How Michael Flynn’s Defense Team Found Powerful Allies
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WASHINGTON — Sidney Powell, a firebrand lawyer whose pugnacious Fox News appearances had earned her numerous private phone conversations with President Trump, sent a letter last year to Attorney General William P. Barr about her soon-to-be new client, Michael T. Flynn.
Asking for “utmost confidentiality,” Ms. Powell told Mr. Barr that the case against Mr. Flynn, the president’s former national security adviser who had pleaded guilty to lying to the F.B.I., smacked of “corruption of our beloved government institutions for what appears to be political purposes.” She asked the attorney general to appoint an outsider to review the case, confident that such scrutiny would justify ending it.
Mr. Barr did what she wanted. He appointed a U.S. attorney six months later to scour the Flynn case file with a skeptical eye for documents that could be turned over as helpful to the defense. Ultimately, Mr. Barr directed the department to drop the charge, one of his numerous steps undercutting the work of the Russia investigation and the special counsel, Robert S. Mueller III.
The private correspondence between Ms. Powell and Mr. Barr, disclosed in a little-noticed court filing last fall, was the first step toward a once-obscure lawyer and a powerful attorney general finding common cause in a battle to dismantle the legacy of the investigations into President Trump and his allies.
Ms. Powell’s slash-and-burn approach — accusing the federal law enforcement machinery of concocting a case against her client — failed in the courtroom last year when a judge rejected her claims. But the same strategy, which she amplified in frequent media appearances, succeeded in turning Mr. Flynn’s case into a cause for Mr. Trump’s supporters and in securing the review ordered by Mr. Barr that provided her with fresh ammunition.
Mr. Barr’s subsequent decision to drop the charge against Mr. Flynn threw the Justice Department into turmoil and set up a high-stakes battle pitting the attorney general and Ms. Powell against the trial judge, Emmet G. Sullivan, who opened a review of the move.
Ms. Powell and her client won a significant victory on Wednesday when a divided appeals court panel — in a surprise ruling written by Judge Neomi Rao, a former White House official whom Mr. Trump appointed to the bench — ordered Judge Sullivan to drop the case without scrutiny. Judge Sullivan suspended his review but has not dismissed the charge, suggesting that the extraordinary legal and political saga is not yet over.
Ms. Powell declined to discuss her conversations with the White House or her correspondence with Mr. Barr. But she said in an email that she had long considered “prosecutorial misconduct and overreach” a problem and that she viewed Mr. Flynn as a victim of it.
At its core, Mr. Flynn’s case is a drama about who gets to mete out justice in the Trump era, upending the prosecution of a man who twice had admitted guilt.
“It’s hard to think of anything remotely like this,” said David Alan Sklansky, a Stanford University law professor and former federal prosecutor. “The Justice Department has taken somebody who has twice pleaded guilty, in a case where the trial judge has considered and already rejected claims of government wrongdoing, and prosecutors now say we’d like to dismiss the case and don’t think it should have been brought in the first place.”
A Tough-Minded Judge
When Mr. Flynn stood in Judge Sullivan’s courtroom on Dec. 18, 2018, his legal odyssey appeared to be over. He had struck a favorable deal with Mr. Mueller’s prosecutors to cooperate after admitting to lying to F.B.I. agents about conversations with the Russian ambassador in late 2016. In exchange, prosecutors were recommending he receive no prison time and not be prosecuted for separate offenses related to his lobbying for Turkish government without registering as an agent of a foreign power.
But he did not go quietly. His defense team, in a memo laying out what sentence he should receive, also floated the notion that Mr. Flynn had been set up. F.B.I. agents had used several different tactics to essentially trick Mr. Flynn, a retired Army three-star general, into making false statements, the memo suggested.
The Flynn defense team was trying to have it both ways, and Judge Sullivan was furious. He grilled Mr. Flynn about whether he was truly taking responsibility for his crimes and even suggested — before retracting the notion — that Mr. Flynn had been a traitor to his country. When it appeared that Judge Sullivan might send Mr. Flynn to prison, going beyond the original recommendation of prosecutors, Mr. Flynn and his lawyer, Robert K. Kelner, decided to postpone the sentencing so he could continue to cooperate with prosecutors.
