This Michael Horowitz revelation, that the @JusticeOIG referred Andy McCabe for criminal conduct that isn't public, is now relevant given we learned today that McCabe might've pressured Pientka to alter his 302, leading Pientka to inform the IG.
@GTS_Watch notes that Pientka was interviewed 2 days later, vouching for the 302 to the FBI. My hypothesis is that the IG/DOJ gave Pientka immunity to flip on McCabe and permission to lie to the FBI to shield that investigation from McCabe/co-conspirators.
Also, thanks to commenter EZ for spurring me on to complete this. I'm afraid it'll be a difficult read, but it's a necessary one. For the record, I still believe Flynn will be exonerated. Fully. Powell has done a bang up job here.
Today, as promised, Flynn's lawyer, Sidney Powell, filed a supplemental motion and brief in support of Flynn's motion to withdraw his guilty plea. You can read all 55 pages of it here. As promised, it's stunning. It portrays, with a wealth of factual detail, Flynn as a man fleeced and then betrayed by his lawyers from Covington Burling.
Because the document itself, while clear as legal documents go, is necessarily complex both factually and in its presentation of the law, I've taken some liberties in reformatting for the sake of clarity and removing citations of authorities. At times I've also omitted ellipses (...). When I cite page numbers, the numbers go to the pagination of the entire pdf. I'll avoid the details of legal ethics, but hope to give an overview of Powell's argument--which I find compelling.
This is a no holds bar document. Powell savages the Covington lawyers. She also, albeit briefly, takes Judge Sullivan to task--making it clear that error on his part will figure into an appeal, if it comes to that.
To begin, Powell makes an opening statement that presents her overall argument (pp. 5-7):
Mr. Flynn’s guilty plea (and later failure to withdraw it) was the result of the ineffective assistance of counsel provided by his former lawyers, who were in the grip of intractable conflicts of interest, and severely prejudiced him.
First, Mr. Flynn’s former counsel at Covington & Burling LLP (“Covington”) developed what is often referred to as an “underlying work” lawyer-to-client conflict of interest early in the representation. It arose from mistakes that the firm made in the Foreign Agents Registration Act (FARA) filings it had made for Mr. Flynn and his company Flynn Intel Group (“FIG”). Rather than disclosing the errors—and insisting Mr. Flynn obtain new counsel to fix the problem, or allowing Covington to continue the representation (and the fix), knowing the truth—the lawyers said nothing to Mr. Flynn, charged him hundreds of thousands of dollars to re-do its own prior work, and still did not take the readily available steps of amending or supplementing the FARA forms.
In August 2017, the Special Counsel’s Office (“SCO”) began to threaten Covington’s work with criminal FARA-related charges by way of an indictment of Mr. Flynn’s former business partner, Bijan Rafiekian. Covington’s “underlying work” conflict of interest suddenly escalated into a non-consentable conflict of interest that tainted every moment up to and through the guilty plea in December 2017 and the Sentencing Hearing in this Court in December 2018. That pernicious conflict infected and prejudiced his defense until he retained new counsel in 2019.
As a result of this debilitating lawyer-to-client conflict of interest, the Covington lawyers lost all ability to provide the effective assistance of counsel that the Sixth Amendment requires. At every turn, the lawyers’ interest was in obscuring their original errors, hiding the fact that they had never come clean with their client, and trying ever-harder to sweep their problems under the rug by arranging for and preserving a plea that Mr. Flynn wanted to withdraw.
Having outlined the overall factual situation that placed Flynn in the position of having to ask the court to allow him to withdraw his plea, Powell turns to the legal theory under which a motion to withdraw a plea can be made. Judge Sullivan had cited a 1995 case (United States v. Cray) as the controlling authority, but Powell has found a more recent case that restates the law: United States v. McCoy (2000):
The Federal Rules of Criminal Procedure allow for withdrawal of a guilty plea before sentencing “if the defendant can show a fair and just reason for requesting the withdrawal.” FRC 11(d)(2)(B). In this Circuit, the [courts] consider three factors, the last of which is the most important.
Here I paraphrase those three factors:
(1) the defendant must assert a viable claim of innocence;
(2) the delay between the guilty plea and the motion to withdraw cannot prejudice the government's ability to prosecute the case; and
(3) the guilty plea should be somehow tainted. United States v. McCoy.
