Flynn’s attorney says she recently discussed case with Trump

Michael Flynn’s attorney said in court on Tuesday that she had briefed President Trump about her client’s case in recent weeks and urged him not to pardon his former national security adviser.

Attorney Sidney Powell revealed the conversation during a hearing over the Department of Justice’s (DOJ) surprise effort to drop its criminal case against Flynn for lying to the FBI.

Powell said that her discussion with the president came recently, well after the DOJ moved to withdraw its charges. When prodded by a judge for more details, she initially tried to invoke executive privilege but ultimately admitted that she had spoken to Trump and Jenna Ellis, a lawyer for his campaign, to give a general update on the case and to ask that the president not pardon her client.

“After the government moved to dismiss, at some point in the last month or so, I provided the White House an update on the overall status of the litigation,” Powell said.

She denied having ever asked the president to drop the case or to have the career prosecutors replaced but said that she’s spoken to him multiple times.

“I couldn’t tell you how many times I’ve spoken to the president, Your Honor,” Powell said, adding that the Flynn case was only discussed in one conversation.

Judge Emmet Sullivan is considering whether to grant the department’s motion to drop the charges and has appointed an outside counsel to argue against letting the prosecutors walk away from the case.

Flynn had twice pleaded guilty to lying to the FBI about his conversations with the Russian ambassador to the U.S. in 2016, before seeking to reverse himself and fight the charges over the past year.

Before he could change his plea, the DOJ moved in May to drop the case entirely, arguing that the department no longer had faith that it could prove a case against Flynn, calling into question the FBI investigation that led to the 2017 interview where the former three-star Army lieutenant general allegedly lied.

A White House spokesman declined to comment on Powell’s comments in court.

Sullivan pressed Powell on the propriety of her communications with the Trump administration, including a letter she sent last year to Attorney General William Barr urging him to review the case against Flynn.

Both Powell and the DOJ argued Tuesday that there was nothing improper about the letter, and Powell said she never received a response from Barr.

The DOJ urged Sullivan on Tuesday to grant its motion to dismiss, arguing the executive branch has sole discretion on prosecutorial decisions. Attorneys for the Trump administration said concerns about the FBI’s investigation warranted the decision to withdraw from this case.

“We don’t just throw evidence on the wall and see what sticks,” said Kenneth Kohl, a career attorney with the U.S. attorney’s office in D.C. “We prosecute people when we’re certain they’ve committed a crime.”

Powell attacked Sullivan’s credibility to hear the case, saying she intended to file a motion to have him recused over concerns about political bias and because the judge hired a lawyer to argue against an appeal Flynn’s team filed over the summer.

“It’s absolutely unprecedented for proceedings against a defendant to be conducted by a person who actively litigated against him,” Powell said.

Sullivan said he wouldn’t spend time during Tuesday’s hearing to argue over a motion that hadn’t been filed yet and chided Powell for waiting months, but said he would allow Powell to make her case in a filing.

“You could have filed a motion in writing,” Sullivan said. “You could have filed it in June. You could have filed it earlier, but even though you didn’t, I’ll certainly afford you an opportunity to do that.”

John Gleeson, a former federal judge who was tapped as outside counsel to argue against the DOJ, has accused the department of prosecutorial misconduct in trying to get one of Trump’s allies off the hook. He has also alleged that the DOJ’s decision was the result of a “pressure campaign” from the president. 

On Tuesday, he urged Sullivan to scrutinize the DOJ’s rationale and legal arguments behind its decision to drop the charges against Flynn.

“You’re not only entitled, you’re obligated to demand the reasons and evaluate the theories,” Gleeson said during the hearing. “And though you must presume them to be the real reason, you’re not required to act like you were born yesterday.”

The case has taken a number of twists and turns since the Trump administration first moved to withdraw. When Sullivan did not immediately grant the DOJ’s motion in May and instead moved to appoint outside counsel, Flynn’s legal team petitioned the D.C. Circuit Court of Appeals to intervene and force his hand.

A three-judge panel sided with Flynn and ordered Sullivan to dismiss the case, but weeks later the full circuit court overruled the panel and allowed the judge to proceed with his hearing schedule.

It’s unclear when Sullivan will issue a decision. There’s also uncertainty over the next steps if he chooses to deny the DOJ’s motion now that Flynn is seeking to rescind his earlier guilty plea.

Updated at 5:19 p.m.