I have to assume that Powell intends to attack the entire basis for any case against Flynn--beginning with the very legitimacy of the investigations that led to his fateful interview with the FBI.
That is exactly the scenario that the new developments detailed below point toward, beginning with the case against Flynn's former partner, Bijan Kian. I won't deny that there is risk involved in this new tack by Flynn, but it's also the right thing to do. I have always been critical of Flynn for his guilty plea, because it seemed to me to involve him in making false statements to the court under oath. Adam Goldman has a story at the NYT that puts a strongly negative spin on these developments: Michael Flynn Changes His Story, Putting Him on Collision Course With Judge.
Here's what's going on.
Flynn previously claimed that he lied on FARA forms that he submitted to DoJ in the case involving Bijan Kian. Flynn is now saying that his former lawyers were the ones at fault for filing those forms with false or inaccurate information in them--that he did not knowingly do so. The practical result is this:
As a result of Mr. Flynn’s unexpected disclosure, federal prosecutors say they will no longer ask him to testify in the trial of a former business partner, Bijan Kian, who is accused of violating foreign lobbying disclosure laws. Prosecutors played down Mr. Flynn’s testimony, saying it was not vital to the case. Other “evidence alone,” they wrote, “is ample to convict the defendant beyond a reasonable doubt.”
But Mr. Flynn’s testimony had been one of the reasons Judge Emmet G. Sullivan allowed Mr. Flynn to push back his sentencing, but his lawyers said he “cannot give that testimony because it is not true.”
The Bijan Kian trial was scheduled to begin next week, with Flynn as the key witness for the government. Now,
In the wake of Mr. Flynn’s reversal, federal prosecutors are now asserting that he is an unindicted co-conspirator rather than a cooperating witness and want to introduce his statements as evidence. Lawyers for Mr. Kian and Mr. Flynn both object vigorously to that move by prosecutors.
It seems clear that the government is trying to pressure Flynn into returning to his previous position--that he deliberately lied.
In response, Flynn's lawyers have filed a memorandum in opposition to the government's designation of Flynn as a co-conspirator. For months the government had stated that Flynn was a cooperating witness rather than a co-conspirator. Flynn's lawyers claim that to change that stance simply because Flynn has corrected his testimony smacks of retaliation.
Flynn's lawyers state that Flynn remains prepared to testify and that his testimony will be substantively the same--that his filings contained inaccurate information. The difference, of course, is that he will not say that he knowingly submitted inaccurate information because, he now says, that would be untrue. However, the government is trying to redesignate Flynn as an unindicted co-conspirator, which could prove prejudicial to Flynn in his own criminal case before Judge Sullivan.
In addition to blaming Flynn's previous lawyers, Flynn's new lawyers are also taking out after David Laufman, the former head of DoJ's Counterintelligence Section who reportedly resigned while under fire for his role in the Hillary email case. Laufman, of course, denies that he left DoJ under a cloud, but circumstances tell strongly against him. Here's that angle, and you'll be able to see that Goldman at the NYT is clearly going to bat for Laufman--stating as fact what is clearly simply Laufman's version:
Mr. Flynn’s lawyers also singled out David Laufman, the former counterintelligence chief at the Justice Department’s National Security Division. They said Mr. Laufman pressured Mr. Flynn’s previous lawyer into submitting the false paperwork. But Mr. Flynn’s new lawyers inaccurately described Mr. Laufman’s title at the time and insinuated inaccurately that he left the Justice Department under a cloud amid an internal investigation.
“The attorneys’ claims are nutty and utterly without merit,” Mr. Laufman said in an interview.
Here is the passage of Flynn's Memo Opposing Designation of Flynn as Co-Conspirator in which Flynn's lawyers maintain that Flynn was pressured to admit to false statements. Flynn's lawyers maintain that the pressure was undue and that Flynn didn't realize the nature of the admissions that he was making:
Mr. Flynn trusted his former counsel who held themselves out as experts in this area of law. They had the facts, interviewed multiple people, and reviewed many documents and emails while he was incoming and then-serving National Security Advisor, then in the uproar attending his departure. In addition, former counsel had to decide what to file under extreme and unprecedented pressure from and extensive interactions with the National Security Division--including then-NSD head, David Laufman(6). Admittedly, former counsel had to make difficult judgment calls, and they did so with input from the NSD itself. As for the final filing, Mr. Flynn recalls only reading the cover letter. Regardless of what he read, he did not intend to or knowlingly make any false statements, and this is a complex area of law about which he knew nothing.
(6) Mr. Laufman suddenly resigned "for personal reasons" on February 8, 2017, amid the Inspector General investigation of irregularities in the Clinton email investigation and the National Security Division. However, he remained in the Department long enough to pressure Mr. Flynn's FARA filing.
UPDATE 1: Per Techno Fog, Flynn and his legal team WIN.
The Court in the Flynn Intel Group (FARA) case rules that the DOJ has not presented evidence sufficient to establish "evidence of a conspiracy" for the purposes of admitting the hearsay statements of alleged co-conspirators (Flynn).
5:11 PM - 9 Jul 2019