WASHINGTON — Former National Security Advisor Michael Flynn’s attorneys argued in a new court filing that the onetime DIA chief should get no jail when he’s sentenced a week from today for lying to the FBI.
The filing suggests that Flynn may have been unaware he was committing a crime and also underscored his “timely and substantial assistance to law enforcement” in special counsel Robert Mueller’s investigation as part of his plea deal.
Flynn pleaded guilty to lying to federal investigators on Dec. 1, 2017. The original court filing, which indicated he was working with special counsel investigators, said he “falsely stated and represented” to FBI agents that while working on the Trump transition team on Dec. 29, 2016, he “did not ask the government of Russia’s ambassador to the United States to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia that same day,” along with Flynn telling investigators he “did not recall the Russian Ambassador subsequently telling him that Russia had chosen to moderate its response to those sanctions as a result of his request.” Flynn lied multiple times on multiple occasions, the special counsel said.
In a heavily redacted sentencing memo filed last week in the U.S. District Court for the District of Columbia, Mueller said that “given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted.”
Mueller wrote that Flynn “deserves credit for accepting responsibility in a timely fashion and substantially assisting the government.” Flynn has participated in 19 interviews with special counsel or other Justice Department investigators, the Mueller filing revealed. He’s also provided “documents and communications.”
He’s “assisted with several ongoing criminal investigations,” including a criminal probe into a redacted name or entity, the Mueller probe into potential coordination between the Russian government and the Trump campaign, and another fully redacted matter.
Flynn’s attorneys are asking for not more than a year of probation, “minimal conditions of supervision,” and 200 hours of community service.
“As the government has made clear, his cooperation was not grudging or delayed. Rather, it preceded his guilty plea or any threatened indictment and began very shortly after he was first contacted for assistance by the Special Counsel’s Office,” they wrote, describing Flynn’s meeting with FBI agents and noting he wasn’t advised that lying to the FBI was a crime. “…General Flynn’s case differs from that of Alexander Van der Zwaan, who pled guilty to lying to the Special Counsel and failing to produce requested documents. Unlike General Flynn, Mr. Van der Zwaan is a trained attorney who was represented by counsel during the interview; he was interviewed at a time when there was a publicly disclosed, full-bore investigation regarding Russian interference in the 2016 election; and he was given a warning that it is a federal crime to lie during the interview.”
Flynn’s case “also differs” from another subject who has pleaded guilty in the investigation, former Trump campaign aide George Papadopoulos, who “was warned that lying to investigators was a ‘federal offense’ that could get him ‘in trouble.'”
As a mitigating factor, Flynn’s counsel stresses that the retired lieutenant general “agreed to a proffer with the Special Counsel’s Office upon its first request to speak with him, and with only the scanty protections of a typical Department of Justice proffer letter.”
Five of his 19 meetings with Mueller’s team were before Flynn pleaded guilty. Flynn’s lawyers said the sit-downs amounted to 62 hours and 45 minutes with the special counsel.
“Additionally, General Flynn has produced thousands of documents to the Department of Justice. Even before his voluntary pre-plea proffer sessions, he had chosen to produce sweeping categories of documents held by his two companies, rather than fight over the breadth of subpoenas, and facilitated the production of electronic devices. After his Plea Agreement, he made another five productions of documents,” the filing adds.