Prosecutors overseeing Michael Flynn’s cooperation with the government have suddenly withdrawn him as a witness in the upcoming trial of Bijan Kian, signaling a significant and potentially damning new break between the former national security adviser and the Justice Department.
“The government does not plan to call Flynn as a witness,” prosecutors said.
New court documents unsealed on Tuesday show that prosecutors no longer have confidence in Flynn’s testimony since he appears to have changed his story. Flynn and Kian, his business associate, have been accused of working as secret agents of the Turkish government in 2016 — which he was serving as an adviser to then-candidate Donald Trump — and lying about their activities to the United States in violation of the Foreign Agents Registration Act. Flynn has admitted his guilt to FARA violations and cooperated with investigators, pleading down to the lesser charge of lying to the FBI in the course of the Russia investigation.
Flynn was supposed to testify against Kian, but after having recently hired new legal representation, he had changed his story. While he still contends that he provided a false FARA filing to the government, he is blaming his previous attorneys for the inaccuracies.
“The prosecutors have been adamant Mr. Flynn testify that he authorized filing the FARA form knowing and intending that it contain false statements,” wrote Sidney Powell, Flynn’s aggressive new lawyer. “Mr. Flynn cannot give that testimony because it is not true.”
Prior to joining Flynn’s legal team, Powell had been publicly critical of Special Counsel Robert Mueller and the Russia investigation more broadly.
Prosecutors say they believe they can still make the case against Kian without Flynn’s testimony. They also said they will now consider Flynn an unindicted co-conspirator in the case.
Flynn’s lawyers insist, however, that despite his shifting story, he should still be considered a cooperating witness.
Politico noted: “It’s unclear whether prosecutors consider their current disagreement with Flynn so significant that they will accuse him of breaching his plea agreement. That could expose him to new charges.”
In a sentencing memo, Mueller’s office praised Flynn and suggested that, given his cooperation, it could be reasonable to give him a sentence that includes no prison time.
“The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government,” Mueller said in the memo. But now, it appears Flynn may not be accepting full responsibility, instead blaming his attorneys. In a previous court filing, Flynn had also suggested he has little remorse by attempting to shift blame for lying to the FBI to the agents who questioned him. And by hiring Powell at all, Flynn sent a clear message that he wasn’t happy with the direction of the case.
All this could mean trouble for Flynn by the time his sentencing comes around. Judge Emmet Sullivan accused him of selling his country out at his first sentencing hearing in December 2018, and despite Mueller’s favorable memo, he seemed inclined to give Flynn a severe penalty. Flynn decided to hold off on sentencing until his cooperation was complete.
Now that his cooperation with the government has hit choppy waters, Sullivan may decide to given Flynn an even harsher sentence than he otherwise would have.
However, there’s a strong likelihood that Flynn has a longer-term strategy in mind. Many believe he’s angling for a pardon from the president, who has frequently expressed sympathy for Flynn. Because of the president and his base’s animosity toward the Mueller investigation, pardoning Flynn could provide something of a cathartic release. But it could also backfire on Trump.
In some ways, antagonizing Judge Sullivan may actually help Flynn’s case for a pardon. If Sullivan issues an excessively punitive sentence, that could make it easier for Trump to claim that Flynn was treated unfairly. And if he’s now claiming that he wasn’t actually responsible for filing a false FARA form, Trump defenders could say Flynn just got caught up in a big misunderstanding.