Judge Sullivan, appointed to the Federal District Court by President Bill Clinton, has a reputation as a hard-nosed jurist with a disdain for prosecutorial misconduct. He is known for taking guilty pleas seriously, and he reminded Mr. Kelner that he had never accepted one from someone who maintained he was not guilty and that he didn’t “intend to start today.”
In his legal pivot, Mr. Flynn had channeled the campaign led by Mr. Trump and his allies that had portrayed the Russia investigation as a “witch hunt” and a plot to sabotage his presidency. Since Mr. Flynn had first pleaded guilty in 2017, Republicans in Congress had taken up a campaign to undermine the case against him and portray him as a victim of overzealous prosecutors.
Some legal experts speculated at the time that Mr. Flynn was accepting guilt to pocket a sentence without prison time while also preserving the possibility that Mr. Trump might pardon him. His legal strategy would, soon enough, become even more radical: that he was innocent all along.
Flynn’s New Defense
One of Mr. Flynn’s most vocal defenders was Ms. Powell, a Texas-based former federal prosecutor who had made no secret about her view that the Russia investigation was a sham. She appeared frequently on Fox News and had a website hawking T-shirts mocking Mr. Mueller’s team as “creeps on a mission.”
In early 2018, not long after Mr. Flynn’s original guilty plea, Ms. Powell wrote an op-ed alleging that “extraordinary manipulation by powerful people led to the creation of Robert Mueller’s continuing investigation and prosecution of General Michael Flynn.” She exhorted Mr. Flynn to drop his guilty plea and, ironically, praised Judge Sullivan, who had just taken over the case.
She called him the “perfect judge” for it because of his handling years earlier of the corruption case against former Senator Ted Stevens, Republican of Alaska. In that case, Judge Sullivan had been so furious after the Justice Department disclosed that it had failed to turn over evidence potentially helpful to the defense that he opened an ethics investigation into the prosecutors.
The department ended up asking Judge Sullivan to dismiss the case despite having won a guilty verdict — an outcome Ms. Powell seemed to view as a road map for Mr. Flynn.
Her television advocacy on behalf of Mr. Flynn appears to have had an influential viewer: the president. The two spoke five times in 2019, during the months before she officially took on Mr. Flynn as a client, according to a person familiar with the calls.
It is unclear what they discussed, but when Ms. Powell persuaded Mr. Flynn and his family to drop his original legal team and allow her to take up the case, the president was thrilled.
“General Michael Flynn, the 33 year war hero who has served with distinction, has not retained a good lawyer, he has retained a GREAT LAWYER, Sidney Powell,” Mr. Trump tweeted on June 13, 2019. “Best Wishes and Good Luck to them both!”
She previewed her defense strategy in the secret letter to Mr. Barr, asking him to begin a hunt for materials that the department could turn over. “At the end of this internal review, we believe there will be ample justification for the department to follow the precedent of the Ted Stevens case and move to dismiss the prosecution of General Flynn in the interest of justice,” she wrote.
As Mr. Flynn’s lawyer, she began demanding that the Justice Department turn over more files, including documents that were tangential to her client’s case but promoted other right-wing conspiracy theories about the Russia investigation.
She accused the F.B.I. and prosecutors of engaging in a litany of misconduct that “impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea.”
Exasperated prosecutors attacked Ms. Powell’s legal strategy, saying the “defendant and his new counsel are in search of a result, not the facts.”
She also made clear that her client was done helping the Justice Department. Almost immediately after she began representing Mr. Flynn, he changed his story in a prosecution in Virginia against his former business partner about their work for Turkey. Prosecutors decided against calling him as a witness, significantly weakening their case.
Months later, it was Ms. Powell’s defense of Mr. Flynn that was collapsing.
In December, Judge Sullivan delivered a stinging rebuke to her wide-ranging claims of prosecutorial misconduct and other accusations. In a 92-page opinion, he marched through her allegations and rejected each one.
