The defense team for retired Lt. Gen. Michael Flynn criticized the “lame excuses” put forward by the law firm that formerly represented its client as the team asked the court to ensure all documents get turned over to them.
Sidney Powell, a former federal prosecutor who took over Flynn’s defense from the powerhouse Covington & Burling law firm last summer, argued the former Trump national security adviser’s old team failed in its representation of him and still have not provided his new representation all of the relevant case files nearly a year later.
“The firm’s former client is alleging that his freedom is at stake in many ways because of his former lawyers’ malfeasance and misfeasance,” Powell said. “Evidence of that will prove his right to withdraw his plea and correct an egregious injustice he would not have suffered had he been represented by unconflicted counsel unafraid to advocate zealously on his behalf.”
FBI records released last week have been touted as exculpatory evidence concealed from the defense team. They suggest that now-fired FBI agent Peter Strzok and the FBI’s leadership stopped the bureau from closing its investigation into Flynn in early January 2017 after investigators had uncovered “no derogatory information” on him. Emails from later that month show Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn.
Flynn’s lawyers noted that Covington had been ordered by the court in July 2019 to turn over all of its records related to its defense of Flynn to his new team and that, at the time, Covington certified to the court that its transfer of Flynn’s “case file” (containing more than 1 million pages) to his new lawyers was “complete.”
But in early April, Covington told Flynn’s lawyers that they had to hand over 30 more pages of documents. Later that month, Covington said it had “overlooked” more Flynn records, transferring 6,756 documents consisting of 18,960 pages.
That prompted Judge Emmet Sullivan to issue an order directing Covington to hand over “all documents or communications concerning the firm’s representation of Mr. Flynn that were not previously transferred in the rolling production” while giving Covington until Monday to tell the court it had complied.
“It is FURTHER ORDERED that Covington & Burling LLP shall re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn,” the judge said.
Covington delivered 75 more pages in eight documents on Saturday, including 32 pages of handwritten notes. Two days later, Covington filed its notice of compliance, which Flynn’s lawyers argued was “full of lame excuses and obfuscations for its unilateral determination not to comply with this Court’s Order.”
“At worst, Covington is attempting to convince this Court to accept compliance with an order that the Court did not issue. At best, Covington is seeking clarification of the Court’s actual order to excuse its non-compliance,” Flynn’s lawyers argued.
Robert Kelner and Stephen Anthony, Flynn’s prior lawyers from Covington, argued that their approach “was consistent with the relevant D.C. Rules of Professional Conduct, … applicable ethics opinions of the D.C. Bar, and applicable case law.”
But Flynn’s lawyers said Covington’s “invocation” of rules of professional conduct and ethics opinions are “irrelevant” to the judge’s order. They said that “this is not a minor squabble about legal fees or copying costs” but rather “a changing of the guard in a criminal case in which the client’s life, liberty, and reputation are at stake.”
Flynn pleaded guilty in December 2017 to lying to investigators on Jan. 24, 2017, about his conversations with Russian Ambassador Sergey Kislyak, but told the court earlier this year that he was “innocent of this crime” and filed to withdraw his guilty plea. Powell is pressing for the dismissal of his case by arguing that the FBI unfairly treated Flynn.
Covington argued that following the Flynn team’s interpretation of the judge’s order “would require Covington to conduct a massive sweep of its servers for every document and communication pertaining to the firm’s representation of Mr. Flynn” and “that would be a disproportionately burdensome e-discovery process of great scale and duration.”
But the defense team said Covington “had no warrant” to limit its production of records. They argued that “Mr. Flynn is entitled to all the notes, records, communications, and phone records of all the partners who consulted or worked on his file — whether billed to him or not.” The Flynn team said this should include firm partners such as President Barack Obama’s Attorney General Eric Holder, Obama Assistant Attorney General Lanny Breuer, and Bush Homeland Security Secretary Michael Chertoff.
Covington claimed that “it is not possible for any attorney to certify that every document pertaining to a law firm’s representation of the client has been produced.” They said the firm “respectfully invites any further guidance based on the foregoing that the Court may be inclined to provide in order to help us ensure that we do exactly what the Court requires.”
“This is one of the most important cases in the country’s history,” Powell argued. “Because Covington has proven unreliable in collecting and producing documents itself, the Court should require that the firm, at its own expense, provide current counsel for Mr. Flynn with direct access to its e-discovery vendor so that Mr. Flynn can ensure accountability in the collection and production process.”
Records released by the Justice Department last week included handwritten notes from former FBI Assistant Director of the Counterintelligence Division Bill Priestap on the day the FBI interviewed Flynn.
“I agreed yesterday that we shouldn’t show Flynn [REDACTED] if he didn’t admit,” but “I thought about it last night, and I believe we should rethink this,” Priestap wrote. “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
