National Security Adviser-designate Michael Flynn arrives on Capitol Hill in Washington, Friday, Jan. 20, 2017, for the presidential inauguration of Donald Trump. (Saul Loeb/Pool Photo via AP)

Yesterday was a day of drama in the prosecution of former Mike Flynn business partner, Bijan Rafiekian, for a chickensh** violation of the Foreign Agents Registration Act. I posted on the decision by Flynn’s counsel, Sidney Powell, to tell the court that Flynn could not truthfully testify the way Justice wanted because Justice wanted him to lie. Justice, for its part, attempted to, without evidence, change Flynn’s status from cooperating witness to unindicted co-conspirator so they could still use the testimony he’s now saying is untrue without having to call Flynn as a witness.

What followed was a series of decisions by the trial judge that calls into question the ability of the federal government to pursue its case and left a great deal of questions about whether Flynn had breached his plea agreement and even the value of the agreement itself.

Phase One. The Feds get their ass handed to them.

The court ruled that Flynn could not be a co-conspirator because there was no claim that a conspiracy exists:

Part of that may be because when federal prosecutors said they were using Flynn, they also told the court that there was no conspiracy:

There will also be no conspiracy charges made against Rafiekian:

The court also said the government can’t argue that the contract at the center of the case was paid for by the Turkish government because there is no evidence that is the case.

There is a decision outstanding on whether the government can even use some of the information from partnership attorneys that Flynn provided to the government because Rafiekian shared the costs of the attorneys and it may violate his attorney-client privilege.

On the whole, this was ugly. Flynn will not be called by the government. There will be no conspiracy allegations. The government can’t argue as a fact that the contract was on behalf of the Turkish government, only that someone told Rafiekian that it was. That, alone, seems to torpedo the FARA charge. Some of the evidence the government is planning on using may be illegal. It is hard to see how this is even prosecutable unless your objective is to make the expense of the trial punishment for a guy you know you can’t convict.

Phase Two. Is Mike Flynn in deep do-do?

It is hard to tell.

There is a hearing today on this subject before Judge Emmett Sullivan who famously accused Flynn of treason in a previous hearing.

Judge Emmet Sullivan wants to hear more from Michael Flynn, federal prosecutors about Flynn no longer planning to testify as a witness against ex-business partner. ORDER: pic.twitter.com/EXZhYEfLom — Mike Scarcella (@MikeScarcella) July 9, 2019

While he’s probably interested in Flynn’s more nuanced approach to the guilty plea that has evolved with a change of counsel:

He is also going to be interested in how Mueller’s team portrayed Flynn’s involvement to the court and how the prosecutors in the Rafiekian case have described it.

4/ be charged with a conspiracy. If the former: Then the Special Counsel misrepresented to Sullivan Flynn's potential criminal history. If later, that is yet further proof that the government's attempt to brand Flynn a co-conspirator in the E.D. Virginia case was ridiculous. — Margot Cleveland (@ProfMJCleveland) July 10, 2019

6/ about face in trying to brand Flynn a co-conspirator, the question is: Did Special Counsel misrepresent to Sullivan that Flynn could have been "indicted in that indictment," meaning the E.D. of Virginia indictment. NOTE: The question is not indicted on other charges, but — Margot Cleveland (@ProfMJCleveland) July 10, 2019

7/7 specifically Sullivan asked if Flynn could have been indicted in the pending E.D. of Virginia indictment. More, I'm sure, when I finish reading everything. END — Margot Cleveland (@ProfMJCleveland) July 10, 2019

9/7 (Adding to this thread as I follow up strands). So, compare what Flynn's statement of offense said re the false statements to FBI and false statements in FARA? That "then and there knew" is significant. AND significantly, Special Counsel had NOT required Flynn to state pic.twitter.com/d1Ef8GHG09 — Margot Cleveland (@ProfMJCleveland) July 10, 2019

Neither government nor Flynn is in for a pleasant day. Sullivan is not a government toady, like a lot of judges. He also doesn’t like to be f***ed with. Flynn, at least, can hide behind his counsel’s claim that previous counsel screwed the pooch in their plea negotiations. I’m not sure what the government plans on using as an excuse.

(h/t to the great work by TechnoFog and Margo Cleveland)

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