Sidney Powell, the Dallas defense lawyer who rode into Washington determined to exonerate retired Army Lt. Gen. Michael Flynn, specializes in unearthing stashed evidence and prosecutorial misconduct.
She came to fame in the Enron scandal in Texas and then wrote a book about how corrupt she believes the U.S. Justice Department is.
Today, Ms. Powell is causing headlines in the conservative press and being cheered on by pro-Trump forces as she files motions in U.S. District Court depicting special counsel Robert Mueller’s probe as part of that corruption.
“Sidney is a smart and tough lawyer who demands that the prosecution play by the rules,” Tom Kirkendall, a Houston attorney and veteran of the Enron wars, told The Washington Times.
Ms. Powell faces a stiff test: It would be unusual for a judge to throw out a case after a defendant has pleaded guilty. She accuses the Obama Justice Department and the FBI of ambushing an unprepared Flynn at the White House. She says prosecutors withheld favorable evidence in his December 2017 guilty plea to lying to two FBI agents, one of whom is Peter Strzok, a detractor of President Trump.
She is putting the Trump-Russia saga on trial through court briefs that demand evidence on critical players such as Christopher Steele, the Hillary Clinton opposition research agent who went to the Kremlin to publish bogus charges against candidate Trump. She also wants a fuller picture of Joseph Mifsud, the Maltese professor who ingratiated himself to a Trump campaign adviser in London.
Flynn prosecutor Brandon L. Van Grack, a former Mueller team lawyer, has submitted replies denying all of this. He says no evidence that bears on Flynn’s guilty plea remains hidden, and he calls Ms. Powell’s writings “conspiracy theories.”
U.S. Judge Emmet G. Sullivan announced this week that he plans to make a ruling based on written filings.
Next to the prosecution of Flynn, who once held the lofty titles of Defense Intelligence Agency director and White House national security adviser, Ms. Powell’s most infamous case was the Enron energy scandal of the early to mid-2000s.
She entered the fray as an appeals specialist. She eventually acquired long-hidden Justice Department prosecution files that showed evidence had been withheld at trial from defense attorneys.
Enron’s chief prosecutor for a time was Andrew Weissmann, who eventually came to head the Justice Department’s fraud division. From there, Mr. Mueller, his old boss at the FBI, pulled him into the Trump-Russia investigation. Mr. Weissmann was one of a number of Democratic Party-aligned lawyers recruited by Mr. Mueller.
Ms. Powell filed ethics complaints against Mr. Weissmann. A New York regulatory lawyer rejected them though agreed that evidence was withheld in the Enron-related trial of Merrill Lynch executives.
Ms. Powell represented one of five Merrill Lynch traders who went to prison in the so-called Nigerian barge case, in which Enron sold a power-producing barge to Merrill Lynch supposedly to hide misdealings in 1999.
In 2006, the U.S. Court of Appeals for the 5th Circuit reversed all fraud convictions in the case but left Ms. Powell’s client with a perjury conviction. The appellate judges said Mr. Weissmann’s theory of the illegality of the traders’ actions was flawed.
What defense attorneys didn’t know then was the existence of favorable witness statements that the Weissmann team never shared. Ms. Powell told The Times in 2017 that prosecutors even yellow-highlighted the favorable information they withheld.
“The summaries were false,” William Hodes, an authority on lawyer ethics, told The Times in 2017. “They said things that the witnesses did not say. They themselves yellow-highlighted what they left out of the summaries. It’s astonishing. We should have gotten a new trial.”
Mr. Hodes has joined the Flynn defense team.
“All of the cases Weissmann pushed to trial were reversed in whole or in part due to some form of his overreaching and abuses,” Ms. Powell told The Times.
Trapping Flynn
Ms. Powell is applying her Enron lessons to the battle to cleanse the Flynn conviction.
Just like with the Enron case, she is sure there are Justice files that show the retired general is a victim of overzealous G-men and prosecutors.
Flynn pleaded guilty as Mr. Mueller’s agents were eying his son, Michael Flynn Jr., for prosecution on an illegal lobbying charge. At the same time, Flynn faced legal bills of more than $1 million from his previous legal team, forcing him to sell his home.
Flynn did not know the extent to which Mr. Strzok despised Mr. Trump until after he pleaded guilty. Then, on a Saturday, news of messages between Mr. Strzok and his FBI girlfriend leaked. Mr. Strzok had been fired from the Mueller team for bias months earlier.
Flynn also didn’t know that the FBI plotted to keep him away from counsel, something former Director James B. Comey bragged about at a public appearance. The agents surprised him with questions at the White House about his calls with Russian Ambassador Sergei Kislyak.
The agents went to the White House on Mr. Comey’s orders to investigate whether Flynn violated the rarely prosecuted Logan Act of 1799. It prohibits private citizens from dabbling in foreign affairs. Outgoing Obama appointees inside Justice raised the Logan Act with regard to Flynn.
The agents owned an intercept transcript and knew exactly what Flynn discussed regarding Obama-imposed sanctions against Russia. Flynn told the agents he didn’t remember everything he talked about with Mr. Kislyak but said he didn’t bring up sanctions — a lie.
“In this case, high-ranking FBI officials orchestrated an ambush-interview of the new president’s National Security Advisor, not for the purpose of discovering any evidence of criminal activity — they already had tapes of all the relevant conversations about which they questioned Mr. Flynn — but for the purpose of trapping him into making statements they could allege as false,” Ms. Powell said.
She said in her latest brief that agents edited their Form 302 interview reports to make Flynn seem more guilty.
In the air during all of Flynn’s travails was that he was a “Russian agent.” The media reports partly stemmed from his appearance on RT, Russian-state TV, and attended an RT dinner in Moscow, where he sat with Russian President Vladimir Putin.
“The FBI and DOJ wrote an internal memo dated January 30, 2017, exonerating Mr. Flynn of acting as an ’agent of Russia;’ and, they all knew there was no Logan Act violation,” Ms. Powell wrote in an Oct. 24 filing. “The government owes Mr. Flynn the full versions of these exculpatory statements. He has been smeared as being an agent of a foreign government for several years now.”
Judge Sullivan has scheduled a December sentencing. The prosecution is not recommending jail time.
Flynn’s guilty plea brought widespread media speculation that he would turn against the president and implicate him in a Russia election conspiracy. But Flynn did not.
No Trump associate was charged in any Russia conspiracy, which Mr. Mueller said his probe did not establish.
• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.
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