Flynn attorneys say new developments should have 'no negative impact' on sentencing

Flynn attorneys say new developments should have 'no negative impact' on sentencing
© Aaron Schwartz

Attorneys for Michael Flynn argued Thursday that prosecutors’ decision to drop the onetime national security adviser as a trial witness against his former business partner should have “no negative impact” on his sentencing.

“There should be no negative change in Mr. Flynn’s status before this Court because of anything in the [Eastern District of Virginia],” Flynn’s attorneys Jesse Binnall, Sidney Powell and William Hodes wrote in a court filing.

Flynn’s attorneys also said a recent filing from government lawyers included “intimations” that it would attempt to increase Flynn’s sentence depending on his testimony at the separate trial, but asserted that “there is no basis to do so.”

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Court filings unsealed earlier this week revealed that prosecutors in Virginia do not plan to call Flynn as a witness at the upcoming trial of his former business partner Bijan Kian, also known as Bijan Rafiekian.

Kian has been indicted for failing to register as a foreign agent for the Turkish government. The charges against him stem from the now-defunct Flynn Intel Group’s lobbying campaign against Turkish cleric Fethullah Gülen.

The court documents suggested federal prosecutors no longer believe Flynn’s characterizations about how he made a filing under the Foreign Agents Registration Act (FARA) that included false information.

Judge Emmet Sullivan, the Obama appointee overseeing Flynn’s case in Washington, D.C., had asked prosecutors and Flynn’s counsel to separately weigh in on how the developments would impact his sentencing.

Flynn’s attorneys argued Thursday that his statements have remained consistent and accused prosecutors of “retaliation” because his statements did not reflect their views of the matter. 

“Regardless of who might call Mr. Flynn as a witness, his testimony remains consistent with his grand jury testimony—which the government used to obtain the Rafiekian indictment,” they wrote. “Furthermore, the government has already acknowledged Mr. Flynn’s substantial assistance.”

Flynn, who was ousted from the Trump administration a month after being installed as national security adviser, pleaded guilty to lying to the FBI about his contacts with Russia's ambassador to the U.S. as part of a deal to cooperate with special counsel Robert MuellerRobert (Bob) Swan MuellerSpeier says impeachment inquiry shows 'very strong case of bribery' by Trump Gowdy: I '100 percent' still believe public congressional hearings are 'a circus' Comey: Mueller 'didn't succeed in his mission because there was inadequate transparency' MORE in 2017. He was widely expected to take the witness stand at Kian’s trial, scheduled to begin next week.

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

Prosecutors have signaled they want to designate Flynn as a co-conspirator to introduce his statements at Kian’s trial, something his attorneys have pushed back on. 

The revelations earlier this week marked a surprising turning point in his case, suggesting his cooperation had taken a turn for the worse. Prosecutors in D.C., where Flynn’s own case is being handled, wrote in a filing Wednesday that they planned to “reassess” their position on what sentence Flynn should receive after Kian’s trial.

Meanwhile, prosecutors in Virginia said Thursday they plan to call Flynn's son as a witness against Kian. 

Flynn’s sentencing, which was delayed in December, has not been scheduled. Mueller initially recommended he receive little to no jail time, and his attorneys have pushed for a probationary sentence. 

Flynn’s attorneys emphasized in the filing Thursday that he has spent 30 hours cooperating with prosecutors in the Eastern District of Virginia alone and has incurred “hundreds of thousands of dollars” in legal and other costs.

Flynn’s attorneys also reiterated that they have a “massive” amount of files to review in his case – spanning four hard drives that exceed 253 gigabytes of documents – and have identified “crucial and troubling issues that should concern any court” in the course of their initial review. The attorneys did not provide further detail of those issues, but hinted they would address them in subsequent filings or hearings. 

They also tersely noted that Flynn’s lawyers are “fielding demands for production of documents and testimony from multiple Congressional committees despite huge productions Covington made to four committees back in March of this year.”

This week’s developments are the latest in a string of turns in Flynn’s case. He abruptly fired his attorneys and replaced them with Powell, a conservative legal commentator and Mueller critic, as lead counsel just last month. 

Powell made an appearance on Capitol Hill earlier Thursday, telling The Hill that Flynn is “continuing to cooperate” with the government.”

“We're doing everything we possibly can,” Powell said.