By Robert Willmann
While posturing politicians and lawyers finish acting out a B-movie script called the impeachment trial in the Capitol building that would get a failing grade from a mail order film school, two papers filed in federal court nearby on 29 January 2020 are creating real drama with real risk. A supplemental motion to withdraw the guilty plea of Michael Flynn places the actions of his previous lawyers squarely in issue as a basis for taking back the plea. He asks separately that the case be dismissed for egregious government misconduct.
The supplemental request to withdraw the plea is well done. It is more readable than many pretrial motions, with its description of some of what occurred with Flynn and his original lawyers at the Covington & Burling firm, and a discussion of the legal aspects of a conflict of interest between a lawyer and client and the basis for a claim that an attorney gave ineffective assistance of counsel. It is 55 pages long with 34 exhibits and a 35th one filed separately. The conflict of interest began with the fact that the Covington firm prepared and filed a registration under the Foreign Agents Registration Act (FARA) for the Flynn Intel Group (FIG), a private company Flynn started before he was appointed to be National Security Advisor . A client can consent to some possible conflicts of interest but not others. In many instances, the client should consult with a different lawyer about the ramifications of a conflict and what options are available to take.
When "special counsel" Robert Mueller was appointed on 17 May 2017, Covington & Burling continued to represent Flynn as the situation expanded from FARA to allegations of possible criminal exposure. Two lawyers from the Mueller group claimed at a 1 November 2017 meeting with Covington lawyers that Flynn had possible criminal liability. Notes from the meeting taken by a Covington lawyer were turned into a memo and are an exhibit to the supplemental motion to withdraw. In this excerpt, Steve and Rob are Covington & Burling attorneys Stephen Anthony and Robert Kelner; BVG is Mueller group lawyer Brandon Van Grack –
"Steve: I have to ask, where are you guys going with respect to charges against General Flynn?
BVG: (1) FARA (failure to register); (2) FARA false statements; and (3) false statements to government officials regarding contacts with Russian officials during the transition.
Steve: On the last point, do you mean the White House interview?
BVG: False statements at an FBI interview at the White House.
Rob: Frankly, we are surprised by that. That is not consistent with what we have learned from press reports and other sources.
Steve: Would you be willing to give us the 302?
BVG: We’re not currently in a posture where we’re providing that information. We’re certainly willing to hear what you have to say if you think that we’re wrong."
This pregnant exchange reveals that when the Mueller group was trying to put the squeeze on Flynn, he had done nothing criminally suspicious in conversations with the Russian ambassador Sergey Kislyak, or in any other conduct with his company FIG, or with the Trump campaign, or after he was named National Security Advisor. The accusations were that he did not file a FARA application when he should have, he made false statements on the FARA filing, and made false statements to the FBI in that interview that was a setup at the White House on 24 January 2017 orchestrated by then FBI Director James Comey, former FBI agent Peter Strzok, et. al.
Covington's preparing and filing the FARA application generated a conflict of interest when the Mueller special counsel's office (SCO) claimed the application could create criminal liability for Flynn. This would turn Covington into at least a witness against its client Flynn, and possible legal liability for Covington & Burling itself. The problem morphed into a bigger issue of what Covington did and did not do in advising Flynn, as the Mueller group wanted some "proffer sessions" with him, which can be risky business and must be thought through carefully before participating in one. Then it got worse as the push was on for a plea bargain agreement with Flynn as a criminal law matter in a tight time frame with the proffers, which created a psychological context of pressure to do something without working through the potential case more and thinking about it.
The supplemental motion to withdraw the guilty plea is very worthwhile reading, and can be viewed and downloaded. Flynn made an affidavit in the form of a declaration that is also an exhibit to the motion–
Exactly when the events involving federal agencies and the Trump campaign began is unclear. As to Gen. Flynn, they seem to have gone on for over three years. Flynn probably joined the Trump campaign in 2015 or early in 2016.
2016 August 16: The FBI opens a counterintelligence FARA investigation of Flynn.
2016 November 8: Donald Trump is elected president.
2016 November 17: Trump names Flynn National Security Advisor.
2016 around November 30: the Department of Justice issues a FARA letter of inquiry to Flynn about the Flynn Intel Group, which apparently had already closed down because Flynn was working on the Trump transition.
2017 January 20-22: Flynn is officially the National Security Advisor.
2017 January 24: Flynn is in the entrapping interview with former FBI agent Peter Strzok and probably FBI agent Pientka.
2017 February 13: Flynn resigns as National Security Advisor .
2017 May 17: Robert Mueller is appointed by Deputy AG Rod Rosenstein to be a special counsel, and the FBI counterintelligence investigation called Crossfire Hurricane — with target subjects Carter Page, Paul Manafort, George Papadopoulos, and Michael Flynn — was transferred to the Mueller group .
2017 November: The SCO pushes for proffer sessions and then for Flynn to plead guilty.
2017 November 16: the first proffer with the SCO takes place, and more took place before November 22.
2017 November 30: Discussions about a plea took place and Flynn signs a plea bargain agreement and a "statement of the offense". A charging document is filed in federal court.
2017 December 1: Flynn goes to federal court and pleads guilty before Judge Rudolph Contreras.
2017 December 7: Judge Contreras (who was on the Foreign Intelligence Surveillance Court) recuses himself. Judge Emmet Sullivan takes his place presiding over the case.
2018 December 18: At Flynn's sentencing hearing Judge Sullivan asks him about his guilty plea. The hearing goes off the rails and is to be continued at some time in the future.
2019 June 6: Covington & Burling attorneys withdraw from representing Flynn.
2019 June 17: New attorneys for Flynn begin to enter appearances in the case.
The not-unheard-of tactic of threatening to charge a family member with a crime if the other family member does not plead guilty raised its ugly head. Both Flynn and his wife were aware of the Mueller group's threat to indict their son Michael if Flynn did not plead guilty, and they did not want that to happen. Flynn said in his affidavit: "The SCO had already made Michael the subject of their investigation and taken all his files and communication devices (computer, phone, files, and thumb drive). At the time, Michael and his wife had a four-month old baby".
A question persists about an altered FBI interview form 302. An exhibit to the supplemental motion to withdraw the plea shows a 29 January 2018 e-mail from a New York Times newspaper reporter, Mark Mazzetti, to Covington attorney Robert Kelner about information Mazzetti had that FBI agent Pientka had told an inspector general that he was pressured to change a form 302–
The 27-page request to dismiss the case due to outrageous government misconduct was accompanied by five exhibits, and is based in part on documents and information produced by the government after Flynn previously filed a motion to produce exculpatory evidence, which was denied by the judge. It also discusses information presented in the Justice Department Inspector General report of 9 December 2019, which was mainly about FBI and DOJ conduct in the Crossfire Hurricane investigation and in getting Foreign Intelligence Surveillance Act (FISA) warrants–
Raising the issue of conduct by lawyers at Covington & Burling as a ground on which to withdraw Flynn's plea creates a whole new dimension to the court case. The first motion to withdraw the plea primarily asserted that the prosecutors breached and broke the plea bargain agreement.
But now the Justice Department prosecutors, the judge, and the Covington lawyers are looking at an issue that will be harder to finesse or work around. If a court hearing on the question of withdrawing the guilty plea is scheduled and held, it will pull all of this out into the open.
Covington & Burling has to decide how to approach this situation, as it is a well-known law firm that has been a repository of some attorneys who have been in and out of government. It has offices in Washington D.C. and other cities here and abroad. What they do can depend on whether the judge schedules a hearing, whether any of them are subpoenaed to testify, what restrictions the judge might put on the scope of evidence to be presented, and so forth.
Back on 10 September 2019, it was noted here on SST that Flynn complained that Covington & Burling was slow in returning his client file after they withdrew and his new lawyers became officially involved . What is being presented in Flynn's recent court filings is in part coming from the material in his client file.
An exhibit to his supplemental motion to withdraw the plea illustrates the financial problem he and defendants in federal inquiries and prosecutions can face. Brace yourself to look at the December 2017 invoice to Flynn from Covington & Burling. For an invoice dated 13 December 2017, with the heading "regulatory advice" and for the month of November 2017, the billing was $563,038.93. The next page lists "outstanding invoices" from dates 31 March 2017 through 30 November 2017 as totalling $3,371,106.67. From documents in the court clerk's file, one can ponder what work the large sums of money might be for–
The current schedule is: "Government Response To Defendant's Motion And Supplemental Motion due no later than 12:00PM on 2/12/2020. Defendant Reply Brief due no later than 12:00PM on 2/18/2020".
 Memo of a meeting between Covington & Burling lawyers representing Flynn and two lawyers from the special counsel's office of Robert Mueller.
 Statement by Michael Flynn when he resigned as National Security Advisor.
 The FBI opened a counterintelligence FARA investigation of Flynn on 16 August 2016. This is mentioned on pages 59-60 (pdf computer file pages 94-95) in the Justice Department Inspector General's Report, "Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation", released on 9 December 2019.