Michael Flynn may have given extraordinary cooperation to prosecutors, but the run-up to his sentencing hearing on Tuesday has exposed raw tensions over an FBI interview in which the former national security adviser lied about his Russian contacts.
Flynn’s lawyers have suggested that investigators discouraged him from having an attorney present during the January 2017 interview and never informed him it was a crime to lie.
Prosecutors shot back: ‘He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth.’
The mere insinuation of underhanded tactics was startling given the seemingly productive relationship between the two sides, and it was especially striking since prosecutors with special counsel Robert Mueller’s office have praised Flynn’s cooperation and recommended against prison time.
The defense arguments spurred speculation that Flynn, 59, may be trying to get sympathy from President Donald Trump or may be playing to a judge known for a zero-tolerance view of government misconduct.
Liar, liar: Michael Flynn will be sentenced for admitting lying to the FBI about his contact before the 2016 election with Sergei Kislyak, then Putin’s ambassador to Washington D.C.
At his side: Flynn became a vocal supporter of Trump and spoke at campaign rallies such as this one in Grand Junction, CO, and the Republican national convention in Cleveland, OH, where he led chants of ‘lock her up’
Notorious meeting: Flynn traveled to Moscow in December 2015 and dined with Vladimir Putin to celebrate the 10th anniversary of RT, the Russian English-language propaganda channel
What a change of tone: In the run-up to his former aide’s sentencing, Trump has turned from portraying him as a liar to saying that he did not, as the president steps up his attacks on the Mueller probe
‘It’s an attempt, I think, to perhaps characterize Flynn as a victim or perhaps to make him look sympathetic in the eyes of a judge – and, at the same time, to portray the special counsel in a negative light,’ said former federal prosecutor Jimmy Gurule, a University of Notre Dame law school professor.
Until the dueling memos were filed last week, the sentencing hearing for Flynn – who pleaded guilty to lying about a conversation during the transition period with the then-Russian ambassador – was expected to be devoid of the drama characterizing other of Mueller’s cases.
Prosecutors, for instance, have accused former Trump campaign chairman Paul Manafort of lying to them even after he agreed to cooperate.
Another potential target, Jerome Corsi, leaked draft court documents and accused Mueller’s team of bullying him.
And George Papadopoulos, a Trump campaign adviser recently released from a two-week prison sentence, has lambasted the investigation and publicly claimed that he was set up.
Flynn, by contrast, has been notably silent even as his supporters advocated a more combative stance. He met privately with investigators 19 times and provided cooperation so extensive that prosecutors said he was entitled to avoid prison altogether.
Then came his sentencing memo.
Although Flynn and his attorneys stopped short of any direct accusations of wrongdoing, they took pains to note that Flynn, unlike other defendants in Mueller’s investigation, was not informed that it was against the law to lie to the FBI.
They suggest the FBI, which approached Flynn at the White House just days after Trump’s inauguration, played to his desire to keep the encounter quiet by telling him the quickest way to get the interview done was for him to be alone with the agents – rather than involve lawyers.
They also insinuate that Flynn, of Middletown, Rhode Island, deserves credit for not publicly seizing on the fact that FBI officials involved in the investigation later came under scrutiny themselves.
Former Deputy Director Andrew McCabe, who contacted Flynn to arrange the interview, was fired this year for what the Justice Department said was a lack of candor over a news media leak.
Peter Strzok, one of the two agents who interviewed Flynn, was removed from Mueller’s team and later fired for trading anti-Trump texts with another FBI official.
Tarnished: Flynn (left) became a three-star general while his brother Charlie (right) became a two-star general. Now one brother’s service is overshadowed by his guilt. His mother Helen (center) had nine children with the Flynn’s later father, Charles
Sentenced: Flynn will join his former cohort Michael Cohen – Trump’s fixer – in having been sentenced. Cohen is due to report to federal prison in March
Business partners: Flynn was in business with Bijan Kian (second left). Kian, an Iranian-American, is now indicted on charges of lobbying illegally along with Flynn, who appears to have flipped on him. Flynn’s wife Lori is expected at his sentencing
Mueller’s team has sharply pushed back at any suggestion that Flynn was duped, with prosecutors responding in their own sentencing memo Friday that there was no obligation to warn Flynn against lying.
‘A sitting National Security (Adviser), former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents,’ prosecutors wrote.
Former FBI Director James Comey criticized the broadsides on the Flynn investigation during a Monday appearance on Capitol Hill, saying, ‘They’re up here attacking the FBI’s investigation of a guy who pled guilty to lying to the FBI.’
Trump has made no secret that he sees Mueller’s investigation as a ‘witch hunt’ and has continued to lash out at prosecutors he sees as biased against him and those who help them.
He’s shown continued sympathy for Flynn, though, calling him a ‘great person’ and asserting – erroneously – that the FBI has said he didn’t lie.
Flynn has not tried to retract his guilty plea, and there’s every indication the sentencing will proceed as scheduled.
Arun Rao, a former Justice Department prosecutor in Maryland, said the defense memo is striking because it’s ‘inconsistent’ with Flynn’s cooperative stance so far.
