Lawyer for Michael Flynn personally asked Trump not to pardon ex-national security advisor in FBI lie case

Key Points
  • Michael Flynn briefly served as national security advisor to President Donald Trump.
  • The retired Army general pleaded guilty in 2017 to lying to FBI agents about his discussions with the Russian ambassador to the United States.
  • The Justice Department is seeking to dismiss the criminal case against Flynn, which was brought by then-special counsel Robert Mueller.
Gen. Michael Flynn, former national security adviser to US President Donald Trump, leaves Federal Court December 1, 2017 in Washington, DC.
Brendan Smialowski |  AFP | Getty Images

The defense lawyer for former national security advisor Michael Flynn revealed in court Tuesday that she recently met in person with President Donald Trump to update him on the case, and that she had asked the president not to pardon Flynn.

Sidney Powell, Flynn's attorney, told Judge Emmet Sullivan about that conversation with Trump during a hearing in Washington, D.C., federal court on the Justice Department's highly unusual request to dismiss the case.

Powell said she spoke with Trump and a White House lawyer, Jenna Ellis, one time in recent weeks.

"I provided the White House with an update on the overall status of the litigation," Powell said.

"I never discussed this case with the president until recently when I asked him not to issue a pardon and gave him a general update of the status of the litigation," said Powell, who did not say why she asked Trump not to give Flynn a pardon.

When Sullivan asked, "Did you make any requests of the president?" Powell replied, "No, sir, other than he not issue a pardon."

Trump has long been harshly critical of the case and has said publicly that he would strongly consider pardoning Flynn, who pleaded guilty in late 2017 to lying to FBI agents about his talks with a Russian diplomat in the weeks leading up to Trump's inauguration in January 2017.

Sullivan also asked if Powell had ever asked Trump to request that Attorney General William Barr appoint new prosecutors in the case.

Powell answered, "Oh, heavens, no."

At the end of the hearing, which spanned five hours, Sullivan did not make a ruling on the Justice Department's motion to dismiss.

But the judge said he was mindful of an appellate court ruling that encouraged him to rule quickly in the case, one of the first to spring out of a broad investigation of Russian interference in the 2016 presidential election.

Flynn so far has not been sentenced because of an unprecedented series of events that have included Barr seeking to toss out the case and being resisted — at least until now — by Sullivan.

The White House declined to comment on Powell's statement.

The Justice Department, which first charged Flynn and then obtained his cooperation with other investigations, long had defended the legitimacy of its prosecution.

But the department abruptly last spring sought to dismiss the case and void Flynn's guilty plea, saying  that it determined that there was not a legitimate reason for the FBI to have questioned Flynn. The Justice Department also argues that it does not have sufficient evidence to convict him now.

Powell's disclosure of meeting with Trump came in response to a question from Sullivan, who had asked if she had spoken to the president about the case.

She at first balked at answering him, arguing that she would be barred from doing so by executive privilege.

But Powell then provided details of what she had told Trump after Sullivan pointed out that she was not an employee of the executive branch of the U.S. government.

Powell later during the hearing asked Sullivan to recuse himself from the case, on the grounds of purported bias against Flynn, which included the judge appealing a higher court's order that Flynn's case be promptly dismissed.

Sullivan, seeming annoyed, waved aside her request, telling her to put it in writing in a court filing.

Powell said that the original prosecution of Flynn was part of "a coup" whose ultimate purpose was to target Trump.

"This is the most egregious case of injustice I've ever seen in 30 years of practice," she said.

Earlier in the hearing, Sullivan spent nearly an hour detailing the case's circuitous history.

Several times during that monologue, Sullivan noted that his job as a judge is not to serve merely as a "rubber stamp" for a request by prosecutors to dismiss the case.

A Justice Department lawyer later told the judge that Barr's "decision [to seek the case's dismissal was] not based on communications with the president or the White House" or on Trump's Twitter posts criticizing the prosecution of Flynn.

Justice Department lawyers also said that the department has the "absolute authority" on whether to prosecute a case and that a judge does not have that authority.

John Gleeson, a lawyer appointed by Sullivan to argue against the dismissal request, was contemptuous of the Justice Department's claim that there were valid reasons to toss the case.

Gleeson, who is both a former federal judge and ex-federal prosecutor, said that the department's explanations flew in the face of established legal standards and that they were a pretext for the actual reason for dismissing the case, that is, doing a favor for Trump.

He also said that at least one argument raised by the department, that Flynn's lies to the FBI were not "material" to the question of his guilt, was being raised by the department for the first time for any defendant charged by federal prosecutors.

"You're not required to act like you were born yesterday," Gleeson told Sullivan.

Flynn, who is a retired Army lieutenant general, only briefly served as Trump's first national security advisor.

He was fired after lying to Vice President Mike Pence about the nature of his conversations with Russian ambassador Sergey Kislyak.

He pleaded guilty in December 2017 to lying to FBI agents who had questioned him about his talks with Kislyak.

Flynn admitted falsely telling agents that he and Kislyak had not discussed the need for Russia not to retaliate against the United States for sanctions put on Russia by the outgoing Obama administration as punishment for interfering in the 2016 presidential election.

Flynn's originally scheduled sentencing in December 2018 was aborted after Sullivan angrily admonished him, telling Flynn he had "arguably" sold out his country, and after the judge indicated he was considering sending Flynn to jail for his crime.

The judge then suspended the sentencing, saying he wanted to give Flynn more time to complete his cooperation with then-special counsel Robert Mueller's investigation into Russian interference in the 2016 election and possible collusion with that interference by members of Trump's campaign.

Flynn cooperated for several more months but then hired a new lawyer, Powell, who began laying the groundwork to undo his guilty plea.

The Justice Department, which had opposed Powell's efforts for months, joined forces with her effort earlier this year and asked Sullivan to dismiss the case, a move that drew widespread criticism by Democrats and former prosecutors.

But Sullivan did not act quickly on the dismissal request.

Instead, the judge appointed Gleeson as a so-called friend of the court to make legal arguments opposing that request.

Gleeson in court filings earlier this year advised Sullivan that the case should not be dismissed, arguing that the Justice Department had engaged in "a gross abuse of prosecutorial power."

"The Government has engaged in highly irregular conduct to benefit a political ally of the President," Gleeson wrote.

Flynn and the Justice Department then filed an appeal, asking a three-judge appeals panel to compel dismissal of the case, arguing that Sullivan had overstepped his authority.

That panel agreed and ordered the dismissal.

But Sullivan then appealed that dismissal.

Earlier this month, a panel of most of the judges on the Court of Appeals for the District of Columbia Circuit overturned the smaller panel's order and sent the case back to Sullivan for consideration, which led to Tuesday's hearing.