his wife, arguing his previous lawyers “betrayed” him (pdf).

“As God is my witness, the truth is I am innocent of these charges and any other alleged ‘criminal conduct,’ and I request to withdraw my plea of guilty, and I will fight to restore my good name,” Flynn said in the declaration.

A spokesperson for Flynn’s previous attorneys at international law firm Covington and Burling responded via email to a request for comment.

“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.”

In a separate Jan. 29 filing, Flynn is also asking the judge to dismiss the case against him for government misconduct.

The FARA Letter

Flynn, a veteran of military intelligence, was formerly the national security adviser to candidate and President-elect Donald Trump before resigning less than a month into Trump’s presidency. For a few years, he also headed the Defense Intelligence Agency during the Obama administration.

His problems started in December 2016 when he was working on Trump’s transition team. During a Christmas party at the offices of Flynn Intel Group (FIG), a consultancy he shuttered the month before, he went through FIG’s mail and found a letter from the Justice Department’s Foreign Agents Registration Act (FARA) unit, Flynn later told prosecutors (pdf). The government wanted to know about a job FIG did earlier that year for Turkish businessman Kamil Ekim Alptekin.

The job focused on researching and lobbying in the United States against Fetullah Gulen, an Islamic cleric living in exile in Pennsylvania who runs a group Ankara blames for an attempted 2016 coup.

Alptekin told FIG the point of the job was to improve business confidence in Turkey. If Gulen was extradited, it would both improve U.S.-Turkey relations and boost confidence in Turkey’s political stability.

The FARA officials argued the job was actually done for the Turkish government and FIG thus had to register as a foreign lobbyist under FARA.

According to Flynn’s lawyers, both current and former, he wasn’t particularly involved with the Alptekin job as he was busy promoting his book and campaigning for Trump.

Flynn indicated he was upset by the FARA letter, saying he went to Bijan Rafiekian, his former partner in FIG who largely handled the Alptekin job, and stuck the letter “in his chest” telling him to look at it.

At a recommendation of FIG’s former lawyer, Kristen Verderame, Flynn then hired Robert Kelner, Covington’s FARA expert, to handle the registration paperwork.

The FARA Unit

FARA has seldom been enforced. Over the past more than 50 years, only seven FARA violations have been prosecuted. The FARA unit has only issued 130 “inquiry letters,” such as the one received by Flynn, over the decade ending 2015.

This time, however, Heather Hunt, then-FARA unit chief, was prompting Covington again and again to file the papers expeditiously.

“We’ve never seen her this engaged in any matter (ever),” Kelner noted in a Feb. 9, 2017, email.

Even the Justice Department’s then-counterintelligence chief, David Laufman, got personally involved and questioned Covington on the FARA filings.

Laufman played a key role in overseeing both the Clinton email investigation and the Russia investigation, which were both handled by FBI’s counterintelligence division. Upon resigning in 2018, he became an attorney for the longtime friend of Christine Blasey Ford, Monica McLean. Ford gained media attention in 2018 after she accused soon-to-be Supreme Court Justice Brett Kavanaugh of sexually assaulting her while in high school. According to her LinkedIn, McLean worked for the Justice Department and the FBI for a total of 24 years.

The Russia Probe

Flynn was one of the targets of the FBI’s Russia investigation, which probed whether the Trump campaign colluded with Moscow to sway the 2016 election. Under FBI rules, the bureau can launch counterintelligence investigations simply to collect foreign intelligence or to probe matters relevant to national security—it doesn’t need to pursue a specific crime.

As part of that probe, Peter Strzok, then-deputy assistant director for counterintelligence operations, and Supervisory Special Agent Joe Pientka interviewed Flynn in the White House on Jan. 24, 2017.

The probe was taken over in May 2017 by a special counsel, former FBI Director Robert Mueller. The probe concluded in March 2019 without establishing any Trump-Russia collusion.

Flynn said he agreed to hire Kelner and Steven Anthony, another Covington lawyer, to represent him in any issue arising from the Russia probe.

During one of his first meetings with Kelner and Anthony, they asked him if he “had anything” on Trump, as it would help his position. “I told them from the beginning I was unaware of President Trump doing anything wrong,” Flynn said.

The FARA Conflict

According to Powell’s filing, by Aug. 10, 2017, the Covington lawyers learned that the Justice Department was probing FIG’s FARA papers. The firm launched a review of its work on the registration, but didn’t tell Flynn about it.

On Aug. 30, they sent Flynn an email, wanting to talk about a matter they said was “not urgent.”

Flynn replied that he was on his way to a dinner with his wife and friends, but that he can take the call on the way.

The lawyers called him and “relayed that Rafiekian was facing imminent indictment on FARA charges,” Powell said.

“The lawyers mentioned a ‘possible conflict,’ that Kelner might have to testify, but they assured Mr. Flynn they would still be able to ‘vigorously defend’ his case.”

In Powell’s view, this was actually a serious conflict of interest. It was in Covington’s interest to say that any problems with the FARA papers were the fault of Flynn and his associates. Flynn’s interest was to claim that any problems were the fault of Covington.

“By this time, Covington now knew there was a distinct possibility that one of Mr. Flynn’s lawyers not only might have to testify against his former partner Rafiekian, but that he would be required to testify against his own client,” Powell said.

