Prosecutors say they will 'reassess' position on Flynn sentencing after former partner's trial

Federal prosecutors on Wednesday expressed uncertainty at how the recent decision by the government to drop former national security adviser Michael Flynn as a trial witness against his former business partner should impact his sentence. 

Prosecutors in Washington, D.C., wrote in a new court filing that they plan to "reassess" their position on what sentence Flynn should receive after the trial of his onetime business partner Bijan Kian, also known as Bijan Rafiekian.

They noted the defense could still call Flynn as a witness at Kian's trial.


“At this time, the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court,” prosecutors wrote.   

“Rafiekian could call the defendant to testify at trial. As a result, the government intends to reassess its sentencing position at the conclusion of that trial,” they wrote.  

Court filings unsealed Tuesday revealed that federal prosecutors do not plan to call Flynn as a witness at Kian's trial in the Eastern District of Virginia, which is slated to start July 15.  

The revelation marked a surprising reversal, and filings suggested that prosecutors made the decision after Flynn walked back some of his statements and because they no longer trusted him as a witness.

Flynn was widely expected to testify against Kian, his former business partner at the now-defunct Flynn Intel Group, who was indicted last December for illegally lobbying on behalf of the Turkish government.

Flynn pleaded guilty to lying about his contacts with the Russian ambassador to the U.S. as part of a deal to cooperate with former special counsel Robert MuellerRobert (Bob) Swan MuellerLewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network Mueller report fades from political conversation MORE in 2017.

While he was never charged in connection with the Turkey lobbying campaign, Flynn admitted to making false statements in Foreign Agents Registration Act filings as part of his plea deal to cooperate with the government.

Flynn abruptly delayed his sentencing in December after Judge Emmet Sullivan, an Obama appointee overseeing his case in D.C., harshly criticized Flynn for his crime. Flynn did so to complete his cooperation with the government, including presumably testifying at Kian’s trial.

The new developments could adversely impact Flynn’s efforts to get a probationary sentence. Mueller, citing his substantial assistance in the investigation, had recommended Flynn receive little to no jail time. Flynn's attorneys have recommended he receive probation. 

Prosecutors also indicated in the newly unsealed filings that they intend to designate Flynn as a co-conspirator in the case in order to introduce statements made by Flynn regarding the firm’s lobbying at Kian’s trial.

Flynn’s attorney Sidney Powell said Tuesday that her client is still cooperating with the government and criticized prosecutors for attempting to designate him as a co-conspirator.

“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,” Flynn’s legal team wrote in a memo unsealed Tuesday. 

On Tuesday, Sullivan instructed government attorneys to file a submission by 5 p.m. Wednesday explaining how the developments would “impact” the proceedings in Washington, D.C.

Flynn’s attorneys are also required to submit their response by Thursday.