A federal judge Thursday agreed to postpone Michael Flynn’s sentencing for another month while he considers the former Trump national security adviser’s recent request to withdraw his guilty plea over false statements to the FBI.
In his order, U.S. District Court Judge Emmet Sullivan set a new sentencing hearing for Feb. 27, while also spelling out a series of deadlines for lawyers in the case to explain their views on the retired Army general’s unusual move.
Flynn formally told Sullivan on Monday he wanted out of the plea deal he’d reached with then-special counsel Robert Mueller’s office in late 2017. That decision comes months after Flynn shifted to a more confrontational defense strategy, hiring new lawyers and fighting with federal prosecutors over planned testimony in a related criminal case.
The abrupt turn to a more combative style prompted federal prosecutors earlier this month to tell Sullivan that Flynn was no longer exhibiting the same remorse he did when he entered his guilty plea. As a result, DOJ prosecutors recommended that Flynn face a sentence of up to six months in prison, potentially a much stiffer penalty than probation, which the government seemed open to a year ago.
Flynn, the only Trump administration official to face criminal prosecution from the Mueller probe, pleaded guilty in December 2017 to making false statements about his dealings with the Russian ambassador and other diplomats during the Trump presidential transition. As part of his cooperation agreement, Flynn sat for 19 interviews with the Mueller team and other DOJ prosecutors.
The former Trump aide was on track to be sentenced at a December 2018 hearing but abruptly backed away after heeding Sullivan’s recommendation to first fulfill all his obligations to the government. Instead of following that path, Flynn shifted course by hiring a new legal team led by Sidney Powell, an outspoken critic of the DOJ and the Mueller probe.
In her filing Monday, Powell argued the government was at fault for breaching Flynn’s plea agreement. She pointed Sullivan to a long-running dispute with federal prosecutors over testimony her client had been preparing to give in the criminal trial last summer of his former business partner, Bijan Rafiekian.
Flynn’s lawyers had told the government before the Rafiekian trial that he planned to testify that any errors in submission to the DOJ were not deliberate attempts to mislead authorities but instead the product of oversight and inattention. That didn’t go over well with the federal prosecutors, who said Flynn was backing away from admissions he’d made in his guilty plea.
Ultimately, federal prosecutors opted against calling Flynn as a witness in the foreign lobbying case, which culminated in two guilty verdicts against Rafiekian that the judge later tossed out. That case is now on appeal.
Thursday’s order requires Flynn to file another brief by Wednesday explaining his reasons for backing out of the guilty plea. A government reply is due Feb. 5, with a final Flynn response due Feb. 12. Sullivan also postponed Flynn’s sentencing hearing — it had been set for Jan. 28 — until the end of next month.
Flynn’s predicament presents another election year hot potato to Trump, as many have speculated that Flynn's change in strategy is a bid for a pardon from Trump.
Flynn is not the only ex-Trump aide hoping for clemency from their former boss. One-time Trump political adviser Roger Stone will learn his fate before a different federal judge on Feb. 20, a little more than a week before Flynn’s next court hearing. A jury convicted Stone in November on seven felony counts of lying to investigators, obstructing a congressional probe and witness tampering. Those crimes carry a maximum sentence of 50 years in prison — prompting Stone allies to also urge Trump to issue a pardon.