Federal prosecutors on Tuesday called for up to six months of prison time for Michael Flynn, arguing that the former Trump national security adviser’s shift to a more combative defense strategy shows he’s no longer exhibiting the remorse he did in 2017.
The abrupt change in the Justice Department's stance comes after it initially said it was open to a sentence of probation as Flynn’s punishment when he was cooperating with government investigators in special counsel Robert Mueller’s sprawling investigation of ties between Donald Trump's campaign and Russia.
More than two years ago, Flynn became the only member of the Trump administration to plead guilty in the Mueller probe.
“Far from accepting the consequences of his unlawful actions, he has sought to blame almost every other person and entity involved in his case, including his former counsel. Most blatantly, the defendant now professes his innocence,” federal prosecutors wrote in a 33-page memo to the judge overseeing Flynn’s case.
Prosecutors seemed particularly aggrieved by Flynn’s actions in connection with a criminal case brought against his former partner in a lobbying and consulting firm, Bijan Rafiekian. By shifting his testimony just prior to the trial last summer, Flynn undermined the case, which the government won in front of a jury but later had thrown out by a judge, prosecutors argued.
“Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration,” they wrote.
The tougher line towards Flynn followed what appeared to be protracted behind-the-scenes deliberations at the Justice Department about whether to abandon the lenient stance Mueller’s office took over a year ago when prosecutors agreed that probation — and no jail time — would be a reasonable sentence for Flynn in light of his extensive cooperation.
The prosecution, handed to U.S. Attorney for the District of Columbia Jessie Liu last May following the closure of Mueller’s office, was supposed to reveal its final position on Flynn’s sentence in a written filing on Dec. 30.
However, shortly before the deadline, prosecutors said they needed an extra week to clear the Flynn submission with “multiple individuals and entities” who needed to review it. The prosecution also explicitly raised the prospect that the government might change the position it took in December 2018 when it credited Flynn with “substantial assistance” to investigators and called the 19 interviews he did with prosecutors and FBI agents “particularly valuable.”
On Saturday, prosecutors told U.S. District Court Judge Emmet Sullivan they’d be unable to complete the required consultations by the revised, Monday noon deadline and needed another 24-hour extension.
Sulllivan granted the government’s request for more time, but has kept the sentencing hearing set for Jan. 28, despite the recent delays.
Any prison sentence Sullivan imposes could wind up being little more than a formality, since Flynn’s family members are already publicly urging Trump to grant Flynn a pardon that would spare him any time behind bars.
Trump has been publicly noncommittal about a pardon, but has repeatedly expressed sympathy for Flynn. Indeed, one of the conversations that helped fuel the firing of FBI Director James Comey and set in motion Mueller’s appointment was the February 2017 exchange in which Comey claims Trump praised Flynn and urged investigators to go easy on him. Trump denied ever telling Comey to shut down the probe of Flynn. Trump attorney Rudy Giuliani went further, denying the president ever talked to Comey about Flynn.
Flynn was fired just 23 days into his tenure as national security adviser and began cooperating with Mueller’s investigation several months later. Trump said he fired Flynn because he had given Vice President Mike Pence inaccurate information about Flynn’s dealings with Russia during the transition, prompting Pence to issue false denials on the point.
Flynn pleaded guilty in December 2017 to a charge of making false statements to the FBI, but he admitted — or appeared to admit to — several acts of deceit, including lying to FBI agents about his conversations with the Russian ambassador on the issue of U.S. sanctions and with various diplomats about a United Nations resolution condemning Israeli settlement activity.sonos sonos One (Gen 2) - Voice Controlled Smart Speaker with Amazon Alexa Built-in - Black read more
Flynn also acknowledged submitting false and misleading information to the Justice Department about his advocacy for Turkish interests during the 2016 presidential campaign.
However, under a plea deal Flynn’s attorneys at the time, Robert Kelner and Stephen Anthony, hammered out with prosecutors for Mueller, Flynn pleaded guilty to just a single count of false statements. Prosecutors agreed not to file other charges if Flynn fully cooperated with the Mueller probe and other ongoing investigations.
The deal contemplated a sentence of between zero and six months for Flynn, leaving open the possibility he might escape jail time altogether. However, his ultimate sentence is in the hands of the judge and the false-statement charge carries a maximum possible sentence of five years in prison and a $250,000 fine.
At the initial sentencing hearing in December 2018, Sullivan — a Clinton appointee — took a strident tone with Flynn, prompting speculation that Flynn might face a prison sentence and not the one year of probation his defense lawyers were recommending.
“Arguably, you sold your country out,” the judge declared, drawing gasps and head shakes from members of Flynn’s family sitting in the courtroom.
Sullivan even asked Mueller prosecutor Brandon Van Grack a couple of times whether the special counsel considered charging Flynn with treason.
“That was not something that we were considering, in terms of charging the defendant,” van Grack replied.
After a recess, Sullivan seemed to say he’d overstepped in suggesting Flynn’s behavior was treasonous. “I wasn’t suggesting he’s committed treason,” the judge said.
But the judge’s unforgiving tone prompted Flynn’s lawyers to take Sullivan up on an offer to postpone the sentencing until Flynn could cooperate further with prosecutors by testifying at a planned trial of Rafiekian.
Prosecutors dropped plans to call Flynn as a witness in that case after Flynn parted ways with Kelner and Anthony last June and signed up a new legal team, headed by Texas lawyer Sidney Powell — a prominent critic of Mueller’s operation. Trump publicly hailed Flynn’s change of attorneys, but the relationship between his defense and prosecutors quickly soured.
Powell told government lawyers that if Flynn testified, he planned to say he did not deliberately lie about the Turkish lobbying project, but was only guilty of failing to adequately read the relevant filings before signing them. Prosecutors said the claim was a retreat from admissions Flynn made when pleading guilty and reaffirmed a year later.
Powell also mounted a more direct attack on the Flynn prosecution, demanding nearly 50 categories of records she said would help make the case that the retired Army general was railroaded into a guilty plea by corrupt FBI agents and prosecutors working with Flynn’s former lawyers. Powell said she planned to use the information to prepare a legal motion claiming the case against Flynn should be dismissed on grounds of outrageous government conduct.
Last month, Sullivan turned down every one of Powell’s discovery requests, saying that the information wasn’t helpful to Flynn or was already in his possession. Flynn’s defense has yet to file the dismissal motion they advertised.
Justice Department spokeswoman Kerri Kupec declined to comment on what role Attorney General Bill Barr or Deputy Attorney General Jeffrey Rosen played in discussions about what stance to take on Flynn’s sentence.
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