DOJ Takes New Tougher Line On Michael Flynn’s Sentence

The Justice Department told a federal judge Tuesday that it believed former National Security Advisor Mike Flynn should serve between zero and six months in prison. The sentencing recommendation took a harsher tone than what the government filed in 2018 when Flynn was previously scheduled to be sentenced.

Prosecutors said that since Flynn pleaded guilty in 2017 to lying to the FBI, “the intervening years have included periods where the defendant has sought to assist and aid the government, and periods where the defendant has sought to thwart the efforts of the government to hold other individuals, principally Bijan Rafiekian, accountable for criminal wrongdoing.”

When he was set to be sentenced in Dec. 2018, the government asked that Flynn receive credit for both his “substantial” assistance and for his acceptance of responsibility. Now, however, prosecutors are withdrawing both requests, the filing said.

“Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration,” the filing said.

The 2018 sentencing hearing was called off after U.S. District Judge Emmet Sullivan became visibly angry with Flynn’s own efforts, in the sentencing memo he filed at the time, to play down his crime. Flynn’s lawyers successfully sought a delay in the sentencing so Flynn could get the full benefit of his cooperation, which at the time appeared set to include testimony at the summer 2019 trial of his former business associate Bijan Rafiekian.

However, in May 2019 Flynn fired those lawyers and hired a legal team led by an attorney known for her criticisms of special counsel Robert Mueller. The plan that Flynn testify at the Rafiekian trial fell apart, and he took a more hostile approach to prosecutors that culminated in claims of egregious government conduct that Flynn’s new lawyer said warranted the dismissal of the case.

Sullivan rejected those allegations, mostly based in far-right conspiracy theories about the Russia probe, and got sentencing for Flynn back on track for this month.

“Based on the defendant’s conduct since the time of the December 18, 2018, sentencing hearing, the government also does not believe the defendant should receive credit for acceptance of responsibility,” prosecutors said in their memo Tuesday. “Indeed, the government has reason to believe, through representations by the defendant’s counsel, that the defendant has retreated from his acceptance of responsibility in this case regarding his lies to the FBI. For that reason, the government asks this Court to inquire of the defendant as to whether he maintains those apparent statements of innocence or whether he disavows them and fully accepts responsibility for his criminal conduct.”

The latest sentencing memo notably went into greater detail about the seriousness of Flynn’s criminal conduct than prosecutors’ 2018 recommendation, where the tone was a bare bones presentation of facts.

“The defendant’s conduct was more than just a series of lies; it was an abuse of trust,” the DOJ said Tuesday. While the crime Flynn pleaded guilty to was false statements to the FBI about his 2016 Russian contacts, Tuesday’s memo included an extended discussion of the un-registered lobbying for Turkey Flynn also admitted to as part of his plea deal.

“During the entirety of the defendant’s time as the National Security Advisor and a senior advisor to the Presidential Transition Team, the public and our government did not know about his relationship with the Government of Turkey,” prosecutors said, again using a harsher tone than when they described Flynn’s Turkey conduct in 2018.

“Accordingly, while the defendant initially helped the prosecutors in EDVA bring the Rafiekian case, he ultimately hindered their prosecution of it,” the filing said.

The Justice Department brought up Sullivan’s own remarks at 2018’s abandoned sentencing hearing, during which the judge expressed his own reluctance to sentence Flynn before he had finished cooperating on the Rafiekian case.
“The Court’s concern that the parties had prematurely proceeded to sentencing was prescient,” the filing said.

Addressing Flynn’s suggestions, in court documents filed by his new attorney, that he was innocent, the government brought up Sullivan’s questioning of Flynn at the 2018 sentencing hearing. Sullivan asked Flynn several questions at the time confirming that Flynn was guilty of the crime he pleaded to and that he was not challenging the circumstances of his prosecution.

“The defendant’s recent conduct and statements dramatically differ from those representations to the Court, which he made under oath,” the Justice Department said Tuesday. It is requesting that Flynn not receive credit for accepting responsibility “unless he clearly and credibly disavows those statements in a colloquy with the Court.”

Flynn’s own sentencing memo is due Jan. 22. Sentencing is scheduled for Jan. 28.

Read the memo below: