Thursday, July 18, 2019

Was There A Conflict Of Interest Between Flynn And His Lawyers?

Margot Cleveland at The Federalist isn't given to speculation. However, today Cleveland offers just that, regarding what's really going on with Judge Sullivan in the Michael Flynn case. Yesterday in Judge Sullivan Enters Dispute Between Flynn Lawyers, Past and Present I noted the unusual and marked manner in which Judge Sullivan had interjected himself, on his own motion, in the matter of the delay by Flynn's prior legal team from Covington and Burling in providing the full Flynn case file to Flynn's new legal team, led by Sidney Powell--long time and noted critic of the legal tactics pioneered by Robert Mueller and Andrew Weissmann. Covington and Burling, as has been frequently noted, is the law firm of Eric Holder and Trisha Anderson.

Today Cleveland asks whether there may be more to Judge Sullivan's intervention, touching on matters that may be very much at the heart of what will almost certainly develop into a challenge of the guilty plea that Flynn entered into with Team Mueller: Judge Orders Ethics Training For Michael Flynn’s Former Lawyers--Was there a conflict of interest between Michael Flynn and his Covington and Burling attorneys who used to represent him? New facts unfold.

Cleveland bases her speculation on two factors. The first is the fact that Judge Sullivan set the date for the meeting with the ethics officials and the lawyers a few days before a regularly scheduled status hearing--August 27, only three days before the scheduled hearing on August 30. Why, asks Cleveland, would the judge not wait the three extra days to handle all the business at one hearing? Especially given that Powell expects provision of the case file to be complete by then?

Cleveland finds the clue to the explanation in a phrase from Powell's response to the Government's statement on the effect Flynn's changed posture in the "Bian Kian" trial might have on sentencing of Flynn in Flynn's own criminal case. In Flynn's Legal Team Responds To The Government I pointed out that, while Powell saw no reason why sentencing should be affected by that change in posture, she took the opportunity to signal to Judge Sullivan the direction in which her representation of Flynn was moving:

Thus, the most important point [in Powell's response] is not that they [Flynn's new legal team] expect no effect on sentencing, but that Flynn's team has, in the course of their continuing review of the Flynn case file, already identified "crucial and troubling issues that should concern any court." This is a clear confirmation, in my view, that they will be attacking the guilty plea and the entire underlying basis for the prosecution of Flynn: 
     "Flynn's new counsel are finding the time they've received to review the massive file even more important than they thought. They have only scratched the surface, yet are already identifying "crucial and troubling issues that should concern any court." 

Starting from these two points, Cleveland believes that there are indicators pointing to the likelihood that Powell has identified a potential conflict of interest between Flynn and his prior legal team from Covington and Burling. If true, such a conflict would have prevented Covington and Burling from providing Flynn "effective assistance of counsel," and that would be grounds for withdrawing the guilty plea that Flynn entered into.

This is subtle, so I'll quote Cleveland's reasoning rather than merely summarizing. In this selection, Cleveland is referring to Powell's response to the Government's statements re sentencing, linked above:

With cautious framing, Powell laid out facts raising grave concerns about Covington and Burling’s representation of Flynn in the underlying criminal case. Covington and Burling represented Flynn and Flynn Intel Group’s filing of the Foreign Agent Registration Act (FARA) statements that the government now contends Flynn conspired with Rafiekian to file, with the inclusion of material false information. 

What Cleveland is pointing out is this: Covington and Burling represented Flynn in the criminal case now before Judge Sullivan, but they also represented Flynn and his company (Flynn Intel Group) in preparing Flynn's FARA filing statement. That FARA statement is at the heart of the Government's case in the "Bian Kian" trial, but as Cleveland goes on to explain, it also impacts upon Flynn's own case:

But, as Powell points out in her brief, “former counsel had all the emails and information that the government claims supports a ‘conspiracy’ and more when they completed the FARA filing.” And “according to Covington’s own notes, and consistent with what they told Mr. Flynn, prior counsel admittedly ‘did not necessarily go through every doc; were trying to capture high-level info of who client was and nature of work.’” 
Notwithstanding Covington’s role in preparing the FARA filings, Covington attorneys also represented Flynn and helped negotiate the statement of offense that Flynn signed, in which he admitted the FARA contained material false facts. Covington’s handling of Flynn’s criminal case in these circumstances raises serious questions concerning whether Covington had a conflict of interest that prevented them from providing Flynn effective assistance of counsel.

As I read this, Covington has attempted--possibly in collusion with the Government, and specifically with David Laufman, who was instrumental in the negotiations with Flynn immediately before he left DoJ "for personal reasons"--to shift the blame for any inaccuracies ("material false facts") in Flynn's FARA filing to Flynn himself, although Flynn claims that he simply signed off on the filing that Covington prepared for him--trusting in their professionalism. Here's how Laufman's role was described in A Change Of Direction For Michael Flynn:

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."

How could Laufman have pressured the Covington lawyers into submitting false paperwork? Have I mentioned that Eric Holder, former AG, is a partner at Covington?

At any rate, all of this led in turn to Covington negotiating Flynn's guilty plea in which Flynn "admitted the FARA contained material false facts." That admission, of course, would be highly prejudicial to Flynn. Consistent with this view of what was going on with Covington's representation of Flynn, Powell quotes Covington's admission that they ‘did not necessarily go through every doc' pertaining to the FARA filing. In other words, it was in Covington's interests not to reveal what begins to look like sloppy work that ended up being harmful to Flynn. Thus the question Cleveland poses:

whether Covington had a conflict of interest that prevented them from providing Flynn effective assistance of counsel?

This is what Cleveland believes Judge Sullivan has seized upon, what is behind his intervention and his summoning of the top DC Bar ethics officials to the meeting. We shall see what it all means--by the end of summer.


  1. At this point, I won't be willing to believe this was "sloppy" work on behalf of Flynn. I smell a deliberate act in that "sloppy" FARA filing preparation by Flynn's so-called lawyers.

    1. I think Laufman's involvement definitely points in that direction. That filing should be very routine, and would be handled by FARA Registration Unit.

    2. Hopefully, the law firm was colluding to frame Gen Flynn

    3. Powell knows exactly what she's doing, and that must have the the other lawyers very worried.

  2. It strikes me that the inconsistencies in the C&B legal work product is the mark of malpractice. A law firm that has a client sign-off on materially false facts is far beyond sloppy.

    I suppose there could be an explanation--but then Sidney Powell has complained about the length of time C&B is taking to turn over Flynn's files. Is C&B now covering its tracks? Making sure not to hand over evidence of their malpractice?

    1. My impression is that Judge Sullivan suspects--one way or the other--that something isn't right in all this. His remarks tend to show that his suspicions are directed toward C&B. We'll have to wait to find out. At this point, Powell seems to have got a handle on the case and it won't be easy for the Government to refute her position.

  3. From what I understand, that are very few laws against crooked and malevolent prosecution. If true, this needs to be fixed. Prosecutors should not be able to wrongly ruin men's lives and suffer no consequences.

    What penalty did Weissmann pay for destroying Arthur Andersen? If I have my information right, Weissmann conceivably paved the way for Obamacare by railroading Senator Ted Stevens.

    I think that it's time that Andy pays for his sins.

    1. My off the cuff view on this is that the real problem is the unwillingness to judge's to hold prosecutors to account--because the prosecutorial offices are not going to do it except in the most egregious cases, and usually only if it becomes public. I believe the laws and rules are in place. Perhaps there needs to be some reform to make it more likely that the law/rules will be enforced.