Nearly 30 months after initially pleading guilty, the case of former Trump adviser Lt. Gen. Michael Flynn is still not over, even after the Department of Justice (DOJ) dropped the case more than two weeks ago.
A confession of a crime usually signals a slam-dunk case for prosecutors, but in Flynn’s case, the guilty plea is now legally worth less than the paper it’s written on, according to his lead lawyer, former federal prosecutor Sidney Powell.
Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in December 2017 to one count of lying during an FBI interview.
The DOJ moved to drop Flynn’s case on May 7, saying the FBI interview wasn’t based on a properly predicated investigation and thus the department couldn’t prove beyond reasonable doubt that what he said was “material” to a legitimate investigation.
The question of materiality is a crucial one as it strikes at the heart of the legal relevance of Flynn’s plea.
There are three elements to the crime of lying to the FBI. A person must say something that isn’t true; the person must know it’s not true; and the lie must be “material” to the FBI investigation. Honest mistakes, misremembering, genuine lack of recollection, or lies inconsequential to the investigation don’t count. The lie doesn’t need to actually affect the investigation. It just needs to be one that could affect it.
The Statement of Offense attached to Flynn’s plea indeed states that his alleged lies “had a material impact” on the FBI investigation into Russian meddling in the 2016 elections and any Trump campaign’s coordination with said meddling (pdf). But that’s not something Flynn was in a position to vouch for, Powell pointed out.
“He had to accept on faith that the questions [the FBI asked him] were ‘material’ to a legitimate criminal investigation, even though that was not made clear to him at the time,” she said in a May 19 petition, asking for an intervention in the case from a higher court.
The DOJ acknowledged as much in its motion to dismiss the case, saying that Flynn “stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him.”
In fact, the district judge presiding over the case, Emmet Sullivan, hinted at the same issue during Flynn’s first sentencing hearing on Dec. 18, 2018.
Federal Rules of Criminal Procedure state in Rule 11 that “before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
As such, Sullivan was required to check that Flynn’s alleged lies were material.
But he acknowledged during the hearing that he didn’t do so.
“Mr. Flynn admitted that his false statements or omissions impeded and had a material impact on the investigation, and when I ask questions of the government, I need to know answers about how he impeded the investigation and what the material impact on the investigation was,” he said.
He never asked those questions during the hearing. At the end of the hearing, he acknowledged: “It probably won’t surprise you that I had many, many, many more questions. … These are questions that you would be prepared to answer anyway, such as, you know, how the government’s investigation was impeded? What was the material impact of the criminality? Things like that.”
There’s no sign in the court record that Sullivan has asked those questions since.
What did happen since then, on the other hand, was the emergence of additional evidence undercutting the materiality of Flynn’s statements.
“What’s our goal? Truth/Admission or to—get him to lie, so we can prosecute him or get him fired?” wrote down then-FBI head of counterintelligence Bill Priestap in notes dated Jan. 24, 2017.
The FBI questioning “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn,” the DOJ stated.
There are other problems with the plea as well.
Rule 11 further requires the court to “determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).”
In Flynn’s case, there actually was a threat and a promise left out of the deal.
In an April 24 court filing, Powell revealed emails that appear to show internal communications regarding the plea deal between Flynn’s previous lawyers from Covington & Burling.
“We have a lawyers’ unofficial understanding that they are unlikely to charge [Flynn] Junior in light of the Cooperation Agreement,” read one heavily redacted email sent on March 19, 2018.
The prosecutors, working under then-special counsel Robert Mueller, threatened to charge Flynn’s son based on allegations that Flynn’s now-defunct consultancy, Flynn Intel Group (FIG), lied in its foreign lobbying disclosures. Flynn Jr. worked for the firm.
Another email, dated March 27, 2018, suggests the prosecutors intentionally kept the deal regarding Flynn’s son unofficial to make future prosecutions easier.
“The government took pains not to give a promise to MTF [Michael T. Flynn] regarding Michael [Flynn] 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 MTF may one day testify,” the email reads.
“Giglio” refers to a 1972 Supreme Court opinion that requires prosecutors to disclose to the defense that a witness used by the prosecutors has been promised an escape from prosecution in exchange for cooperation.
However, the issues go deeper still.
Conflict of Interest
Flynn has alleged that the Covington lawyers, whom he fired in 2019, kept crucial information from him.
He said that shortly before he signed the deal on Nov. 30, 2017, he again told the lawyers he didn’t believe he was guilty. He told them to go back to the prosecutors and ask whether the FBI agents believed he lied to them. The lawyers did so and then informed him that the “agents stand by their statements.”
But the lawyers were actually told, among other things, that the agents “had the impression at the time that Mr. Flynn was not lying or did not think he was lying,” according to the prosecutors. Flynn said the lawyers didn’t relay this information to him.
