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Here, in a few words–his own, from the sworn affidavit he filed with his Motion to Withdraw Guilty Plea on Wednesday — is a sketch of the outstanding man the gang of hoodlums of the Weissmann investigation tried to utterly destroy for three horrible years:
I served over thirty-three years in the United States Army. Five of those years I spent deployed in active combat in Afghanistan, Iraq, and elsewhere around the world in support of United States foreign policy objectives. (Para. 2, Declaration)
To have devoted my life to my country, only to be accused of crimes, slandered in the media with false and outrageous claims, and have my family threatened was an unimaginable nightmare-one that those have not walked in these shoes will find difficult to comprehend. (Para. 26, Declaration)
My own strong views about the lawlessness of these monsters visited upon the General and his family, as well as my deep and abiding admiration for him, and my conviction of his innocence, were made known in my previous posts, The Kafkaesque Persecution of Gen. Flynn and USA v. Flynn: Agonies Even Kafka Could Not Have Imagined.
There have been recent, and most significant developments in this disgraceful persecution, in filings of Motions which give rise to a real hope that the Court might finally see in vivid detail the many ways in which the duplicity and unethical conduct of the attorneys — on both sides– came together to create “a perfect storm” of treachery and betrayal. And, how all this led to the near-total destruction of the General, his family, the loss of his home (which had to be sold to help pay the $3 million in fees his former lawyers charged him for the privilege of helping to destroy his life), the savaging of his sterling reputation by a bloodthirsty media and, as we shall see later, even by the Court itself.
This is the way we say “thank you” to a man who achieved one of the highest military ranks (actually, second only to a four-star rank) while serving and fighting in combat zones for the nation he loves.
In order to explore the bizarre and frightening chain of events which led this great American to this point and, most importantly, to try to understand the significance of the filings of a few days ago, it is helpful to refer not only to persuasive brief filed on his behalf by his most talented new lawyer, Ms. Powell, but to also review several articles of the last couple of days, analyzing these events. These include the one I will focus on, “What’s Inside The Latest Court Filings in Michael Flynn’s Case,” by Margot Cleveland in The Federalist; a piece by Sara Carter titled “Flynn’s Defense Files Motion Saying His Former Legal Team Betrayed Him“; and two pieces by Fox News, “Michael Flynn takes on ‘egregious’ FBI misconduct, little-known FBI agent in guilty plea withdrawal,” and “DOJ relents, says it would accept probation for Michael Flynn as he moves to withdraw guilty plea.”
A review of these articles will give one a fairly good, brief insight into what these recent filings mean. However, to me at least, the true heart of the matter is the one written by the general himself, as it reveals like no pile of papers, no matter how skillfully written, the true, deep, lasting wounds which can result when lawyers are allowed to run amok as they did in this case.
The basic facts are fairly well known and are summarized in my previous posts and in one of the Fox News pieces. It states:
“I did not lie to them.”
With those words in a declaration and supplemental motion filed Wednesday, former national security adviser Michael Flynn formally asked a federal judge for permission to withdraw his guilty plea for making false statements to two FBI agents in the White House back on Jan. 24, 2017.
In a sweeping argument that took aim at the bureau’s “outrageous” conduct, Flynn’s legal team highlighted a slew of information that has come to light since Flynn’s plea — including that no precise record of Flynn’s statements to the agents exists and that the original handwritten FD-302 witness report from the interview is “missing,” with subsequent versions later “edited” in some undisclosed manner by anti-Trump FBI officials.
Moreover, Flynn’s team maintained he had no reason to lie about his communications with the Russian ambassador concerning how the country should respond to sanctions imposed by the Obama administration, or a then-pending vote on Israel in the United Nations. After all, Flynn said, he knew federal officials “routinely monitor, record, and transcribe” conversations like the ones he had with Russian diplomats.
Flynn’s argument found support in a Jan. 23, 2017, article in The Washington Post. Citing FBI sources, the Post’s article — published the day before Flynn’s interview with the FBI agents — directly stated that the bureau had listened in on his calls with the Russian ambassador and cleared him of criminal wrongdoing.
