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Michael Flynn's attorney asked Trump to hold off on pardon

The lead defense attorney for Michael Flynn said Tuesday that she has asked President Trump not to pardon her client.  

Though she was reticent about discussing her communications with the White House during a federal court hearing, Sydney Powell admitted that she had spoken with President Trump and his legal adviser recently about the status of the former national security adviser's legal troubles.

Tuesday's hearing comes after a summer of appeals court battles which determined that the presiding lower court judge, Emmet Sullivan, does not have to immediately approve Attorney General Bill Barr's request to dismiss the charges against Flynn. Instead, Sullivan may proceed with his own review of the matter, the appeals court decided. While a presidential pardon would end Flynn's years-long legal saga, it would come months after the government had already moved to dismiss the criminal charges. 

However, before that decision by the Justice Department, the president had said in March that he was "strongly considering" a full pardon for Flynn.

When Powell was first asked by Sullivan whether or not she had spoken with Mr. Trump about the case, she replied, "I have not your honor, while the case is pending pre-motion to dismiss or otherwise — other than an update as to what happened in it." 

Confused by her answer, Sullivan repeated his question. This time, Powell declined to answer. 

"I would think that any conversations that I had with the president would be protected by executive privilege," she said.

"But you don't work for the government," Sullivan pointed out. 

Powell maintained that she did not view executive privilege as limited only to those who work for the government. Under further questioning, she acknowledged that she had spoken in person with Mr. Trump and his legal counsel, Jenna Ellis, in the past couple of weeks to update them on Flynn's case, and to ask that "he not issue a pardon." 

She couldn't recall the number of times she has spoken with the president, noting that the New York Times has reported she has spoken with him on five occasions. But she made clear that she had only spoken with Mr. Trump about the pending litigation in Flynn's case on one occasion.  

When asked whether or not she had asked the president to instruct Barr to replace the prosecutors on the case, she replied, "Oh heavens, no."

"I never discussed this case with the president until recently, when I asked him not to issue a pardon and gave him a general update on the status of the litigation," Powell maintained. 

During the nearly six-hour hearing, she railed against the proceedings that have continued against Flynn, calling them "a hideous abuse of power that continues to this very minute."

Former Judge John Gleeson, appointed by Sullivan to argue in opposition to the government's move to dismiss the charges against Flynn, said the government of twisting itself  into "contortions" to appease Flynn's friends in high places in the government, including the President. He reiterated his position that Sullivan, as the presiding judge, has a duty to review the matter before him in full, and not simply "rubber stamp" the government's request.

"Once a prosecution has commenced, once the government brings a criminal charge by indictment or information into your courtroom, the power to dismiss it is qualified. You are not only entitled but you are obligated to demand the reasons and to evaluate the reasons," Gleeson said. "You are not required to act like you were born yesterday."

While Gleeson repeated his argument that the government actions were rooted in political bias and pressure from the White House, prosecutor Kenneth Kohl, from the District of Columbia U.S. attorney's office, rejected that claim.

"I have been around the courthouse for three decades. I am the senior ranking career person right now, and I wanted to appear today because the allegations against our office that we would somehow operate or act with a corrupt political motive just are not true," Kohl said. "I have never seen it in my entire career in our office and it didn't happen here. I am here to say that the U.S. attorney's office decision to dismiss this case was the right call, for the right reasons."

Flynn originally pleaded guilty in December 2017 to lying to the FBI about his contacts with the former Russian ambassador to the U.S., Sergey Kislyak, shortly after the 2016 presidential election. The case against Flynn stemmed from the FBI's investigation into Russian meddling in the presidential election, but was later prosecuted by special counsel Robert Mueller's office. 

With a new legal team in place, Flynn moved to withdraw his guilty plea in January, after accusing the government of acting in "bad faith," and for withholding exculpatory evidence pertinent to his case. Less than six months later Barr announced that the department would dismiss new charges, after determining that the FBI's interview of Flynn was not conducted for any "legitimate investigative basis."

Under his original plea agreement, Flynn cooperated with federal investigators, which led to a delay in his original sentencing date in December 2018 before Judge Sullivan. 

Sullivan made no rulings after the hearing, and has taken the matter under advisement, but has promised to make his decision with "dispatch."

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