Michael Flynn up to six months in prison?
Federal prosecutors on Tuesday recommended that former national security adviser Michael T. Flynn serve up to six months in prison, reversing their earlier recommendation of probation because of his drawn out attacks against the FBI and Justice Department. The dramatic revocation of the Justice Department’s request for leniency came weeks after Flynn’s sentencing judge on Dec. 16 categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election.
“It is within the government’s sole discretion to determine whether the defendant has ‘substantially assisted’ the government,” prosecutor Brandon Van Grack wrote in a 33-page court filing. “In light of the complete record, including actions subsequent to December 18, 2018, that negate the benefits of much of the defendant’s earlier cooperation, the government no longer deems the defendant’s assistance ‘substantial.’”
Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington, D.C. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request on Jan. 22. The government motion marked the latest twist in the legal saga of the former Army lieutenant general and Trump adviser, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him for helping them.
Flynn’s actions punctuated the beginning and end of special counsel Robert S. Mueller III‘s probe of Russian election interference, and his latest change of heart came after the investigation formally closed last March. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly for Flynn. A potential prison term could renew such calls.
Flynn, 61, pleaded guilty on Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office. Flynn faces up to a five-year prison term under the charge, which included his misrepresentation of work advancing the interests of the Turkish government.
However, ahead of Flynn’s initially scheduled sentencing in December 2018, prosecutors said he deserved probation for his “substantial assistance” in several ongoing but undisclosed investigations, as well as his disclosure of “firsthand information about the content and context of interactions between the transition team and Russian government officials.”
In a November 2018 filing with specifics redacted, Mueller wrote that Flynn’s guilty plea “likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate,” and some individuals gave additional details “about key events after his cooperation became public.”
And the special counsel noted that Flynn’s “early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight regarding events and issues under investigation by the SCO.”
Flynn’s plea revealed that he was in touch with senior Trump transition officials before and after his communications with Kislyak. The pre-inauguration communications involved efforts to blunt Obama administration policy decisions on sanctions on Russia and a United Nations resolution on Israel. Flynn told prosecutors that a “very senior member of the Presidential Transition Team” — Trump’s son-in-law, Jared Kushner, according to people familiar with the matter — directed him to contact officials from foreign governments, including Russia, about the U.N. resolution on Israel.
At the time of Flynn’s plea, prosecutors said they would likely seek a prison sentence between zero and six months. But based on his ongoing cooperation they recommended a sentence on the low end of that range, “including a sentence that does not impose a term of incarceration.”
Prosecutors singled out Flynn’s “exemplary” public service, including 33 years in the military and combat service, as a mitigating circumstance.
“The defendant’s record of military and public service distinguish him from every other person who has been charged as part [of] the SCO’s investigation,” prosecutors wrote in 2018. “However, senior government leaders should be held to the highest standards.” Flynn’s attorneys joined that recommendation.
But at last year’s Dec. 18, 2018, sentencing hearing, Sullivan lambasted Flynn’s attorneys for also suggesting prosecutors overreached and for appearing to play down his offenses. Under questioning by the judge, Flynn repeated under oath that he admitted he was guilty as Sullivan recited at length his misstatements to Vice President Pence, senior White House aides, federal investigators and the news media before and after Trump’s January 2017 inauguration about the nature of his foreign contacts.
“Arguably, you sold your country out,” Sullivan told Flynn, warning he might impose prison time. Flynn’s lawyers agreed to postpone the proceeding so that he could continue to show his good faith cooperation.
In a string of related developments this year, Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging that Flynn had been entrapped into pleading guilty, was actually innocent, and that prosecutors had wrongfully withheld evidence helpful to his defense.
Over the same period, Flynn broke with prosecutors over assisting them in the Alexandria federal trial of a former business partner in July. Flynn was set to be the star witness against his former business partner, Bijan Rafiekian, only to tell prosecutors on the eve of trial that he had not intentionally lied about his firm’s work in Turkey.
A jury convicted Rafiekian of illegal lobbying without Flynn’s testimony, but a judge threw out those convictions in part because he found the evidence of a conspiracy between the two men “insufficient.”
U.S. prosecutors in the Eastern District of Virginia have received permission to appeal that conviction to the Fourth Circuit Court of Appeals, writing in a motion Tuesday, “This case is significant, in both volume and importance.”
Separately in Flynn’s case, prosecutors cited the events as reasons for reassessing his cooperation at sentencing, which Sullivan scheduled after summarily rejecting the defendant’s 11th-hour allegations.
In Tuesday’s filing, prosecutors in withdrawing their request for leniency highlighted Flynn’s hindering of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.”