An appellate attorney in Washington, D.C., said retired Army Lt. Gen. Michael Flynn has a strong case to recoup his legal costs from the federal government after the case, which has now been dropped by the Justice Department, left him in financial ruin.
Flynn, who served as President Trump’s first national security adviser for less than a month, pleaded guilty in 2017 to lying to the FBI about his conversations with a Russian diplomat before Trump entered the White House. But after firing his lawyers from Covington & Burlington, Flynn hired a new team led by former federal prosecutor Sidney Powell who fought the charges against Flynn, declared his innocence in January, and claimed he was set up by the FBI.
Flynn's new defense team said he was pressured to make the guilty plea to protect his son, Michael Flynn Jr., from being charged by the FBI for matters related to the younger Flynn’s dealings in Turkey.
Covington & Burlington charged Flynn over $6 million in legal fees, Powell confirmed to the Washington Examiner. Flynn’s legal and financial woes forced him to place his Old Town Alexandria home on the market for an asking price of $895,000 in late 2017.
“As I understand the deal, he paid more than what they agreed to. He does not owe them anything,” Powell said.
The Justice Department filed to dismiss Flynn’s case on Thursday, and now the judge presiding over the case will decide whether to dismiss it.
Yet, even as Flynn's legal troubles dissipate, the financial hardship of the yearslong case remains.
Paul Kamenar, a public policy and appellate attorney who represented a former aide to political operative Roger Stone during special counsel Robert Mueller's Russia investigation, said Flynn could potentially recoup “millions” of dollars by filing a civil lawsuit against the government officials involved in the case.
“This case clearly was a vindictive prosecution by Comey, Strzok, McCabe, and Lisa Page. This 20-page filing reads almost like an indictment against these FBI officials. Comey and company, number one, better lawyer up,” he told the Washington Examiner. “And number two, they are clearly subject to a massive, malicious prosecution civil suit against them by Flynn for bringing this prosecution that had no basis. I've never seen such misconduct by FBI and prosecutors in this case.”
The FBI officials he referenced were former FBI Director James Comey; former FBI Deputy Director Andrew McCabe; former FBI agent Peter Strzok, who was one of the officials who interviewed Flynn in January 2017; and former FBI lawyer Lisa Page.
Kamenar said Flynn could move forward with a Bivens action, which is based on a case from the 1970s when the Supreme Court ruled a plaintiff could file a damages lawsuit against government agents who allegedly violate constitutional rights.
“Sometimes, I see cases where there's both a Bivens action and a federal torts claim malicious prosecution case that are put together and piggybacked, and the courts sort out which one is viable. It's a little tricky legally how you parse it all out,” Kamenar explained.
How much could Flynn possibly stand to receive from such a lawsuit? Kamenar could only guess.
“Well, it's up to them, but certainly millions here because of not only legal fees but the damages and reputation,” he said.
Flynn was relieved of his national security adviser post in February 2017 after it was believed he misled Vice President Mike Pence and other top White House officials about conversations he had with former Russian Ambassador Sergey Kislyak during the transition period. Flynn's contacts with Kislyak were swept up in U.S. surveillance reports, after which Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017.
Upon the release of FBI notes in recent weeks, which Powell has upheld as exculpatory evidence, Pence said he was "inclined" to believe Flynn never meant to mislead him intentionally. Trump has praised the Justice Department for filing to dismiss the case and has even talked about inviting Flynn back into his administration.
Timothy Shea, the U.S. attorney for the District of Columbia, submitted the court filing on Thursday to drop the charges against Flynn on Thursday, highlighting the FBI documents that were turned up in U.S. Attorney Jeffrey Jensen's review of the case.
“Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership ('the 7th Floor') determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act,” Shea wrote. “Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. The FBI never opened an independent FBI criminal investigation.”
“After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn — a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an ‘absence of any derogatory information,'" Shea concluded.
