A sentencing memo filed Wednesday by former National Security Advisor Michael Flynn’s defense attorney states that the Justice Department prosecutor’s reversal in asking for prison time on Flynn is retribution for his decision not to testify to ‘lies’ in the case of his former business partner, whose conviction was overturned by a federal judge last year.
Sidney Powell, Flynn’s defense attorney, asked the courts for leniency suggesting probation, instead of the current prosecutions demands to sentence Flynn for up to six months in prison for one count of lying to the FBI. Her memo also detailed major issues she said amounts to prosecutorial misconduct in her client’s case and the reason why Flynn was coerced by prosecutors into pleading guilty.
“If after the briefing filed this Friday, the government continues to wrongfully on the path to sentencing, Mr. Flynn should be given probation,” she told SaraACarter.com. “He is innocent of all charges, he is a national treasure, and he is a patriot. This entire prosecution is a travesty of justice and a grotesque abuse of power by the FBI and DOJ while they still hide the original 302 that shows he told the truth.”
Judge Emmet Sullivan, who is presiding over Flynn’s case, granted Powell’s request for a delay. Last week, Sullivan pushed Flynn’s sentencing hearing from Jan. 28 to Feb. 27.
Flynn has requested to withdraw his guilty plea, which was an agreement he made while cooperating with former Robert Mueller’s special counsel’s office when it began investigation the now debunked theory that the Trump campaign colluded with Russia during the 2016 election. At the time, he had pleaded guilty to lying to federal investigators about the content of his phone conversation with former Russian ambassador Sergey Kislyak to the U.S.
In Powell’s memo to the court she argues to Sullivan that “this court should swiftly reject the government’s brazen attempt to punish Mr. Flynn for refusing to compose rather than sing.”
“The reversal of its sentencing position is not only unjust, it is unlawful,” she noted. “If left unchecked, it will send a dangerous message to cooperators – give testimony consistent with the government’s theory of the case, regardless of veracity, or pay the price with your freedom.”
Powell also laid out a series of evidence, she contends conflicts with the facts of the case. For example, government prosecutor Attorney Brandon L. Van Grack demands suggesting that that Flynn lie to the courts in the case of his former partner Bijan Rafiekian, who helped establish the Flynn Intel Group and was acquitted of all charges last year.
Flynn had fully cooperated with prosecutors prior, as in the case of Mueller’s investigation into President Donald Trump, and was lauded for his cooperation in December, 2018. Then prosecutors said Flynn had provided “substantial assistance” to the U.S., special counsel prosecutors in a memo and recommended a no prison sentence.
However, prosecutors were quick to change their minds after blaming Flynn last year when his partners case was overturned. Prosecutors contend that Flynn knew when the Foreign Agent Registration Application Form was filed it by his attorney’s that it contained false statements. But according to evidence revealed in Rafiekian’s case the prosecution’s assertions appeared to be unfounded.
Powell says the government “ignores the facts in its possession as well as the decision of another court,” referring to the evidence uncovered in Rafiekian’s case. “Any misstatements in the March, 2017 FARA filing at issue were not the fault of Mr. Flynn. He gave his lawyers complete and accurate documents and information. Moreover, he did his part to make sure any FARA filing was accurate.”
For example, Flynn Intel Group did file a Lobbying Disclosure Act as early as September, 2016 under the advice of a well-respected lawyer in the field, Robert Kelley, who had advised Flynn Intel Group repeatedly that a FARA was not necessary when dealing with a foreign company. In this instance it was Innova BV, a firm based in Holland and owned by the Turkish businessman, Ekim Alptekin.
Flynn later filed a FARA with his previous attorney Robert Kelner, an expert in FARA filings, under pressure from the FARA office and government officials at the Department of Justice.
The lawyer stated in testimony to the courts that he had filed many Lobbying Disclosure Acts with other reputable companies and the FARA was only when dealing with foreign government’s directly. Further, Powell argued that the government had stated repeatedly that “Mr. Flynn was not culpable for the false FARA statements or conspiring to cause false FARA statements.”
More importantly, Flynn never hid any meetings he had with Turkish officials. In fact, Flynn even briefed the Defense Intelligence Agency, before meeting with Turkish officials in November, 2016. Flynn was the director of the DIA under the Obama Administration and was eventually removed by Obama after speaking out against the then administration’s narrative that major terrorist organizations, like al-Qaeda had been defeated.
Further, Powell noted that the presiding judge in Rafiekian’s case, Judge Anthony Trenga, asked the government “point blank whether it was asserting that Mr. Flynn was part of a conspiracy to cause a false FARA statement. The government was clear, ‘we do not contend that General Flynn was a part of that conspiracy.’
More disturbing says Powell is vital evidence that the government still has not produced: the original FBI 302 interview with Flynn. According to Powell’s memo, government prosecutor Attorney Brandon L. Van Grack had testimony from Flynn’s former lawyer Brian Smith, with the law firm Covington and Burling, knew emails showed Rafiekian wrote the first draft of the opinion editorial at the center of the controversy and the client, Inovo BV. The opinion editorial was against the Turkish Islamic leader living in exile in the United States: Fethullah Gülen. The Turkish government is seeking extradition of Gülen, claiming he is responsible for an attempted coup. Flynn’s opinion editorial was published in November, 2016 Flynn published the editorial in The Hill, nearly two months after the Lobbying Disclosure Act was filed in Washington D.C.
According to the memo, a major argument by prosecutors doesn’t hold water. For example, Inovo BV was upset and did not like the op-ed and they didn’t think the government of Turkey would either.
Moreover, substantial testimony by government witness retired FBI agent Brian McCauley makes that clear. He testified during the Rafiekian trial that he, along with the Flynn Intel Group, slapped down every request or suggestion made by Alptekin regarding the meeting between the Flynn Intel Group and the Turkish officials they met with. Also attending the dinner meeting in New York with the Turkish officials in September, 2016 was former CIA director James Woolsey. In fact, McCauley testified that they gave no instructions or directions to anyone regarding the requests, Powell memo reveals.
Covington and Burling, as well as the government, also allegedly claimed they had emails that showed Rafiekian wrote the first draft of the opinion editorial at the center of the controversy but those emails have still to be produced by the prosecutors in the case.