Prosecutors Ask for Flynn’s Attorney–Client Communications, Hint at More Charges

February 10, 2020 Updated: February 10, 2020
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Prosecutors on the case against Lt. Gen. Michael Flynn asked the court to give them access to Flynn’s communications with his former lawyers. The prosecutors suggested they are interested in information that could help them level additional charges against Flynn.

Communications with one’s lawyers are normally protected by attorney-client privilege. The prosecutors argued, however, that Flynn gave up that privilege when he accused the lawyers of giving him bad advice.

“When a defendant claims that his conviction should be vacated or his sentence reduced because his counsel’s professional performance was so deficient that it violated the defendant’s constitutional rights, it follows that the defendant must have waived his attorney-client privilege in that case,” the prosecutors said in a Feb. 9 court filing (pdf).

Flynn’s current lawyer, Sidney Powell, noted “there are limitations” to the prosecutors’ argument, but offered to work it out.

“I hope we can even reach an agreement,” she told The Epoch Times via email. “We’ve already provided the key documents and waived privilege as to those communications.”

In a Feb. 9 response to the court, Powell indicated Flynn will take up to two weeks to respond to the prosecutors’ move (pdf).

In a Feb. 10 order, the district judge, Emmet Sullivan, gave Flynn and the prosecutors until Feb. 24 to reach an agreement on “the terms of the waiver of the attorney-client privilege and the authorization of disclosure of information with respect to Mr. Flynn’s ineffective assistance of counsel claims.”

The Plea

Flynn, former national security adviser to President Donald Trump and former head of military intelligence during the Obama administration, pleaded guilty on Dec. 1, 2017, to one count of lying to the government.

The charge stemmed from a Jan. 24, 2017, interview he gave to two FBI agents: Peter Strzok, former FBI deputy assistant director for counterintelligence operations, and Supervisory Special Agent Joe Pientka.

In his statement of offense, Flynn also admitted to lying on foreign lobbying paperwork for his now-defunct consultancy, Flynn Intel Group. He wasn’t charged for this.

After Flynn hired new lawyers in 2019, he began to push back and is now asking the federal court to allow him to withdraw his plea. He argues the former lawyers gave him bad advice and led him to admit to crimes he didn’t commit.

He noted that the former lawyers, from firm Covington and Burling, had a conflict of interest because they prepared the foreign lobbying paperwork and it was thus in their interest to avoid blame for it and have Flynn take the blame instead.

Covington’s spokesperson previously responded by saying it can’t comment on the allegations due to the attorney-client privilege.

“We do not have any further comment at this time,” the spokesperson said in a subsequent email to The Epoch Times.

Additional Charge

The prosecutors suggested in their filing that they may use information from Covington to try to charge Flynn with lying in the lobbying papers if the court allows him to withdraw his plea.

Any limitation the court puts on how the attorney-client information can be used shouldn’t “preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding,” they said.

They also asked the judge “to make certain and clear that counsel [Covington] may take the necessary steps to vindicate their public reputation by addressing and defending against the defendant’s claims of ineffective assistance of counsel.”

In 2019, Flynn already partially waived his privilege and gave the prosecutors notes from conversations he had with Covington in preparation of the lobbying papers in early 2017 as well as emails between them from that time.

Powell walked the prosecutors through some of the notes during a June 27, 2019, talk, laying out the case that Flynn was honest with the lawyers and depended on them to complete the lobbying papers correctly.

As such, Flynn declined to say that he signed the papers knowing there were lies in them.

This angered the main prosecutor, Brandon Van Grack, according to notes from the June 27, 2019, conference call (pdf).

“Without [Flynn’s] willfully/knowingly [making false statements], it doesn’t make this an offense,” Van Grack said in a “very heated” voice, the notes state.

Flynn has since alleged that the prosecutors have tried to retaliate against him. He’s asked Sullivan to dismiss the case for government misconduct and “in the interest of justice.”

Update: The article has been updated with information from Judge Emmet Sullivan’s Feb. 10 order.

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