The Federalist article brings into sharp focus the recent filings and their (I apologize for using this tattered, beaten old word) explosive allegations against the prosecutors, the DOJ, the FBI, and Gen. Flynn’s former lawyers:
Yesterday, Michael Flynn’s legal team, led by powerhouse attorney Sidney Powell, filed a “Supplemental Motion to Withdraw Plea of Guilty” on behalf of the retired lieutenant general. Between the motion and the accompanying exhibits, which together exceeded 200 pages, Powell exposed several more troubling details about the prosecution of Flynn, involving both the special counsel team and Flynn’s previous attorneys.
Flynn had pled guilty on December 1, 2017, to one count of making a false statement to FBI agents Peter Strzok and Joe Pientka when the duo questioned Flynn on January 24, 2017 about telephone conversations he had with Russian ambassador Sergey Kislyak. At the time Flynn entered his plea, he was represented by Robert Kelner and Stephen Anthony of the well-respected Washington firm of Covington and Burling, LLP.
Kelner and Anthony continued to represent Flynn until he fired them in June 2019 and replaced them with Powell. Powell sought a delay in Flynn’s sentencing, which had already been postponed from December 2018. She then sought to compel the federal prosecutors to produce previously withheld evidence, including a copy of the transcript and audio of the January 24, 2017, telephone call.
In mid-December 2019, presiding Judge Emmet Sullivan denied Powell’s motion to compel and set Flynn’s sentencing for January 28, 2020. Sullivan also directed the government to submit an updated sentencing memorandum, which it did. In its updated sentencing memorandum, the prosecutor backtracked on its previous position that Flynn had provided substantial assistance to the government and then government attorneys withdrew a previously filed motion for a reduction in sentence.
She then got to one of the major issues, ineffective assistance of counsel, and here we start seeing publicly for the first time the, to put it mildly, (alleged) less-than-honorable conduct of Gen. Flynn’s previous lawyers and how it led him into the house of horrors he finds himself in. That factor was:
…..whether Flynn’s plea was somehow tainted. It was, Powell posited, because of the ineffective assistance of counsel Flynn received both at his December 2017 plea hearing and again when Sullivan quizzed him about his guilt at the December 2018 sentencing hearing.
After setting out the governing legal standard for ineffective assistance of counsel—that “counsel’s advice was not ‘within the range of competence demanded of attorneys in criminal cases,’ and that as a result he was prejudiced, i.e. ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’”—Powell dedicates the remaining 30-plus pages of her brief to proving Flynn’s Covington lawyers provided ineffective assistance to Flynn.
To summarize this argument, she argues that the previous lawyers, the heretofore vaunted firm of Covington and Burling, had a conflict of interest in that they were involved with prior legal work for Gen. Flynn involving FARA (Foreign Agent Registration Act) about which serious questions had been raised, that they did not fully inform the General of the gravity of that conflict, which carried the potential of their own criminal liability, that, despite urging by the prosecutors to do so, they never adequately informed their client so they could proceed with his informed consent. One of the most jarring revelations was the fact that the Special Counsel’s office also threatened the former attorneys with prosecution:
“There’s one more issue I want to bring up,” Van Grack said. “Because Covington prepared the FARA registration, that would make you [Kelner] a fact witness.” “If we were to get to that point, we would litigate it very aggressively.” Kelner retorted, “We saw what you guys did with [Paul] Manafort, and we’ll definitely raise it with our client.”
At that point, any ethical lawyer would have immediately advised the client to seek independent counsel, as they now had a powerful self-interest in continuing their “go along to get along” approach with the Special Counsel’s office, which either did have, or had the appearance of having, a definite impact on the way they represented Gen. Flynn.
Before proceeding with a recitation of more seemingly egregious actions by previous counsel, I must note a careful caveat that these are allegations, subject to being tested by examination of counsel and, hopefully, the Court. They are, nonetheless, dramatic charges which, if proven, should put some licenses to practice law at risk. The following is one such accusation:
Flynn also asserts that his attorneys did not inform him that the special counsel had just disclosed that “the agents said Mr. Flynn had a ‘sure demeanor,’ and ‘did not give any indicators of deception’ and that the agents ‘had the impression at the time that Mr. Flynn was not lying or did not think he was lying.’”
