Flynn attorneys argue against jail time for former national security adviser

By Josh Gerstein

Former national security adviser Michael Flynn should get probation and no jail time if he’s sentenced next month on a felony false-statement charge he pleaded guilty to in special counsel Robert Mueller’s investigation, Flynn’s lawyers told a federal judge Wednesday.

Attorneys for Flynn argued in a new court filing that he deserves leniency for his more than three decades of Army service before taking a top job in President Donald Trump’s White House. The former three-star general’s tenure in the Trump administration was short-lived after he wound up in the crosshairs of investigators for his statements to the FBI in the early stages of its investigation into links between the Trump campaign and Russia.

“Mr. Flynn dedicated his life to serving his country,” Flynn lawyer Sidney Powell and her co-counsel wrote. “While the defendants in other cases cited by the government were working to benefit themselves, Mr. Flynn wrote a blank check on his life and put himself in harm’s way for more than five years in foreign deployments and thirty-three years of service to protect all Americans.”

Flynn’s lawyers’ Wednesday filing urged U.S. District Court Judge Emmet Sullivan to spare Flynn prison time, essentially a backup plan if the attorneys fail in the central thrust of their current strategy: trying to get Sullivan to unwind Flynn’s guilty plea on the grounds that he was essentially tricked into it by conniving prosecutors and by inept lawyers whom he replaced last year.

“There should be no sentencing,” Flynn’s defense contends bluntly in the new brief.

After the switch in Flynn’s legal team, his defense lawyers began airing increasingly strident allegations of prosecutorial misconduct against the main attorney who handled the case for Mueller, Brandon Van Grack, as well as FBI agents and others.

That campaign culminated last week in a formal motion from Flynn’s defense to withdraw the guilty plea he tendered in December 2017 when he became the only Trump administration official charged in the Mueller probe.

After that motion, Sullivan put off Flynn’s long-delayed sentencing by about a month, to Feb. 27. The judge agreed to another filing from the defense this week and will receive the government’s official response early next month, but he has also left the sentencing on the calendar, necessitating the filing from Flynn’s lawyers Wednesday recommending a sentence.

In arguing for probation and community service for the former Defense Intelligence Agency chief who lasted just 25 days as national security adviser before being fired by Trump, the defense team also railed against the conduct of the prosecution — and, specifically, Van Grack, who is continuing to handle the case now in a special capacity for the U.S. attorney’s office in Washington.

The defense brief bristles with anger over the prosecution’s decision to step back from an acknowledgment in 2018 that Flynn provided “substantial assistance” to Mueller’s probe and other investigations. Prosecutors said a change in stance by Flynn about admissions he made regarding paid advocacy work he did for Turkish interests during the 2016 campaign amounted to a reversal on his part and set back the prosecution of one of Flynn’s former business partners, Bijan Rafiekian.

However, Flynn’s legal team says the government was trying to bully him into lying about the events surrounding the Turkey-related lobbying project.

“That the government now tries to walk back its position regarding Mr. Flynn is purely retaliation and vindictiveness by the prosecution,” the defense added. “Mr. Van Grack’s attempt to punish Mr. Flynn for rejecting his insistence to commit perjury is a pedagogical example of ‘actual vindictiveness.’”

Powell argues that if Flynn’s assistance was “substantial” two years ago, it remains so today despite the recent blowup with prosecutors.

“This Court should swiftly reject the government’s brazen attempt to punish Mr. Flynn for refusing to compose rather than sing,” Powell wrote. “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.”

At an initial sentencing hearing in December 2018, the prosecution did not oppose the defense’s proposal that Flynn get probation, which is a common sentence in false-statement cases. However, Sullivan sent signals that he was considering sentencing Flynn to some time behind bars. While sentencing guidelines call for a sentence of zero to six months in custody, the judge can impose a term up to five years.

That sentencing was postponed to allow Flynn to cooperate further with the government by testifying at Rafiekian’s trial. But that testimony never happened after prosecutors decided to drop Flynn from their case.

The defense also took issue Wednesday with prosecutors’ suggestion in a recent filing that Sullivan may wish to consider that another Mueller probe defendant, former deputy campaign chairman Rick Gates, got a 45-day prison sentence after pleading guilty to conspiracy and false statements.

Flynn’s lawyers noted that while Gates pleaded guilty to embarking on a series of financial and foreign agent-related crimes with former Trump campaign chairman Paul Manafort, Flynn pleaded guilty to just one count of making false statements.

“While Mr. Flynn was overseas protecting our country and supporting his family on a military salary, Mr. Gates was conspiring to make himself and Mr. Manafort millions through tax evasion,” Powell wrote.

The Flynn case could have yet another twist. Trump has the power to wipe out any sentence Flynn receives by granting him a pardon, something some of the retired military official’s family members have long been calling for. The president to date has dodged questions about the prospects of a pardon for his former aide while still repeatedly expressing support for him.