Michael Flynn (Photo by the Defense Department via Wikimedia)
“This Court should swiftly reject the government’s brazen attempt to punish Mr. Flynn for refusing to compose rather than sing.” So begins the latest motion filed by Michael Flynn’s melodramatic lawyer Sidney Powell, “paraphrasing an expression that Alan Dershowitz has used for decades.”
“Since November 2017 (and before), Mr. Flynn told the government the truth about every question it asked him,” she insists, swerving hard to avoid the giant whoppers he fed FBI agents that January about his conversations with then-Russian Ambassador Sergei Kislyak, while joking that the FBI probably knew exactly what he’d said because they were bugging Kislyak’s phone. Which … they were, so they knew he was lying. (Those parentheses are doing quite a lot of work here.)
Last week, Powell filed a motion to withdraw the former National Security Advisor’s 2-year-old guilty plea for making false statements to the FBI. She promises to brief the court real soon as to why her client is not guilty of conduct he’s now admitted to under oath on multiple occasions. But until then, she argues that he lacked the mens rea to commit the FARA violation he also admitted to in his plea but was never charged with, and, in the event the court does not accept the withdrawal of his guilty plea, deserves no jail time.
It’s … complicated. Hey, have you heard that Michael Flynn served in the military?
Powell argues that Flynn only realized in retrospect that he had falsely filled out the Foreign Agents Registration Act paperwork regarding his work for the Turkish government, and the real culprit is his prior counsel from Covington & Burling.
At the beginning of his cooperation, Mr. Flynn’s then-counsel and the government drafted a Statement of Offense. The government’s original draft contained language that would have Mr. Flynn claim that he “then and there knew” that the FARA filing made by Covington in March of 2017 was false. Mr. Flynn could not sign that assertion because it was not true. Instead, the parties agreed to remove that language.
Having belatedly realized his mistake, this highly decorated military man was thus unable to testify at the trial of his former partner Bijan Rafiekian. This severely damaged the government’s case against Rafiekian, which was built around Flynn’s testimony.
Unsurprisingly, this did not endear him to prosecutors, who have now withdrawn their recommendation that he receive no jail time. Also unsurprisingly, Powell would like the court to see Flynn’s reversal as honorable devotion to the truth, rather than welching on a deal and torpedoing the government’s case.
The reversal of its sentencing position is not only unjust, it is unlawful. If left unchecked, it will send a dangerous message to cooperators – give testimony consistent with the government’s theory of the case, regardless of veracity, or pay the price with your freedom.
Which is so unfair for a person who has served his country on the front lines!
On the one hand, Powell does have a point. At the December 18, 2018 sentencing hearing, prosecutors recommended a non-custodial sentence, saying that “the defendant had provided the vast majority of cooperation that could be considered.” The government declared his cooperation substantially complete a year ago, so it looks like retaliation to change their sentencing recommendation because he refused to cooperate more since then.
On the other hand, at that December 18 hearing an infuriated Judge Emmet Sullivan made it very clear that he was not content with Flynn’s cooperation, and told him to go cooperate a whole lot more if he wanted to stay out of the pokey. That was the hearing when Judge Sullivan asked prosecutors if they’d considered charging Flynn with treason.
Looking into the depths of his soul and discovering he didn’t really mean it when he attested to making “materially false statements and omissions” in his FARA paperwork is probably not what His Honor had in mind. Even for a man who spent decades in the military.
And it’s a safe bet that Powell’s yammering about prosecutor Brandon Van Grack trying to “force Mr. Flynn to lie for the government’s benefit” is not going to make Judge Sullivan less mad.
But perhaps he will be persuaded by five pages detailing Michael Flynn’s selfless devotion to the country through his decades of service. Were you aware that General Flynn was in the military? And that has to count for something, right?
US v. Flynn, Defendant’s Supplemental Sentencing Memo [Crim. No. 1:17-cr-00232-1 (D.D.C. Jan 22, 2020)]
Elizabeth Dye lives in Baltimore where she writes about law and politics.