This isn’t a bad question, and it raises more questions about the prosecution of Michael Flynn if true. Sidney Powell told Dan Abrams yesterday on his SirusXM radio show that despite Flynn’s conversation with Russian ambassador Sergei Kislyak being the core of the special counsel’s obstruction case, none of his defense attorneys have ever heard the call or had access to a transcript of it. In an at-times contentious conversation with Abrams, Powell called for the release of the call and a full transcript, and predicted the word “sanctions” won’t be found in it:
“I’d love to see them,” Powell said of the transcripts, before offering a theory as to why they haven’t been made public by numerous officials, including the judge overseeing Flynn’s trial for lying to the FBI. “I think the reason we haven’t seen them is because the word ‘sanctions’ doesn’t even appear in them.”
Back in January, Flynn tried to change his plea to not guilty from guilty, and told the court that he doesn’t remember the exact details of his conversation with the Russian ambassador. “I still don’t remember if I discussed sanctions,” Flynn wrote.
“I would love to see the release of that transcript,” Powell reiterated to Abrams. “Apparently, the Washington Post or the New York Times had it, but has the defense been allowed to see it? No. No defense lawyer for General Flynn has been allowed to hear the recording or see the transcript. And, frankly, I would want both, because I can’t trust the FBI or the CIA, or the NSA, or whoever it was, to do an accurate transcription of anything based on the lies I’ve seen in the 302.”
This information would be at the heart of any discovery in a case such as this, where prosecutors charge obstruction on the basis of an alleged lie about a conversation. The first and most obvious way to challenge the charge is to force the government to produce evidence of a lie. The FBI (eventually) concluded that Flynn lied to its investigators about not discussing sanctions with Kislyak, which they claim to have had through intel intercepts. That conversation would be subject to discovery; if the government refused to declassify it, that could have prompted a dismissal on that basis alone. Prosecutors cannot use secret evidence to convict people without granting them access to it and allowing them to challenge it in a public trial, a practice explicitly prohibited by the Sixth Amendment. (It’s why the government occasionally opts not to prosecute espionage cases — to protect its sources and methods.)
In fact, this point is so basic that it’s puzzling why it never came up before Flynn’s guilty plea. That does take discovery off the table [see update below], but Flynn didn’t plead guilty right away, either. It took the special counsel quite a while to pressure Flynn into that plea, and only succeeded after nearly bankrupting Flynn and threatening to prosecute his son on unrelated matters. Flynn’s original attorneys apparently never got access to the conversation or the transcript before working on the guilty plea, which seems quite odd in retrospect. Why would a defense attorney allow his client to plead guilty without first taking a full look at the evidence first? That sounds like a pretty good predicate for incompetent representation on appeal, although the guilty plea would normally moot that as well.
Powell’s bet on the word “sanctions” seems a bit foolish at this point, though, especially given better grounds on which to fight at the moment. What happens if it gets released and the word “sanctions” turns out to be in the conversation? It’s meaningless anyway; as an official on the presidential transition team and incoming nat-sec adviser, Flynn had authority to discuss policy with foreign diplomats, including sanctions policy. The FBI interrogation on that point was illegitimate in the first place. Powell’s argument here gives ground that she should be protecting, just in case the Department of Justice’s effort to withdraw the case doesn’t succeed.
From the IG report section on the FBI's Oct. 3, 2016 meeting with Steele. pic.twitter.com/oXsGpnkSWr
— Chuck Ross (@ChuckRossDC) May 21, 2020
An FBI offer to pay former British spy Christopher Steele to collect intelligence on Michael Flynn in the weeks before the 2016 election has been one of the more overlooked revelations in a Justice Department inspector general’s report released in December.
The reference to the FBI proposal, which was made in an Oct. 3, 2016, meeting in an unidentified European city, has received virtually no press attention. But it might have new significance following the recent release of government documents that show that Steele peddled an unfounded rumor that Flynn had an extramarital affair with a Russian woman in the United Kingdom.
It is not clear how and when Steele came across the rumor, or if it was the result of the FBI asking him to look into Flynn.
The inspector general’s report, released on Dec. 9, 2019, said that FBI agents offered to pay Steele “significantly” to collect intelligence from three separate “buckets” that the bureau was pursuing as part of Crossfire Hurricane, its counterintelligence probe of four Trump campaign associates.
One bucket was “Additional intelligence/reporting on specific, named individuals (such as [Carter Page] or [Flynn]) involved in facilitating the Trump campaign-Russian relationship,” the IG report stated.
Note that the offer to Steele and its specific interest in Flynn predates the Kislyak call by almost two full months. The FBI and special counsel never charged Flynn with any alleged misconduct prior to the December 29, 2016 call with Kislyak, which makes it look as though Steele came up empty on Flynn.
Powell’s right that the Kislyak call should be made a part of the record with Flynn. So should other developments, too, if Emmet Sullivan really wants to keep this case alive. But betting on the word “sanctions” is as foolish as it is irrelevant, from a PR perspective.
Update: A guilty plea does not waive a later claim of incompetent counsel, our friend and former federal prosecutor Shipwreckedcrew informs me. He’s writing about these issues at our fine sister sure RedState, but he sent me this update via DM earlier:
Ineffective assistance of counsel claims are not waived by a guilty plea. BUT they GENERALLY cannot be raised on direct appeal. They usually are only asserted in the “next” step open to a defendant which is a “collateral attack” on their conviction which is a “habeas corpus” petition. The basis of habeas claims is that a constitution right was violated in the process leading to your incarceration, so you incarceration is illegal. The Supreme Court held that the right to representation includes the right that the representation be “effective”.
Flynn’s motion to withdraw his plea relies in part on his claim that the Covington & Burling lawyers provided him ineffective assistance, but I think the claim at this point is limited to the fact that they had a conflict of interest in representing him because the Special Counsel was also investigating the FARA filing by Flynn’s company, which had been prepared by C&B.