Update: This story has been updated to reflect orders issued Monday by the judge in Flynn’s case.
It’s now almost a tradition for sentencing hearings for former National Security Michael Flynn to be postponed.
A federal judge on Monday ordered that sentencing hearing scheduled for Feb. 27 be cancelled as a dispute between Flynn and his original team of lawyer escalates. It marked at least the fourth time a Flynn sentencing hearing had been called off or delayed.
The current complication stems from allegations Flynn made last month while arguing he should be allowed to withdraw the guilty plea he entered more than two years ago. Flynn, who fired his original team of lawyers last year, claims their representation was “grossly prejudiced” due to an alleged conflict of interest they supposedly withheld from Flynn while negotiating his 2017 plea deal.
On Sunday, in court filings, prosecutors indicated that they would seek information from those lawyers so they the could respond to Flynn’s latest allegations. Ever since Flynn replaced his initial lawyers with a new team lead by a prominent DOJ-critic, tensions between him and prosecutors have flared, culminating his effort to now withdraw his guilty plea.
The Justice Department on Sunday morning asked for a judge to confirm that Flynn, in making the allegations, effectively waived attorney-client privilege with his old lawyers, so that the old lawyers could disclose to prosecutors and the court relevant information about their representation of Flynn. The government also asked the judge to put on hold the current briefing schedule set for his plea withdrawal — a request Judge Emmet Sullivan granted on Monday.
Sullivan also took up Flynn on a suggestion, made Sunday evening in a court doc, that his attorneys and prosecutors try to come up with their own agreement on waiving attorney-client privilege. Sullivan is giving them until Feb. 24 to do so.
Robert Kelner, the initial Flynn lawyer who is now being accused of inadequate representation of Flynn, did not respond to a TPM inquiry Monday morning about Flynn’s underlying allegations. A spokesperson from Kelner’s law firm Covington told TPM the firm did not have a comment.
Flynn’s claims, made in a Jan. 29 filing, center on the work Kelner and his firm Covington did on Flynn’s foreign lobbying registration issues before working out the 2017 plea deal with special counsel Robert Mueller. While Flynn only pleaded guilty to false statements to the FBI, he also admitted in the plea docs to making false statements to the government in lobbying filings related to his Turkey efforts.
The plea deal appeared to be moving along smoothly up until December 2018, when Flynn was originally scheduled to be a sentenced. At the sentencing hearing, U.S. District Judge Emmet Sullivan reacted angrily to suggestions in Flynn’s sentencing memo that he was the victim of an FBI entrapment scheme. Flynn’s Covington lawyers, sensing the hearing might go badly for him, sought to delay the sentencing until after Flynn finished cooperating in a case the Justice Department brought against his business partners for the Turkey lobbying project.
But in May 2019, Flynn fired the Covington lawyers and hired a team led by Mueller-basher Sidney Powell, and his relationship with prosecutors grew increasingly dysfunctional, and his sentencing was delayed last year while she sought to air conspiracy theories about the Russia-2016 probe.
In the Jan. 29 filing, Flynn blamed Covington for screwing up his foreign lobbying registration forms, and accused the Covington lawyers of pushing him into the guilty plea to protect the firm’s own legal exposure. Flynn said that “a result of this debilitating lawyer-to-client conflict of interest, the Covington lawyers lost all ability to provide the effective assistance of counsel that the Sixth Amendment requires.”
The government on Sunday said that it was seeking to “obtain from these counsel (and any other person acting on the defendant’s behalf in this case) and provide to the Court documents, declarations, or affidavits responding to the claims of ineffective assistance in the defendant’s Supplemental Motion to Withdraw his Plea of Guilty.”
Confirming that Flynn had waived attorney-client privilege would “make certain and clear that counsel may take the necessary steps to vindicate their public reputation by addressing and defending against the defendant’s claims of ineffective assistance of counsel, and equally to vindicate the integrity of this Court’s previous proceedings,” the government said.
If Judge Sullivan does decide to delay the proceedings, Flynn said his new lawyers would not be able to meet with the government about a potential agreement deal with the privilege issues until Feb. 17 or 18.
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