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Michael Flynn Defense Strategy Backfires: Prosecutors Now Recommending Time Behind Bars

Former Trump National Security Advisor Michael Flynn pleaded guilty to lying to the FBI, then he hired new lawyers who argued that the FBI and federal prosecutors committed egregious misconduct to put him away. For all of this trouble, federal prosecutors on Tuesday changed their sentencing recommendation from probation to months behind bars.

The government began its memo by noting that it initially recommended a sentence “at the low end of the Guidelines range,” given Flynn’s acceptance of responsibility and his willingness to cooperate in other cases. Unfortunately, prosecutors said, something changed, and so did their recommendation.

In particular, they said that Flynn’s “affirmative efforts to undermine” the prosecution of his ex-business partner Bijan Rafiekian and Flynn’s “apparent failure to accept responsibly” loomed large in the decision to recommend up to six months behind bars.

The defendant is now scheduled to be sentenced almost exactly three years from the date of his primary criminal conduct – lying to the FBI – and 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. 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.

Federal prosecutors previously rejected the claims by Flynn lawyer Sidney Powell that the government withheld exculpatory evidence. Powell claimed that government failed to produce Brady evidence (i.e. evidence favorable to the defense). Federal prosecutors responded by saying “each new argument or claim” made by the defense was “unsupported by fact or law, and does not identify favorable and material information that the government has failed to produce.”

The government said that the purportedly exculpatory evidence sought wasn’t favorable to the defense and had nothing to do with the false statements Flynn pleaded guilty to making to the FBI. In addition, prosecutors said, the defense made “no argument or facts” proving that Joseph Mifsud — a Maltese professor deposed in a now-criminal probe into the origins of the Mueller investigationwas somehow connected to Flynn’s communications with Russian ambassador Sergey Kislyak or Flynn’s work on behalf of Turkey.

Flynn’s sentencing is set for Jan. 28. Judge Emmet Sullivan, the federal judge who apologized after wondering aloud if prosecutors considered charging Flynn with treason, is presiding over the case. This is notable because:

Team Flynn is slated to respond on Jan. 22 with its sentencing request.

You can read the government’s 33-page memo below.

Flynn Memo by Law&Crime on Scribd

 

[Image via Alex Wroblewski/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.