Federal prosecutors are seeking a delay in the case of former national security adviser Michael Flynn, arguing that his request to withdraw his guilty plea may require testimony from his former lawyers.

In unusual Sunday morning court filings, the U.S. Attorney’s Office in Washington did not explicitly call for a postponement of Flynn’s scheduled Feb. 27 sentencing on a single felony charge of making false statements to the FBI, but suggested putting off looming deadlines in a way that would make it unlikely for any sentencing to take place this month.


The new filings say Flynn’s claims that he received ineffective assistance from his former lawyers at the premier D.C. law firm Covington & Burling will require information and perhaps testimony from those attorneys. The government is asking U.S. District Court Judge Emmet Sullivan to issue an order that Flynn has waived attorney-client privilege in those communications.

“The government requests that the Court suspend the current briefing schedule concerning the defendant’s [motion] until such time as the government has been able to confer with Covington regarding the information it seeks,” prosecutors wrote. “While Covington has indicated a willingness to comply with this request, it has understandably declined to do so in the absence of a Court order confirming the waiver of attorney-client privilege.”

The pair of prosecution filings submitted on Sunday do not bear the signature of Brandon Van Grack, a former member of special counsel Robert Mueller’s team who has been the lead attorney on the case since its outset.

The new submissions are signed by an assistant U.S. attorney in Washington, Jocelyn Ballantine, who has helped handle Flynn’s case since Mueller’s office shut down last May. The filings are the first in the case submitted under the authority of Tim Shea, the new, interim U.S. attorney for the District of Columbia appointed last month by Attorney General William Barr.


Shea, a former aide to Barr, previously worked as an attorney at major law firms and counsel for Republican-led House and Senate committees.

After Mueller’s office closed, Van Grack had continued to shepherd the Flynn case as a special assistant U.S. attorney in Washington while also serving in a newly created Justice Department position overseeing enforcement of the Foreign Agent Registration Act.

A spokeswoman for the U.S. Attorney's office declined to offer an explanation of why Van Grack‘s name was not on Sunday’s filings or his status on the Flynn case, but a department spokesman said on Sunday evening that Van Grack remained in his position overseeing FARA matters.

According to court papers, Van Grack is the prosecutor who passed on some or all of the information Flynn is now saying he wasn‘t adequately informed about by his lawyers. Van Grack also had contacts with Flynn's previous attorneys about potential conflicts in the case and obtained assurances that Flynn had waived those concerns.


It is possible Van Grack was left out of the latest submissions because he, like the Covington lawyers, could wind up as a witness at a hearing that Sullivan is considering holding on Flynn‘s request.

Flynn’s new legal team, led by a longtime Mueller critic, Sidney Powell, initially opposed prosecutors’ efforts to delay filings on his plea withdrawal until further discussions take place with Covington. Sullivan had ordered prosecutors to submit their response by Wednesday.

“Our position is that at the minimum, the Department of Justice should agree to withdrawal of the plea,” Flynn’s defense team said in a statement that prosecutors included in one of their new filings. “Accordingly, we oppose any further extension of the briefing schedule.”

However, later Sunday, Flynn's lawyers told the court they'd consent to a delay and would like two weeks to respond to the government's request for an order allowing Covington to reveal privileged, attorney-client communications. Flynn's new counsel also said they'd like to meet with prosecutors to discuss the issue, but could not do so until next week at the earliest.

Sullivan did not immediately rule on the request or indicate his plans for the Feb. 27 sentencing hearing.

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In December 2017, Flynn became the only former Trump administration official to plead guilty in the Mueller investigation by admitting to a felony charge of lying in a federal investigation.

The charge centered on his statements to FBI officials in January of that year during his brief tenure as President Donald Trump‘s national security adviser. Flynn admitted lying about his contacts with the Russian ambassador and about the Trump transition team‘s efforts to influence a United Nations vote condemning Israel. Flynn also admitted to making false statements in filings submitted to a Justice Department office about his work on a Turkey-related advocacy project during the Trump campaign, although that was not a part of the formal criminal charge.

Flynn was originally scheduled to be sentenced in December 2018, but Sullivan put off the sentencing after a tumultuous hearing in which Flynn ultimately asked for more time to complete his cooperation with prosecutors by testifying at an expected trial of a former partner on the Turkey-related project, Bijak Rafiekian.


After Flynn parted with his Covington defense team, Robert Kelner and Steven Anthony, last June and signed on with Powell and a new set of defense lawyers, prosecutors abandoned plans to have Flynn testify at the Rafiekian trial. Prosecutors said Powell indicated to them that Flynn planned to back away from his admissions in the 2017 plea and insist that any falsehoods in the submissions about the Turkey-related lobbying were inadvertent or the fault of Flynn‘s former attorneys.

Beginning in June, Powell also started urging Barr and other Justice Department officials to drop the prosecution of Flynn, contending that he was a victim of overzealous and unethical personnel at the FBI and in Mueller‘s office. Flynn‘s defense also asked Sullivan to grant them access to nearly 50 categories of information they said would bolster their claims of outrageous government conduct.

Sullivan rejected that motion in December in a blistering opinion that dismissed the accusations of FBI misconduct and accused Flynn of trying to wriggle out of a guilty plea that he voluntarily offered and repeatedly confirmed under oath in court.

Trump praised Flynn‘s decision to shift lawyers and has made numerous statements expressing sympathy with his former aide. Allies of Flynn, a former Army lieutenant general and Defense Intelligence Agency chief, have urged the president to pardon him. Trump has been noncommittal about a pardon.