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.
That's an excellent analysis.ReplyDelete
Two additional details: DOJ wanted Flynn to testify that he not only knew the FARA filling was false, but also that he was a co-conspirator in doing so. That's what DOJ needed to nail Rafaekian.
Also, the key point made by the judge in Rafaekian's case when the verdict was thrown out was that it was impossible as a matter of law for the defendant to be guilty, because the Government presented NO evidence at all to show that Flynn's lobbying firm, or any of the defendants or Flynn, had knowledge that Turkey was the source of funding, or that Turkey was directing their actions. The judge went on to savage the prosecution for not even bothering to ask Turkey for records to show they funded the work Flynn's group was doing.
That, it seems to me, is extraordinary for the prosecution to not even request basic information needed to prove their case.
It also suggest the possibility that either the prosecutors are dumber than a bag of hammers, or they already knew they couldn't get records from Turkey... because the allegation wasn't even true.
Yes. Apparently they thought they could build their case on Flynn's testimony alone. Not very ethical.Delete
Or more likely, they thought they could strongarm a guilty plea out of Rafiekian because they'd have a famous US general testifying against him. Didn't work, and once again not very ethical.Delete
Forgot to mention that Powell has pointed out the conflict that Covington & Burling had, regarding Flynn's potential charge of a false FARA filing, is a real conflict, not a hypothetical one, and Powell claims such conflicts cannot be waived by a client; the law firm is obligated to withdraw its representation when such a conflict exists, so Powell claims.ReplyDelete
The fact that prosecutors were aware of the conflict, and neither demanded proof of a written waiver from Flynn, nor notified the court of the conflict that defendant's counsel had, is all the more appalling.
It is as if prosecutors and defendant's counsel were working together to assure Flynn was forced to plead to a 1001 charge he did not commit.
I believe she's correct about that.Delete
To take a page from the Horowitz Report: Mistakes were made but nothing nefarious can be imputed.Delete
Same play book, different venue.
Ultimately I think the big mistake will turn out to be the Deep State hanging on to this too long.Delete
Sundance has posted that the judge announced he would hear Powell's motion to withdraw the guilty plea.ReplyDelete
Readers there are confident that the judge will let the plea die, and that DoJ will bug out.
IMO, what sundance is up to with this constant trashing of Barr is that he intends to take credit for anything positive that happens (while reserving the right to continue trashing) by claiming that nothing would have been done BUT FOR his constant calling out.Delete
I've no doubt everyone at DOJ patiently awaits their daily marching orders from Sundance. Not.
LOL! He doesn't care. He only has to convince his audience.Delete
Wait a second...this esoteric discussion is all far above my pay grade and I practiced law for over 40 years...ReplyDelete
Isn't this case quite a bit simpler? It seems to me that Flynn never lied to the FBI and was coerced into pleading guilty for reasons both known and unknown. There is plenty of evidence of prosecutorial misconduct. To fail to permit him to withdraw his guilty plea and go to trial seems to me a gross miscarriage of justice. I assume Sydney Powell would appeal any adverse decision long past November 2020.
She says in the video that she's not giving up. She seems very determined.Delete
In our vast criminal "justice" system of what I have been a part of for 16 years, it is common for the accused to take plea deals in which they declare that they were not just honest, but truthfully stating that they were guilty in an agreement for a lesser sentence than that possibly might have been given upon trial.ReplyDelete
Reasoning for for this are varied and vast.
Thing is, all across America people take olea deals from as lowly as traffic violation to orher more serious crimes no matter if they are guilty or innocent.
This is where we find General Flynn. Worse, from what is all known so far, this is a travesty and disgusting.
Yes, that is basically what the Nolo Contendre (probably misspelled that) is on the back of a traffic ticket. A plea bargain on the cheap. Thousands take it every day. After all, revenue generation is the real driver of most traffic enforcement. While it is advertised as 'not an admission of guilt' in practically everyone accepts it as an admission of guilt.Delete
last sentence should read 'practicality' not practically.Delete
Auto-correct is like a woman - can't live with it; can't live without it, but never assume your both on the same page. ;-)
Supplemental Flynn filing in support of Motion to Withdraw Plea:ReplyDelete
Makes prosecutor's culpability for knowingly suborning perjury from Flynn for Rafaekian case testimony all the more painfully obvious.