‘You also wonder in this very unusual situation,’ he said, ‘whether it is a play for a pardon.’
It’s also possible that at least some of the defense arguments may resonate with U.S. District Judge Emmet Sullivan, who directed prosecutors to produce FBI records related to Flynn’s interview.
Scalp: Flynn will become the fourth of Robert Mueller’s targets to be sentenced
Sullivan was the judge in the Justice Department’s botched prosecution of now-deceased Republican Sen. Ted Stevens of Alaska.
He dismissed the case after prosecutors admitted that they withheld exculpatory evidence, prompting the judge to say that in nearly 25 years on the bench, ‘I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.’
In an opinion piece for The Wall Street Journal last year, Sullivan said the case inspired him to explicitly remind prosecutors in every criminal case before him of their obligation to provide defendants with favorable evidence. He says he has encouraged colleagues to do the same.
But while Sullivan has proved especially sensitive to hints of government overreach, nothing about the Flynn case comes close, said Gurule, the law professor.
‘To portray him as somehow an innocent dupe, as somehow just this innocent victim in the process, this suggestion that there was a perjury trap – it’s an absurd allegation,’ he said.
But the sentencing also comes the day after a dramatic move by Mueller to arrest Flynn’s former business partner and reveal that Flynn had been part of an effort to lobby illegally.
Bijan Kian, an Iranian-American who was number two to Flynn was arrested and appeared in federal court in Washington D.C. before being freed on bail.
He is charged with a plot to lobby for Turkey without declaring that he and Flynn’s firm was working for the Turkish government, breaking the Foreign Agent Registration Act which makes it illegal to lobby for foreign governments without registering with the State Department. Kian has yet to enter a plea.
Also indicted was the business partner who worked with him and Flynn, Turkish-Dutch dual national Ekim Alpetkin, who is the subject of an arrest warrant and thought to be in Turkey.
Kian and Alpetkin are accused in court papers of a plot to convince the U.S. government to extradite or otherwise expel Fethullah Gulen, a Turkish cleric who is a deadly rival of the country’s strongman president Recep Tayyip Erdogan.
Mueller says in the court papers that with Flynn, who is referred to a ‘Person A’ they placed an op-ed in The Hill newspaper without acknowledging that it was at the prompting of the Turkish government.
Flynn wrote the op-ed and his firm, The Flynn Intel Group, was paid $600,000 for their lobbying campaign – but he is not indicted himself in what appears to be a sign that he flipped on his former associates.
The special counsel has praised the former Trump administration official for his ‘substantial help’ in several investigations. It is believed this is one of them.
ROBERT MUELLER’S PROBE SO FAR: EIGHT CONVICTIONS – INCLUDING THREE TOP TRUMP AIDES, A JAILED ATTORNEY AND 25 RUSSIANS ACCUSED
GUILTY: MICHAEL FLYNN
Pleaded guilty to making false statements in December 2017. Awaiting sentence
Flynn was President Trump’s former National Security Advisor and Robert Mueller’s most senior scalp to date. He previously served when he was a three star general as President Obama’s director of the Defense Intelligence Agency but was fired.
He admitted to lying to special counsel investigators about his conversations with a Russian ambassador in December 2016. He has agreed to cooperate with the special counsel investigation.
GUILTY: MICHAEL COHEN
Pleaded guilty to eight counts including fraud and two campaign finance violations in August 2018. Pleaded guilty to further count of lying to Congress in November 2018. Sentenced to three years in prison and $2 million in fines and forfeitures in December 2018
Cohen was Trump’s longtime personal attorney, starting working for him and the Trump Organization in 2007. He is the longest-serving member of Trump’s inner circle to be implicated by Mueller. Cohen professed unswerving devotion to Trump – and organized payments to silence two women who alleged they had sex with the-then candidate: porn star Stormy Daniels and Playboy model Karen McDougal. He admitted that payments to both women were felony campaign finance violations – and admitted that he acted at the ‘direction’ of ‘Candidate-1’: Donald Trump.
He also admitted tax fraud by lying about his income from loans he made, money from taxi medallions he owned, and other sources of income, at a cost to the Treasury of $1.3 million.
And he admitted lying to Congress in a rare use of the offense. The judge in his case let him report for prison on March 6 and recommended he serve it in a medium-security facility close to New York City.
GUILTY: PAUL MANAFORT
Found guilty of eight charges of bank and tax fraud in August 2018. Pleaded guilty to two further charges. Awaiting sentence
Manafort worked for Trump’s campaign from March 2016 and chaired it from June to August 2016, overseeing Trump being adopted as Republican candidate at the Republican National Convention in Cleveland. He is the most senior campaign official to be implicated by Mueller. Manafort was one of Washington D.C.’s longest-term and most influential lobbyists but in 2015, his money dried up and the next year he turned to Trump for help, offering to be his campaign chairman for free – in the hope of making more money afterwards. But Mueller unwound his previous finances and discovered years of tax and bank fraud as he coined in cash from pro-Russia political parties and oligarchs in Ukraine.
