The FBI interviewed Flynn on Jan. 24, 2017, as part of its investigation into Russian election interference and possible links between Russia and the Trump campaign. In his December 2017 guilty plea, Flynn admitted lying during that interview about his contacts with the Russian ambassador during the presidential transition. He also admitted making false filings under the Foreign Agents Registration Act (FARA) about his work on behalf of Turkey.
As part of his plea deal, Flynn cooperated extensively with the government in the Russia investigation. At an initial sentencing hearing in December 2018, prosecutors said they were pleased with his cooperation and did not oppose a sentence of probation. When it appeared Sullivan might send Flynn to prison anyway, his sentencing was delayed to allow him to cooperate further by testifying in the upcoming trial of his business partner, Bijan Rafiekian, for FARA violations related to Turkey.
In June 2019, shortly before the Rafiekian trial, Flynn fired his attorneys at Covington & Burling and hired Sidney Powell, a conservative lawyer and Fox News regular who is a harsh critic of the Justice Department. In court filings and in conservative media, Powell has consistently claimed that Flynn was unfairly ambushed by the FBI. In one pleading, she wrote that former FBI director James B. Comey and others plotted to “set up an innocent man and create a crime.”
Prosecutors now allege that shortly after Powell came on board, Flynn changed his story about Rafiekian’s FARA violations, and they ended up not calling him as a witness. Last week, prosecutors filed a new sentencing memo saying Flynn no longer deserves credit for cooperating and that a sentence within the sentencing guidelines range of zero to six months in prison would be appropriate.
That prompted Powell to file the motion to withdraw Flynn’s plea, alleging that the prosecutors’ arguments were “incredible, vindictive, in bad faith, and breach the plea agreement.”
Sullivan has a lot of discretion when it comes to Flynn’s motion. The federal rules provide that a guilty plea may be withdrawn before sentencing, but only if the defendant can show a “fair and just reason.” A defendant who pleaded guilty is presumed to have known what he was doing and can’t back out based simply on a whim or change of heart. And Flynn has actually confirmed twice that he wanted to plead guilty, once at his initial plea hearing and again at the hearing in December 2018. The judge would be on solid legal ground if he denied Flynn’s request.
But the argument for allowing a guilty plea to be withdrawn is strongest if the defendant is now claiming he is actually innocent. And that’s exactly what Flynn is saying: In the motion to withdraw the plea, Powell flatly asserts: “Michael T. Flynn is innocent.” Sullivan should put Flynn under oath and ask him if that’s his claim. If Flynn says yes, I think Sullivan should grant the motion.
In her zeal to cast her client as a victim, Powell may have overplayed her hand. Flynn has essentially no leverage; his cooperation is completed, and he has nothing the government wants. Even without credit for cooperation, he was facing only zero to six months, the lowest possible range of prison time in the federal guidelines. But if his plea deal is scrapped, the government will be free to prosecute Flynn not only on the original false statement charge but also for any other crimes, such as FARA violations. It also would be free to use against him any statements made during his grand jury testimony and in his many meetings with government investigators.
I’m sure prosecutors would prefer to put this case behind them. And yes, given Powell’s antics, it would be a nasty trial. But the government has a strong case. And if the judge denies Flynn’s motion and sentences him anyway, it will only feed the claims that Flynn has been railroaded. It will make him an even greater martyr in conservative circles: the patriot who was victimized by the deep state even as he protested his innocence. It might even increase the odds of a pardon from Trump, who could claim Flynn was treated unfairly by the FBI the president so clearly loathes.
In her motion to withdraw the plea, Powell states: “Justice is not a game.” On that point, she’s exactly right. Enough of Flynn’s games. The government should call his bluff. Let him withdraw the plea, indict him and convict him in a jury trial where the public hears the evidence of his guilt.