Moreover, the Covington lawyers themselves could potentially face liability, not to mention a tarred reputation.

Under D.C. courts’ ethics rules, a lawyer can’t continue to represent a client under a conflict of this magnitude, even if the client wants him to, Powell argued.

On Nov. 1, 2017, the Covington lawyers learned from the lead prosecutor, Brandon Van Grack, that Flynn was facing three possible charges: failure to register under FARA, lying in FARA papers, and lying to the FBI. Van Grack told them that they may be witnesses in the FARA case, though the prosecutors were not considering to call on them to testify. He explicitly asked the lawyers to talk to Flynn about the conflict.

But they didn’t, Powell said.

They only told Flynn in an email three weeks later, seeking his consent to keep them as lawyers despite the conflict. Covington recommended Flynn to talk to another lawyer before consenting, the email said, but assured him the lawyers believed his defense wouldn’t be affected by the conflict. Flynn said he didn’t understand the “legalistic” email and that he fully trusted his lawyers to put his interests first. The lawyers cited wrong ethical regulation in the email, one that is not as strict as the ethics rules in D.C. courts, Powell noted. She deemed the consent invalid.

Plea Deal

At that point, the lawyers had already convinced Flynn to talk to the Mueller team and convinced him to use “words and phrases” that weren’t part of his “normal vocabulary,” he said. It appears the plan was to make the prosecutors happy so they would give Flynn a good plea deal.

He said the lawyers told him he was facing 15 years in prison, couldn’t get a fair trial in Washington, and that his son, who also worked for FIG, may be charged too—unless he accepted the deal.

Flynn finally relented on Nov. 30.

The threat to indict his son was the most important factor, Flynn’s wife, Lori, said in her declaration.

“That was unacceptable to us.”

A week later, legal magazine The American Lawyer named the Covington team “Litigators of the Week” for negotiating Flynn’s plea.

In his statement of offense, Flynn affirmed that he had lied to the FBI agents by denying that he made two requests in December 2016 to then-Russian Ambassador to the United States Sergei Kislyak. One request was for Russia to not escalate the situation after President Barack Obama expelled dozens of Russian diplomats. The other was for Russia to abstain from or delay a United Nations vote on Israeli settlements. Some media raised the possibility that Flynn’s requests violated the Logan Act, but that was a paper tiger, according to Powell. Nobody was ever convicted under the law and the last charge was brought more than 150 years ago. As a member of the transition team, it was Flynn’s job to communicate with foreign officials regarding the incoming administration’s positions.

Flynn now says that he didn’t lie and that he doesn’t remember the details of the calls with Kislyak he supposedly lied about since they were short and didn’t stand out from the flurry of other calls with foreign officials at the time.

“I believe I was honest with them to the best of my recollection at the time,” he said.

He also noted that calls with foreign officials are “both sensitive and classified” and that he, as an intelligence professional, has a “filter” that is “ingrained” in him to not disclose such information except to the right people, such as his supervisors or those with proper clearances and a “need to know.”

The statement of offense also listed three lies and one omission in the FARA papers. Flynn took responsibility for those too, but Powell now argues the registration was “substantially correct” and that the statements were either not false or not made by Flynn in the first place.

Legal Offensive

Flynn said he raised multiple times with the Covington lawyers the prospect of withdrawing his plea, but they repeatedly told him to “stay on the path.”

During the Dec. 18, 2018, sentencing hearing, District Judge Emmet Sullivan, who presides over the Flynn case, extensively questioned Flynn, his lawyer, and the prosecutors.

“I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today,” the judge said.

He asked Flynn whether he wants to withdraw the plea. He said now.

Flynn now says the Covington lawyers only prepared him for what he expected to be a short hearing. They told him to only respond to such a question with “no.”

“The Court would be giving you the rope to hang yourself,” he said they told him.

It was not until spring 2019, when the Covington lawyers insisted he got a second opinion, that he approached Powell. He fired Covington shortly after, but not before they billed him upward of $3.9 million.

Since then, he’s been on the offensive.

Powell has filed motions accusing the prosecutors of withholding exculpatory evidence and asking the judge to remove the government attorneys. Sullivan denied all the motions on Dec. 16.

The prosecutors recently argued that Flynn didn’t deserve a call for leniency outlined in his plea because he undermined a separate criminal case against Rafiekian, who was eventually acquitted of several FARA-related charges for lack of evidence.

The prosecutors demanded that Flynn testify that he signed the FARA forms knowing they contained false statements. He refused, accusing the prosecutors of trying to make him lie. Instead, he asked Sullivan to allow him to withdraw his plea.

On Jan. 29, prosecutors told the court that Flynn still deserves probation—the deal Covington steered him toward.

There’s no indication Flynn is now inclined to accept.

Correction: A previous version of this article misquoted and incorrectly attributed the belief that Flynn had “sure demeanor” during his FBI interview and that he “did not give any indicators of deception.” It was the belief of one of the interviewing agents, according to the prosecutors. A previous version of this article also incorrectly attributed Flynn’s description of his discovering and responding to a letter from the Justice Department’s FARA unit. Flynn provided those descriptions in an interview with prosecutors.

Update: The article has been updated with further details regarding the Clinton and Russia investigations and Michael Flynn’s legal fees.

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