New Evidence In Michael Flynn Case Shows Government Prosecutors Pushed Him To Lie

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Yesterday, Michael Flynn’s attorney, Sidney Powell, filed a Motion to Withdraw his Guilty Plea, arguing the government breached its obligations under the plea agreement the retired general had entered with the special counsel’s office in late 2017. Prosecutors had promised in that plea agreement to “file a departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines” if Flynn provided substantial assistance to the government.

The government kept that pledge—until it didn’t.

On December 4, 2018, prosecutors working for the special counsel’s office filed a Memorandum in Aid of Sentencing, stating that the government has moved for a downward departure pursuant to Section 5K1.1, to reflect Flynn’s “substantial assistance to the government.”

Section 5K1.1 authorizes a judge to depart from the sentencing guideline—a set of standards used to assess an appropriate sentencing range for a defendant—if the government files a motion “stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense . . .” A court cannot depart from the guidelines under Section 5K1.1, unless the prosecution files such a motion.

The government reiterated its position on December 18, 2018, at Flynn’s originally scheduled sentencing hearing. “Mr. Flynn should receive probation,” prosecutors said, with lawyer Brandon Van Grack, who represented the special counsel’s office, “thoroughly prais[ing] Mr. Flynn, telling the court: ‘I’d like to highlight that General Flynn has held nothing back, nothing in his extensive cooperation with the Special Counsel’s Office. He’s answered every question that’s been asked. I believe they feel that he’s answered them truthfully, and he has. He’s complied with every request that’s been made, as has his counsel. Nothing has been held back.”

Prosecutors added that Flynn had “provided substantial assistance to the attorneys in the Eastern District of Virginia in obtaining th[e] charging document” for its prosecution of Flynn’s former business partner, Bijan Rafiekian.

But a week ago, in its Supplemental Memorandum of Sentencing, prosecutors reneged on their promise. After acknowledging in the opening paragraph of its memorandum that “it filed a motion for a downward departure pursuant to Section 5K1.1,” for substantial assistance, government attorneys asserted they were “no longer moving for a departure under U.S.S.G.§ 5K1.1 for providing substantial assistance to the government.”

That’s a problem, because prosecutors already admitted that Flynn had provided substantial assistance to the government “in obtaining th[e] charging document” for the prosecution of Flynn’s former business partner, and the plea agreement requires the government to file a 5K1.1 motion if Flynn provided substantial assistance. Further, there is nothing in the plea agreement that purports to provide the government with the power to withdraw a 5K1.1 motion for substantial assistance.

In short, the government breached the plea agreement. read more