The federal judge handling retired Lt. Gen. Michael Flynn’s case canceled his upcoming sentencing hearing as the Justice Department and Flynn’s legal team clash over whether the former Trump national security adviser was adequately represented by previous attorneys.
“The court hereby cancels the sentencing hearing currently scheduled for Feb. 27, 2020, until further order of the court,” Judge Emmet Sullivan of the D.C. District Court wrote in an online docket Monday.
Flynn, 61, pleaded guilty to lying to investigators about his conversations with then-Russian Ambassador Sergey Kislyak regarding U.S. sanctions and a United Nations Security Council vote. He was interviewed as one of a handful of people connected to the Trump campaign targeted by the FBI’s counterintelligence investigation, Crossfire Hurricane, which began in July 2016.
But Flynn said in January that he “never would have pled guilty” if his first team of attorneys from the D.C. law firm Covington & Burling had informed him that the FBI agents who interviewed him in January 2017 did not see signs that Flynn was lying to them.
“In truth, I never lied,” Flynn said.
Flynn was previously represented by attorneys from Covington after being swept up in special counsel Robert Mueller’s investigation in 2017. Through his attorneys, he filed a guilty plea on Dec. 1, 2017, for “willfully and knowingly” making false statements to the FBI on Jan. 24, 2017. The statement of offense also said he “made material false statements and omissions” in Foreign Agents Registration Act filings from March 7, 2017, about a project that would’ve benefited Turkey. Flynn reaffirmed his guilt in December 2018 when his sentencing was delayed.
Last summer, Flynn dropped Covington and hired a new defense team led by former federal prosecutor Sidney Powell, who has spent months alleging prosecutorial misconduct and government malfeasance while hinting at inadequate representation by Flynn’s former lawyers.
Powell said, “The case against Mr. Flynn should be dismissed immediately for this egregious abuse of power and trust” laid out in the December Foreign Intelligence Surveillance Act abuse report by DOJ Inspector General Michael Horowitz.
As part of his plea deal, Flynn agreed to cooperate with Mueller, but Powell argued that “there never would’ve been a plea to begin with” if Flynn knew how much information the DOJ was allegedly hiding from him.
Flynn filed to withdraw his guilty plea in January after the DOJ asked Sullivan to sentence him to up to six months in prison, a reversal from its previous request that the former director of the Defense Intelligence Agency receive probation and no time behind bars. The DOJ later said it stands by the zero-to-six-months recommendation but also noted that “probation is a reasonable sentence” that they wouldn’t oppose.
In January, Powell said there were “multiple instances in which Mr. Flynn’s former lawyers’ conflicts of interest and actions fell completely short of professional norms, thus depriving him of the constitutionally mandated effective assistance of counsel” and that “nullified his opportunity to make informed decisions about his own case and grossly prejudiced his defense.”
Robert Kelner, Brian Smith, and Stephen Anthony were the main Covington lawyers who represented Flynn.
“Under the bar rules, we are limited in our ability to respond publicly, even to allegations of this nature, absent the client’s consent or a court order,” a spokesman for Covington told the Washington Examiner.
On Sunday, the DOJ filed a motion for a court order “confirming waiver of the attorney-client privilege with respect to the defendant’s ineffective assistance of counsel claims and authorizing the disclosure of information to the government.” Prosecutors said that “while Covington has indicated a willingness to comply” with a request for information about representing Flynn, “it has understandably declined to do so in the absence of a court order confirming the waiver of attorney-client privilege.”
The DOJ asked the court to delay Flynn’s sentencing and to issue an order allowing Covington “to disclose to the government counsel all matters related to the defendant’s ineffective assistance of counsel claims.”
Flynn’s attorneys responded on Sunday that they didn’t oppose a stay on the sentencing hearing but emphasized that “it is imperative that Mr. Flynn have time to brief the issues raised by the government’s new motion regarding the attorney-client privilege.” His defense lawyers noted the “importance and complexity of the issues surrounding the attorney-client privilege” in asking for more time and said they “may also request a meaningful opportunity to meet and confer with the government on the issues it has raised in its motion.”
“In the event that the parties are unable to reach an agreement on the waiver of attorney-client privilege and disclosure of information issues, Mr. Flynn shall file his opposition brief by no later than 12 p.m. on Feb. 24, 2020, and the government shall file its reply brief by no later than 12 p.m. on March 2, 2020,” Sullivan said on Monday.
