A14 N THE NEW YORK TIMES NATIONALMONDAY, JUNE 29, 2020
ward a once-obscure lawyer and a powerful
attorney general finding common cause in a
battle to dismantle the legacy of the investi-
gations into President Trump and his allies.
Ms. Powell’s slash-and-burn approach —
accusing the federal law enforcement ma-
chinery of concocting a case against her cli-
ent — failed in the courtroom last year when
a judge rejected her claims. But the same
strategy, which she amplified in frequent
media appearances, succeeded in turning
Mr. Flynn’s case into a cause for Mr.
Trump’s supporters and in securing the re-
view ordered by Mr. Barr that provided her
with fresh ammunition.
Mr. Barr’s subsequent decision to drop
the charge against Mr. Flynn threw the Jus-
tice Department into turmoil and set up a
high-stakes battle pitting the attorney gen-
eral and Ms. Powell against the trial judge,
Emmet G. Sullivan, who opened a review of
the move.
Ms. Powell and her client won a signifi-
cant victory on Wednesday when a divided
appeals court panel — in a surprise ruling
written by Judge Neomi Rao, a former
White House official whom Mr. Trump ap-
pointed to the bench — ordered Judge Sulli-
van to drop the case without scrutiny. Judge
Sullivan suspended his review but has not
dismissed the charge, suggesting that the
extraordinary legal and political saga is not
yet over.
Ms. Powell declined to discuss her con-
versations with the White House or her cor-
respondence with Mr. Barr. But she said in
an email that she had long considered
“prosecutorial misconduct and overreach”
a problem and that she viewed Mr. Flynn as
a victim of it.
At its core, Mr. Flynn’s case is a drama
about who gets to mete out justice in the
Trump era, upending the prosecution of a
man who twice had admitted guilt.
“It’s hard to think of anything remotely
like this,” said David Alan Sklansky, a Stan-
ford University law professor and former
federal prosecutor. “The Justice Depart-
ment has taken somebody who has twice
pleaded guilty, in a case where the trial
judge has considered and already rejected
claims of government wrongdoing, and
prosecutors now say we’d like to dismiss the
case and don’t think it should have been
brought in the first place.”
A Tough-Minded Judge
When Mr. Flynn stood in Judge Sullivan’s
courtroom on Dec. 18, 2018, his legal odys-
sey appeared to be over. He had struck a fa-
vorable deal with Mr. Mueller’s prosecutors
to cooperate after admitting to lying to
F.B.I. agents about conversations with the
Russian ambassador in late 2016. In ex-
change, prosecutors were recommending
he receive no prison time and not be pros-
ecuted for separate offenses related to his
lobbying for Turkish government without
registering as an agent of a foreign power.
But he did not go quietly. His defense
team, in a memo laying out what sentence
he should receive, also floated the notion
that Mr. Flynn had been set up. F.B.I. agents
had used several different tactics to essen-
tially trick Mr. Flynn, a retired Army three-
star general, into making false statements,
the memo suggested.
The Flynn defense team was trying to
have it both ways, and Judge Sullivan was
furious. He grilled Mr. Flynn about whether
he was truly taking responsibility for his
crimes and even suggested — before re-
tracting the notion — that Mr. Flynn had
been a traitor to his country. When it ap-
peared that Judge Sullivan might send Mr.
Flynn to prison, going beyond the original
recommendation of prosecutors, Mr. Flynn
and his lawyer, Robert K. Kelner, decided to
postpone the sentencing so he could contin-
ue to cooperate with prosecutors.
Judge Sullivan, appointed to the Federal
District Court by President Bill Clinton, has
a reputation as a hard-nosed jurist with a
disdain for prosecutorial misconduct. He is
known for taking guilty pleas seriously, and
he reminded Mr. Kelner that he had never
accepted one from someone who main-
tained he was not guilty and that he didn’t
“intend to start today.”
In his legal pivot, Mr. Flynn had chan-
neled the campaign led by Mr. Trump and
his allies that had portrayed the Russia in-
vestigation as a “witch hunt” and a plot to
sabotage his presidency. Since Mr. Flynn
had first pleaded guilty in 2017, Republicans
in Congress had taken up a campaign to un-
dermine the case against him and portray
him as a victim of overzealous prosecutors.
Some legal experts speculated at the time
that Mr. Flynn was accepting guilt to pocket
a sentence without prison time while also
preserving the possibility that Mr. Trump
might pardon him. His legal strategy would,
soon enough, become even more radical:
that he was innocent all along.
