Michael Flynn won't testify against former business partner, will be designated co-conspirator

Federal prosecutors will not call President Trump’s former national security adviser Michael Flynn to testify at the upcoming trial of his former business partner Bijan Kian and plan to list him as an unindicted co-conspirator in the case, according to a court order issued Tuesday.

The order from U.S. District Judge Anthony Trenga in the Eastern District of Virginia cites a July 3 notice filed under seal by the government “stating that the government will not be calling Michael T. Flynn as a witness in its case-in-chief.”

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A separate court filing made by Kian’s attorneys that was unsealed Tuesday indicates that the government is no longer entirely confident in Flynn as a witness. 

The filing cites a July 2 email in which government attorneys wrote that they “do not necessarily agree” with Flynn’s characterizations about how he made a filing under the Foreign Agents Registration Act (FARA) that included false information about links between his company’s lobbying and the Turkish government. 

The email states that, according to Flynn’s new lawyers, he did not provide his attorneys with false information, did not read the FARA filing before he signed it, and didn’t know it contained false information.

Flynn was never charged in connection with the Turkish lobbying campaign, but admitted to making false statements in FARA filings as part of a deal to cooperate with special counsel Robert MuellerRobert (Bob) Swan MuellerFox's Cavuto roasts Trump over criticism of network Mueller report fades from political conversation Trump calls for probe of Obama book deal MORE

Federal prosecutors now plan to introduce statements made by Flynn regarding the case as evidence against Kian, rather than allow the former Trump official to take the stand, according to the newly released documents.

“At trial, the government will ask the court to find, based upon a preponderance of the evidence presented at trial, that Flynn was a co-conspirator in the conspiracy charged in the superseding indictment,” federal prosecutors wrote in one filing.

Sidney Powell, Flynn’s attorney, told The Hill in a statement that Flynn is still cooperating with the government and argued that the government could submit evidence relating to Flynn’s involvement in the case without labeling her client as a co-conspirator.

“General Flynn followed the law and hired the FARA [Foreign Agents Registration Act] experts. The government is seeking to admit one document as ‘coconspirator hearsay’ even though it is otherwise admissible,” Powell said. “Judge Trenga hasn't ruled on anything yet but unsealing. General Flynn is still cooperating with the government even if they don't call him as a witness.”

Flynn filed a 113-page memo opposing the co-conspirator designation on Monday.

“While Mr. Flynn does not dispute the government’s right to decide how to present its case and which witnesses to call, the government’s sudden decision to reverse its long-stated position that Mr. Flynn is its cooperating witness, and to turn him into an unindicted coconspirator, is extremely prejudicial to Mr. Flynn,” the memo reads.

In the memo, Flynn’s attorneys argued that listing him as a co-conspirator “sounds an alarm of possible retaliation and may have ramifications for Mr. Flynn beyond this trial.”

They further criticized the government for now changing Flynn’s designation in the case, after repeatedly informing the former national security adviser that he was not implicated in Kian’s conspiracy charges. 

“Not only did the government, in response to a direct question, unequivocally state that Mr. Flynn was not a member of the conspiracy, but in the course of further questioning on the nature of the testimony Mr. Flynn would give, the government reiterated, ‘we do not contend that Mr. Flynn was a member of the conspiracy.’”

“Because counsel’s clear representation to the court was knowing and wholly unambiguous, it should be binding,” the lawyers added.

Kian was charged alongside Turkish national Kamil Ekim Alptekin last December with acting as an unregistered foreign agent for Turkey in connection with the now-defunct Flynn Intel Group’s lobbying campaign against Turkish cleric Fethullah Gulen.

Flynn was widely expected to testify at Kian’s trial, which is slated to begin July 15.

Powell said at a status conference on June 24 in Washington, D.C. — where Flynn’s separate case is being handled — that her client still anticipated testifying against Kian.

“Oh yes, sir. That cooperation is fully ongoing,” Powell told Judge Emmet Sullivan, a Clinton appointee.

Flynn pleaded guilty to lying to the FBI about his discussions with the Russian ambassador as part of a deal to cooperate in Mueller’s now-shuttered Russia investigation in December 2017. In addition to providing information relevant to the Russia probe, Flynn also cooperated with the government on other matters, including the Kian case.

Flynn initially was scheduled to be sentenced in December, shortly after the indictment against Kian was unveiled. But he abruptly delayed his sentencing in order to complete his cooperation in the Kian case, after Sullivan excoriated him for his crime in Washington, D.C., and suggested he would receive jail time. Mueller, citing Flynn’s substantial assistance, had recommended he receive little to no jail time.

The new developments could increase the likelihood that Flynn receives prison time for his offense.

Tuesday’s filing indicates that a hearing was held in Alexandria, Va., the same day that Flynn challenged the new designation, about whether the court filings should remain under seal.

Trenga, appointed by President George W. Bush, said in the order that he determined that some of the court documents should be unsealed, while others — largely those made by government lawyers — should remain under guard.

Kian pleaded not guilty shortly after he was charged and is set to go to trial next week.

The indictment, which was updated in May, alleges that Kian, who is also known as Bijan Rafiekian, and Alptekin “conspired covertly and unlawfully to influence U.S. politicians and public opinion concerning a Turkish citizen living in the United States whose extradition was then being sought by the Government of Turkey.”

Flynn’s name does not appear in the original indictment but he matches the description of “Person A,” who is described as one of the founders of “Company A.”

Tuesday’s news marks the latest development in Flynn’s legal saga. The onetime Trump campaign aide and White House official sparked a firestorm last month when he decided to fire his Covington & Burling attorneys and brought on new representation, Powell, a conservative legal commentator and author who has been critical of the Mueller investigation.

The development raised speculation that Flynn could be angling for a pardon from Trump.

At the status conference last month, Powell said she needed at least 90 days to prepare for Flynn’s sentencing, noting she has three hard drives of information to review. Sullivan ordered the parties to file their next status report at the end of August.

Updated at 5:04 p.m.