The lead attorney representing former National Security Advisor and retired Lt. Gen. Michael Flynn admitted to bringing President Donald Trump into the loop on the high-profile case–immediately after purporting to invoke “executive privilege” on the matter.
During an oftentimes cantankerous portion of a technology-deficient hearing on Tuesday, Flynn’s attorney Sidney Powell stunned U.S. District Judge for the D.C. Circuit Emmet G. Sullivan into silence when the issue of Trump’s direct involvement arose.
Sullivan began his questioning of Powell by referring to a controversial letter she penned to Attorney General Bill Barr prior to her work on the case. The letter predicted Brady violations would come out and asked for the removal of all attorneys connected to the Russiagate investigation led by former special counsel Robert Mueller.
The judge then somewhat interrupted himself and asked, as a threshold matter, if Powell had ever spoke to the president about the Flynn case. A few beats passed before the attorney answered.
“I’m sorry your honor, I can’t discuss that,” Powell eventually said.
A bemused Sullivan pressed Powell as to why she couldn’t answer his question.
“I would think that any conversations I have had with the president would be covered by executive privilege,” Powell replied.
“You don’t work for the government,” Sullivan noted.
“I don’t think executive privilege only applies to people who work for the government,” Powell replied.
That’s not quite how executive privilege works–as noted by University of Michigan Law Professor Leah Litman:
the personal attorney for michael flynn is claiming that if she spoke to the President, she is … protected by executive privilege?
(that is not how executive privilege works.) https://t.co/Q2vrdE3gF6
— Leah Litman (@LeahLitman) September 29, 2020
“So you’re purporting to invoke executive privilege?” the increasingly astonished judge asked before attempting to ferret out additional details as to the general nature of the conversation. Powell eventually conceded that she personally gave Trump the outlines of her representation of Flynn so far.
“I provided it in person, before counsel for the president,” Flynn’s attorney clarified.
“Who did you speak to?” Judge Sullivan asked.
“I spoke with Jenna Ellis and I spoke to the president himself to provide him with a brief update on the status of the litigation in the past couple of weeks.”
Ellis is the Trump campaign’s senior legal advisor. She currently worked as a constitutional attorney and advocate for right-wing evangelical Christian interests.
“Did you make any requests?” Sullivan pressed.
“No, only that he not issue a pardon,” Powell said.
“How many discussions?” Sullivan demanded.
“That’s the only one I recall,” Powell demurred.
Sullivan again appeared distraught over the attorney’s response–asking whether or not she would remember a conversation with the president.
“What did you ask him to do in connection with this case?” Sullivan reiterated.
“I never discussed this case with the president until recently when I asked him not to issue a pardon and when I provided him with a general status update about the litigation,” Powell said–effectively ending this discrete line of inquiry.
The explosive news was quickly processed by Twitter users as a bombshell deserving of further inquiry:
Flynn’s lawyer is now claiming that her conversations with President Trump are protected by executive privilege.
(She isn’t a gov’t lawyer, or the president’s lawyer. This is INSANE.)
— Gabriel Malor (@gabrielmalor) September 29, 2020
Now is she doing this on behalf of her client, or the President, who she is apparently advising so seriously that she qualifies for executive privilege?
— Andrew Fleischman (@ASFleischman) September 29, 2020
When a private citizen speaks to the President of the United States, the contents of that conversation are not protected by executive privilege.
— Steve Vladeck (@steve_vladeck) September 29, 2020
[image via screengrab/Fox News]
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