Flynn’s New Defense
One of Mr. Flynn’s most vocal defenders
was Ms. Powell, a Texas-based former fed-
eral prosecutor who had made no secret
about her view that the Russia investiga-
tion was a sham. She appeared frequently
on Fox News and had a website hawking T-
shirts mocking Mr. Mueller’s team as
“creeps on a mission.”
In early 2018, not long after Mr. Flynn’s
original guilty plea, Ms. Powell wrote an op-
ed alleging that “extraordinary manipula-
tion by powerful people led to the creation of
Robert Mueller’s continuing investigation
and prosecution of General Michael Flynn.”
She exhorted Mr. Flynn to drop his guilty
plea and, ironically, praised Judge Sullivan,
who had just taken over the case.
She called him the “perfect judge” for it
because of his handling years earlier of the
corruption case against former Senator Ted
Stevens, Republican of Alaska. In that case,
Judge Sullivan had been so furious after the
Justice Department disclosed that it had
failed to turn over evidence potentially
helpful to the defense that he opened an
ethics investigation into the prosecutors.
The department ended up asking Judge
Sullivan to dismiss the case despite having
won a guilty verdict — an outcome Ms. Pow-
ell seemed to view as a road map for Mr.
Flynn.
Her television advocacy on behalf of Mr.
Flynn appears to have had an influential
viewer: the president. The two spoke five
times in 2019, during the months before she
officially took on Mr. Flynn as a client, ac-
cording to a person familiar with the calls.
It is unclear what they discussed, but
when Ms. Powell persuaded Mr. Flynn and
his family to drop his original legal team
and allow her to take up the case, the presi-
dent was thrilled.
“General Michael Flynn, the 33 year war
hero who has served with distinction, has
not retained a good lawyer, he has retained
a GREAT LAWYER, Sidney Powell,” Mr.
Trump tweeted on June 13, 2019. “Best
Wishes and Good Luck to them both!”
She previewed her defense strategy in
the secret letter to Mr. Barr, asking him to
begin a hunt for materials that the depart-
ment could turn over. “At the end of this in-
ternal review, we believe there will be am-
ple justification for the department to follow
the precedent of the Ted Stevens case and
move to dismiss the prosecution of General
Flynn in the interest of justice,” she wrote.
As Mr. Flynn’s lawyer, she began de-
manding that the Justice Department turn
over more files, including documents that
were tangential to her client’s case but pro-
moted other right-wing conspiracy theories
about the Russia investigation.
She accused the F.B.I. and prosecutors of
engaging in a litany of misconduct that “im-
pugned their entire case against Mr. Flynn,
while at the same time putting excruciating
pressure on him to enter his guilty plea and
manipulating or controlling the press to
their advantage to extort that plea.”
Exasperated prosecutors attacked Ms.
Powell’s legal strategy, saying the “defend-
ant and his new counsel are in search of a
result, not the facts.”
She also made clear that her client was
done helping the Justice Department. Al-
most immediately after she began repre-
senting Mr. Flynn, he changed his story in a
prosecution in Virginia against his formerbusiness partner about their work for Tur-
key. Prosecutors decided against calling
him as a witness, significantly weakening
their case.A Conservative CauseMonths later, it was Ms. Powell’s defense
of Mr. Flynn that was collapsing.
In December, Judge Sullivan delivered a
stinging rebuke to her wide-ranging claims
of prosecutorial misconduct and other accu-
sations. In a 92-page opinion, he marched
through her allegations and rejected each
one.
It turned out that Judge Sullivan was not
the savior that Ms. Powell was looking for;
he even ruled that Mr. Flynn was no Ted
Stevens.
But in a different way, her strategy had
been a success: The case had become a po-
litical cause. While Judge Sullivan rejected
Ms. Powell’s claims of material law enforce-
ment misconduct as baseless, Fox News
and other conservative news outlets had
amplified them along the way.
“One of the things that General Flynn
wanted to do, he thought it was critically im-
portant that we empty out the swamp of all
the senior intelligence folks that are in
Washington, D.C.,” Representative Devin
Nunes, the California Republican on the In-
telligence Committee who has been a
staunch supporter of Mr. Trump and his the-
ories, said to applause at the Conservative
Political Action Conference in February. “So
they had a real reason to get rid of General
Flynn.”
