The cooperation relationship between former Trump National Security Advisor Mike Flynn and prosecutors appears to be under serious strain, according to new court filings unsealed Tuesday in the foreign lobbying case against his ex-business associate.
The court documents revealed that the prosecutors no longer intend to put Flynn on the stand for the trial and that they were now seeking to designate Flynn as a co-conspirator.
The move prompted an indignant objection from Flynn’s new team of lawyers, who called into question the government’s tactics while insisting that he was continuing to cooperate.
The dispute will fuel speculation that Flynn shook up his legal team to take a more hostile posture towards the Justice Department, as part of a play for a pardon from President Trump. Hours after the documents were unsealed, the judge presiding over Flynn’s case in D.C. ordered that both the government and Flynn explain what the new filings mean for the Flynn proceedings.
Flynn replaced his lawyers on June 12. The current dispute with prosecutors appears to have begun to bubble up just a week or two later.
The disagreement appears to be over Flynn’s claims that when he filed false registration forms about his Turkish lobbying — something he already admitted to as part of his plea deal — that he didn’t know at the time they were false.
The prosecutors, according to one of the unsealed docs, do “not necessarily agree with these characterizations.” Flynn’s new lawyers maintain that the position his consistent with what he previously told investigators.
They said in one of the filings that the government made an “about-face” on whether Flynn was a co-conspirator after he was unwilling to testify that he knowingly made false statements on the foreign lobbying registration forms at the time that he filed them.
In an email to TPM, Flynn’s new attorney Sidney Powell — who, before being hired, criticized special counsel Robert Mueller and suggested Flynn should walk away from his plea deal — said that Flynn was still cooperating with prosecutors even if they weren’t going to call him to the stand.
But she also said that “General Flynn followed the law and hired the FARA experts,” referring to the Foreign Agents Registration Act, which requires that foreign lobbying be disclosed to the Justice Department.
While Flynn has not been charged for a failure to disclose his lobbying for Turkey, his associate Bijan Kian was.
The government notified the court in a non-public filing last week that it was reversing its plans to use Flynn as a witness at Kian’s trial, which starts next week. Prosecutors also told the court in the July 3 filing that they were seeking to designate Flynn as a co-conspirator in the case, after representing last month in court that he was not a co-conspirator.
Flynn said in a Monday court filing that designation was “unnecessary” and was being done for the admission of one document being presented at the trial that could be admitted by other means
He said that, in addition to their statements in court, prosecutors represented to him that he not going to be charged as a coconspirator. He said he was continuing to cooperate with prosecutors even though Mueller’s office had said he had fulfilled the obligations of their cooperation deal with him.
While Flynn isn’t backing out of the cooperation deal, the filing took a notably aggressive tone and was critical of some of Justice Department’s tactics.
According to his filing, after Flynn’s new lawyers notified the prosecutors that he wouldn’t testify that he knowingly submitted the false FARA forms, the prosecutors requested that the new lawyers reconsider that position and that they review the notes of his former attorneys.
After that review, according to the filing, the new lawyers told the prosecutors they were “misunderstanding” the notes, prompting a “heated exchange” with Brandon van Grack, a former Mueller prosecutor who is working on Kian’s foreign lobbying case in Virginia.
The government went on to seek to interview former Flynn lawyer Robert Kelner about the notes and attempted to talk to Flynn’s son Mike Flynn, Jr., despite the younger Flynn asking that the FBI go through his attorney, according to Flynn’s filing.
Flynn was supposed to be sentenced in December in his separate case. However, his previous lawyers filed a sentencing memo casting doubt on his guilty plea that enraged the judge overseeing his case, U.S. District Judge Emmet Sullivan. Upon the suggestion of that judge, Flynn sought to push back the sentencing until he was done cooperating in the Kian case so that Sullivan could consider the full extent of his cooperation when he considered his sentence.
On Tuesday afternoon, in a order noting the unsealing of the documents in the Kian case, Sullivan requested that prosecutors tell the court by Wednesday how those record “impact the proceedings before this Court.” He is requiring Flynn to respond by Thursday.
This story has been updated to include an order from the judge in Flynn’s case.
Read the prosecutors’ filing and the Flynn filing below: