WASHINGTON — A federal judge on Thursday ordered the release of a voicemail that one of President Donald Trump's lawyers left for former national security adviser Michael Flynn's lawyer in November 2017 after learning Flynn was pulling out of a joint defense agreement with the president.
The voicemail was left by John Dowd, who served as one of Trump's personal lawyers in the Mueller investigation until Dowd resigned in March 2018. According to Robert Mueller's report, on Nov. 22, 2017, Flynn's counsel alerted Trump's lawyers that Flynn was withdrawing from the joint defense agreement and could no longer share confidential information.
That evening, Dowd called Flynn's lawyer Robert Kelner and left a message. Flynn publicly entered a guilty plea the following week and revealed that he was cooperating with investigators, but from Dowd's message, it appeared the president's lawyers were still trying to understand at the time why Flynn had withdrawn. If Flynn had made a deal with prosecutors, Dowd said, "remember what we've always said about the president and his feelings toward Flynn, and that still remains."
Nov. 22, 2017, voicemail from John Dowd to Michael Flynn's lawyer Robert Kelner.
The transcript of the voicemail had already been made public — special counsel Mueller included an edited version in his final report, and prosecutors released the full transcript in late May in Flynn's criminal case after the judge ordered them to do so. Audio of the call hadn't been released before now, however.
Mueller highlighted Dowd's message in the volume of his report exploring whether Trump committed obstruction in the course of the special counsel's investigation into Russian interference in the 2016 election. According to the report, after Flynn's lawyers reiterated to Dowd that they could no longer share information, Dowd "was indignant and vocal in his disagreement" and said he interpreted it as "hostility" toward Trump. (The report doesn't name Dowd, but in the voicemail he identifies himself as "John," and Dowd has confirmed it was him.)
Mueller wrote that Flynn's lawyers told investigators they believed Dowd's response "to be an attempt to make them reconsider their position because the President's personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President."
Ultimately, Mueller wrote that because of "privilege issues" — there are limits on prosecutors' access to attorney-client communications — his office couldn't know if Trump was involved in or knew about the messages his lawyer was delivering to Flynn's lawyer. That meant they couldn't say if the messages amounted to potential obstruction by the president.
In a written statement after the release of the voicemail transcript last month, Dowd called Mueller's report "a baseless, political document designed to smear and damage the reputation of counsel and innocent people."
Mueller decided he would not reach a decision about whether Trump engaged in obstruction, citing long-standing Justice Department policy against indicting a sitting president. Attorney General Bill Barr announced that in the absence of a conclusion from Mueller, he had reviewed the evidence and determined it did not support finding that Trump committed a crime.
Dowd's voicemail came up in Flynn's criminal case because prosecutors referenced it in a memo arguing that Flynn had given "substantial" assistance to the government and should get credit for that at sentencing. They wrote that Flynn had aided the special counsel in probing potential efforts to interfere with the Russia investigation.
"The defendant informed the government of multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could have affected both his willingness to cooperate and the completeness of that cooperation," prosecutors wrote. "The defendant even provided a voicemail recording of one such communication."
That prompted US District Judge Emmet Sullivan to order the government to file a transcript of the voicemail on the public docket, as well as "any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn's conversations with Russian officials." Flynn pleaded guilty to lying to the special counsel's office, including about his contacts during the presidential transition period with the Russian ambassador at the time.
The government, however, filed only the Dowd transcript. In a written response to the court, it said it was "not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record." That didn't mean other recordings didn't exist — the government didn't confirm that one way or the other — but that there were no other recordings the government was citing as part of Flynn's sentencing proceedings.
Flynn hasn't been sentenced yet. He appeared before Sullivan for a sentencing hearing in December, but in a surprise move he decided to postpone it until he'd finished cooperating. The judge had repeatedly questioned Flynn about whether he wanted to be sentenced without the court knowing the full extent of his cooperation, and that seemed to change Flynn's mind. Sullivan also had harsh words for Flynn about the crimes he'd pleaded guilty to and warned Flynn that he couldn't guarantee that Flynn wouldn't serve prison time.
"I'm not hiding my disgust, my disdain for this criminal offense," the judge said at the time.
When Flynn is sentenced, he'll be going in with different lawyers. Kelner filed a notice with the court Thursday that Flynn had fired his legal team and hired new counsel; Kelner didn't disclose who that would be, or why Flynn was changing course.