And at this point Powell points out that Judge Sullivan failed to properly question Flynn at the "Rule 11 colloquy":
When this Court extended the colloquy in December 2018, among the questions this Court did NOT ask was if any additional promises or threats were made to Mr. Flynn. The answer to that question is yes, there were.
In other words, if Sullivan had asked whether Flynn's plea was entered into in response to promises or threats, Flynn would have answered truthfully: Yes. He entered the plea because of threats against his family. Sullivan didn't ask, so he didn't get that answer. But he should have asked.
Powell sets up the rest of her argument by simply stating:
Mr. Flynn readily satisfies each of the three factors, and the taint is overwhelming.
Powell quickly disposes of the the first factor: Flynn does, indeed, assert a viable claim of innocence.
Flynn, Powell argues, could start out by showing that the FBI agents who interviewed him believed that Flynn was being truthful. Flynn knew that the agents had a transcript of Flynn's conversation with the Russian ambassador. This argument is an interesting illustration of the perniciousness of the criminal statute at issue, "1001", lying to the federal government (here, of course, the FBI). Strictly speaking, the belief of the interviewing agents is irrelevant--as we can see from the fact that the Team Mueller prosecutors overrode the belief of the agents and charged Flynn with lying, not just making a factual misstatement. Nevertheless, their belief IS relevant as a defense, because it goes to Flynn's intent. But, what kind of criminal statute relies on such subjective factors as the impression of the interviewing agents?
The question of whether the government's case would be prejudiced is also quickly disposed of. And that brings Powell to the core issue: In what way was Flynn's guilty plea "tainted"? Here I quote Powell's statement of the standard for judging "taint":
“Taint” in this context typically means that the plea was entered “unconstitutionally,” which in turn often means that the plea was not “voluntary and intelligent” because it was based on advice of counsel that fell below the level of “reasonable competence” that is required to satisfy the Sixth Amendment. (p. 11)
Showing that Covington's advice to Flynn fell below the level of "reasonable competence" due to its conflict of interest will occupy most of the rest of the motion and brief.
Powell doesn't claim that Covington set out to be conflicted, nor that it had any inherent conflict in representing Flynn. Nor does she assert that at this early date Covington was aware that Flynn was the target of an FBI/IC sting that dated back to at least 2015. Rather, the conflict arose from mistakes that Covington made early on in their FARA work for Flynn, and the conflict was aggravated when Team Mueller became involved:
Mr. Flynn’s former counsel at Covington made some initial errors or statements that were misunderstood in the FARA registration process and filings, which the SCO amplified, thereby creating an “underlying work” conflict of interest between the firm and its client. Because Covington attempted to hide the difficulty instead of addressing it forthrightly with Mr. Flynn, what began as a manageable conflict of interest devolved into an inescapable morass of ever-worsening and eventually non-consentable conflicts. Those conflicts led to a series of instances in which Covington provided ineffective assistance of counsel that irreparably tainted Mr. Flynn’s guilty plea and the December 2018 hearing in this Court. (pp. 12-13)
These are not mere assertions on Powell's part. In fact, the Team Mueller prosecutors recognized that Covington had a conflict in representing Flynn because FARA issues were part of the Team Mueller case against Flynn, and Covington had prepared the FARA statements. What Team Mueller didn't know at that time was that Covington was concealing errors that it had made on those FARA statements. Nevertheless, they pointed the conflict out to the Covington lawyers and told them to discuss the matter with Flynn before any plea discussions were had. What then happened? Powell explains:
Covington betrayed Mr. Flynn. His lawyers did not discuss this concrete attorney-to-client conflict with him. They did not insist he obtain independent counsel. They did not advise him Special Counsel had focused on FARA issues. They did not withdraw. Instead, his own lawyers kept it all a secret from him for weeks. Then, they tendered him defenseless and uninformed to [Team Mueller] for two full days of proffers for everything [Team Mueller] wanted from Flynn on Russia and his own “exposure.” They schooled him to “get through the proffer” to satisfy [Team Mueller], and instead of objecting or defending him in the face of a room full of government agents and lawyers, they even asked him questions to elicit the answers [Team Mueller] wanted. (p. 13)
The bottom line, then, is that the existence of the conflict is indisuputable: Covington and Team Mueller discussed it! And Powell points out how this conflict immediately pitted Covington against Flynn:
Th[e] minute Mr. Van Grack informed Covington [that Team Mueller] was considering FARA false statement charges against Mr. Flynn, the question became: Were the suspected false statements the result of Covington’s misfeasance or malfeasance, or, did Mr. Flynn lie to his lawyers?4
4 The obvious solution to this for the ethical lawyer would have been to inform the SCO that all mistakes, errors or omissions, if any, belonged to Covington and file an amended or supplemental form. Then, it should have informed Mr. Flynn immediately of the entire situation and given him the choice of how to proceed. Covington, however, proceeded to sacrifice Mr. Flynn in its own efforts to cooperate with Special Counsel—all behind his back—and quickly jumped on the “Flynn-lied-to-his-lawyer” bandwagon. (pp. 13-14)
Nice! Or as Powell puts it:
From every angle, this case presents stunning Sixth Amendment violations of Mr. Flynn’s constitutional rights.
