U.S. prosecutors said Wednesday they could change their recommendation that former Trump national security adviser Michael Flynn be sentenced to probation, not prison, depending on his role in next week’s trial of his former business partner.
Court filings unsealed this week revealed the government no longer intended to call Flynn as a witness because they do not believe his version of events. That prompted a federal judge in the District to ask how the decision would affect Flynn’s own criminal sentencing, which has been on hold pending his cooperation with prosecutors.
Prosecutors said it was not yet clear, and their views could change depending on whether Flynn testifies as a defense witness in next week’s trial in Alexandria of Bijan Rafiekian, who is accused of illegally lobbying for Turkey while running a consulting firm with Flynn.
The government said it is too soon to draw conclusions about Flynn’s cooperation since pleading guilty in Dec. 2017 to lying to FBI agents about his contacts with Russia’s ambassador. In his plea deal in special counsel Robert S. Mueller III’s Russia probe, Flynn agreed to provide information and testify fully and truthfully about all matters requested, or else face the potential for a longer sentence or even additional charges.
In a two-page filing Wednesday, prosecutor Brandon L. Van Grack told U.S. District Judge Emmet G. Sullivan of the District, “At this time the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position,” which is that Flynn deserves probation, not prison time.
Van Grack added, “Although the government will no longer call the defendant as a witness in that case, because the defendant could be called to testify by Rafiekian, the government still believes that the sentencing hearing should be scheduled to follow the completion of that trial.”
Flynn’s attorneys have until 5 p.m. Thursday to respond.
U.S. prosecutors in Rafiekian’s case had previously said they expected Flynn to serve as a key witness about the pair’s work with Turkish officials in 2016 to craft a persuasion campaign against exiled cleric Fethullah Gulen.
Prosecutors contend that Dutch-Turkish businessman Ekim Alptekin acted as a go-between so Flynn and Rafiekian could avoid being labeled as foreign agents. Alptekin is charged in the case but remains abroad.
Through attorneys, Flynn maintains that he is still cooperating and has not changed his story about the work of the Flynn Intel Group. In his guilty plea on Dec. 1, 2017, the retired lieutenant general admitted both concealing the nature of his contacts with Russian Ambassador Sergey Kislyak and making false statements regarding his Turkish dealings.
Flynn admitted lying when he retroactively filed under the Foreign Agent Registration Act, including that he wrote an anti-Gulen op-ed on “his own initiative” and that his consulting firm “did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project.”
Flynn is now claiming that it was his former attorneys at Covington & Burling who “under extreme and unprecedented pressure” from the government wrote an inaccurate FARA filing that he did not read before signing.
Flynn fired his Covington defense team last month, replacing them with conservative lawyer and commentator Sidney Powell, a critic of the Mueller investigation.
In a statement Wednesday, Covington & Burling said, “Our ethical obligations, including obligations to former clients, at this time prevent us from commenting publicly on this matter.”
U.S. prosecutors revealed in documents unsealed Tuesday in Rafiekian’s case that they “do not necessarily agree” with Powell’s “characterizations” of Flynn’s new defense position, marking a significant break between Flynn and the government.
Late Tuesday, Judge Anthony J. Trenga, who is presiding over Rafiekian’s case, ruled that at this point, Flynn could not be deemed a co-conspirator in the case. Trump tweeted the news Tuesday night, implying he considered it a victory for his former adviser. But Trenga’s ruling did not rest on any evaluation of Flynn’s cooperation or level of candor; instead he found that the government had failed to provide enough evidence that a conspiracy existed.
Trenga issued an opinion saying evidence of Rafiekian’s guilt is “substantially undercut by his contemporaneous conduct, which included seeking out legal advice concerning his FARA disclosure obligations.”
The judge added that “there is no contention, or evidence proffered” that when writing the FARA filing the attorneys involved were unable to review “e-mails and other documents” that prosecutors say reveal conspiratorial intent.
Trenga also ruled that the government cannot tell jurors that Turkey paid for the project — although they can point to evidence that Rafiekian was told about Turkish funding. But he declined defense attorneys’ motion to dismiss the indictment.
Flynn and Rafiekian hired Covington in late 2016 after officials at the Justice Department reached out, concerned by the op-ed.
The FARA filing for the consulting firm ultimately stated that, “Although the Flynn Intel Group was engaged by a private firm, Inovo BV, and not by a foreign government, because of the subject matter of the engagement, Flynn Intel Group’s work for Inovo could be construed to have principally benefited the Republic of Turkey.”