What The Conflict In The Flynn Case Is All About

As we know, Michael Flynn has filed a motion to withdraw his guilty plea. At the heart of this motion is the question of whether Flynn was victimized by a conflict of interest on the part of his lawyers--the very Establishment DC law firm of Covington and Burling. Leslie McAdoo Gordon has an excellent article at The Federalist, Covington Lawyers’ Conflict Of Interest May Land Michael Flynn In Jail, that provides a lucid explanation regarding the nature and significance of the conflict.

We all know that Flynn was originally charged with two offenses: 1) "lying to the FBI," and 2) submitting false information on his filing under the Foreign Agents Registration Act (FARA). The conflict comes in under #2, because Covington both provided professional assistance to Flynn with the FARA filing and then later represented Flynn when he was charged by Team Mueller.

Here's the conflict: Flynn is only liable under FARA if he knowingly submitted false information through Covington (his attorneys). If the false filing is the fault of Covington, then Flynn is off the hook. Obvious, Flynn's interests and Covington's are in conflict. Flynn would want to blame Covington, and Covington would prefer to blame Flynn for whatever false information was filed--whether by commission or omission. Covington would have been a key witness against Flynn if the FARA case had gone to trial. The issue in that situation would be whether Flynn deliberately provided false information to Covington.

In the event, Flynn pled guilty to #1 and the FARA charge was dropped--however ...

As is standard practice, in the Statement of Offense that goes along with a plea agreement, Team Mueller prosecutors inserted statements regarding the purported FARA violation, as matters that the judge could consider in sentencing.

McAdoo explains how this developed:

Flynn’s plea was implicitly an admission that he lied to Covington in creating the FARA filings.

Because of the inclusion of assertions regarding the FARA filing in the Statement of Offense.

This conflict should have precluded Covington from representing Flynn in entering this guilty plea [since] the FARA filings [were] a part of the criminal conduct for which Flynn will be sentenced. 

Apparently, the government raised with Covington the possibility that it might have a conflict with Flynn due to its role in the FARA filings. Covington allegedly assured the government that it had discussed the potential conflict with Flynn and that he wanted the firm to continue representing him. In other words, the firm says he “waived” the conflict. 

The problem here is that it's incumbent on Covington to show that Flynn really did understand the full nature and scope of the conflict. Any doubt should be resolved in favor of Flynn. See below:

Prosecutors have a stake in conflict issues between defendants and their lawyers because a plea entered by a defendant whose counsel has a conflict of interest is vulnerable to being overturned. Thus, the government often requires that the defendant provide a written waiver of any conflict with defense counsel before it proceeds with a plea agreement. 

In this case, however, the government did not do so. Nor was the conflict brought to the court’s attention when the plea was entered, nor addressed in any way in the plea papers. If Flynn had actually pleaded guilty to the FARA charge, instead of simply including the FARA conduct in the Statement of Offense, the conflict of interest issue likely would have surfaced during the plea proceedings.

When Flynn hired his new lawyer, Sidney Powell, in June, 2019, Powell immediately spotted the conflict. This is what ensued:

His new counsel, led by Sidney Powell, asserted that Flynn had not willfully and knowingly made false statements in the FARA filings because he did not believe the filings were false when he submitted the information to Covington. 

Although [knowledge that the statements are false] is an essential element of a false statement charge, the language of Flynn’s Statement of Offense is not crystal clear on this point. Rather, it uses standard legal jargon that an experienced lawyer or judge would understand to encompass this element, but that a lay person probably would not, unless the counsel advising him in the plea process had explained it to him. Because Flynn said he did not know the FARA filings were false at the time they were submitted, he was dropped as a government witness in the Virginia case. The court ultimately acquitted the business partner.

The government now claims that Flynn failed to cooperate as he had agreed to do, because he refused to testify that he had filed a false FARA statement:

The government now argues that Flynn reneged on his agreement to cooperate in the Virginia case, has reversed course on accepting his criminal responsibility for the FARA filings, and thus his sentence should not be mitigated. Accordingly, it seeks a jail sentence of up to six months’ imprisonment for Flynn. In making this argument, the government relies heavily on Flynn’s plea agreement and his Statement of Offense. 

... 

In a highly unusual request by the government, it seeks to force Flynn to disavow those claims or else lose any sentencing credit for cooperation and accepting responsibility. Defendants have a Fifth Amendment right to be silent even at a sentencing proceeding and cannot be compelled to answer such questions. The government requesting that the court quiz Flynn to disavow positions his current counsel is raising on his behalf is extraordinary.

Margot Cleveland has identified in Powell's motion a further problem with the government's position. When Team Mueller originally drafted a Statement of Offense for inclusion in the Plea Agreement, they included the type of very explicit language that would have left no doubt that Flynn was admitting to deliberate false statements in his FARA filing. According to that draft, Flynn omitted from the FARA filing information that "officials from the Republic of Turkey provided supervision and direction over the Turkey project ... in truth and in fact, however, Flynn then and there knew" that "the Government of Turkey was directly involved ..."

Now look at what ensued. Because Flynn refused to state that "in truth and in fact [he] then and there knew" that the FARA filing was false, that language--“in truth and in fact, however, Flynn then and there knew”--was omitted from the final Statement of Offense.

That means that the government knew that Flynn could not later testify that he "then and there knew" the things the government wanted him to say--if he did he'd be committing perjury. By attempting to pressure Flynn to testify to things that they knew Flynn had insisted were not true, the prosecutors were suborning perjury.

Sidney Powell: What I am seeing and finding by the day is an absolute outrage.  What my three colleagues found before coming over here is that Mr. Van Grack actually changed the language in the statement of offense they created against General Flynn and knew that.  So when he tried to… when he said last summer that he wanted Flynn to testify to something he knew because he did it himself that it wasn’t true.  And if that isn’t subornation of perjury, I don’t know what is… And now they want to punish him (General Flynn) for not lying in his sentencing.

Very interesting interview--still looking for the original 302 and the audit trail for the 302:

That's what the conflict led to.