Powell’s new filing seizes on a long-simmering dispute over Flynn’s expected testimony in a criminal trial last summer of his partner at the Flynn Intelligence Group consulting firm, Bijan Rafiekian.
Days before that trial, Powell informed Van Grack — who served in Mueller’s office and is still handling Flynn’s case — that Flynn planned to testify that any errors in submissions to the Justice Department about the firm’s work for interests aligned with Turkey’s government were the product of oversight and inattention, rather than any deliberate attempt by Flynn to mislead authorities.
In a contentious June 27, 2019, conference call, Van Grack insisted that Flynn was stepping back from his admissions during his guilty plea a year and a half earlier.
“This is the language your client agreed to,” Van Grack said, according to notes taken by another Flynn lawyer.
That prompted Powell to accuse Van Grack of seeking false testimony. “You are asking my client to lie,” Powell declared, per the notes.
“No one is asking your client to lie,” Van Grack shot back, the notes indicate. “Be careful about what you say.”
Flynn’s new filing zeroes in on that episode, arguing it fits a pattern of abuse by the government.
“The prosecution has shown abject bad faith in pure retaliation against Mr. Flynn since he retained new counsel. This can only be because with new, unconflicted counsel, Mr. Flynn refused to lie for the prosecution,” Powell wrote. “Justice is not a game, and there should be no room for such gamesmanship in the Department of Justice.”
Prosecutors abandoned plans to call Flynn at the Rafiekian trial. A jury in Alexandria, Va., quickly returned two guilty verdicts against Rafiekian, but the judge there tossed them out. That decision is on appeal.
Even before she formally took over as Flynn’s counsel last year, Powell was railing against Flynn’s prosecution as a miscarriage of justice. Last June, she sent a “confidential” letter to Attorney General Bill Barr and Deputy Attorney General Jeff Rosen, alleging prosecutorial misconduct and abuses by the FBI in Flynn’s case.
The letter called the initial questioning of Flynn in January 2017 “a set-up — tantamount to a ‘frame’” aimed at forcing Flynn out of the administration. Powell also accused Mueller’s office of seeking to use the series of events to “pressure [Flynn] to try to take out President Trump.”
Soon after going to work for Flynn, Powell said in court that she planned to file a motion to dismiss the charges against Flynn on the basis of outrageous government conduct. In a bid to buttress that plan, she sought nearly 50 categories of information that she said would help Flynn show that he was unfairly targeted and bullied into a guilty plea on the basis of incomplete and inaccurate information.
Flynn’s new defense team hoped such complaints would resonate with Sullivan, a Bill Clinton appointee who drew attention a decade ago for his aggressive response to prosecutorial misconduct in the corruption prosecution against Sen. Ted Stevens (R-Alaska).
However, the judge did not seem impressed by Flynn’s claims that Flynn was the victim of a vast conspiracy to bring down Trump and his allies.
Last month, Sullivan denied all of Powell’s so-called discovery requests and ordered that the long-postponed sentencing proceed in a matter of weeks.
“Regardless of Mr. Flynn’s new theories, he pled guilty twice to the crime, and he fails to demonstrate that the disclosure of the requested information would have impacted his decision to plead guilty,” Sullivan wrote in a blistering, 92-page opinion.
Seeking to withdraw the guilty plea is a high-stakes gamble for Flynn. Simply by moving to do so, he is opening himself to the possibility of prosecution on other charges. Under the terms of the plea deal, prosecutors would be permitted to use all of his statements against him.
In an unusual move signaling the potential gravity of the decision to back out of the plea deal, Flynn is listed as co-signing his defense lawyers’ new motion.
One wild card in the case is whether Trump might wipe out any sentence Flynn receives by granting him a pardon. Trump has been cagey about the prospects of a pardon in the case, but has repeatedly expressed support for Flynn. Trump lawyer Rudy Giuliani has also endorsed Flynn’s claims that his case was tainted by widespread government misconduct.
While Sullivan seems unlikely to embrace Flynn’s complaints about the prosecution’s conduct, it seems highly possible that he could allow the 61-year-old defendant to withdraw his guilty plea. At an initial sentencing hearing for Flynn in December 2018, the judge said he wasn’t inclined to go forward if Flynn was protesting his innocence.
“I cannot recall any incident in which the court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today,” Sullivan said then.
Darren Samuelsohn contributed to this article.