By Robert Willmann
After filing a request last week Tuesday to withdraw his guilty plea, Gen. Michael Flynn's attorneys filed a clarifying brief on Friday, 17 January. The judge then adjusted the court schedule--
"01/17/2020 Minute Order as to Michael T. Fynn granting in part and denying in part 152 Defendant's Motion to Continue Briefing Deadlines. The parties shall adhere to the following modified briefing schedule: (1) Mr. Flynn shall file his 'Supplemental Motion to Withdraw for alternative additional reasons' by no later than 12:00 PM on January 24, 2020; (2) the government shall file its response to Mr. Flynn's motion and supplemental motion by no later than 12:00 PM on February 7, 2020; and (3) Mr. Flynn shall file his reply brief by no later than 12:00 PM on February 13, 2020. The sentencing hearing shall remain as currently scheduled. Signed by Judge Emmet G. Sullivan on 1/17/2020. (lcegs3) (Entered: 01/17/2020)".
The clarifying document was entitled "Corrected Supplemental Brief in Support of Motion To Withdraw Plea of Guilty". It mainly addressed the point that a prosecutor's allegation -- that Flynn knew there were false statements in a FARA application -- was removed from a draft proposed plea agreement and factual basis for the plea, because Flynn maintained that he did not make the false statements [1]. This led to the dispute between Flynn's new lawyers and the Justice Department, which erupted before the trial of Bijan Rafiekian in Alexandria, Virginia in July 2019. Flynn was going to testify in that trial, and the prosecutors told the trial court judge in the Rafiekian case that Flynn was not a co-conspirator with Rafiekian and Kamil Alptekin. But then when Flynn refused to change his position that he did not make false statements in a FARA application, and refused to testify in the trial that he had made false statements, the Justice Department suddenly switched and told the judge in the Rafiekian case that Flynn was a co-conspirator after all.
This is further explained in Flynn's corrected brief, along with the point that in FBI interviews of two Covington & Burling lawyers who had previously represented Flynn -- Robert Kelner and Brian Smith -- those lawyers indicated that Flynn had been telling them the truth. Those FBI Form 302 interview reports were not disclosed until the government filed its supplemental sentencing memo on 7 January 2020. Here are the clarifying brief, along with the first of four exhibits included with it. The exhibit shows that language about false statements was to be removed from Flynn's plea documents. The other three exhibits were e-mails about the plea documents between Flynn's lawyers and "special counsel" Robert Mueller's group.
https://turcopolier.typepad.com/files/michaelflynn_corrected_supp_brief.pdf
https://turcopolier.typepad.com/files/flynn_exhibit_1_20200117.pdf
The motion by Flynn to withdraw his guilty plea was discussed on SST in an article last week, and the document filed with the court clerk can be viewed or downloaded for reading [2].
The primary argument in the motion to withdraw the guilty plea was that the Justice Department (DOJ) had breached and broken the plea bargain agreement it made with Flynn. The motion also mentioned issues of prosecutorial vindictiveness and a violation of constitutional due process through an unconstitutional motive on the part of the DOJ prosecutors.
Flynn's supplemental motion to withdraw his guilty plea for alternative additional reasons is to be filed by noon this Friday.
[1] FARA is the acronym for the Foreign Agents Registration Act, which is found at Title 22, U.S. Code, chapter 11, with the heading: Foreign Agents and Propaganda.
https://uscode.house.gov/view.xhtml?path=/prelim@title22/chapter11&edition=prelim
https://www.law.cornell.edu/uscode/text/22/chapter-11
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