Here, Powell also stressed that before Flynn signed the plea, he “specifically instructed Anthony and Kelner to call [the Special Counsel] immediately and ask if the agents believed that he lied. However, when Kelner and Anthony returned to the room where Mr. Flynn was about to sign the plea agreement, they did not inform the Flynns that Van Grack said, ‘both agents said ‘they saw no indication of deception,’ he had ‘a sure demeanor,’ and they ‘did not believe he was lying or he did not believe he was lying.’” Instead, according to Flynn, they said “the agents stood by their statement.”
In that connection, it should also be recalled that the person we now know as The Paragon of Virtue, a/k/a Saint James, the fired, disgraced and hopefully soon to be indicted James Comey, made an amazing public statement strongly indicating the whole interview was a deliberate, deceitful trap:
The Flynn filing also slammed former FBI Director James Comey’s “bragging and laughing on national television about his own cleverness and violations of FBI/DOJ rules in dispatching agents to the White House to interview the President’s National Security Advisor.” (In 2018, Comey admitted on-air that sending agents to the White House was “something I probably wouldn’t have done or maybe gotten away with in a more … organized administration.”)
However, in the final analysis, as a (recovering!) lawyer of more decades’ experience than I care to reveal, and as one who, perhaps naively, still believes in the Rule of Law, the most disgusting, repulsive, sleazy, chilling, frightening and clearly unethical conduct was the fact that Gen. Flynn was threatened with horrific consequences if he did not plead guilty:
Flynn’s plea and his decision to stand by that plea when appearing before Judge Sullivan in December 2018, was also the result of “undisclosed promises and threats,” Powell argued. “The government leveraged the threat of charges against Mr. Flynn’s son to induce that agreement,” Powell maintained, adding, “yet the government’s decision not to charge his son was not reduced to writing as part of the plea agreement; it was a secret, side deal between counsel.”
It was “that ‘understanding,’” however, that “was one of two necessary preconditions for Mr. Flynn to enter into the plea agreement,” Powell stressed. But “the government and Mr. Flynn’s prior counsel chose not to disclose that agreement to this court,” Powell concluded.
As noted above, and not to detract in any way from the brilliance of Ms. Powell’s briefing, to understand the heart and soul of this case, one must read and carefully consider Gen. Flynn’s sworn affidavit. The story of repeated deceptions and betrayals –and lies!– told by the Declaration is, in the truest sense of the words, tragically heart-wrenching. To pick a few examples found in the document, he makes it clear that he was a “fish out of water in a terrifying and completely foreign situation” and that the Judge’s comments at the December 18, 2018 hearing “stunned me. The entire experience was surreal, and that day was one of the worst days in my life.” This from a man who has served in several active combat zones!
In that regard, it should be recalled that the Court, Judge Sullivan, did, at the December 2018 hearing, make statements so degrading and insulting about Gen. Flynn that he had to backtrack on one of the more inflammatory charges in the course of the hearing. He also suggested that perhaps Gen. Flynn should be charged with treason — yes, he said this about a veteran of 33 years of service in the United States Army–and also suggested that “Arguably, you sold your country out.”
What lessons do we take from this nightmare, all to different from the “things that go bump in the night” variety as this one is happening, right now, to an American family which, until Andrew Weissmann and his dangerous posse of tyrants descended upon them like locusts, was the very picture of the kind of American family everyone would admire.
- As much as it pains me to say it, never, never, never trust anyone with FBI or many, not all, with the Department of Justice.
- Never, never, never sit down and talk to prosecutors for three entire days as his former attorneys had Gen. Flynn do — they are called “prosecutors” for a reason as it is their job to put you in prison, not to become your friend.
- Be ever vigilant in your choice of counsel in the event of this kind of legal jeopardy–there are many sources of sound information upon which to base an informed decision in the public domain.
- If you are urged, against every instinct in your mind and body, to agree to something you know is not right, get out that minute and hire another lawyer. Once a lawyer has lost the client’s trust, as obviously happened in this case, it is, quite simply, over.
I hope and pray that this travesty of “Justice” comes to an end soon and that Gen. and Mrs. Flynn will be able to rebuild what had been a classic American family story. We have contributed to his legal defense fund and plan to so again; if anyone has an interest in getting in touch with the group handling this fund, just let me know.
May God Bless Gen. Flynn and his family, may God Bless America and may we, as the Nation they have so deeply loved and served for so many years, finally be able to say — with meaning — Thank You For Your Service, Gen. Flynn.