At this point Powell briefly shifts gears and addresses the FBI interview of Flynn, which occurred about three weeks after Flynn became involved with Covington. It's worth quoting Powell in full:
Meanwhile, on January 24, 2017, as we have briefed elsewhere, FBI Director Comey and Deputy Director McCabe dispatched Agents Strzok and [Joe Pientka] to the White House— deliberately contrary to DOJ and FBI policy and protocols—without notifying DOJ.9
9 This was actually the FBI’s second surreptitious interview of Mr. Flynn—without informing him even so much as that he was the subject of their investigation. [Pientka] had “interviewed him” in a “sample Presidential Daily Briefing” (“PDB”) on August 17, 2016—unbeknownst to anyone outside the FBI or DOJ until revealed in the recent Inspector General Report of December 9, 2019. This also goes to Mr. Flynn’s claim of actual innocence. Against the baseline interview the FBI surreptitiously obtained under the guise of the PDB (in August 2016), the agents conducted the White House interview and immediately reported back in three extensive briefings during which both agents assured the leadership of the DOJ and FBI they “saw no indications of deception,” and they believed so strongly that Mr. Flynn was shooting straight with them that Strzok pushed back against Lisa Page’s disbelief and Deputy Director McCabe’s cries of “bullshit.” ECF No. 133-2 at 4. This development is addressed in Flynn’s Motion to Dismiss for Egregious Government Misconduct filed contemporaneously herewith.
Returning to the conflict issue.
While matters came to a head in November, 2017, when Covington spoke with Team Mueller, the fact is that Covington knew months earlier that their conflict would likely get worse. That's because Covington learned in August, 2017, that Team Mueller was planning on indicting Flynn's partner, Bijan Rafiekian, on FARA charges. Thus:
Covington now knew there was a distinct possibility that one of Mr. Flynn’s lawyers not only might have to testify against his former partner Rafiekian, but that he would be required to testify against his own client. That instantly created a non-consentable conflict of interest that only worsened. (p. 20)
Covington's response to this disturbing state of affairs?
Although the Covington lawyers knew they were in a conflict situation that should have led to their immediate withdrawal from the representation, they did not bother with a written or serious in-person explanation of the conflict. They did not insist that Mr. Flynn consult independent counsel to seek advice as to the wisdom of continuing to be represented by conflicted counsel. And even if the new conflict of interest had been consentable, they did not seek their client’s informed consent. (p.21)
Further, when in November, 2017, Team Mueller instructed Covington to discuss the conflict with Flynn:
[Covington] said nothing to Mr. Flynn. Covington did not raise the preclusive conflict with their client on November 1st. They did not raise it when they met with Mr. Flynn three days later on November 4th. They did not raise it in proffer preparation. They did not raise it before the first proffer, and they did not raise it the night of the first proffer or the day of the second proffer. Indeed, they did not raise it until almost three weeks later—late Sunday, November 19th. Instead, the Covington lawyers created talking points for their own dealings with the SCO.
The fact of the matter was, as Covington fully understood by that point, that Team Mueller wasn't really interested in FARA at all. What they were really interested in was Russian "collusion," and the way to get at that was through the FBI interview with Flynn about the Russian ambassador. So Covington arranged to delay any mention of FARA and agreed to bring Flynn in to talk to Team Mueller about Russia. Here's how Powell explains it:
Van Grack agreed to postpone discussion of issues as to which Covington had potential liability. He said “What I would propose is, right now, we want to talk with your client for more than one day. Right now, initially, we are fine not talking about Turkey or the FARA piece because our investigation is not focused on Turkey/FARA.”
