The defence lawyer for former Trump national security adviser Michael Flynn has admitted she recently spoke to the president in person about her client’s case, a revelation that once again raised eyebrows about whether Donald Trump is pressing his thumbs on the scales of justice to help his friends escape legal trouble.
The defence attorney, Sidney Powell, told federal judge Emmet G Sullivan in a Washington, DC, courtroom on Tuesday that she asked the president “not to issue a pardon and gave him the general update” on the case.
Ms Powell met with the president and 2020 Trump campaign lawyer Jenna Ellis once in recent weeks, she said, adding that until that meeting she had never spoken with the president about the case.
“I provided the White House with an update on the overall status of the litigation,” Ms Powell said.
Mr Sullivan probed further.
“Did you make any requests of the president?” the judge asked.
Ms Powell responded: “No sir, other than he not issue a pardon.”
Nothing legally prohibits Mr Flynn’s lawyers from simply talking to Mr Trump about the case. And the Justice Department (DOJ) has backed the ex-national security adviser’s motion to dismiss the case against him for lying to the FBI about his contacts in 2016 and 2017 with Russia.
But Ms Powell’s remarks on Tuesday raised several ethical concerns about a criminal defendant whose legal team has direct access to the president, who oversees the federal justice system in which he is being prosecuted.
“Please let this sink in: DOJ lawyers have been arguing all day that Mike Flynn received no special treatment. Then, Flynn's lawyer, Ms Powell, said she recently had a personal meeting w/the president, briefed him on Flynn's case & told Trump not to pardon Flynn!” tweeted former US Army prosecutor and MSNBC legal analyst Glenn Kirschner.
The Trump campaign, conservative media outlets, and Republicans in Congress have seized on Mr Flynn’s case as supposed evidence that a so-called “deep state” of career intelligence and DOJ officials sought to entrap incoming Trump officials in legal troubles in early 2017 to hamstring Mr Trump’s presidency from the outset.
While DOJ Inspector General Michael Horowitz has issued a report claiming political bias did not influence the FBI and DOJ’s 2016 and 2017 counterintelligence operations regarding Mr Trump and his associates’ possible connections to Russia, the president has nonetheless coined the expression “Obamagate” as a catch-all term for his friends’ and advisers’ legal troubles.
Mr Flynn initially admitted in court — on more than one occasion — that he lied to the FBI about his communications in late 2016 and early 2017 with then-Russian Ambassador to the US Sergey Kislyak.
He has since withdrawn that plea, arguing that his alleged lie to the FBI was immaterial to their ongoing investigation into alleged ties between the 2016 Trump campaign and transition team and Russia.
Attorney General William Barr’s prosecutors on the case later backed that argument in a court filing agreeing to drop the charges.
Mr Sullivan — the judge presiding over the case — and Mr Flynn's legal counsel have for months been involved in a complicated legal back-and-forth after Mr Flynn backed away from pleading guilty at the 11th hour earlier this year.
At a sentencing hearing in 2018, Mr Sullivan openly expressed his “disgust" and "disdain” for Mr Flynn's behaviour as an "unregistered agent of a foreign country while serving as the national security adviser to the president of the United States," referring to another case involving Mr Flynn's previous lobbying work for the Turkish government.
Mr Flynn was never charged with violating foreign agent registration laws.
The case Mr Sullivan is overseeing has taken many turns over the last eight months.
First, in January, Mr Flynn sought to revoke his guilty plea.
Throughout the winter and spring, Mr Trump publicly called for his former aide and friend to be cleared of all charges of lying about his contacts with Russians during the 2016 presidential campaign and Mr Trump's transition period in 2016 and early 2017.
In May, after a four-month internal review ordered by Mr Barr, the DOJ acquiesced, filing a document in court backing Mr Flynn's motion to dismiss and saying the criminal case against Mr Flynn lacked "any legitimate investigative basis."
But Mr Sullivan, now in charge of the case, did not grant that motion, and instead appointed another former federal judge to review the DOJ's motion to dismiss the case.
That retired judge, John Gleeson, authored a scathing amicus brief indicating that the DOJ's decision to drop Mr Flynn's case was politically motivated.
Mr Flynn then appealed to a three-judge panel of the DC Circuit Court, which ruled in his favour in June that the DOJ could in fact move forward dropping the case, despite Mr Sullivan's objections.
In August, a fuller panel from the DC Circuit ruled, 8-2, to overturn that decision: Mr Sullivan was permitted to move forward with his review of the DOJ’s decision to drop the case under suspicion it was underwritten with malign political intentions.
Mr Sullivan stressed at the court hearing on Tuesday that it is not his job to act as a “rubber stamp” for the DOJ’s decisions on moving forward with or dropping cases.
The DOJ’s team of prosecutors pushed back against suggestions they were influenced by higher-ups to drop the case because Mr Flynn was a friend and former adviser to the president.
“Allegations against our office that we somehow acted with a corrupt political motive are just not true. It didn't happen here,” said US attorney Kenneth Kohl, a longtime prosecutor in the US attorney’s office in DC.
Backing the motion to dismiss charges “was the right call for the right reasons,” he said.