Lt. Gen. Michael Flynn, former national security adviser to President Donald Trump, will have to wait longer to find out his penalty for lying to the FBI, after a federal judge delayed the sentencing.
U.S. District Court Judge Emmet Sullivan agreed with the defense to give Flynn more time to continue in his cooperation with cases against two of his former associates who face charges for concealing that they lobbied in the United States on behalf of Turkey.
Flynn has extensively cooperated with government prosecutors on multiple investigations and further cooperation will give him yet more grounds to ask for a lenient sentence. Even before the delay, the prosecutors were asking for a low sentence, including no prison time, while the defense wanted no more than a year of probation and community service.
Sullivan said Flynn’s crime was serious because he had lied while a senior official in the White House. On the other hand, Sullivan said he would like to be in a position where he can see that the defendant has done all he can to cooperate. He also said that his purpose wasn’t “to sandbag anyone” and that the parties can still proceed with the sentencing if they want to.
More than a year ago, Flynn pleaded guilty to lying to two FBI agents about conversations with Russian Ambassador Sergey Kislyak that took place when former President Barack Obama imposed additional sanctions on Russia in December 2016. He also pleaded guilty to lying about asking Russia to vote against or delay the vote on a U.N. Security Council resolution. Finally, he pleaded guilty to lying about his foreign lobbying disclosures regarding the extent to which his work benefiting the Turkish government was overseen by that government. Foreign lobbying paperwork violations are seldom prosecuted. Flynn said the work started in August 2016. He shut down his lobbying firm in November 2016.
Over the past week, both Flynn and the prosecutors with the office of special counsel Robert Mueller filed court documents that raised questions about the circumstances of the FBI interview with Flynn.
The judge gave Flynn’s lawyers an opportunity to respond to the revelations, including by asking whether they thought Flynn was entrapped by the FBI agents, whether they alleged he was prompted to lie by some misconduct of the agents, or whether he wished to withdraw his plea. The lawyers responded in the negative to the questions.
Sullivan scheduled a status report on the case for March 13, when Flynn will report if he is ready for sentencing yet.
In his Dec. 11 sentencing memorandum, Flynn’s lawyers cited two internal FBI documents that detailed the circumstances of Flynn’s Jan. 24, 2017, interview with then-FBI counterintelligence deputy head Peter Strzok and another agent, implied by Congress investigators to be Joe Pientka.
One of the documents was a memorandum from Jan. 24, 2017, by then-Deputy FBI director Andrew McCabe, who wrote that he had advised Flynn before the interview that it would be “quickest” if he did not have anyone, not even a legal counsel present during the questioning, otherwise McCabe would have needed to “involve the Department of Justice.”
Flynn’s sentencing memo prompted Sullivan to demand that Flynn submit the documents. Sullivan also asked Mueller to submit any other such documents relevant to the FBI interview.
In response, Mueller released redacted copies of four documents, including the McCabe memo and also the original report, the FBI form FD-302, from the Flynn interview.
The 302 form offers an insight into the basis for the Mueller team’s original indictment against Flynn, which was filed on Nov. 30, 2017.
The indictment stated that Flynn “falsely stated and represented” that he didn’t ask Russian Ambassador Sergey Kislyak on Dec. 29, 2016, “to refrain from escalating the situation in response to [the Obama’s] sanctions.”
The 302 indicates Flynn was fuzzy in his recollection when asked if he “might have encouraged” Kislyak not to escalate the situation or engage in “tit-for-tat.”
“Not really,” Flynn said. “I don’t remember. It wasn’t, ‘Don’t do anything.’ ”
A the time of the call with Kislyak, Flynn was on a family vacation in the Dominican Republic and “remembered making four to five calls that day about the issue,” but “kept having connectivity issues.”
Flynn further said he “did not have a long drawn out discussion with Kislyak where he would have asked him to ‘don’t do something,’ ” the 302 said.
Flynn’s request partially succeeded as Russia delayed retaliation to the sanctions for several months.
It appears Flynn also discussed other matters with Kislyak that day, but those were redacted in the released 302.
The indictment then alleged that Flynn lied by saying he “did not recall” Kislyak “telling him that Russia had chosen to moderate its response to those sanctions as a result of his request.”
What the 302 said on the matter was that “Flynn stated it was possible that he talked to Kislyak on the issue, but if he did, he did not remember doing so.”
As Flynn later acknowledged in his guilty plea (pdf), Kislyak did inform him about Russia’s decision. But it was in a call two days later, on Dec. 31, and a day after Russian President Vladimir Putin already issued a statement to that effect.
The second point of the indictment alleged that Flynn “falsely stated and represented” that on Dec. 22, 2016, he “did not ask” Kislyak to “delay vote on or defeat a pending United Nations Security Council resolution” and that Kislyak “never described to Flynn Russia’s response to his request.”
The 302 stated that Flynn, upon being reminded, explained he called “a litany of countries,” including “maybe Russia” that day to “get a sense of where countries stood on the UN vote.”
The agents inquired whether he asked Kislyak for Russia “to vote in a particular way or take any action.” Flynn said he didn’t, the 302 stated. He repeated that the “calls were about asking where countries would stand on a vote, not any request of, ‘hey if you do this.’ ”
Flynn went further to explain the whole endeavor was partly an “exercise” to see how quickly he could get foreign dignitaries on the phone. He said “he did not believe his calls to the various countries would change anything,” the 302 stated.
Indeed, the resolution, pertaining to Israeli settlements in the West Bank and East Jerusalem, was passed nearly unanimously with only the United States abstaining.
Flynn was “unguarded and clearly saw the FBI agents as allies” during the interview, according to another 302, which a lawyer from the Mueller team created based on a July 19, 2017, interview with Strzok.
“Strzok and [the other agent] both had the impression at the time that Flynn was not lying or did not think he was lying,” the Strzok 302 stated.