Manafort pleaded not guilty to 18 charges of tax and bank fraud but was convicted of eight counts. The jury was deadlocked on the other 10 charges. A second trial on charges of failing to register as a foreign agent is due in September.
GUILTY: RICK GATES
Pleaded guilty to conspiracy against the United States and making false statements in February 2018. Awaiting sentence
Gates was Manafort’s former deputy at political consulting firm DMP International. He admitted to conspiring to defraud the U.S. government on financial activity, and to lying to investigators about a meeting Manafort had with a member of congress in 2013. As a result of his guilty plea and promise of cooperation, prosecutors vacated charges against Gates on bank fraud, bank fraud conspiracy, failure to disclose foreign bank accounts, filing false tax returns, helping prepare false tax filings, and falsely amending tax returns.
GUILTY AND JAILED: GEORGE PAPADOPOLOUS
Pleaded guilty to making false statements in October 2017. Sentenced to 14 days in September 2018, and reported to prison in November. Served 12 days and released on December 7, 2018
Papadopoulos was a member of Donald Trump’s campaign foreign policy advisory committee. He admitted to lying to special counsel investigators about his contacts with London professor Josef Mifsud and Ivan Timofeev, the director of a Russian government-funded think tank.
He has agreed to cooperate with the special counsel investigation.
GUILTY AND JAILED: RICHARD PINEDO
Pleaded guilty to identity fraud in February 2018. Sentenced to a year in prison
Pinedo is a 28-year-old computer specialist from Santa Paula, California. He admitted to selling bank account numbers to Russian nationals over the internet that he had obtained using stolen identities.
He has agreed to cooperate with the special counsel investigation.
GUILTY AND JAILED: ALEX VAN DER ZWAAN
Pleaded guilty to making false statements in February 2018. He served a 30-day prison sentence earlier this year and was deported to the Netherlands on his release
Van der Zwaan is a Dutch attorney for Skadden Arps who worked on a Ukrainian political analysis report for Paul Manafort in 2012.
He admitted to lying to special counsel investigators about when he last spoke with Rick Gates and Konstantin Kilimnik.
GUILTY: W. SAMUEL PATTEN
Pleaded guilty in August 2018 to failing to register as a lobbyist while doing work for a Ukrainian political party. Awaiting sentence
Patten, a long-time D.C. lobbyist was a business partner of Paul Manafort. He pleaded guilty to admitting to arranging an illegal $50,000 donation to Trump’s inauguration.
He arranged for an American ‘straw donor’ to pay $50,000 to the inaugural committee, knowing that it was actually for a Ukrainian businessman.
Neither the American or the Ukrainian have been named.
CHARGED: KONSTANTIN KILIMNIK
Indicted for obstruction of justice and conspiracy to obstruct justice. At large, probably in Russia
Kilimnik is a former employee of Manafort’s political consulting firm and helped him with lobbying work in Ukraine. He is accused of witness tampering, after he allegedly contacted individuals who had worked with Manafort to remind them that Manafort only performed lobbying work for them outside of the U.S.
He has been linked to Russian intelligence and is currently thought to be in Russia – effectively beyond the reach of extradition by Mueller’s team.
INDICTED: THE RUSSIANS
Twenty-five Russian nationals and three Russian entities have been indicted for conspiracy to defraud the United States. They remain at large in Russia
Two of these Russian nationals were also indicted for conspiracy to commit wire fraud and 11 were indicted for conspiracy to launder money. Fifteen of them were also indicted for identity fraud.
Vladimir Putin has ridiculed the charges. Russia effectively bars extradition of its nationals. The only prospect Mueller has of bringing any in front of a U.S. jury is if Interpol has their names on an international stop list – which is not made public – and they set foot in a territory which extradites to the U.S.
INDICTED: MICHAEL FLYNN’S BUSINESS PARTNERS
Bijan Kian (left), number two in now disgraced former national security adviser Mike Flynn’s lobbying company, and the two’s business partner Ekim Alptekin (right) were indicted for conspiracy to lobby illegally. Kian is awaiting trial, Alptekin is still to appear in court
Kian, an Iranian-American was arrested and appeared in court charged with a conspiracy to illegally lobby the U.S government without registering as a foreign agent. Their co-conspirator was Flynn, who is called ‘Person A’ in the indictment and is not charged, offering some insight into what charges he escaped with his plea deal.
Kian, vice-president of Flynn’s former lobbying firm, is alleged to have plotted with Alptekin to try to change U.S. policy on an exiled Turkish cleric, Fethullah Gulen, who lives in Pennsylvania and who is accused by Turkey’s strongman president Recep Tayyip Erdogan, of trying to depose him.
Erdogan’s government wanted him extradited from the U.S. and paid Flynn’s firm through Alptekin for lobbying, including an op-ed in The Hill calling for Gulen to be ejected. Flynn and Kian both lied that the op-ed was not paid for by the Turkish government.
The indictment is a sign of how Mueller is taking an interest in more than just Russian involvement in the 2016 election.