If prosecutors are rethinking their cooperation deal with former National Security Advisor Michael Flynn they’re keeping those cards close to their chest in a new filing with the judge overseeing Flynn’s case.
U.S. District Judge Emmet Sullivan ordered prosecutors and Flynn to explain what was happening after it was revealed that prosecutors had backtracked on their plans to call on Flynn to testify in the upcoming trial of Flynn’s former business associate.
The documents highlighted a dispute between prosecutors and Flynn’s new legal team over Flynn’s testimony about the foreign lobbying project for Turkey he worked on with the associate, Bijan Rafiekian (who also goes by Bijan Kian).
The dispute also suggests Flynn’s relationship with prosecutors has grown tense since he brought in the new group of lawyers — among them, a prominent critic of special counsel Robert Mueller — to replace the original set of attorneys that negotiated the plea deal.
In their filing with Sullivan Wednesday, prosecutors said they couldn’t “speculate” how the unsealed records in the Rafiekian case could affect the “government’s sentencing position” in the Flynn proceeding in front of Sullivan.
“Although the records raise numerous issues, the Rafiekian trial may still impact the government’s position,” the prosecutors said. “For example, 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.”
Their decision not to put Flynn on the stand did not change their position that Flynn’s sentencing could wait until after Rafiekian’s trial, the filing said.
The change in Flynn’s testimony plans in the Rafiekian’s case likely piqued Sullivan’s interest because, after a roller coaster of a hearing last December, Sullivan agreed to delay Flynn’s sentencing until after his cooperation in that case was completed.
Flynn was slated to be sentenced in December, but the sentencing memo his old attorneys filed enraged the judge by casting doubt on his guilty plea. Sullivan hinted Flynn could face prison time even though prosecutors weren’t asking for any. His lawyers successfully sought the delay so Flynn could receive the benefit of the cooperation he is offering in the Rafiekian case.
In a filing unsealed in the Rafiekian case Tuesday, Flynn’s new team of lawyers hit many of the similar notes of the December sentencing memo by criticizing some of the government’s tactics and by downplaying the seriousness of the conduct Flynn has already admitted. The current dispute is over whether Flynn knew at the time he filed foreign lobbying forms for his Turkey project that the forms were false. His new lawyers insist that he did not know they were false at the time he filed them and that that’s what he has consistently told investigators. The government, in one of the newly unsealed docs in the Rafiekian case, said it does “not necessarily agree with these characterizations.”
Flynn has been ordered to respond by Thursday to the filing with the prosecutors filed Sullivan.
Read the Justice Department’s new filing with Sullivan below: