Just hours after former National Security Adviser Michael Flynn argued in a court filing that prosecutorial misconduct in his case had been so egregious that it warranted dismissing the case entirely, prosecutors backed away from the harsh language they’d used in months past and said probation would be a “reasonable” sentence for Flynn.
Still, they maintained, sentencing guidelines allowed for the former Trump official to serve up to 6 months in prison for lying to the FBI.
It was just the latest bizarre back-and-forth in the government’s years-long effort to pin Flynn for lying about his contacts with the Russian ambassador to the United States just before the Trump administration began. Flynn’s turn against prosecutors has been fueled by his new defense team, hired last June and led by the prominent critic of Robert Mueller’s Russia probe, Sidney Powell.
In a lengthy set of filings Wedensday, Powell argued that prosecutors as well as Flynn’s old lawyers had hopelessly biased the case against him. The only answer, she said, was for Judge Emmett Sullivan to throw out the case entirely.
That followed another motion, earlier this month, to withdraw Flynn’s guilty plea. (Judge Sullivan, as it happens, has not been especially sympathetic to Flynn’s antagonistic and at times conspiratorial accusations against the government.)
In its sentencing memo Wednesday, prosecutors acknowledged Flynn’s motion to withdraw his plea — though they noted the several times in writing and in court that he had acknowledged his guilt — and said they would respond to it in a separate filing of their own.
“The task at hand is to impose an appropriate sentence for the defendant’s criminal conduct in lying to the FBI about his conversations with the Russian Ambassador,” they said.
On that front, the sentencing memo was slightly different than the memo prosecutors filed earlier this month.
In that filing, they pointed to other cases of defendants who had lied to the FBI and served prison sentences. No mention was made of a potential probation sentence. And though they mentioned Flynn’s extensive record of public service, that was followed by the caveat that Flynn’s national security past “should have made him particularly aware of the harm caused by providing false statements to the government.”
In the new filing, prosecutors went through each of Flynn’s military and government posts, listed examples of similar cases in which defendants had served probation, and explicitly said at the end of the memo that they did not oppose a probation sentence.
“Based on all of the relevant facts and for the foregoing reasons, the government submits that a sentence within the Guidelines range of 0 to 6 months of incarceration is appropriate and warranted in this case, agrees with the defendant that a sentence of probation is a reasonable sentence and does not oppose the imposition of a sentence of probation,” the memo concluded.
Flynn’s sentencing has already been delayed multiple times: Once after he downplayed his wrongdoing in court in 2018 — on the day he was set to receive a sentence — again late last year ahead of an inspector general’s report on the FBI’s conduct during the Russian election meddling investigation, and again this month when he filed to withdraw his guilty plea.
Read the DOJ filing below: