The Michael Flynn case moves into the thicket of the attorney-client privilege. A prosecutor is assigned, but risks remain.


By Robert Willmann

When Michael Flynn filed a supplemental motion to withdraw his guilty plea, it created a new dimension to the criminal case and caused a change in the schedule of what would take place.  His assertion that his original lawyers from Covington & Burling got into a serious conflict of interest and gave ineffective assistance of counsel places the attorney-client privilege into the process of evaluating that claim.  At least some of the communications between a lawyer and client relevant to the issue would have to be disclosed in order to decide whether the advice and assistance of the attorney in the particular instance was proper and effective or not.

The attorney-client privilege belongs to the client and not to the lawyer.  This means that only the client can waive or cancel the privilege that communications with an attorney are to remain private and confidential.  The lawyer cannot waive the privilege.  Thus, when Flynn raised the issue of ineffective assistance of counsel, the Covington & Burling lawyers were not going to talk to the government prosecutors or provide information to the court about the issue unless Flynn voluntarily waived the privilege as to certain communications, or the court ordered that it was to be waived in a certain manner.  The Justice Department filed a request that the judge direct a waiver of the attorney-client privilege —

A status report is due to be filed by tomorrow, 20 February, according to the docket sheet, "informing the Court of the status of the government's evaluation of the ineffective assistance of counsel claims in Mr. Flynn's Supplemental Motion to Withdraw his Plea of Guilty and proposing briefing deadlines".  The judge also cancelled the sentencing hearing that had been scheduled for 27 February 2020.

Since the schedule change, two more documents have been filed about Flynn's request that the case be dismissed for egregious government misconduct.  His formal motion to dismiss was available in the article here on SST from 4 February 2020 [1].  The prosecution filed a response–

Yesterday, Flynn filed a reply supporting his motion to dismiss for egregious misconduct, with a detailed discussion on pages 6 to 17–

News reports last Friday, 14 February, said that Attorney General William Barr assigned Jeffrey Jensen, the U.S. Attorney for the Eastern District of Missouri, based in St. Louis, to have some role in the handling of the Flynn case.

Jensen started as a certified public accountant with Price Waterhouse Coopers, then worked as an FBI agent from 1989-1999, and attended law school while in the FBI.  He was a lawyer in the U.S. Attorney's office in St. Louis from 1999-2009 where in 2005 he became the number two person, which used to have the name of First Assistant U.S. Attorney, but now apparently has the bureaucratic label of Executive U.S. Attorney.  President Obama put in his own people in 2009, so Jensen joined a private law firm.  President Trump in July 2017 appointed him to be U.S. Attorney [2].

A Reuters article quoted an anonymous department official [3]–

"The Justice Department official stressed that Jensen’s role was not to oversee career prosecutors’ work on the Flynn case, but to work alongside them.

"Jensen is assisting the department and prosecution team 'to get a complete and thorough understanding of the facts and the record in a complicated case,' the person told Reuters, speaking anonymously in order to discuss sensitive personnel matters."

Assigning a U.S. Attorney in Missouri to the Flynn case is a political move.  The idea that the Department of Justice (DOJ) needs "assistance"  to get a "thorough understanding of the facts", and so forth, is baloney.  A large number of lawyers populate the DOJ in Washington D.C., and many more outside of government are in and around the city.

Attorney General William Barr knows what is happening in the Flynn case; he did not just fall off of a turnip truck.  Barr was employed at the CIA in the 1970's and went to law school while there.  He was in the Ronald Reagan White House in the early 1980's.  When George H.W. Bush (Bush sr) was president, Barr was in the important DOJ Office of Legal Counsel, and then was Deputy Attorney General (the number two person), and then the Attorney General for Bush from 1991 to 1993, after Richard Thornburgh resigned to run (unsuccessfully) for the U.S. Senate.  After that, Barr was the main in-house lawyer (general counsel) for the GTE telephone company, which had revenues of more than $25 billion when it merged with Bell Atlantic telephone company (one of the Baby Bells), which itself had more than $33 billion in revenues before the merger in 2000 that formed Verizon Communications [4].  After the merger, Barr became the executive vice president and general counsel for Verizon until 2008.  Then he was associated with the Kirkland & Ellis law firm in Washington D.C., which is a large, well-known group like Covington & Burling, Flynn's former law firm.

This may or may not be a positive development for Gen. Flynn.  It is a maneuver coming out of the main office of the DOJ for a reason other than to "review" and "scrutinize" the case, as the New York Times says [5].  Flynn has filed papers in court asking for relief and criticizing conduct by the FBI, the DOJ, and Covington & Burling, a law firm Barr certainly knows well.

The case schedule is now as follows–

"02/10/2020  Minute Order as to Michael T. Flynn. Upon consideration of 164 Government's Motion for Order Confirming Waiver of Attorney Client Privilege as to Contest Matters and 166 Defendant's Response, the parties shall meet and confer concerning the government's motion for an Order from this Court confirming the waiver of the attorney-client privilege with respect to Mr. Flynn's ineffective assistance of counsel claims against the law firm of Covington & Burling LLP and authorizing the disclosure of information to government counsel. It is further ordered that the parties shall file a joint proposed order setting forth 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 by no later than 12:00 PM on February 24, 2020. In the event that the parties are unable to reach an agreement on the waiver of attorney-client privilege and disclosure of information issues, Mr. Flynn shall file his opposition brief by no later than 12:00 PM on February 24, 2020, and the government shall file its reply brief by no later than 12:00 PM on March 2, 2020. Signed by Judge Emmet G. Sullivan on 2/10/2020. (lcegs3) (Entered: 02/10/2020)"

We will see what happens.  Using Jensen from Missouri might be an approach to carefully close the case out with a dismissal and no bad publicity for Covington & Burling, or it can create more risk for Gen. Flynn. 





[4]  As a side note, AT&T, also known in the past as the Bell System and Ma Bell, had almost a monopoly on local and long distance telephone service in the U.S. for many years.  Antitrust law is supposed to maintain and enhance competition and prevent oligopoly and monopoly.  The federal government filed an antitrust lawsuit against AT&T which was pending when Ronald Reagan became president in 1981.  There was also an antitrust case by the government against IBM, but it was dropped, which turned out to be the right decision, because the personal computer revolution was about to begin.  The Reagan administration started the unfortunate policy of doing less antitrust enforcement, but said it would continue the antitrust case against AT&T.  The case settled without a trial, and AT&T was broken up into some resulting "Baby Bells" for local service, and AT&T would keep long distance and some of its other businesses.   Some competition did develop in long distance.  But then along came the Telecommunications Act of 1996, which was supposed to increase competition more, but as you might expect, the result was the opposite.  It was signed into law by president Bill Clinton as Public Law 104-104.  In a mere 106 pages, it created a radical change.  That truly bad law also loosened the restrictions on broadcast ownership regarding radio and television, and cable, and cross-ownership of media properties.  It opened the door to what has become almost unrestricted merging in radio, television, and media businesses, such that now most are owned by around six companies in the U.S.A.



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6 Responses to The Michael Flynn case moves into the thicket of the attorney-client privilege. A prosecutor is assigned, but risks remain.

  1. blue peacock says:

    Thanks for making the point about increase in market power through consolidation. The very antithesis of a free competitive market. The consequences of this concentration in market power across many market segments manifests in many ways. Not the least the manipulation of stock prices through corporate stock buybacks that have hugely benefited incumbent managements to the detriment of the competitiveness of the underlying business. These mega-trends driven by government policy have financialized our economy, dismantled our industrial base and created as Jack here has previously noted “a symbiotic relationship between big business and big government”.
    IBM is a poster child here. The company has shrunk from $106 billion in revenues in 2012 to $77 billion in 2019, yet former CEO Ginni Rometty extracted $100 million in just stock-based compensation. She spent her time with financial engineering, completely leveraging the once pristine balance sheet saddling the company with over $61 billion of long term debt. Boeing and GE being other good examples of this trend.
    This is the tale of corporate America over the past 40 years. Once renowned for its engineering talent and industrial prowess it became a wealth extraction machine for managements and Wall St while slowly impoverishing the working and middle classes. Trump and Bernie populism is one of the political ramifications.

  2. Fred says:

    Blue peacock,
    You left out IBM’s shift to using H1B visas and outsourcing of programming and other engineering tasks.

  3. D says:

    More government spying and wrong doing, setting up private citizens and there is that name again- CrowdStrike – from Sheryl Attkisson’s website:
    …”The Attkisson lawsuit claims that in March 2011, Defendants SHAWN HENRY, Shaun Bridges, Robert Clarke, and Ryan White, all of whom were government employees connected to a special multi-agency federal government task force based in Baltimore, Maryland, were ordered by Defendant Rosenstein to conduct home computer surveillance on Attkisson and other U.S. citizens.
    SHAWN HENTRY was head of the FBI’s Washington Field Office. In 2012, Henry left the FBI and now is president of CROWDSTRIKE Services, a company that seeks to mitigate targeted online attacks on corporate and government networks globally….”
    *(use of caps added)

  4. eri says:

    Thank you for sharing

  5. confusedponderer says:

    re You left out IBM’s shift to using H1B visas and outsourcing of programming and other engineering tasks.
    Well, I work in a corporation which has it’s HQ in New York, and likely embraced NY-ish businessing ideas.
    One day I had an e-mail problem and called our IT and asked for help, coffee granted and for free. Their office was 10 rooms away. He took up a ticket and told me that I would be recalled soon. I told him he was kidding and should just come. No way.
    An hour later I got that recall and the caller spoke english. I asked him where he sat and he told me in New Zealand or Australia as part of our corporation. He didn’t help but made another ticket and told me I would be recalled again. Alas.
    I was recalled again half an hour later by a man with obvious indian sing sang and accent. He helped me in 5 minutes. Point is, he was an external.
    And that is the absurdity – colleagues of my own cororation, even if just 20 metres away and available, just make tickets and an external service provider is then allowed to fix things on my computer with access to our data?
    Probable reason – likely even a drunken and stoned student with rotten grades is more expensive per hour than an indian service provider with a master degree.
    A rather unpleasant middle manager once asked me what I thought of his splendid outsourcering of all printing and the like. I told him it was a rotten idea. He told me I just wouldn’t understand – our publishing company wouldn’t produce “books” but “content”. I’m proud I didn’t puke.

  6. Fred says:

    While an Indian service provider may be cheaper by the hour, how the service is set up and runs matters quite a bit. I’ve been on the receiving end of both good and horrendous service calls as well as witnessed millions in maldeployed inventory due to outsourcing the decision making.

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