It turned out that Judge Sullivan was not the savior that Ms. Powell was looking for; he even ruled that Mr. Flynn was no Ted Stevens.
But in a different way, her strategy had been a success: The case had become a political cause. While Judge Sullivan rejected Ms. Powell’s claims of material law enforcement misconduct as baseless, Fox News and other conservative news outlets had amplified them along the way.
“One of the things that General Flynn wanted to do, he thought it was critically important that we empty out the swamp of all the senior intelligence folks that are in Washington, D.C.,” Representative Devin Nunes, the California Republican on the Intelligence Committee who has been a staunch supporter of Mr. Trump and his theories, said to applause at the Conservative Political Action Conference in February. “So they had a real reason to get rid of General Flynn.”
This political chorus had already been hard at work trying to undermine the conclusions of the voluminous special counsel’s report. Mr. Mueller concluded that Russia systematically tried to sabotage the 2016 election and that Mr. Trump’s advisers had welcomed the help — even if he concluded there was insufficient evidence of a criminal conspiracy. He also found numerous times when Mr. Trump tried to impede the Russia investigation, but chose not to determine whether the president had illegally obstructed justice.
Weeks after Judge Sullivan rejected Ms. Powell’s assertions of prosecutorial misconduct and was preparing to sentence Mr. Flynn, Ms. Powell persuaded her client to ask to withdraw his guilty plea and declare to the judge that he was innocent.
Meanwhile, Mr. Barr was moving to take direct control over the United States Attorney’s Office for the District of Columbia, which was handling several politically charged matters.
Mr. Barr maneuvered the Senate-confirmed U.S. attorney, Jessie K. Liu, into leaving early, and imposed his own aide, Timothy J. Shea, as the acting head of the office. At the same time, he appointed the U.S. attorney for St. Louis, Jeffrey B. Jensen, to examine the Flynn case.
It was exactly what Ms. Powell had asked Mr. Barr to do in her secret letter six months earlier.
Mr. Jensen scoured F.B.I. files in search of anything that could be construed as so-called Brady material — information Mr. Flynn could use to argue that he was not guilty — which had been withheld from the defense. He found several files.
Many fell into a category of things that made the F.B.I. look heavy-handed, but did not change the narrow issue of whether Mr. Flynn made false statements to the agents who questioned him.
But Ms. Powell seized on the revelations as proof that prosecutors had improperly withheld exculpatory evidence, justifying a dismissal of the case. Mr. Barr directed his department to file a motion to dismiss the charge.
The remarkable decision infuriated some Justice Department officials and stunned legal experts. Mr. Barr defended it last week in an interview with NPR as appropriate.
It also forced a showdown with Judge Sullivan, who had no intention of abandoning the case so easily.
The judge ordered a new review, appointing John Gleeson, a former mafia prosecutor and a retired federal judge from Brooklyn, to argue against the Justice Department’s motion. In a scathing memo, Mr. Gleeson urged Judge Sullivan to sentence Mr. Flynn anyway, over prosecutors’ objections.
Trying to head that off, Ms. Powell asked an appeals panel to order Judge Sullivan to end the case without any review of the motivation or legitimacy of the request. Legal experts widely scoffed at her tactic, noting that such orders are supposed to be reserved for rare problems where no other option exists.
But Ms. Powell’s gambit led to a stroke of luck. The case was randomly assigned to a three-judge panel that included Judge Rao and Judge Karen L. Henderson, a 1990 appointee of President George Bush, who have both proved more willing than most of their colleagues to interpret the law in Mr. Trump’s favor in politically charged cases.
In a 2-to-1 ruling, the panel ordered Judge Sullivan to shut down the case immediately, saying he had no authority to scrutinize the basis for Mr. Barr’s decision. The dissenting judge on the panel accused his colleagues of “grievously” overstepping their authority.
The ruling turned on a technical question rather than the merits of the case, and it remains to be seen whether the full appeals court will let it stand.
But Mr. Trump and his allies have already declared victory, inaccurately portraying the decision as proof that Mr. Flynn has been exonerated and should never have been charged.
Maggie Haberman and Katie Benner contributed reporting.
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