With that exchange, the false statements Mr. Flynn allegedly made to the FBI and all the “Russia collusion” issues were on the table first, where he had “exposure.” His own lawyers teed him up to discuss what [Team Mueller] really wanted. Simultaneously, Covington took the FARA issues off the table—the only risk of problems for the firm.
In other words, at this point Covington was colluding with Team Mueller against Flynn!
From that point on Covington actively urged and steered Flynn toward a guilty plea. It's at this point, too, that Powell is able to point to a stunning failure by Covington to act with "reasonable competence."
What came next was more evidence of Sixth Amendment violations by Covington. On January 29, 2018, Kelner received an email from a New York Times reporter saying that it was the reporter’s understanding that [Joe Pientka] (the Agent who interviewed Flynn with Strzok) “was pressured by McCabe to change [his] 302.” Kelner contacted Van Grack and Ahmad and had two conversations over the next two days. While Kelner questioned the [Team Mueller], he did not follow-up, much less file a motion to obtain Brady evidence. Moreover, these seem to be the questions he was supposed to have asked before Mr. Flynn signed the plea. (p. 32)
And there were more disclosures that Covington failed to share with Flynn:
Covington recognized significant defenses were arising from the government’s productions in 2018, but the Covington lawyers repeatedly pointed out the worse-case scenario and the parade of horribles to Mr. Flynn, filed no Brady motion, and kept Mr. Flynn on “the path.” Even worse, even though there was plenty of time and reason to reconsider everything, they took no action to withdraw or insist he consult new counsel for an unconflicted perspective on the many issues that arose. Keeping control of Mr. Flynn, so they could keep him from straying, was clearly part of the Covington agenda. (pp. 33-34)
Covington even specifically warned Flynn against withdrawing his guilty plea if the judge gave him that opportunity, claiming that the judge would only be "giving you the rope to hang yourself. Don’t do it.” (p. 46)
Above all, even though Team Mueller had specifically informed Covington that the interviewing agents--Strzok and Pientka--had stated repeatedly that Flynn had shown no "indicators of deception" in the interivew, Covington withheld that information from Flynn. Instead, when Flynn asked Covington to inquire whether the agents had really claimed that he lied, Covington simply told Flynn that “the agents stood by their statement.”
There's more--lots more--and it's all appalling. However, I'll finish by giving Powell the last word, and fittingly it pertains to the FBI interview, and Covington's concealing of that crucial information from Flynn:
If his own lawyers had not withheld critical information from him at the time of the first plea, and had not continued to obscure their own role in creating his predicament, Mr. Flynn would not have pled guilty in 2017, and he would have withdrawn his plea in 2018.
At perhaps the single most crucial moment of the whole case, Mr. Flynn’s former counsel betrayed his trust by withholding the very pieces of information Mr. Flynn needed to make his final decision whether to plead guilty on November 30, 2017. Covington should have shared with Mr. Flynn the precise information the government disclosed to them at the last minute. The lawyers did not do so. The Flynns did not hear or understand what the government had advised it told Covington at the eleventh hour. This remarkable and directly prejudicial failure of Mr. Flynn’s former counsel to provide the effective assistance of counsel required by the Sixth Amendment at the most crucial time is sufficient alone to require withdrawal of his plea. It is wholly unreasonable and outside the range of acceptable lawyerly behavior, let alone competence, for counsel—not the government, but the defendant’s own counsel—to withhold crucial information that effectively disables the defendant from making a truly voluntary or intelligent decision whether or not to plead guilty.
The information that counsel withheld concerned prior statements that the two FBI agents who interviewed Mr. Flynn in the White House had made about his “sure demeanor,” the lack of “indicators of deception,” and similar observations.
In an earlier round of briefing in this case, the government represented that it had communicated this information to the defendant on the day that the plea agreement was signed, November 30, 2017. In its December 16, 2019 Opinion, moreover, this Court accepted and relied on that representation. As the Flynn Declarations demonstrate, however, that representation was mistaken: the government almost certainly made a disclosure to the defendant’s counsel on that day, but Covington did not then communicate the information to the defendant himself. Of course, in the vast majority of cases, communication to counsel is communication to the client, but it was not that day.