Last Thursday, in a surprise development in the Michael Flynn criminal case, his long-time lawyers filed a motion to withdraw as his attorneys of record. News just broke that Flynn has hired former prosecutor turned defense lawyer—and vocal critic of Robert Mueller’s special counsel team—Sidney Powell to represent him.
“I’m honored to represent Lt. General Michael T. Flynn, who has been cooperating with the Special Counsel investigation from the beginning, and will continue to cooperate with the government in the Eastern District of Virginia and otherwise as needed,” Powell told The Federalist in an email. “General Flynn and his family deeply appreciate the support they have received from thousands of people across the country, including cards, notes and contributions.”
Flynn’s firing of his former attorneys, Robert Kelner and Stephen Anthony, from the well-respected Washington firm of Covington and Burling, LLP, and his selection of the high-profile Powell comes at a strange time, and following several significant developments, raising speculation about Flynn’s intentions.
While there is nothing inherently unusual about a defendant changing counsel over the course of a criminal case, in Flynn’s case, the substitution came so late in the day, one must wonder why. In 2017, Flynn entered a plea agreement with Mueller, agreeing to plead guilty to lying to the FBI about his conversations with Russian ambassador Sergey Kislyak.
On December 1, 2017, when Flynn entered his guilty plea, he revealed that he was cooperating with Mueller’s investigation into possible collusion by the Trump team with Russia—something we now know didn’t happen. Then, after several delays in sentencing, Mueller’s team indicated in late December 2018 that the prosecution was ready to proceed with sentencing.
At that time, the special counsel team recommended in its sentencing memorandum that Flynn, whom the government agreed had accepted responsibility for lying to the FBI and had substantially assisted the special counsel, should receive little or no jail time. However, at Flynn’s December 18, 2018, sentencing hearing, presiding Judge Emmet Sullivan chastised Flynn and his legal team for suggesting in court filings that Flynn had not lied.
After quizzing Flynn on whether he was in fact guilty of the charged offense, and whether he wished to consult with a different attorney before proceeding, Sullivan suggested it would be better to await sentencing until Flynn’s cooperation with the special counsel ended. Given the tone of Sullivan’s comments—the long-time federal judge suggested Flynn had “sold your country out”—and Sullivan’s statement that if he proceeded with sentencing then, he could not assure Flynn that he would “not receive a sentence of incarceration,” Flynn accepted the court’s suggestion to delay sentencing.
Notwithstanding Sullivan’s heated comments, which were prompted by his lawyers’ strategy to downplay Flynn’s culpability in Flynn’s sentencing memorandum, Flynn did not fire his Covington and Burling attorneys following the December 2018 hearing. Now that Flynn’s cooperation is complete, all that seemingly remains is for Flynn to receive his sentence. So, why fire Kelner and Anthony now? And why replace the team with firebrand Powell?
Initially, let’s put to the side questions of finance and conflicts. Some have suggested the mundane explanation that attorneys withdraw from a case all the time because of billing disputes or because a client isn’t paying them. But in this case, in their motion to withdraw, Flynn’s attorneys stated that Flynn had notified them “that he is terminating Covington & Burling LLP as his counsel and has already retained new counsel for this matter.” These facts negate the straightforward money explanation.
Similarly, that Flynn fired his attorneys and notified them only after he had already retained Powell counters an alternative theory: that the release of the transcript of the call between former Trump attorney John Dowd and Kelner raised a conflict of interest between Flynn and his legal team. Further, the special counsel team long knew of those conversations, as did Flynn, and the only thing new now is the revelation that Mueller’s report selectively edited the details of the call to cast Dowd (and vicariously Trump) in the worst light possible.
But that does not mean a plea withdrawal is imminent, as many have speculated. Rather, Flynn may merely seek a fresh start when he appears before Sullivan at sentencing and believes Powell can erase the taint caused by the Covington and Burling attorneys’ attempt to minimize Flynn’s culpability. Given Sullivan’s comments at the December 2018 sentencing, Flynn may reasonably fear prison time without a new face to represent him. Relatedly, Flynn may believe Sullivan’s comments demonstrated an impermissible bias, necessitating Sullivan’s recusal, and the former Trump national security advisor may believe that a different attorney is best positioned to push that argument.
Given that Powell stressed in her statement to The Federalist that Flynn has cooperated with the special counsel investigation from the beginning, and will continue to do so, it appears that Flynn has no intention of attempting to withdraw his plea—at least at this time.
Things may change, though, once Powell emmeshes herself in the case. Powell explained her next step “will be filing our status report with Judge Sullivan by the 14th,” and then Flynn’s new attorney “anticipate[s] asking for an additional 90 days for the next status report.” This extension, at a minimum, Powell told The Federalist, is needed to review the file.
How Flynn decides to proceed at that time is anyone’s guess. Flynn’s choice of Powell understandably led many to assume Flynn wanted out of the plea deal. After all, for the last two years, Powell has been front and center in condemning the special counsel investigation and its tactics. She has been especially harsh in her criticism of Mueller’s lead pit bull, Andrew Weissmann. That’s understandably so: Weissmann pulled some questionable moves in prosecuting the Enron defendants, including some of Powell’s former clients.
In fact, more than a year ago, Powell argued that Flynn should withdraw his guilty plea. “Extraordinary manipulation by power people led to the creation of Robert Mueller’s continuing investigation and prosecution of General Michael Flynn,” the former federal prosecutor wrote. But with the “recent postponement of General Flynn’s sentencing” and “the opportunity for more evidence to be revealed,” Powell argued that Flynn would have “massive ammunition for a motion to withdraw [his] guilty plea and dismiss the charges against him.”
Powell’s plea withdrawal suggestion came after Flynn’s criminal case was reassigned to Sullivan and Sullivan entered a standing order directing the government to disclose exculpatory evidence to Flynn. At the time, I also suggested that a plea withdrawal was likely in the works, but Flynn remained steadfast in his decision to plead guilty, even under questioning from Sullivan.
Some have suggested that Flynn pleaded guilty and later refused to withdraw his guilty plea because the special counsel’s team was threatening to prosecute his son for illegal lobbying if Flynn fought the criminal charges. If that was the case, Flynn may now feel safe to come clean because Mueller is no more.
But Powell has now moved from pundit to counselor and the equation may look vastly different from that angle. First, if Flynn attempts to withdraw his plea at this late stage, he faces an uphill battle because Sullivan provided him ample opportunity to do so in December. And any attempt to back out now will likely increase Sullivan’s ire and translate into a heftier prison sentence.
But with Mueller gone and evidence continuing to mount that his investigation was a political hit job, and that the special counsel report misrepresented key facts, Flynn may fare better now if he attempts to change strategies. The optics also now favor Flynn, with news that Mueller used child predator George Nader as a key witness in the Russia collusion investigation, and that a delay in pursuing criminal charges against Nader while he cooperated with Mueller allowed Nader to flee the country. (Nader was since arrested when he attempted to return to the United States.)
Yet, even with witnesses of the likes of Nader, and efforts by the special counsel’s office to squeeze those closest to the Trump team, like Flynn, Mueller failed to find any evidence of Russia collusion. These developments may strengthen Flynn’s resolve to fight the criminal case.
In consultation with Powell, Flynn will now have to decide how to proceed. And while Flynn’s selection of Powell as his new attorney suggests he had serious misgivings about his plea, Powell’s statement stressing his cooperation with Mueller, and his intent to continue to cooperate, negates that narrative. So, for now, not much can be read into Flynn’s decision to change attorneys.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.