2019-07-10 15:53:401 Oct 2018 01:53 AM EST
Just because former special counsel Robert Mueller turned in his final report back in March doesn't mean the investigations and trials are over. He just handed them off to other courts. One of those is the case of former National Security Adviser Michael Flynn. But things just changed dramatically for him, as federal prosecutors no longer believe him and no longer want him to testify against his ex-partner.
Flynn was on the job in Donald Trump's administration for mere days when he was fired after it became known he'd lied to both the FBI and Vice President Mike Pence about his contact with Russian ambassador Sergey Kislyak. He pleaded guilty to lying and took a plea deal in December 2017, agreeing to work with investigators.
Late last year Flynn appeared before U.S. District Judge Emmet G. Sullivan in Washington for his sentencing. The judge grew angry with him and scolded, "Arguably, you sold your country out." He advised him it was best to delay his sentencing at that point, since he was still cooperating and because he was likely to send him to prison.
In May Sullivan ordered the Justice Department to make some materials related to Flynn's case available to the public. These materials included transcripts of recordings of Flynn, including his conversation with Kislyak in December 2016.
Flynn's delayed sentence was again put on hold in June so he could testify against Bijan Rafiekian, his partner in a consulting business.
Recently unsealed court filings state that Flynn will not be needed to testify against Rafiekian, who also goes by Bijan Kian, in Alexandria federal court next week because prosecutors no longer believe his version of events.
Included in the unsealed filings is an email from Assistant U.S. Attorney James P. Gillis. He ended the communication by writing prosecutors "do not necessarily agree" with the former national security adviser's "characterizations" of why he made an inaccurate filing under the Foreign Agent Registration Act for a campaign involving Turkey.
Flynn contends it was not false information he provided to his attorneys at the time, that he did not read the FARA filing before he signed it, and that he wasn't aware it contained false information.
Rafiekian's attorneys say they have "interpreted the email's final sentence as a euphemism for 'we've concluded [Flynn] is lying.' "
Prosecutors now view Flynn as a co-conspirator. This is a legal distinction that would allow them to introduce his earlier statements at the trial.
On Tuesday Judge Anthony J. Trenga ruled that Flynn could not be a co-conspirator, however. Trump tweeted the news, seeming to view it as a victory for Flynn. But the judge's ruling doesn't exonerate him — it only means he found that the government didn't provide enough evidence to show a conspiracy — ironically, the same thing Mueller found in the Russia investigation.
Additionally, the judge said "evidence from Flynn" is "notably absent" from the prosecutors' argument and that he may change his ruling as more evidence is introduced in the trial.
He fired the law firm that had been working with him on his plea deal and through much of his cooperation. He replaced the firm with conservative attorney Sidney Powell, who has criticized the DOJ.
"General Flynn is still cooperating with the government, even if they don't call him as a witness," said Powell in a statement.
While Flynn admitted to lying to the FBI initially, acknowledging "materially false statements and omissions" about the Turkish government's role in a project and was expected to testify that it was intentional, the unsealed documents show this is not the case.
In the unsealed documents Flynn's attorneys state that while "with some hindsight" he understands the filing contained falsehoods, he can't honestly say he was "knowing and intending" to lie.
"This is a complex area of law about which he knew nothing," wrote the attorneys, something prosecutors call a "reversal" and "surprising."
Rafiekian's trial is set to begin next Monday. He is charged with acting as a foreign agent without permission and conspiring to do so by lying in the FARA filing.
He claims he is innocent and that he and Flynn were acting on legal advice and their own understanding of the project when they referred to their client as a Dutch firm called Inovo BV rather than the Turkish government.
This all came crushing down on Flynn the day before the 2016 election when he published an opinion piece in the Hill newspaper, stating he believed Turkey was "vital to U.S. interests," and exiled Turkish cleric Fethullah Gulen as a "shady Islamic mullah." The Turkish project he was working on was a campaign against Gulen.
The very next month, when Trump was president-elect, he spoke with Kislyak.
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