According to Flynn, the lawyers represented him ineffectively because of a conflict of interest.
As part of his statement of offense, Flynn affirmed that the FIG lobbying papers filed under the Foreign Agents Registration Act (FARA) contained false statements and omissions. He has since reneged on the plea. But the admission was crucial for Covington’s lawyers, because it was them who prepared the papers. If Flynn didn’t take full responsibility for any and all problems with the disclosures, the prosecutors were likely to press charges and could have tried to get Covington to testify in the case.
The lawyers seemed very keen on preventing such a situation.
“If we were to get to that point, we would litigate it very aggressively,” said Robert Kelner, the lead Covington lawyer on the Flynn case in a Nov. 1, 2017, meeting with the prosecutors (pdf).
In order to get Kelner to testify, the prosecutors would have had to break through Flynn’s attorney-client privilege by claiming the “crime fraud exception”—allege that Flynn conferred with Covington in furtherance of a scheme to lie on the lobbying papers.
The lead prosecutor, Brandon Van Grack, said at the time they were not considering such a move, but, as Kelner pointed out, the Special Counsel already used the exception against former Trump campaign chairman Paul Manafort.
As first-class lawyers, the ethical thing to do for Kelner and his colleagues was to take full responsibility for the FARA papers, according to Powell.
That’s what FIG’s prior counsel, Rober Kelley, did. He was the one who filed the firm’s previous lobbying disclosures. The DOJ alleged there were problems with those too, but Kelley gave a declaration taking full responsibility (pdf).
Covington didn’t appear inclined to such an approach. One of the lawyers even pondered whether disclosing the Kelley statement to the prosecutors could be detrimental.
“I just had a flash of a thought that we should consider, among many many factors with regard to Bob Kelley, the possibility that the SCO [Special Counsel’s Office] has decided it does not have, wrt [with regard to] Flynn, the same level of showing of crime fraud exception as it had wrt Manafort. And that the SCO currently feels stymied in pursuing a Flynn-lied-to-his-lawyers theory of a FARA violation. So, we should consider the conceivable risk that a disclosure of the Kelley declaration might break through a wall that the SCO currently considers impenetrable. Much to consider…,” Covington lawyer Stephen Anthony said in an Oct. 30, 2017, email to his colleagues (pdf).
Powell didn’t think the lawyers were concerned about Kelley’s declaration itself.
“They certainly were [concerned] with even the publicity risk of being mentioned in a crime fraud order,” she told The Epoch Times in an email.
Covington specialized in preparing FARA disclosures and Flynn’s high-profile case had a potential for them to either attract or repel clients, depending on how it turned out.
The firm also seemed to have a financial incentive to end the case as soon as possible. By November 2017, Covington charged Flynn over $3 million and it looked like he wasn’t up to footing the bill.
The plea deal offered significant benefit to Covington. Flynn would take the blame for the FARA papers, while the lawyers could take credit for getting him spared of FARA charges. They could even score more clients spooked by the DOJ’s sudden interest in FARA, which had seldom been enforced.
“I’ve been thinking about this. Assuming we reach a resolution of the Flynn case this week, after that resolution is fully public, including the FARA discussion, I would feel free to issue a meatier client advisory on FARA,” Kelner said in an email to colleagues on Nov. 27, 2017, three days before Flynn agreed to plea (pdf).
Kelner was proposing a series of client briefings to “strike when the iron is hot.”
“I think Flynn would be fine with that, since the chances of our getting paid for his case are looking grim,” he said.
Later that day, Van Grack sent Kelner a draft of the plea agreement.
The part of the Statement of Offense blaming Flynn for alleged lies in the FARA disclosures was “hardly brief or passing, as they suggested it would be,” noted Covington lawyer Brian Smith in an email to Kelner and others (pdf).
He pointed out that some of the “false statements” attributed to Flynn regarding the FARA filings were “contradicted by the caveats or qualifications in the filing.”
Kelner agreed with this observation, but the firm apparently failed to fix the issues.
In the statement Flynn signed, every single allegation regarding the FARA filing was inaccurate, Powell pointed out (pdf).
In the end, Covington congratulated itself for a job well done (pdf).
On Dec. 7, 2017, Kelner and Anthony were named as the American Lawyer’s “Litigators of the Week” for supposedly saving Flynn from “decades in prison.”
Powell wasn’t impressed.
“Not only was Mr. Flynn denied his Sixth Amendment right to ‘zealous counsel’ devoted solely to his interests, he was misled, misinformed and betrayed by counsel mired in non-consentable conflicts of interests that only worsened to Mr. Flynn’s increasing prejudice,” she said in a Jan. 23, 2017, motion to withdraw Flynn’s plea (pdf).
Covington didn’t respond to a request for comment.