Tx, will do.Delete
I still think Flynn's legal representation was working for some goal other than Flynn's benefit. I don't think it unreasonable at all to suppose that Flynn's lawyers at Covington are anti-Trump to their cores and quite willing to sabotage Flynn in the effort to impeach Trump.ReplyDelete
Especially in light of their decision not to withdraw. They should have insisted to Flynn that he get other lawyers.Delete
I agree. That was the thrust of my comment above about the 'playbook', just as all this Parnas hoakum is a variation on the Ciaramella hoakum. While 'great minds think alike' the vast majority of the Swamp are really just unimaginative hive dwellers.Delete
OMG--Don't get me started, after my last few days!Delete
Flynn was a three-star general, the Director of the Defense Intelligence Agency.ReplyDelete
He didn't understand what his lawyers were advising him to plead? He didn't read the plea agreement?
Flynn himself deserves the blame for this situation.
He could have told his lawyers to dispute both charges on the merits, and he would have won.
I agree that Flynn is to blame for some of these bad decisions. Nevertheless, from the standpoint of Covington, they knew they had a serious conflict. They should have withdrawn and told Flynn he needed to get another lawyer. Lots of smart people make dumb decisions.Delete
In defense of the General and all of the other "uninitiated" (including me) out here in real world, as opposed to lawyer world, I'm gonna jump in here. The legal system is designed specifically to be essentially incoherent, bordering on mystical, to laymen. It has always been so and it is this enforced reliance on what amounts to a priesthood to deal with other augurs and read the 'bones' of the tens of thousands of pages of criminal and administrative law that is our "judicial" system. When Shakespeare's Dick in Henry IV says, "The first thing we do, let's kill all the lawyers." not many in the audience are without sympathy to the sentiment. I have no doubt that the Gen'ls arrangement with B&C was other than pro bono. Considering the hourly billing he had a right to expect top tier service from them, not to mention at least a modicum of ethical behavior, even by lawyer standards.Delete
Yes, the decisions were all his; but, if he was expert enough to navigate this rather esoteric branch of law with confidence then why are lawyers necessary to begin with. The old saying about representing one's self being a bad idea is true, but mostly because the lawyer doesn't have to be continually on guard against making emotional rather that legal decisions.
Gen'l Flynn's sin was that he trusted, and they convinced him that either, what he was attesting to was not an actual untruth, merely a legal stratagem, or they outright lied to him about what it would really mean at the end of the day. Literally thousands of people put the same trust in lawyers daily because the system is designed to make any other choice not justice, but a crap shoot.
Or Covington was threatened / coerced into the actions they took.ReplyDelete
That fits with the modus operandi of those prosecuting Flynn.
Rather than threatened/coerced, I would go with Yancey's view, which is basically "colluded."Delete
Of course they colluded - that's Eric Holder's firm... what's he been up to lately?Delete
Recently read something to the effect he's busy organizing Deep State type stuff.
CTH now has a post, that Sidney has just said (on radio), that she has a witness to the original Flynn-302 the government says doesn’t exist.ReplyDelete
aNanyMouse, while I appreciate your updates on CTH, if you listen to the 5 minutes interview above, Dobbs and Powell, you'll hear Powell saying exactly that. When I embed an interview, that means I really do think it's worth listening to.Delete
You'll also find that on my latest post, just published, which contains the longer interview.
Lou Dobbs nails it. This is disgusting. Why doesn't President Trump order the US Attorney (Liu?) to withdraw this case? Probably because of the impeachment fiasco.ReplyDelete
The corruption of the US Government is astounding. I hope all Americans who love justice and the rule of the law are paying attention.
"still looking for the original 302 and the audit trail for the 302"ReplyDelete
Maybe in the same file as the broken COC for the device FBI got from Hillary's server company.
Liu was moved to treasury recently.ReplyDelete
Fighting the government with lawyers is expensive, and when Flynn’s son was threatened, Flynn signed the plea bargain.
The question is what will Judge Sullivan do with Flynn / Powell’s latest move?
1. Keep Flynn’s admission of guilt and sentence him, which will be appealed.
2. Go back to a jury trial and allow more discovery by Flynn / Powell.
3. Throw the case out.
My guess is probably 2, which puts the monkey on Justice, which has a lot of dirty laundry they don’t want exposed.
Trump and Bar are going going to let this play out, especially with impeachment underway, and Durhams investigation.
One way or the other--or still another--this will be fascinating.Delete