This political chorus had already been
hard at work trying to undermine the con-
clusions of the voluminous special counsel’s
report. Mr. Mueller concluded that Russia
systematically tried to sabotage the 2016
election and that Mr. Trump’s advisers had
welcomed the help — even if he there was
insufficient evidence of a criminal conspir-
acy. He also found numerous times when
Mr. Trump tried to impede the Russia inves-
tigation, but chose not to determine
whether the president had illegally ob-structed justice.
Weeks after Judge Sullivan rejected Ms.
Powell’s assertions of prosecutorial miscon-
duct and was preparing to sentence Mr.
Flynn, Ms. Powell persuaded her client to
ask to withdraw his guilty plea and declare
to the judge that he was innocent.
Meanwhile, Mr. Barr was moving to take
direct control over the United States Attor-
ney’s Office for the District of Columbia,
which was handling several politically
charged matters.
Mr. Barr maneuvered the Senate-con-
firmed U.S. attorney, Jessie K. Liu, into leav-
ing early, and imposed his own aide, Timo-
thy J. Shea, as the acting head of the office.
At the same time, he appointed the U.S. at-
torney for St. Louis, Jeffrey B. Jensen, to ex-
amine the Flynn case.
It was exactly what Ms. Powell had asked
Mr. Barr to do in her secret letter six months
earlier.
Mr. Jensen scoured F.B.I. files in search of
anything that could be construed as so-
called Brady material — information Mr.
Flynn could use to argue that he was not
guilty — which had been withheld from the
defense. He found several files.
Many fell into a category of things that
made the F.B.I. look heavy-handed, but did
not change the narrow issue of whether Mr.
Flynn made false statements to the agents
who questioned him.
But Ms. Powell seized on the revelations
as proof that prosecutors had improperly
withheld exculpatory evidence, justifying a
dismissal of the case. Mr. Barr directed his
department to file a motion to dismiss the
charge.
The remarkable decision infuriated some
Justice Department officials and stunned
legal experts. Mr. Barr defended it last
week in an interview with NPR as appropri-
ate.
It also forced a showdown with Judge Sul-
livan, who had no intention of abandoning
the case so easily.
The judge ordered a new review, appoint-
ing John Gleeson, a former mafia prosecu-
tor and a retired federal judge from Brook-
lyn, to argue against the Justice Depart-
ment’s motion. In a scathing memo, Mr.
Gleeson urged Judge Sullivan to sentence
Mr. Flynn anyway, over prosecutors’ objec-
tions.
Trying to head that off, Ms. Powell asked
an appeals panel to order Judge Sullivan to
end the case without any review of the moti-
vation or legitimacy of the request. Legal
experts widely scoffed at her tactic, noting
that such orders are supposed to be re-
served for rare problems where no other op-
tion exists.
But Ms. Powell’s gambit led to a stroke of
luck. The case was randomly assigned to a
three-judge panel that included Judge Rao
and Judge Karen L. Henderson, a 1990 ap-
pointee of President George Bush, who
have both proved more willing than most of
their colleagues to interpret the law in Mr.
Trump’s favor in politically charged cases.
In a 2-to-1 ruling, the panel ordered Judge
Sullivan to shut down the case immediately,
saying he had no authority to scrutinize the
basis for Mr. Barr’s decision. The dissenting
judge on the panel accused his colleagues of
“grievously” overstepping their authority.
The ruling turned on a technical question
rather than the merits of the case, and it re-
mains to be seen whether the full appeals
court will let it stand.
But Mr. Trump and his allies have already
declared victory, inaccurately portraying
the decision as proof that Mr. Flynn has
been exonerated and should never have
been charged.Flynn’s Lawyer Worked to Enlist Allies in High Places
Michael T. Flynn,
above, President
Trump’s first national
security adviser, twice
pleaded guilty to lying
to the F.B.I. Attorney
General William P.
Barr, far right, decided
to drop the charge
against him. But the
trial judge, Emmet G.
Sullivan, right, has not
yet dismissed the
charge.JONATHAN ERNST/REUTERS‘It’s hard to think
of anything
remotely like this.’
David Alan Sklansky,
Stanford University law
professor and former federal
prosecutor.Sidney Powell, Mr. Flynn’s lawyer, sent a letter to Mr. Barr, asking for “utmost confidentiality” and a special review.ANDREW HARRER/BLOOMBERG NEWSDOMINIC BRACCO II/THE WASHINGTON POST, VIA GETTY IMAGES DOUG MILLS/THE NEW YORK TIMESFrom Page AMaggie Haberman and Katie Benner con-
tributed reporting.