Two years after former National Security Adviser Michael Flynn pleaded guilty to lying to the FBI, he is attempting to withdraw his plea and get his case tossed out. In a move that suggests he might be on to something, the Justice Department is backing away from a prison recommendation, saying probation would be a “reasonable sentence.”
The case stemmed from the federal investigation into the alleged links between Donald Trump’s presidential campaign and Russian interests. Flynn was accused of concealing conversations he had with a Russian ambassador during the Obama-to-Trump transition, as well as trying to hide his work representing the Turkish government. As part of his plea deal, Flynn promised to cooperate with Special Prosecutor Robert Mueller’s investigation.
Mueller’s eventual report failed to provide either the smoking gun that Trump’s opponents wanted or the complete exoneration that Trump’s supporters insist is in there. Now Flynn is accusing his former defense team of giving him bad advice, due to some complicated conflict of interest issues. (The Washington Post explains it here.) His new lawyers have also latched onto the problems the Justice Department’s Office of the Inspector General found with the warrant applications to snoop on Carter Page. Flynn’s team argues that prosecutors withheld potentially exculpatory evidence (such as misconduct during the investigation itself) and that a wayward prosecutor was trying to suborn perjury and trying to get him to make false statements.
Flynn is now claiming that he never lied and that he “succumb[ed] to the threats from the government to save my family.” (According to Flynn, the authorities threatened to indict his son as well.)
Meanwhile, prosecutors are backing off the idea that Flynn should do prison time, comparing his alleged crimes with those of former National Security Adviser Sandy Berger and Gen. David Petraeus, neither of whom went to jail for their crimes. (Berger lied about removing classified information from the National Archives. Petraeus pleaded guilty to mishandling classified information and providing access to his biographer with whom he was having an affair.) But the Justice Department still insists that Flynn is guilty and that his plea should be accepted.
A judge will have to decide what to do by the end of February, when Flynn is due to be sentenced. It’s difficult to get a judge to withdraw a guilty plea. On the other hand, the new evidence gives Flynn’s complaints more credibility than they would have had back in 2017.
One lesson: Prosecutors depend far too much on intimidating people into accepting plea deals rather than actually proving their case. Another: People in positions of power and influence are better able to push back against possible prosecutorial misconduct. Not everyone has the resources of Michael Flynn.
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